SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(D) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) July 2, 1998
AMPEX CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-20292 13-3667696
(Commission File Number) (I.R.S. Employer I.D. No.)
500 Broadway, Redwood City, California 94063
(Address of Principal Executive Offices)(Zip Code)
(415) 367-2011
(Registrant's Telephone Number, Including Area Code)
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ITEM 5. OTHER EVENTS.
Effective as of July 2, 1998, the Company completed its previously
announced redemption (the "Redemption") of 69,970 outstanding shares of its 8%
Noncumulative Preferred Stock, with an aggregate liquidation value of $70.0
million (the "Old Preferred Stock") in exchange for the following securities:
(i) 3,000,000 shares of its Class A Common Stock, par value $0.01 per share (the
"Class A Stock"); (ii) 10,000 shares of a new series of 8% Noncumulative
Convertible Preferred Stock, par value $1.00, with an aggregate liquidation
value of $20.0 million (the "Convertible Preferred Stock"); and (iii) 21,859
shares of a new series of 8% Noncumulative Redeemable Preferred Stock, par value
$1.00 per share, with an aggregate liquidation value of $43.7 million (the
"Redeemable Preferred Stock").
Each share of Convertible Preferred Stock and Redeemable Preferred Stock
(together, the "New Preferred Stock") will entitle the holder thereof to receive
noncumulative dividends at the rate of 8% per annum, if declared by the
Company's Board of Directors. Each share of Convertible Preferred Stock may be
converted, at the option of the holder thereof, into 500 shares of Class A
Stock, subject to adjustment under certain circumstances. Beginning in June
2001, the Company will become obligated to redeem the Convertible Preferred
Stock in quarterly installments until March 2008. The Company will also be
obligated to redeem the Redeemable Preferred Stock in quarterly installments
from June 1999 until December 2008. The Company will have the option to redeem
the Redeemable Preferred Stock at any time and the Convertible Preferred Stock
beginning in June 2001, and will have the option to make both optional and
mandatory redemption payments either in cash or in shares of Common Stock. In
the event that the Company does not have sufficient funds legally available to
make any mandatory redemption payment in cash, the Company will be required to
make such redemption payment by issuing shares of its Common Stock. Shares of
Common Stock issued to make any optional or mandatory redemption payments will
be valued at the higher of $2.50 or fair market value per share of Common Stock.
The Company will also be required to offer to redeem the outstanding shares of
New Preferred Stock for cash at liquidation value in the event of a Change of
Control (as defined) of the Company.
The issuance of the New Preferred Stock in connection with the
Redemption was exempt from registration under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to Sections 3(a)(9) and/or 4(2)
thereof. To the extent that any shares of the New Preferred Stock or the Common
Stock issued or issuable in connection therewith may not be sold under Rule
144(k) of the Securities Act, the Company has agreed to register such securities
for resale under the Securities Act. The 3,000,000 shares of Class A Stock
issued in the Redemption resulted in dilution of approximately 5.5% (on a fully
diluted basis) of the stockholders' equity interests in the Company. If all of
the 5,000,000 shares issuable upon conversion of the Convertible Preferred Stock
are also issued, the total dilution to stockholders would be approximately
14.7%.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(i) Financial Statements.
Not applicable
(ii) Exhibits
Exhibit
Number Description
3.1 Certificate of Designations, Preferences and Rights
of the Registrant's 8% Noncumulative Convertible
Preferred Stock and 8% Noncumulative Redeemable
Preferred Stock, as filed with the Secretary of
State of Delaware on July 2, 1998.
4.1 Exchange Agreement for 8% Noncumulative Preferred
Stock, dated as of June 22, 1998, among the
Registrant and the Holders named therein.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
AMPEX CORPORATION
(Registrant)
Date: July 2, 1998 By: /s/ Edward J. Bramson
-----------------------
Name: Edward J. Bramson
Title: Chairman
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF THE
8% NONCUMULATIVE CONVERTIBLE
PREFERRED STOCK
and
8% NONCUMULATIVE
REDEEMABLE PREFERRED STOCK
(Par Value $1.00 Per Share)
of
AMPEX CORPORATION
------------------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
------------------------------------------
Ampex Corporation (formerly known as Ampex Incorporated), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (hereinafter called the "Corporation"), does hereby certify:
That, pursuant to authority conferred on the Board of Directors of the
Corporation by the Restated Certificate of Incorporation of said Corporation,
and pursuant to the provisions of Section 151 of Title 8 of the Delaware Code of
1953, as amended, said Board of Directors, at a meeting held on June 24, 1998,
adopted a resolution providing for the issuance of two series of Preferred Stock
consisting of Ten Thousand (10,000) shares of 8% Noncumulative Convertible
Preferred Stock, $1.00 par value per share, and Twenty-One Thousand Eight
Hundred Fifty Nine (21,859) shares of 8% Noncumulative Mandatorily Redeemable
Preferred Stock of the Corporation, $1.00 par value per share, which resolution
is as follows:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with provisions of the Restated Certificate of
Incorporation, as amended of the Corporation, a series of Preferred Stock known
as 8% Noncumulative Convertible Preferred Stock and a series of Preferred Stock
known as 8% Noncumulative Redeemable Preferred Stock be, and hereby are,
created, classified, authorized and the issuance thereof provided for, and that
the designation and number of shares, and relative rights, preferences and
limitations thereof, shall be as set forth in the form appended hereto.
Section 1. Designation and Amount.
The shares of Preferred Stock being created hereby shall consist of two
series, which shall be designated, respectively, as "8% Noncumulative
Convertible Preferred Stock" (the "Convertible Preferred Stock"), and "8%
Noncumulative Redeemable Preferred Stock" (the "Redeemable Preferred Stock").
The Convertible Preferred Stock and the Redeemable Preferred Stock are referred
to collectively herein as the "Preferred Stock." The number of shares of
Convertible Preferred Stock shall be limited to Ten Thousand (10,000) shares,
and the number of shares of Redeemable Preferred Stock shall be limited to
Twenty-One Thousand Eight Hundred Fifty-Nine (21,859) shares. The relative
rights, preferences, restrictions and other matters relating to the Preferred
Stock are contained in this Certificate of Designations. Unless otherwise
specified in this Certificate of Designations, each series of Preferred Stock
created hereby shall have the same relative rights, preferences and limitations.
Section 2. Definitions. As used in this Certificate of Designations, the
following terms shall have the following meanings:
"Affiliate" means, with respect to any Person, any Person (other than
Persons affiliated with Keystone Custodian Funds, Inc., Fidelity Management and
Research Company and/or Fidelity Management Trust Company), that directly or
indirectly, controls, is controlled by or under common control with such Person.
For the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Annual Dividend Rate" has the meaning set forth in Section 4(a) hereof.
"Board of Directors" means the Board of Directors of the Corporation.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in the City of New York, New York are authorized or
obligated by law or executive order to close.
"Capital Stock" means any and all shares, rights to purchase, warrants,
options, participations or other equivalents of or interests (other than
security interests) in (however designated and whether voting or nonvoting)
corporate stock.
"Certificate of Designations" means this Certificate of Designations,
Rights and Preferences establishing the Preferred Stock pursuant to Section 151
of the General Corporation Law of the State of Delaware, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof and pursuant to applicable law.
"Change of Control" means the occurrence of any of the following events:
(i) any Person which is a "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act), other than SCI and its
Affiliates and the Holders and their Affiliates, is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act,
except that a Person will be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the total Voting Stock of the Corporation; (ii)
the Corporation consolidates with, or merges with or into, another Person, or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, the Corporation, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Corporation is
converted into or exchanged for cash, securities or other property; or (iii) any
order, judgment or decree is entered against the Corporation decreeing the
dissolution or split up of the Corporation and such order shall remain
undischarged or unstayed for a period in excess of sixty (60) days.
"Change of Control Offer" has the meaning set forth in Section
8(a) hereof.
"Change of Control Purchase Date" has the meaning set forth in Section 8(b)
hereof.
"Class A Common Stock" means the Class A Common Stock of the Corporation,
$.01 par value per share.
"Class C Common Stock" means the Class C Common Stock of the Corporation,
$.01 par value per share.
"Closing Date" means the date on which the shares of Preferred Stock are
initially issued pursuant to the exchange described in the Exchange Agreement.
"Common Stock" means the Class A Common Stock and Class C Common Stock, and
all shares hereafter authorized of any class of common stock of the Corporation.
"Default" has the meaning set forth in Section 4(c) hereof.
"Dividend Payment Date" has the meaning set forth in Section 4(a) hereof.
"Dividend Period" has the meaning set forth in Section 4(a) hereof.
"Exchange Agreement" means the Exchange Agreement for Preferred Stock,
dated as of June 22, 1998, among the Corporation and each of the Initial Holders
signatory thereto, as the same may be amended, supplemented or modified from
time to time in accordance with the terms thereof.
"Fair Market Value" means, as of any date with respect to the Common Stock,
the average of the prices of Class A Common Stock for the 30 consecutive Trading
Days prior to the day in question. The price of Class A Common Stock for each
day shall be (i) if the Class A Common Stock is listed or admitted for trading
on any national securities exchange, the closing price of the Class A Common
Stock on the principal securities exchange on which such the Class A Common
Stock is listed, (ii) if not listed or admitted for trading on any national
securities exchange, the closing price of the Class A Common Stock on the
National Market System of NASDAQ, or any similar system of automated
dissemination of quotations of securities prices then in common use, if so
quoted, or (iii) if not quoted as described in clause (i) or clause (ii), the
mean between the highest bid and lowest offered quotations for Class A Common
Stock as reported by the National Quotation Bureau Incorporated if at least two
securities dealers have inserted bid quotations for such class of stock on at
least 5 of the 10 Trading Days preceding the day in question. If none of the
conditions set forth above is met, the price of Class A Common Stock on any day
shall be the fair market value of Class A Common Stock as determined by a member
firm of the American Stock Exchange selected by the Corporation.
"Holder" means the person in whose name shares of Preferred Stock are
registered on the books of the Corporation.
"Initial Holder" means each Person in whose name shares of Preferred Stock
are initially registered on the books of the Company, and any permitted
transferee of such Initial Holder that is an affiliate of such Initial Holder.
"Junior Stock" means all Class A Common Stock, Class C Common Stock, and
any other class or series of Capital Stock of the Corporation now or hereafter
issued and outstanding that ranks junior as to dividends and/or liquidation to
the Preferred Stock.
"Liquidation Preference" means, with respect to each share of Preferred
Stock, the sum of $2,000.00 (as adjusted to reflect any stock dividend,
subdivision, reclassification, distribution or similar event relating to the
Preferred Stock).
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation System.
"Person" means an individual, a corporation, a partnership, a joint
venture, an association, a joint-stock company, a trust, a business trust, a
government or any agency or any political subdivision, any unincorporated
organization, or any other entity.
"Preferred Stock" has the meaning set forth in Section 1 hereof.
"Redemption Common Stock" has the meaning set forth in Section
6(c) hereof.
"Redemption Date" means any date on which shares of Preferred Stock are to
be redeemed pursuant to Section 6 hereof.
"Redemption Price" has the meaning set forth in Section 6(a) hereof.
"Restricted Payment" has the meaning set forth in Section 4(d) hereof.
"SCI" means Sherborne & Company Incorporated, a Delaware corporation.
"Securities Exchange Act" means the Securities Exchange Act of 1934, and
the rules and regulations promulgated thereunder, as amended from time to time.
"Subsidiary" means (i) a corporation a majority of the Voting Stock of
which is, at the time, directly or indirectly owned by the Corporation, by a
Subsidiary or Subsidiaries of the Corporation (as the case may be) or by the
Corporation and a Subsidiary or Subsidiaries of the Corporation (as the case may
be), or (ii) any other Person (other than a corporation) in which the
Corporation, one or more Subsidiaries of the Corporation (as the case may be),
or the Corporation and one or more of its Subsidiaries (as the case may be),
directly or indirectly, at the date of determination thereof, has at least
majority ownership interest.
"Trading Day" means, with respect to the Common Stock (i) if any series of
Common Stock is listed or admitted for trading on any national securities
exchange, days on which such national securities exchange is open for business,
or (ii) if any series of Common Stock is quoted on the National Market System of
NASDAQ or any similar system of automated dissemination of quotations of
securities prices, each day on which trades may be made on such system, or (iii)
if shares of the Corporation's Common Stock are not listed or admitted for
trading on NASDAQ or any securities exchange, a Business Day.
"Voting Stock" means, with respect to any Person, all classes of Capital
Stock of such Person then outstanding and normally entitled to vote for the
election of directors of such Person. Any reference to a percentage of Voting
Stock shall refer to the percentage of votes eligible to be cast for the
election of directors which are attributable to the applicable shares of Voting
Stock.
"Wholly-Owned Subsidiary" means any Subsidiary with respect to which all of
the outstanding Voting Stock (other than director's qualifying shares) of which
are owned, directly or indirectly, by the Corporation.
Section 3. Rank. All shares of Preferred Stock shall rank prior, both as to
payment of dividends and as to distributions of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
to all of the Corporation's now or hereafter issued Junior Stock. The shares of
Convertible Preferred Stock and the shares of Redeemable Preferred Stock shall
rank pari passu with respect to dividend rights and rights on liquidation,
dissolution or winding up of the Corporation.
Section 4. Dividends.
(a) Payment of Dividends. The Holders of Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors, in its sole
discretion, out of funds legally available therefor, cash dividends at the rate
per annum of 8% (the "Annual Dividend Rate") on the Liquidation Preference.
Dividends on the Preferred Stock declared by the Board of Directors shall
be payable quarterly, in arrears, on March 31, June 30, September 30, and
December 31 of each year commencing June 30, 1998 (each such date, a "Dividend
Payment Date"); provided that if any such date is not a Business Day, then such
dividend shall be paid on the next succeeding Business Day. Each such dividend
shall be payable to Holders of Preferred Stock at the close of business on the
record date established by the Board of Directors, which record date shall be
not more than 60 days prior to the date fixed for payment thereof. Quarterly
dividend periods (each a "Dividend Period") shall commence on and include the
first day of January, April, July and October of each year and shall end on and
include the date next preceding the next Dividend Payment Date; provided,
however, that the first Dividend Period shall commence on the Closing Date and
shall end on and include June 30, 1998. The amount of dividends payable per
share of Preferred Stock for each full Dividend Period shall be computed by
applying the Annual Dividend Rate to the Liquidation Preference and dividing
such amount by four (4) (the "Dividend Amount"). The Dividend Amount payable for
the initial Dividend Period and any period shorter than a full Dividend Period
shall be computed on the basis of actual days elapsed and a 360-day year
consisting of twelve 30-day months.
(b) Distribution of Dividend Payments. All payments of dividends on
the Preferred Stock shall be distributed ratably among the Holders of Preferred
Stock based upon the aggregate number of shares of Preferred Stock held by each
Holder.
(c) Additional Dividends. In the event that the Corporation shall fail
to comply with its obligations under Section 4(d)below, or the Corporation shall
fail to comply with any of its obligations under Section 7 or Section 8 below
and such failure shall continue uncured for a period of 30 days (each such
event, a "Default"), then from the date of such Default and so long as such
Default shall continue to exist unwaived or uncured, the Annual Dividend Rate
applicable to the Preferred Stock shall be increased to a rate per annum of 10%
on the Liquidation Preference.
(d) Limitations on Certain Payments. So long as any Preferred Stock
shall be outstanding, the Corporation shall not declare or pay or set apart for
payment any dividends or make any other distributions on, or make any payment on
account of the purchase, redemption, exchange or other retirement of, any Junior
Stock with respect to any Dividend Period, except any dividend or distribution
payable solely in shares of Common Stock, or the purchase, redemption, exchange
or other retirement of shares of Junior Stock in exchange solely for shares of
Common Stock; provided, however, that so long as (i) the Corporation shall have
paid to the Holders the Dividend Amount with respect to any Dividend Period, and
(ii) no other Default shall have occurred and continue to exist, the Corporation
may make any such dividend, distribution or other payment not permitted by this
Section 4(d) with respect to such Dividend Period (each such payment, a
"Restricted Payment"), if the aggregate amount of such Restricted Payment,
together with all other Restricted Payments made during the previous four (4)
Dividend Periods, would not exceed the sum of 50% of the aggregate Consolidated
Net Income over the preceding four (4) Dividend Periods (treated as a single
accounting period).
Section 5. Liquidation Preference. In the event of any liquidation,
dissolution, or winding up of the Corporation, either voluntary or involuntary,
the holders of the Preferred Stock shall be entitled to receive out of assets of
the Corporation available for distribution to shareholders an amount equal to
all declared and unpaid dividends on such shares plus a sum equal to the
Liquidation Preference for each share of Preferred Stock then held by them,
before any payment shall be made or any assets distributed to the holders of
Junior Stock. If the assets and funds thus distributed among the holders of the
Preferred Stock shall be insufficient to permit the payment to such holders of
the full preferential amount described above, then the entire assets and funds
of the Corporation legally available for distribution shall be distributed among
the holders of the Preferred Stock in proportion to the shares of Preferred
Stock then held by them.
Section 6. Redemption.
(a) Mandatory Redemption. The Corporation shall redeem, out of funds
legally available therefor, outstanding shares of Preferred Stock as follows:
(i) On each September 30, December 31, March 31 and June 30
(each, a "Mandatory Redemption Date"), commencing June 30, 2001, a number of
shares of Convertible Preferred Stock equal to 1/28th of the number of shares of
Convertible Preferred Stock (rounded up to the nearest whole share) originally
issued hereunder (or such lesser number of shares as shall be outstanding on the
applicable Mandatory Redemption Date), at a redemption price per share of (the
"Redemption Price") equal to 100% of the Liquidation Preference thereof plus all
declared but unpaid dividends on such share;
(ii) (A) On each of June 30, 1999, September 30, 1999, and
December 31, 1999, a number of shares of Redeemable Preferred Stock having an
aggregate Liquidation Preference equal to $1,500,000, and (B) on each Mandatory
Redemption Date thereafter, commencing March 31, 2000, a number of shares of
Redeemable Preferred Stock equal to 1/36th of the number of shares of Redeemable
Preferred Stock (rounded up to the nearest whole share) outstanding on February
28, 2000 (or such lesser number of shares as shall be outstanding on the
applicable Mandatory Redemption Date), in each case, at the Redemption Price per
share specified above; provided however, that if the Fair Market Value of the
Class A Common Stock for any 30 consecutive Trading Days in any quarterly
Dividend Period shall exceed $8.00 per share (subject to appropriate adjustment
to reflect any stock split, recombination of shares or similar event affecting
the Common Stock of the Company), the number of shares of Redeemable Preferred
Stock mandatorily redeemable by the Corporation pursuant to Section 6(a)(ii)(B)
on the next succeeding Mandatory Redemption Date shall be equal to 200% of the
number of shares otherwise redeemable by the Corporation on such Date.
(b) Optional Redemption. The Corporation may, at its option, on any
date set by the Board of Directors, redeem, out of funds legally available
therefor, shares of Preferred Stock of either series, in whole at any time or in
part from time to time, for an amount equal to the Redemption Price.
Notwithstanding the foregoing, the Corporation shall not redeem the Convertible
Preferred Stock prior to June 30, 2001, nor shall the Corporation redeem less
than all outstanding shares of either series of Preferred Stock until all
declared and unpaid dividends on all outstanding shares of Preferred Stock of
such series shall have been or shall concurrently be paid in full.
(c) Mandatory Redemption Payments. Notwithstanding anything to the
contrary contained herein, if on any Mandatory Redemption Date the Corporation
does not have legally available funds sufficient to make the required redemption
payment in cash, the Corporation shall make such mandatory redemption payment by
issuing shares of Common Stock, valued in accordance with the procedures
specified in Section 6(d)(iii) below, in an amount equal to the applicable
Redemption Price.
(d) Procedures for Redemption.
(i) If fewer than all outstanding shares of Preferred Stock are
to be redeemed, the number of shares of Preferred Stock to be redeemed from each
Holder thereof shall be the number of shares determined by multiplying the total
number of shares of Preferred Stock to be redeemed by a fraction, the numerator
of which shall be the total number of shares of Preferred Stock held by such
Holder and the denominator of which shall be the total number of shares of
Preferred Stock then outstanding. Upon surrender of a stock certificate
evidencing shares of Preferred Stock that are redeemed in part, the Corporation
shall issue and deliver or cause to have issued and delivered to a Holder (at
the Corporation's expense) a new stock certificate evidencing the unredeemed
shares.
(ii) At least 30 days but not more than 60 days before the
applicable Redemption Date, the Corporation or, at the Corporation's request,
the Corporation's transfer agent (the "Transfer Agent"), shall mail a notice of
redemption by first-class mail postage prepaid to each Holder, addressed to each
such Holder at its last address shown on the stock transfer books of the
Corporation. Such notice shall identify the shares of Preferred Stock to be
redeemed and shall, among other things, state:
(A) the Redemption Date;
(B) the Redemption Price and the type of consideration being
paid in connection with the redemption;
(C) that the shares of Preferred Stock called for redemption
must be surrendered to the Corporation to collect the Redemption Price;
(D) if fewer than all of the outstanding shares of Preferred
Stock are to be redeemed, the identification and amounts of the shares of
Preferred Stock to be redeemed, and that after the applicable Redemption Date,
upon surrender of the stock certificate or certificates evidencing such shares,
a new stock certificate equal to the unredeemed portion will be issued; and
(E) the section of the Certificate of Designation pursuant
to which the shares of Preferred Stock called for redemption are being redeemed.
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice given to any other Holder.
(iii) In connection with any optional or mandatory redemption made
pursuant to this Section 6, the Corporation shall pay the Redemption Price of
the shares redeemed in cash; provided, however, that the Corporation, at its
option, shall have the right to pay the Redemption Price of the shares redeemed
either (x) in cash, or (y) in shares of Class A or, if requested by a Holder in
lieu of Class A, Class C Common Stock (the "Redemption Common Stock"), or (z) in
any combination of the foregoing. For purposes of determining the number of
shares of Redemption Common Stock the value of which equals the Redemption
Price, the Redemption Common Stock shall be deemed to have a value equal to the
higher of (A) the Fair Market Value of the Common Stock on the date of the
notice required by Section 6(d)(ii) above or (B) $2.50 per share (subject to
appropriate adjustment to reflect any stock split, recombination of shares or
similar event affecting the Common Stock of the Company); provided, however,
that, as a condition to the issuance of any shares of Class A or Class C Common
Stock in connection with any optional or mandatory redemption of Preferred
Stock, the Corporation shall have complied with all laws, rules and regulations
of any governmental or regulatory authority applicable to the issuance of such
shares. No later than one Business Day prior to the applicable Redemption Date,
the Corporation shall deposit with the Transfer Agent funds and, if applicable,
shares of Redemption Common Stock, sufficient to pay the Redemption Price for
all shares of Preferred Stock to be redeemed.
(iv) As long as the Corporation has complied with the requirements set
forth in this Section 6(d), from and after the applicable Redemption Date,
shares of Preferred Stock so redeemed shall be cancelled and shall no longer be
deemed to be outstanding, and, to the extent the Holders thereof no longer hold
any Capital Stock, all rights of such Holders as stockholders of the Corporation
(except the right to receive from the Corporation the Redemption Price) shall
cease.
Section 7. Transactions With Affiliates.
So long as a majority of the outstanding shares of Preferred Stock are held
by any funds or accounts managed or advised by Keystone Custodians, Inc.,
Fidelity Management and Research Company or Fidelity Management Trust Company,
the Corporation shall not, and shall not permit any of its Subsidiaries to,
enter into any transaction or any series of related transactions having a total
value in excess of $100,000 per transaction or series of related transactions
with any Affiliate (except for wholly-owned Subsidiaries), unless it has been
determined in good faith and certified in writing by the Board of Directors that
such transaction (i) is in the best interests of the Corporation or such
Subsidiary based on full disclosure of all relevant facts and circumstances, and
(ii) is on fair and reasonable terms, no less favorable to the Corporation or
such Subsidiary than terms that the Corporation or such Subsidiary and a
non-affiliated Person in a similar situation would agree to in an arm's length
transaction, the terms of which have been negotiated in good faith.
Notwithstanding the foregoing, the Corporation and its Subsidiaries may pay
reasonable compensation to their respective officers and directors.
Section 8. Holders' Right to Redeem Preferred Stock Upon Change of Control.
(a) If there shall have occurred a Change of Control the Corporation
shall offer to purchase for cash at the Redemption Price, out of funds legally
available therefor, at the option of each Initial Holder, all or any portion of
the then outstanding Preferred Stock held by such Initial Holder (a "Change of
Control Offer").
(b) Procedures for Change of Control Offer.
(i) Within 15 days of such Change of Control, the Corporation or,
at the Corporation's request, the Transfer Agent, shall mail a notice by
first-class mail postage prepaid to each Initial Holder, addressed to such
Initial Holders at their last addresses shown on the stock transfer books of the
Corporation. The notice, which shall govern the terms of the Change of Control
Offer, shall state:
(A) that the Change of Control Offer is being made pursuant
to Section 8 of this Certificate of Designations;
(B) the applicable Redemption Price;
(C) the date fixed for optional redemption, which shall be a
Business Day no earlier than 30 days and no later than 60 days after the date of
mailing of notice of the Change of Control Offer (the "Change of Control
Purchase Date"), other than as may be required by law;
(D) the method by which the Initial Holder may elect to
accept a Change of Control Offer, and that any Initial Holder electing to have
Preferred Stock redeemed pursuant to the Change of Control Offer will be
required to surrender such Preferred Stock to the Corporation by the close of
business one Business Day before the Change of Control Purchase Date, together
with a copy of such Initial Holder's election to accept the Corporation's Change
of Control Offer;
(E) that Initial Holders will be entitled to withdraw, in
whole or in part, their election to have Preferred Stock redeemed if the
Corporation receives, not later than five Business Days prior to the Change of
Control Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Initial Holder, the identification and amounts of
the shares of Preferred Stock delivered for redemption and a statement that such
Initial Holder is withdrawing its election to have all or any portion of such
Preferred Stock redeemed; and
(F) that, if fewer than all of the outstanding shares of
Preferred Stock are to be redeemed, after the applicable Redemption Date, upon
surrender of the stock certificate or certificates evidencing such shares, a new
stock certificate equal to the unredeemed portion will be issued.
Failure to give notice or any defect in the notice to any Initial Holder shall
not affect the validity of the notice given to any other Initial Holder.
(ii) An Initial Holder receiving a Change of Control Offer may
elect to have all or any portion of its Preferred Stock redeemed by providing
written notice thereof to the Corporation setting forth the identification and
amounts of Preferred Stock to be redeemed and containing an appropriate
telephone or facsimile transmission number at which such Initial Holder may be
notified, received by the Corporation on or before the date 10 days preceding
the Change of Control Purchase Date.
(iii) No later than one Business Day prior to the applicable
Change of Control Purchase Date, the Corporation shall deposit with the Transfer
Agent funds sufficient to pay the Redemption Price for all shares of Preferred
Stock to be redeemed. On the Change of Control Purchase Date, Preferred Stock
surrendered to the Corporation as provided in this Section 8 shall be redeemed
by the Corporation at the applicable Redemption Price.
(iv) Upon surrender of a stock certificate evidencing shares of
Preferred Stock that are redeemed in part, the Corporation shall issue and
deliver or cause to have issued and delivered to an Initial Holder (at the
Corporation's expense) a new stock certificate evidencing the unredeemed shares.
Section 9. Conversion Privilege.
(a) Right of Conversion. Each outstanding share of Convertible
Preferred Stock shall be convertible at the option of the Holder thereof, at any
time prior to redemption thereof, into fully paid and nonassessable shares of
Class A Common Stock, at the rate of that number of shares of Class A Common
Stock for each full share of Convertible Preferred Stock that is equal to $2,000
divided by the Conversion Price applicable per share of Common Stock, or into
such additional or other securities, cash or property and at such other rates as
required in accordance with the provisions of this Section 9. For purposes of
this Certificate of Designation, the "Conversion Price" applicable per share of
Common Stock shall initially be equal to $4.00 and shall be adjusted from time
to time in accordance with the provisions of this Section 9.
(b) Conversion Procedures. In order to exercise the conversion
privilege, the Holder of any share of Convertible Preferred Stock to be
converted in whole or in part shall surrender the certificate or certificates
evidencing such share (or, if such share shall have previously been submitted
for redemption and not yet redeemed, the non-transferable receipt of delivery)
to the Corporation and shall give written notice to the Corporation ("Conversion
Notice"), that the Holder elects to convert such share or shares, or the portion
thereof specified in said notice, into shares of Common Stock. The Conversion
Notice shall also state the name or names (with address) in which the
certificates for shares of Common Stock which shall be issuable upon such
conversion shall be issued, and shall be accompanied by applicable transfer
taxes, if required pursuant to subsection (g) of this Section 9. Each
certificate evidencing Convertible Preferred Stock surrendered for conversion
shall, unless the shares issuable on conversion are to be issued in the same
name as the registration of such shares of Convertible Preferred Stock, be duly
endorsed by, or be accompanied by instruments of transfer in form satisfactory
to the Corporation duly executed by, the Holder or its duly authorized attorney.
As promptly as practicable after receipt of a Conversion Notice and
surrender of the certificate or certificates evidencing the Convertible
Preferred Stock relating thereto, the Corporation shall issue and shall deliver
to such Holder (or upon the written order of such Holder), a certificate or
certificates for the number of full shares of Class A Common Stock issuable upon
the conversion of such shares of Convertible Preferred Stock or portion thereof
in accordance with the provisions of this Section 9 and a check or cash in
respect of any fractional shares of Common Stock issuable upon such conversion,
as provided in subsection (e) of this Section 9. In case less than all the
shares of Convertible Preferred Stock represented by a certificate are to be
converted, the Corporation shall issue and deliver or cause to be issued and
delivered to or upon the written order of the Holder of the shares of
Convertible Preferred Stock so surrendered, without charge to such Holder, a new
certificate or certificates representing shares equal to the unconverted portion
of the surrendered certificate.
Each conversion shall be deemed to have been effected on the date (the
"Conversion Date") on which the certificate or certificates evidencing shares of
Convertible Preferred Stock (or receipt of delivery) shall have been surrendered
to the Conversion Agent and a Conversion Notice with respect to such shares
shall have been received by the Corporation, as described above. Any Person in
whose name any certificate or certificates for shares of Common Stock shall be
issuable upon conversion shall be deemed to have become on the Conversion Date
the holder of record of the shares represented thereby; provided, however, that
surrender of the certificate or certificates evidencing shares of Preferred
Stock on any date when the stock transfer books of the Corporation shall be
closed shall constitute the Person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next succeeding day
on which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date on which such certificate or certificates
shall have been surrendered.
Except as provided in this Section 9, no payment or adjustment will be made
for dividends or other distributions with respect to any shares of Common Stock
issuable upon conversion of shares of Convertible Preferred Stock as provided
herein. No payment or adjustment shall be made by the Corporation to any Holder
of shares of Convertible Preferred Stock surrendered for conversion in respect
of dividends accrued since the last preceding Dividend Payment Date on the
shares of Convertible Preferred Stock surrendered for conversion; provided,
however, that if shares of Convertible Preferred Stock shall be converted
subsequent to any record date with respect to any Dividend Payment Date and
prior to the next succeeding Dividend Payment Date, the dividend due on such
Dividend Payment Date shall be payable with respect to such shares of
Convertible Preferred Stock notwithstanding such conversion, and such dividend
(whether or not punctually paid or duly provided for) shall be paid to the
Holder of such shares as at the close of business on such record date, and the
converting Holder need not include payment in the amount of such dividend upon
surrender of shares of Convertible Preferred Stock for conversion.
(c) Cash Payments in Lieu of Fractional Shares. No fractional shares
of Common Stock or scrip representing fractional shares shall be issued upon
conversion of shares of Convertible Preferred Stock. If any fractional share of
Common Stock would be issuable upon the conversion of any shares of Convertible
Preferred Stock, the Corporation shall make an adjustment therefor in cash at
the current market value thereof. The current market value of a share of Common
Stock shall be the closing price on the first Business Day immediately preceding
the Conversion Date, determined as provided in the definition of "Fair Market
Value" set forth in Section 1 of this Certificate of Designation.
(d) Adjustment of Conversion Price. The Conversion Price shall be
adjusted from time to time by the Corporation as follows:
(i) In case the Corporation shall (A) declare a dividend, or make
a distribution, in shares of any series of its Common Stock, on any series of
its Common Stock, (B) subdivide or reclassify any series of its outstanding
Common Stock into a greater number of shares, (C) combine any series of its
outstanding Common Stock into a smaller number of shares, (D) pay a dividend or
make a distribution on any series of its Common Stock in shares of any series of
its Capital Stock other than Common Stock, or (E) issue by reclassification of
any series of its Common Stock shares of any series of its Capital Stock, the
conversion privilege and the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Holder of any shares of Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the number of
shares of Class A Common Stock or other Capital Stock of the Corporation, which
such Holder would have owned or have been entitled to receive after the
happening of any of the events described above had such security been converted
immediately prior to the happening of such event. An adjustment made pursuant to
this subsection 9(d)(i) shall become effective immediately after the record date
in the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision, combination or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur. In the event such dividend, issue or distribution is
not so made, the conversion privilege and the Conversion Price then in effect
shall be readjusted to the conversion privilege and the Conversion Price which
would then be in effect if such dividend, issue or distribution had not been
declared or made, but such readjustment shall not affect the number of shares of
Common Stock or other shares of Capital Stock delivered upon any conversion
prior to the date such readjustment is made.
(ii) In case the Corporation shall issue rights, warrants, or
options to all holders of any series of its Common Stock entitling them (for a
period expiring within 60 days after the record date mentioned below) to
subscribe for or purchase any series of Common Stock (or securities convertible
into shares of any series of Common Stock) at a price per share less than the
Fair Market Value per share of Common Stock, the Conversion Price shall be
adjusted by multiplying the Conversion Price in effect immediately prior to the
date of issuance of such rights, warrants or options by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding on
the date of issuance of such rights, warrants or options plus the number of
shares which the aggregate consideration received for the total number of shares
so offered would purchase at such current market price, and the denominator of
which shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights, warrants or options plus the number of additional
shares of Common Stock offered for subscription or purchase (or into which the
convertible securities so offered are initially convertible). An adjustment made
pursuant to this subsection (ii) shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, warrants or options to which this subsection applies. Such adjustment
shall be made successively whenever any such rights, warrants or options are
issued. To the extent that any such rights, warrants or options are not so
issued or expire unexercised, the Conversion Price then in effect shall be
readjusted to the Conversion Price which then would be in effect if such
unissued or unexercised rights, options or warrants had not been issued, but
such readjustment shall not affect the number of shares of Common Stock or other
shares of Capital Stock delivered upon any conversion prior to the date such
readjustment is made.
(iii) In case the Corporation shall distribute to all holders of
any series of its Common Stock any of its assets or debt securities, or rights,
options, warrants or convertible or exchangeable securities of the Corporation
(including securities for cash, but excluding (A) distributions of Capital Stock
referred to in subsection 9(d)(i) above and distributions of rights, warrants or
options referred to in subsection 9(d)(ii) above, and (B) cash dividends or
other cash distributions that are paid out of consolidated current net income,
earned surplus or retained earnings, unless such cash dividends or other cash
distributions are extraordinary cash dividends), then in each such case, the
Conversion Price shall be adjusted by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction, the numerator
of which shall be the Fair Market Value per share of the Common Stock on the
record date mentioned below less the then fair market value (as reasonably
determined by the Board of Directors of the Corporation, in good faith and as
described in a resolution of the Board of Directors) of the portion of the
assets or debt securities of the Corporation so distributed or of such rights,
options, warrants or convertible or exchangeable securities applicable to one
share of Common Stock, and the denominator of which shall be the Fair Market
Value per share of the Common Stock on such record date. Such adjustment shall
become effective immediately after the record date for the determination of
shares entitled to receive such distribution. Notwithstanding the foregoing, no
adjustment of the Conversion Price shall be made upon the distribution to all
holders of any series of Common Stock of such rights, options, warrants or
convertible or exchangeable securities if the plan or arrangement under which
such rights, options, warrants or convertible or exchangeable securities are
issued provides for their issuance to the holders of the shares of Convertible
Preferred Stock upon conversion thereof. Such adjustment shall be made
successively whenever any event listed above shall occur. In the event that any
such distribution is not made, the Conversion Price then in effect shall be
readjusted to the Conversion Price which then would be in effect if such
distribution had not been made, but such readjustment shall not affect the
number of shares of Common Stock or other shares of Capital Stock delivered upon
any conversion prior to the date such readjustment is made.
(iv) No adjustment in the Conversion Price need be made unless
the adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided, however, that any adjustments which by reason of
this subsection 9(d)(iv) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. Anything in this Subsection
9(d) to the contrary notwithstanding, the Corporation shall be entitled to make
such reductions in the Conversion Price, in addition to those required by this
Section 9(d), as it in its reasonable discretion shall determine to be advisable
in order that any stock dividends, subdivision of shares, distribution of rights
to purchase stock or securities, or distribution of securities convertible into
or exchangeable for stock hereafter made by the Corporation to its stockholders,
shall not be taxable.
(v) Whenever the Conversion Price is adjusted as herein provided,
the Corporation shall prepare a notice of such adjustment of the Conversion
Price setting forth the adjusted Conversion Price and the date on which such
adjustment becomes effective, and setting forth in reasonable detail the facts
requiring such adjustment and the calculation of such adjustment, and shall mail
such notice of adjustment to all Holders of Convertible Preferred Stock at their
last addresses appearing on the stock transfer books of the Corporation.
(vi) In any case in which this Subsection 9(d) provides that an
adjustment shall become effective immediately after a record date for an event,
the Corporation may defer until the occurrence of such event (i) issuing to the
Holder of any shares of Convertible Preferred Stock converted after such record
date and before the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the adjustment required by such
event over and above the Common Stock issuable upon such conversion before
giving effect to such adjustment, and (ii) paying to such Holder any amount in
cash in lieu of any fractional share of Common Stock pursuant to Subsection
9(c).
(vii) For purposes of any computation pursuant to this Section
9(d), respecting consideration received, the following shall apply:
(A) in the case of the issuance of shares of Capital Stock
for cash, the consideration shall be the amount of such cash, provided that in
no case shall any deduction be made for any commissions, discounts or other
expenses incurred by the Corporation for any underwriting of the issue or
otherwise in connection therewith;
(B) in the case of the issuance of shares of Capital Stock
for a consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as reasonably
determined in good faith by the Board of Directors of the Corporation or a duly
authorized committee thereof (irrespective of the accounting treatment thereof),
and described in a resolution of the Board of Directors or such committee; and
(C) in the case of the issuance of securities convertible
into or exchangeable or exercisable for shares of Capital Stock, the aggregate
consideration received therefor shall be deemed to be the consideration received
by the Corporation for the issuance of such securities plus the additional
minimum consideration, if any, to be received by the Corporation upon the
conversion or exchange thereof (the consideration in each case to be determined
in the same manner as provided in clauses (1) and (2) of this Section).
(viii) If after an adjustment a Holder of shares of Convertible
Preferred Stock may, upon conversion of such Security, receive shares of two or
more classes of Capital Stock of the Corporation, the Corporation shall
determine on a fair basis the allocation of the adjusted Conversion Price
between the classes of Capital Stock. After such allocation, the conversion
privilege and the Conversion Price of each class of Capital Stock shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this Section 9.
(ix) In no event shall an adjustment pursuant to this subsection
9(d) reduce the Conversion Price below the then par value, if any, of the shares
of Common Stock issuable upon conversion of shares of Convertible Preferred
Stock.
(e) Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any reclassification or
change of outstanding shares of Common Stock issuable upon conversion of shares
of Convertible Preferred Stock (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination), (ii) any consolidation or merger of the Corporation
with another Person shall be effected as a result of which holders of Common
Stock issuable upon conversion of shares of Convertible Preferred Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, or (iii) any sale or
conveyance of the properties and assets of the Corporation as, or substantially
as, an entirety to any other Person, then the Corporation or such successor or
purchasing Person, as the case may be, shall make provisions in its certificate
or articles of incorporation or other constituent documents to establish that
each share of Convertible Preferred Stock then outstanding shall be convertible
into the kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock issuable upon conversion of such shares of Convertible Preferred
Stock immediately prior to such reclassification, change, consolidation, merger,
sale or conveyance. Such provisions shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 9.
If this Section applies with respect to a transaction, subsection 9(d)
shall not apply with respect to that transaction. The above provisions of this
subsection shall similarly apply to successive reclassifications,
consolidations, mergers and sales.
(f) Voluntary Adjustment. The Corporation at any time may reduce the
Conversion Price by any amount and for any period of time, provided that such
period is not less than twenty (20) Business Days. Whenever the Conversion Price
is reduced pursuant to this Subsection 9(f), the Corporation shall mail to the
Holders, a notice of the reduction at least 15 days before the date the reduced
Conversion Price takes effect and such notice shall state the reduced Conversion
Price and the period it will be in effect.
(g) Taxes on Shares Issued. The issuance of stock certificates upon
conversion of shares of Convertible Preferred Stock shall be made without charge
to the converting Holder for any tax in respect of the issuance thereof. The
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of stock in any
name other than that of the Holder of shares of Convertible Preferred Stock
converted (or any nominee thereof), and the Corporation shall not be required to
issue or deliver any such stock certificate unless and until the Person or
Persons requesting the issuance thereof shall have paid to the Corporation the
amount of such tax or shall have established to the satisfaction of the
Corporation that such tax has been paid.
(h) Reservation of Shares; Shares to be Fully Paid; Compliance with
Governmental Requirements. The Corporation shall reserve, free from preemptive
rights, out of its authorized but unissued shares, or out of shares held in its
treasury, sufficient shares of Class A and Class C Common Stock to provide for
the conversion of all shares of Convertible Preferred Stock from time to time
outstanding.
The Corporation covenants that all shares of Common Stock which may be
issued upon conversion of shares of Preferred Stock will upon issuance be fully
paid and nonassessable by the Corporation and free from all taxes, liens and
charges with respect to the issuance thereof.
(i) Notice to Holders Prior to Certain Actions. In case: the
Corporation shall take any action that would require an adjustment in the
Conversion Price pursuant to clauses (i), (ii) or (iii) of subsection 9(d)
above; or
(ii) any event described in subsection 9(e) above shall occur; or
(iii) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation;
the Corporation shall cause notice of such proposed action or event to be
mailed to each Holder of record of Convertible Preferred Stock at its address
appearing on the stock transfer books of the Corporation, as promptly as
possible but in any event at least thirty days prior to the proposed record date
for a dividend or distribution or proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, exchange, transfer,
liquidation or dissolution; provided, however, that in the event that the
Corporation provides public notice of such proposed action or event specifying
the information set forth below at least ten days prior to the proposed record
date or proposed effective date, the Corporation shall be deemed to have
satisfied its obligation to provide notice pursuant to this subsection 9(i). In
any event, such notice shall specify (A) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights or warrants, or,
if a record is not to be taken, the date as of which the holders of record of
Common Stock to be entitled to such dividend, distribution or rights or warrants
are to be determined, or (B) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective, and the date as of which it is expected that
holders of record of Class A Common Stock shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding-up or termination.
Section 10. Voting Rights of Preferred Stock.
(a) General. Except as set forth in this Section 10 or as is otherwise
required by law, the shares of Preferred Stock shall have no voting rights, and
consent of the Holders of Preferred Stock shall not be required for taking any
corporate action. In connection with any right to vote, each Holder of a share
of Preferred Stock shall have one vote for each share held. Any shares of
Preferred Stock owned, directly or indirectly, by the Corporation or any of its
Subsidiaries shall not have voting rights hereunder and shall not be counted in
determining the presence of a quorum.
(b) In the event that the Corporation shall have failed to discharge
any mandatory redemption obligation with respect to either series of the
Preferred Stock, the Corporation's Board of Directors will be increased by one
director and the holders of all shares of Preferred Stock, voting as a single
class, will be entitled to elect such additional director. Such voting right
will continue until such time as the Corporation has fulfilled its mandatory
redemption obligation.
(c) Certain Amendments. So long as any shares of Preferred Stock
remain outstanding:
(i) the affirmative vote of the Holders of 100% of the
outstanding shares of Convertible Preferred Stock or Redeemable Preferred Stock,
as the case may be, voting as a separate class, shall be required in order to
change (A) the amount of the Liquidation Preference or the dividend rate of, or
any provision of Section 4 hereof relating to the calculation of the dividend
on, the shares of such series, or (B) any provision of subsection 6(a),
subsection 6(b) or subsection 8(a) hereof adversely affecting the rights of
Holders of shares of such series or this Section 10; and
(ii) the affirmative vote of the Holders of at least 51% of the
outstanding shares of Convertible Preferred Stock or Redeemable Preferred Stock,
as the case may be, voting as a separate class, shall be required in order to
(A) amend, alter or repeal any of the provisions of the Restated Certificate of
Incorporation of the Corporation, as amended to date, or this Certificate of
Designations, so as to adversely affect any right, preference or voting power of
the holders of shares of such series, or (B) authorize, create or issue any
class or series of Capital Stock of the Corporation that is senior to the
Convertible Preferred Stock or Redeemable Preferred Stock, as the case may be,
with respect to dividends or the distribution of assets upon dissolution,
liquidation or winding up of the Corporation.
The foregoing voting provisions shall not apply if, at or prior to the time
when the action with respect to which such vote would otherwise be required to
be effected, all outstanding shares of Convertible Preferred Stock or Redeemable
Preferred Stock, as the case may be, shall have been redeemed or notice of
redemption shall have been provided and sufficient funds (and, if applicable,
shares of Redemption Common Stock) shall have been delivered to the Transfer
Agent to effect such redemption.
Section 11. Transfers; Replacement of Certificates.
(a) Transfers. Subject to any restrictions on transfer under
applicable securities or other laws, shares of Preferred Stock may be
transferred on the books of the Corporation by the surrender to the Corporation
of the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with transfer stamps (if
necessary) affixed, and such proof of the authenticity of signature as the
Corporation or the Transfer Agent may reasonably require.
(b) Replacement of Certificates. If any mutilated certificate
representing shares of Preferred Stock is surrendered to the Corporation, or if
a Holder claims the certificate representing shares of Preferred Stock has been
lost, destroyed or willfully taken, the Corporation shall issue a replacement
certificate of like tenor and date if (i) the Holder provides an indemnity bond
or other security sufficient, in the reasonable judgment of the Corporation, to
protect the Corporation and any authenticating agent and any of their officers,
directors, employees or representatives from any loss which any of them may
suffer if a certificate representing shares of Preferred Stock is replaced, and
(ii) the Holder satisfies any other reasonable requirements of the Corporation.
Section 12. Reacquired Shares. Any shares of Preferred Stock which are
purchased, redeemed or otherwise acquired by the Corporation, shall be retired
and cancelled by the Corporation promptly thereafter. No such shares shall upon
their cancellation be reissued.
IN WITNESS WHEREOF, Ampex Corporation has caused this Certificate of
Designations to be duly signed by its duly authorized officer this 24th day of
June, 1998.
AMPEX CORPORATION
By:/s/ Craig L. McKibben
Name: Craig L. McKibben
Title: Vice President
EXCHANGE AGREEMENT
Ampex Corporation
590 Madison Avenue
21st Floor
New York, New York 10022
June 22, 1998
To: Each of the Holders Who Executes
a Preferred Stockholder Signature Page hereto
Re: 8% Noncumulative Preferred Stock
Ladies and Gentlemen:
(a) Reference is made to the captioned Preferred Stock, par value
$1.00 per share, issued by Ampex Corporation, a Delaware corporation (the
"Corporation") under a certificate of Designations, Preferences and Rights,
dated February 14, 1995 (the "Certificate of Designations"), consisting of
69,970 outstanding shares with an aggregate Liquidation Preference (as defined
in the Certificate of Designations) of $69,970,000 (the "Old Preferred Stock").
The Corporation has offered to redeem all the outstanding shares of Old
Preferred Stock in exchange (the "Exchange") for an aggregate of (i) 3,000,000
shares of Class A Common Stock, par value $.01 per share ("New Common Stock"),
of the Corporation, (ii) 10,000 shares of a new series of convertible preferred
stock, par value $1.00 per share ("Convertible Preferred Stock"), of the
Corporation, having a liquidation preference of $2,000 per share, and (iii)
21,859 shares of a new series of redeemable preferred stock, par value $1.00 per
share ("Redeemable Preferred Stock" and, collectively with the Convertible
Preferred Stock, the "New Preferred Stock") of the Corporation, having a
liquidation preference of $2,000 per share, all on and subject to the terms and
conditions set forth below. The shares of New Common Stock and New Preferred
Stock to be issued in the Exchange are hereinafter sometimes collectively called
the "Exchange Securities"). The Corporation and each of the holders of the
Preferred Stock who executes a counterpart of the preferred stockholder
signature page hereto (each a "Holder" and collectively, the "Holders"), are
entering into this Agreement in order to set forth the terms and conditions of
the Exchange.
(b) Capitalized terms used but not defined elsewhere in this Agreement
have the meanings assigned to them in Section 6.1 below.
NOW THEREFORE, the parties hereto, for good and valid consideration,
intending to be legally bound hereby, have agreed as follows:
THE EXCHANGE
SECTION 1.1 Exchange of Securities. (a) At the Closing (as defined in
Section 1.2), subject to the terms and conditions set forth herein, the
Corporation shall deliver to each Holder, and each Holder agrees to accept from
the Corporation, in exchange for the shares of Old Preferred Stock held by such
Holder the number of shares of Class A Common Stock and the number of shares of
Convertible Preferred Stock and Redeemable Preferred Stock set opposite such
Holder's name on Schedule 1 hereto.
(b) At the Closing, each Holder, in reliance upon the representations
and warranties of the Corporation contained herein and subject to the terms and
conditions set forth herein, agrees to tender or cause to be tendered to the
Corporation for cancellation all shares of Old Preferred Stock beneficially held
or owned by such Holder as set forth opposite such Holder's name on Schedule 1
hereto. Such tender shall be irrevocable and unconditional, subject only to (i)
the issuance and delivery of the Exchange Securities, (ii) completion of the
Exchange and (iii) the satisfaction or waiver of the closing conditions set
forth in Section 2.1 below.
(c) The Company and the Holders hereby represent and agree that the
"issue price" of the shares of New Preferred Stock for all Federal income and
other tax purposes shall be equal to the face amount of such shares of New
Preferred Stock.
SECTION 1.2 The Closing. The Exchange shall take place at a closing
(the "Closing") at the offices of Battle Fowler LLP, counsel to the Corporation,
75 East 55th Street, New York, NY 10022, on a date specified by the Corporation
upon not less than three (3) Business Days' prior notice to the Holders, as
promptly as practicable after the execution and delivery of this Agreement (but
in no event later than July 31, 1998) (the "Closing Date"). At the Closing, the
Corporation will deliver to each Holder certificates representing the Exchange
Securities (in such denominations and registered in the name of such Holder or
the nominee of such Holder as such Holder shall have requested) against delivery
of the certificates representing the shares of Old Preferred Stock held by each
Holder. Upon (i) delivery of the Exchange Securities to the Holders, and (ii)
the satisfaction or waiver of the closing conditions set forth in Sections 2.1
and 2.2, the Corporation shall be deemed, without further action on the part of
the Holders or the Corporation, to have accepted each of the Holders' tenders of
the Old Preferred Stock.
CLOSING CONDITIONS
SECTION 2.1. Conditions Precedent to Obligations of Holders to Close.
The obligation of each Holder to accept the Exchange Securities pursuant to this
Agreement in exchange for the Old Preferred Stock shall be subject to the
satisfaction of the following conditions, at or prior to Closing:
(i) The representations and warranties of the Corporation set
forth in this Agreement shall be true and correct on and as of the Closing Date;
and the Corporation shall have complied with and performed all covenants and
agreements hereunder required to be complied with or performed by it at or prior
to the Closing; and the Corporation shall have furnished to each Holder a
certificate of an authorized officer, dated the Closing Date, (A) to the
foregoing effect, and (B) to the further effect that the conditions specified in
this Section 2.1 have been satisfied at and as of the Closing;
(ii) the Certificate of Designations, Preferences and Rights (the
"New COD") relating to the New Preferred Stock, in the form attached hereto as
Exhibit A, shall have been duly executed, delivered and filed by the Company in
all requisite public offices in the State of Delaware, and the Holders shall
have received such evidence as they shall have reasonably requested indicating
that the New COD is in full force and effect, in such form, on the Closing Date;
(iii) The Exchange Securities shall have been duly authorized,
issued and delivered by the Corporation, and the New Common Stock issuable to
the Holders shall have been duly listed for trading on the American Stock
Exchange, subject only to official notice of issuance;
(iv) Each Holder's exchange of the Old Preferred Stock held by
such Holder for Exchange Securities hereunder shall not be prohibited by or
contrary to any law or regulation of any Governmental Authority applicable to
such Holder and shall not be enjoined (temporarily or permanently) or prohibited
by or contrary to any injunction, order or decree applicable to such Holder; and
(v) Each Holder shall have received the favorable opinion of
Battle Fowler LLP, counsel to the Corporation, dated the Closing Date, in form
and substance reasonably satisfactory to each Holder, to the effects provided in
clause (iii) of this Section 2.1, Section 2.2(ii), Section 2.2(iii), Section 3.1
and Section 3.2, and as to such other matters as counsel to the Holders may
reasonably request.
SECTION 2.2. Conditions Precedent to Obligation of the Corporation to
Close. The obligation of the Corporation to issue the Exchange Securities in
exchange for the Old Preferred Stock pursuant to this Agreement is subject to
the satisfaction, at or prior to the Closing, of the following conditions:
(i) The representations and warranties of each of the Holders
(severally and not jointly) set forth in Section 4.1 hereof shall be true and
correct on and as of the Closing Date; and each of the Holders shall have
complied with and performed all covenants and agreements hereunder required to
be complied with or performed by it at or prior to the Closing;
(ii) The Corporation's issuance and exchange of the Exchange
Securities for the Old Preferred Stock hereunder shall not be prohibited by or
contrary to any law or regulation of any Governmental Authority applicable to
the Corporation and shall not be enjoined (temporarily or permanently) or
prohibited by or contrary to any injunction, order or decree applicable to the
Corporation; and
(iii) The offer, sale and issuance of the Exchange Securities
hereunder shall be exempt from registration under the Securities Act (as defined
below) by virtue of the exemption contained in Section 3a(9) thereof, and shall
be exempt from registration or qualification under applicable state securities
or blue sky laws (or, if required, shall have been duly registered or qualified
under the Securities Act and/or such state laws).
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation hereby represents and warrants that:
SECTION 3.1. Organization and Authorization. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The execution, delivery and performance by the
Corporation of this Agreement and the New COD, the issuance to the several
Holders of the Exchange Securities pursuant hereto, and the consummation of the
Exchange, are within the Corporation's corporate powers, and have been duly
authorized by all necessary corporate action on the part of the Corporation.
SECTION 3.2. Validity and Binding Effect. This Agreement has been duly
executed and delivered by the Corporation, and is a valid and binding agreement
of the Corporation, enforceable against the Corporation in accordance with its
terms, except: (i) that such enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally; (ii) that such enforceability
may be subject to general equitable principles, including, without limitation,
the principle that the availability of equitable remedies, such as specific
enforcement, injunctive relief or reformation, is subject to the discretion of
the court before which any proceeding might be brought; and (iii) as rights to
indemnity referred to or provided in any such agreement may be limited by
federal or state securities laws or public policy underlying such laws.
SECTION 3.3. Capitalization. The Corporation's authorized capital
stock consists of (i) 1,000,000 shares of preferred stock, $1.00 value per
share, of which 69,970 shares (comprising the Old Preferred Stock) are issued
and outstanding, and (ii) 175,000,000 shares of Common Stock, consisting of (x)
125,000,000 shares of Class A Common Stock, of which 46,056,047 shares were
issued and outstanding as of March 31, 1998, and (y) 50,000,000 shares of Class
C Stock, of which no shares are issued and outstanding; all of such outstanding
shares have been and, each of the Exchange Securities to be issued at the
Closing will be, duly authorized, validly issued, fully paid and non-assessable,
and not subject to any preemptive or other similar rights. Since March 31, 1998,
there has been no material change in the capitalization of the Corporation.
Except for (i) stock options issued or to be issued under the Corporation's 1992
Stock Incentive Plan, as in effect on the date of this Agreement, (ii) up to
720,000 shares of Common Stock issuable pursuant to a proposed Acquisition
Agreement, among the Corporation, Ampex Holdings Corporation, a Delaware
corporation and the several shareholders of Micronet Technology, Inc., a
Delaware corporation, (iii) shares contingently issuable pursuant to
registration rights agreements currently in effect between the Company and the
Holders, (iv) shares issuable pursuant to Warrants issued pursuant to the
Warrant Agreement dated as of January 26, 1998, between the Corporation and
American Stock Transfer and Trust Company, as Warrant Agent, and (v) shares of
New Common Stock issuable pursuant to this Agreement, or the terms of the New
Preferred Stock to be issued hereunder, there are no, and as of the Closing Date
there will be no outstanding subscriptions, options, warrants, rights,
convertible or exchangeable securities or other agreements or commitments of any
character obligating the Corporation to issue any securities.
SECTION 3.4. Private Offering; No Commissions, etc. No form of general
solicitation or general advertising including, but not limited to,
advertisements, articles, notices or other communications, published in any
newspaper, magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising, was used by the Corporation or its
representatives, or, to the knowledge of the Corporation, any other Person
acting on behalf of the Corporation, in connection with the offering of the
Exchange Securities being issued hereunder. Neither the Corporation nor any
Person acting on its behalf, has directly or indirectly offered the Exchange
Securities being issued hereunder, or any part thereof or any other similar
securities, for sale to, or sold or solicited any offer to buy any of the same
from, or otherwise approached or negotiated in respect thereof with any Person
or Persons other than the Holders and their representatives, and no commission
or other remuneration has been or will be paid or given, directly or indirectly,
for soliciting the exchange contemplated hereby. The Corporation further
represents, to each Holder individually and not jointly with any other Holder,
that, assuming the accuracy of the representations of such Holder as set forth
in Section 4.1(a), (c) and (d) hereof, neither of the Corporation nor any Person
acting on its behalf has taken or will take any action which would subject the
issuance of the Exchange Securities being issued hereunder to the provisions of
Section 5 of the Securities Act, except as contemplated by this Agreement.
Except as set forth in Section 3.3 hereof or an effective registration statement
filed with the Commission under the Securities Act, no securities of the same
class as the Exchange Securities (or any similar securities) have been offered
or sold by the Corporation within the six-month period immediately prior to the
date of this Agreement (other than shares of Common Stock issued and sold to
officers and directors of the Corporation in one or more non-public
transactions).
SECTION 3.5. Broker's or Finder's Commissions. The Corporation agrees
that it will indemnify and hold harmless each Holder from and against any and
all claims, demands or liabilities for broker's, finder's, placement agent's or
other similar fees or commissions incurred or alleged to have been incurred by
the Corporation or any Person acting on its behalf in connection with the
issuance of the Exchange Securities, or any other transaction contemplated by
this Agreement.
SECTION 3.6. SEC Documents. The Corporation has duly and timely filed
with the Commission all the periodic and other reports ("SEC Documents")
required to be filed by the Corporation pursuant to Section 13 of the Exchange
Act during the preceding 12 months; all such SEC Documents comply as to form
with the applicable rules and regulations of the Commission in all material
respects; and none of such SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Except as disclosed in the SEC Documents,
there is no material fact known to the Company which the Company has not
disclosed to the Holders or Holders' counsel in writing which has or, insofar as
the Company can reasonably foresee, may have or will have a material adverse
effect on the Company and its Subsidiaries on a consolidated basis or a material
adverse effect on the ability of the Company to perform its obligations under
this Agreement or any document contemplated hereby.
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
SECTION 4.1 Representations and Warranties of Holders. Each of the
Holders, severally and not jointly, represents and warrants that:
(a) The Holder, by reason of its business and financial experience,
has such knowledge, sophistication and experience in business and financial
matters as to be capable of evaluating the merits and risk of the prospective
investment, and is acquiring the Exchange Securities for its own account (and/or
on behalf of managed accounts that are acquiring for their own account) and with
no present intention of distributing or reselling the same or any part thereof
other than pursuant to a registration statement under the Securities Act or an
exemption thereunder, without prejudice, however, to its right (subject to the
terms of this Agreement) at all times to sell or otherwise dispose of all or any
part of said Exchange Securities pursuant to a registration statement under the
Securities Act, or under an exemption from registration under the Securities
Act, or under an exemption from such registration available under the Securities
Act, and subject, nevertheless, to the disposition of its assets being at all
times within its control.
(b) The Holder has full power and authority to execute, deliver and
perform this Agreement and to carry out the transactions contemplated by this
Agreement; the execution, delivery and performance of this Agreement have been
duly authorized by all requisite corporate (or similar) action on the part of
the Holder; and this Agreement has been duly executed and delivered by the
Holder and this Agreement and is a legal, valid and binding obligation of the
Holder enforceable in accordance with its terms, except: (i) that such
enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally; (ii) that such enforceability may be subject to
general equitable principles, including, without limitation, the principle that
the availability of equitable remedies, such as specific enforcement, injunctive
relief or reformation, is subject to the discretion of the court before which
any proceeding might be brought; and (iii) as rights to indemnity referred to or
provided in such agreement may be limited by Federal or state securities laws or
public policy underlying such laws.
(c) The Holder acknowledges that the Exchange Securities being
acquired by it have not been registered under the Securities Act in reliance
upon the exemption from registration contained in Section 3a(9) of the
Securities Act. The Holder is not an Affiliate of the Corporation and has not
been such an Affiliate for at least three months prior to the date of this
Agreement. A period of at least two years has elapsed since the date the shares
of Old Preferred Stock held by the Holder were acquired from the Corporation.
(d) The Holder has full power and authority to tender, sell, assign
and transfer the shares of Old Preferred Stock held by such Holder, and upon
acceptance of the shares of Old Preferred Stock by the Corporation at the
Closing, the Corporation will acquire good and marketable title thereto, free
and clear of all liens, restrictions, charges and encumbrances, and none of such
shares will be subject to any adverse claim. The Holder will, upon request,
execute and deliver all additional documents and instruments of transfer deemed
by the Corporation to be reasonably necessary or desirable to complete the sale,
assignment and transfer of the Old Preferred Stock to the Corporation.
REGISTRATION RIGHTS
SECTION 5.1. Registration Rights of Holders; Restrictions on Transfer.
(a) In the event that any of the Exchange Securities or any of the shares of
Class A or Class C Common Stock of the Corporation issuable upon conversion or
redemption of the New Preferred Stock may not be sold by a Holder pursuant to
paragraph (k) of Rule 144 (as defined below) under the Securities Act, the
Corporation will promptly, upon the request of such Holder, execute and deliver
to such Holder, at the Corporation's expense, a registration rights agreement
with respect to the prompt registration of such shares under the Securities Act.
Any such registration rights agreement shall be in substantially the form of the
Registration Rights Agreements, dated as of February 14, 1995, entered into by
the Corporation and the Initial Holders in connection with the issuance of the
Old Preferred Stock, and shall otherwise be in form and substance reasonably
satisfactory to the Corporation and such Holder.
(b) Each certificate for shares of Class A or Class C Common Stock
issuable upon conversion or exchange of the New Preferred Stock to any Initial
Holder or subsequent transferee shall bear a restrictive legend, in
substantially the form imprinted on the certificates for the shares of Old
Preferred Stock, unless such shares have been registered under the Securities
Act or the issuance of such shares is exempt from registration by reason of
Section 3a(9) thereof. If at any time subsequent to the issuance of such shares,
the offer and sale of such shares shall be registered under an effective
registration statement under the Securities Act or, in the opinion of counsel to
the Corporation, may be sold without registration under the Securities Act, then
promptly upon the request of the Holder thereof, the Corporation will deliver,
or cause its transfer agent to deliver, new certificates for such shares which
do not bear the legend referred to in this Section 5.1(b).
SECTION 5.2. Rule 144. The Corporation covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
or, if the Corporation is not required to file such reports, it will, upon the
request of any Holder, make publicly available other information so long as
necessary to permit sales of Exchange Securities under Rule 144 under the
Securities Act, and it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Exchange Securities without registration under the Securities Act
within the limitations of the exemptions provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission ("Rule 144"). Upon the
request of any Holder, the Corporation will deliver to such Holder a written
statement as to whether it has complied with such requirements.
SECTION 5.3 Rule 144A. Upon the request of any Holder, the Corporation
will deliver to such Holder within 10 days following receipt by the Corporation
of such request, the information required by Section(d)(4) of Rule 144A under
the Securities Act, as such Rule may be amended from time to time or any similar
rule or regulation hereafter adopted by the Commission ("Rule 144A"), and will
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Exchange Securities
without registration under the Securities Act within the limitations of the
exemptions provided by Rule 144A. All information shall be "reasonably current"
as defined in Rule 144A.
DEFINITIONS
SECTION 6.1. Definitions. As used in this Agreement, the following
terms have the meanings indicated:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof
then in effect.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the City of New York, New York are authorized
or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission or any
successor agency then having jurisdiction to enforce the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the sales and regulations promulgated thereunder.
"Governmental Authority" means any governmental or quasi-governmental
authority, including, without limitation, any federal, state, territorial,
county, municipal or other governmental or quasi-governmental agency, board,
branch, bureau, commission, court, department or other instrumentality or
political unit or subdivision, whether domestic or foreign.
"Holder" means (i) each Initial Holder, and (ii) each assignee or
transferee of any Exchange Security, other than the Corporation and its
Affiliates, who becomes a holder of such security.
"Initial Holder" means each Person who accepts and agrees to the terms
of this Agreement as indicated by a signature on an execution page hereof, and
each Person, if any, on whose behalf any such Person executes this Agreement and
tenders Old Preferred Stock.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or a political subdivision, agency or instrumentality thereof or
other entity or organization of any kind.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations promulgated thereunder.
MISCELLANEOUS
SECTION 7.1. Survival of Representations, Warranties and Covenants.
(a) The Corporation and each Holder (severally and not jointly) agrees
that each representation, warranty, covenant and agreement made by it in this
Agreement or in any certificate, instrument or other document delivered pursuant
to this Agreement or in connection with the transactions contemplated hereby
shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of such party, or (ii) consummation of the
Exchange pursuant hereto. The provisions of Section 7.5 shall survive any
termination of this Agreement. All such representations, warranties, covenants
and agreements shall be binding upon any successors and assigns of the
Corporation. In addition, whether or not express agreement has been made, except
as otherwise provided in this Section 7.1, all Holders shall be entitled to the
benefits of the covenants and agreements of the Corporation to be performed or
observed by it hereunder, including, without limitation, as set forth in
Sections 5.1 and 5.2 hereof.
(b) Subject to Section 7.1(a) above, this Agreement shall be binding
upon and inure to the benefit of the Corporation and the Holders and their
respective successors and assigns.
(c) All provisions of this Agreement purporting to give rights to any
Holders are for the express benefit of such Holders, and, without limitation to
the foregoing, the Corporation hereby acknowledges and agrees that each Holder
shall be entitled to enforce such rights and the corresponding obligations of
the Corporation under this Agreement.
(d) All provisions of this Agreement purporting to give rights to any
Holders shall extend to and include those Persons who on the Closing Date
received the beneficial interests of the Exchange Securities acquired by such
Holder at the Closing.
SECTION 7.2. Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by any Holder (but only as to itself) if any of the conditions
specified in Section 2.1 of this Agreement has not been satisfied or waived by
such Holder by July 31, 1998 (other than by reason of the default of such
Holder); or
(b) by the Corporation if any of the conditions specified in Section
2.2 of this Agreement has not been satisfied or waived by the Corporation by
July 31, 1998 (other than by reason of the default of the Corporation).
Notwithstanding the foregoing, this Agreement shall terminate (other
than the provisions in Section 7.5) without further liability to any of the
parties at such time as all of the obligations of the Corporation under this
Agreement with respect to the Exchange Securities have been fully satisfied and
discharged.
SECTION 7.3. No Waivers; Amendments. No failure or delay on the part
of the Corporation or any Holder in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Corporation or any Holder at law or in
equity or otherwise. This Agreement may be amended by the Corporation with the
prior written consent of the holders of at least a majority of the Old Preferred
Stock or the Exchange Securities (as the case may be) outstanding at the time
such action is taken by the Corporation.
SECTION 7.4. Communications and Notices. Except as otherwise provided
in this Agreement, this Section 7.4 all communications and notices provided for
in this Agreement shall be in writing and, if to the Corporation, mailed or
delivered to it at 590 Madison Avenue, 21st Floor, New York, New York 10022,
Attention: Chief Financial Officer (Telecopier No. (212) 754-9591), or at any
other office that the Corporation may hereafter designate by written notice to
the Holders, and, if to the Holders, mailed or delivered to their respective
addresses specified on an execution page of this Agreement, or to such other
address and for such attention as any Holder may from time to time designate by
written notice to the Corporation. Each such notice, request or other
communication shall be effective (i) if given by telex or telecopy, when such
telex or telecopy is transmitted to the telex or telecopy number specified in or
pursuant to this Section 7.4 and (in the case of telex) the appropriate
answer-back, or (in the case of a telecopy) telephonic confirmation of receipt,
is received, (ii) if given by mail, four (4) days after such communication is
deposited in the U.S. mails with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered at the address
specified in or pursuant to this Section 7.4.
SECTION 7.5. Indemnification; Costs, Expenses and Taxes. The
Corporation agrees (for the benefit of each Holder and whether or not the
transactions contemplated hereby are consummated), to pay, and to hold each
Holder harmless against liability for the payment of, all reasonable costs and
expenses in connection with the negotiation, preparation, execution and delivery
of this Agreement, the Exchange Securities and any and all other documents
furnished pursuant hereto or thereto or in connection herewith or therewith,
including, without limitation, the reasonable fees and disbursements of counsel
to the Holders incurred in connection with the preparation of and the
out-of-pocket expenses incurred by the Initial Holders and their agents in
connection with the negotiations and execution of this Agreement, all the
reasonable fees and expenses incurred in connection with the registration or
qualification of the Exchange Securities for offer and sale under the state
securities, "Blue Sky" or insurance laws of such jurisdictions as may be
necessary or desirable in connection with validating or attempting to obtain an
exemption from such requirements, the cost of insured delivery to each Initial
Holders' home office of the New Preferred Stock and New Common Stock to be
acquired by it, and all reasonable costs and expenses in connection with the
administration of this Agreement. The Corporation agrees (for the benefit of
each Initial Holder and Holder), to pay, and to hold each Initial Holder and
Holder harmless from and against, all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses), if any, in connection with
the enforcement against the Corporation of this Agreement, or any other
agreement or instrument furnished pursuant hereto or thereto or in connection
herewith or therewith in any action in which any Initial Holder and Holder
attempting to enforce any of the foregoing shall prevail or in any action in
which the Initial Holders and Holders shall validly assert any provision of any
of the foregoing as a defense. In addition, the Corporation agrees (for the
benefit of each Initial Holder and Holder), to pay any and all stamp, transfer
and other similar taxes (together in each case with interest and penalties, if
any) payable or determined to be payable in connection with the execution and
delivery of this Agreement and the issuance of the Exchange Securities and to
hold each Holder harmless from and against any and all liabilities with respect
to or resulting from any delay in paying, or omission to pay, such taxes. In the
event that the Exchange is not consummated and the issuance of the Exchange
Securities does not occur, the Corporation agrees to pay the aforesaid costs and
expenses to be paid by the Corporation pursuant to this Section 7.5. The
obligations of the Corporation in this Section 7.5 shall survive the payment or
transfer of any of the Exchange Securities.
(b) In addition to any and all obligations of the Corporation to
indemnify the Initial Holders and Holders hereunder, the Corporation shall,
without limitation as to time (except as otherwise provided herein) indemnify
each Initial Holder and Holder and their respective Affiliates, employees,
officers, directors, agents and investment advisors (collectively, the
"Indemnified Parties") against, and hold each Indemnified Party harmless from,
all losses, claims, damages, liabilities, costs (including the costs of
preparation and reasonable attorneys' fees) and expenses (collectively, the
"Losses") incurred by such Indemnified Party (i) in connection with or arising
from any breach of any warranty, or the inaccuracy of any representation made by
the Corporation or the failure of the Corporation to fulfill any of its
agreements or undertakings under this Agreement, (ii) pursuant to any
investigation or proceeding against the Corporation or any indemnified party,
brought by any third-party, arising out of or in connection with this Agreement
(or any other document or instrument executed herewith or pursuant hereto or
thereto) or the transactions to which they relate, whether or not the
transactions contemplated herein are consummated, which investigation or
proceeding requires the participation of, or is commenced or filed against, such
Indemnified Party because of this Agreement (or any other document or instrument
executed herewith or pursuant hereto or thereto) or the transactions to which
they relate, whether or not the transactions contemplated herein are
consummated, which investigation or proceeding requires the participation of, or
is commenced or filed against, such Indemnified Party because of this Agreement
(or any such document or instrument executed herewith or pursuant hereto or
thereto) or the transactions contemplated hereby or thereby, or (iii) in
connection with or arising from (A) the failure of the Corporation or any of its
Subsidiaries to comply with any federal, state or local environmental, health or
safety law, ordinance, regulation, rule or other legally enforceable
requirement, or (B) the presence, treatment, recycling, storage, disposal or
actual or potential release of any hazardous waste, hazardous substance,
hazardous material, or oil or any petroleum product (as these terms are defined
in applicable Federal or state environmental laws and regulations) or pollutant
or contaminant at, on or under any property owned by the Corporation or any of
its Subsidiaries, or at, on or under any other place if such hazardous waste,
hazardous substance, hazardous material, oil, petroleum product, pollutant or
contaminant was transported or generated by the Corporation or any of its
Subsidiaries. Notwithstanding the foregoing, the Corporation shall not be liable
for any Losses resulting from action on the part of any Indemnified Party which
is finally determined in such proceeding to be an act of gross negligence,
recklessness or willful misconduct by such Indemnified Party and is unrelated to
any wrongful act by the Corporation or its representatives, or was not taken by
any Indemnified Party in reliance upon any of the warranties, covenants or
promises of the Corporation herein or in any other documents contemplated
hereby, including certificates delivered by the Corporation or its
representatives pursuant hereto or thereto. The Corporation agrees to reimburse
any Indemnified Party promptly for all such Losses as they are incurred by any
Indemnified Party, subject to repayment by such Indemnified Party in the case of
any Losses referred to in the previous sentence. The obligations of the
Corporation to the Indemnified Parties hereunder shall be separate obligations
to each indemnified party, and the liability of the Corporation to any
Indemnified Party hereunder shall not be extinguished solely because any other
Indemnified Party is not entitled to indemnity hereunder. The obligations of the
Corporation under this Section 7.5(b) shall survive any transfer of the Exchange
Securities and the termination of this Agreement.
(c) If the indemnification provided for in Section 7.5(b) is
unavailable to any Indemnified Party in respect of any Losses referred to
therein, then the Corporation in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses in such proportions as is appropriate to reflect the
relative fault of the Corporation, on the one hand and such Indemnified Party,
on the other hand, in connection with the actions which resulted in such Losses
as well as any other relevant equitable considerations. The relative fault of
the Corporation, on the one hand, and the Indemnified Party, on the other hand.
shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been taken by, or
relates to information supplied by, the Corporation on the one hand or such
Indemnified Party, on the other hand, and the Corporation's and such Indemnified
Party's relative intent, knowledge, access to information and opportunity to
correct or prevent any such action, statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.5(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of this Section 7.5(c), any
reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or proceeding. The
obligations of the Corporation under this Section 7.5(c) shall survive any
transfer of the Exchange Securities and the termination of this Agreement.
SECTION 7.6 Lost, etc. Securities. Notwithstanding any provision to
the contrary in the by-laws of the Corporation, if any Exchange Security of
which any Holder (or nominee thereof) is the owner is mutilated, destroyed, lost
or stolen, then the affidavit of such Holder's treasurer or assistant treasurer
(or other responsible official), setting forth the circumstances with respect to
such mutilation, destruction, loss or theft, shall be accepted as satisfactory
evidence thereof, and an indemnity, security or payment of charges or expenses
may be required as a condition to the execution and delivery by the Corporation
of certificates evidencing a like number of shares of Common Stock or Preferred
Stock in substitution therefor. The Corporation may charge such Holder for its
reasonable expenses in replacing such shares.
SECTION 7.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
signature pages each of which counterparts when so executed and delivered shall
be deemed an original and all of which counterparts taken together shall
constitute but one and the same Agreement.
SECTION 7.8 Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with such laws without regard to
principles of conflicts of laws thereof.
SECTION 7.9 Entire Agreement. This Agreement and any other agreement
or instrument furnished pursuant hereto or in connection herewith embody the
entire agreement and understanding between the Holders and the Corporation, and
supersede all prior agreements and understandings relating to the subject matter
hereof.
SECTION 7.10. Severability. In the event that any one or more of the
provisions of this Agreement, or the application thereof in specific
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
SECTION 7.11. Headings. The Section headings used or contained in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
SECTION 7.12. Obligations Several and Not Joint; Limitation of
Liability and Representations and Warranties. Anything herein to the contrary
notwithstanding, the representations, warranties, covenants, agreements and
obligations of the Holders set forth herein are several and not joint. The
Corporation acknowledges and agrees that the liability of each Holder is limited
to the extent (if any) set forth on the signature page to this Agreement
executed by such Holder. The Corporation further acknowledges and agrees that
the representations and warranties made by each Holder hereunder are limited as
and to the extent (if any) expressly described on the signature page to this
Agreement executed by such Holder.
[Remainder of Page Intentionally Left Blank]
<PAGE>
CORPORATION SIGNATURE PAGE
TO
EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed by its officer thereunto duly authorized, as of the date first above
written.
AMPEX CORPORATION
By:/s/ Craig L. McKibben
Title: Vice President
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
VARIABLE INSURANCE PRODUCTS FUND:
HIGH INCOME PORTFOLIO
By: /s/ John H. Costello
Name: John H. Costello
Title: Assistant Treasurer
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen Hudd & Co.
Senior Legal Counsel Tax I.D. No. 13-6582164
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
1,589
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
227
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
497
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
68,129
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY SUMMER STREET TRUST:
FIDELITY CAPITAL & INCOME FUND
By: /s/ John H. Costello
Name: John H. Costello
Title: Assistant Treasurer
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen Hudd & Co.
Senior Legal Counsel Tax I.D. No. 13-6582164
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
23,995
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
3,429
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
7,494
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
1,028,798
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY FIXED-INCOME TRUST:
SPARTAN HIGH INCOME FUND
By: /s/ John H. Costello
Name: John H. Costello
Title: Assistant Treasurer
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen Hudd & Co.
Senior Legal Counsel Tax I.D. No. 13-6582164
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
2,723
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
389
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
851
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
116,750
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY MAGELLAN FUND
By: /s/ John H. Costello
Name: John H. Costello
Title: Assistant Treasurer
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen Sailboat & Co.
Senior Legal Counsel Tax I.D. No. 04-3283870
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
4,415
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
631
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
1,379
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
189,295
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY PURITAN TRUST:
FIDELITY PURITAN FUND
By: /s/ John H. Costello
Name: John H. Costello
Title: Assistant Treasurer
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen M. Gardiner & Co.
Senior Legal Counsel Tax I.D. No. 13-3635511
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
2,581
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
369
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
807
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
110,662
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY ADVISOR SERIES II:
FIDELITY ADVISOR HIGH YIELD FUND
By: /s/ John H. Costello
Name: John H. Costello
Title: Assistant Treasurer
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen Hudd & Co.
Senior Legal Counsel Tax I.D. No. 13-6582164
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
584
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
84
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
182
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
25,040
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
NORTHERN TRUST COMPANY, AS MASTER TRUSTEE
By: /s/ Karen Morgan
Name: Karen Morgan
Title: Trust Officer
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen How & Co.
Senior Legal Counsel Tax I.D. No. 36-6032297
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
1,066
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
152
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
333
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
45,705
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
ILLINOIS STATE BOARD OF INVESTMENTS
FIDELITY MANAGEMENT TRUST COMPANY, AS INVESTMENT MANAGER
UNDER POWER OF ATTORNEY
By: /s/ Thomas Soviero
Name: Thomas Soviero
Title: Vice President
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen How & Co.
Senior Legal Counsel Tax I.D. No. 36-6032287
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
563
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
80
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
175
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
24,138
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
PENSION INVESTMENT COMMITTEE OF GENERAL MOTORS
FOR GENERAL MOTORS EMPLOYEES DOMESTIC PENSION TRUST
FIDELITY MANAGEMENT TRUST COMPANY, AS INVESTMENT MANAGER
UNDER POWER OF ATTORNEY
By: /s/ Thomas Soviero
Name: Thomas Soviero
Title: Vice President
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen Mag & Co.
Senior Legal Counsel Tax I.D. No. 13-6065488
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
1,412
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
202
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
442
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
60,540
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
COMMONWEALTH OF MASSACHUSETTS PENSION
RESERVES INVESTMENT MANAGEMENT BOARD
FIDELITY MANAGEMENT TRUST COMPANY, AS INVESTMENT MANAGER
UNDER POWER OF ATTORNEY
By: /s/ Thomas Soviero
Name: Thomas Soviero
Title: Vice President
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen Catamaran & Co.
Senior Legal Counsel Tax I.D. No. 04-2768809
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
237
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
34
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
75
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
10,161
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY MANAGEMENT TRUST COMPANY, AS TRUSTEE FOR THE
FIDELITY GROUP TRUST FOR EMPLOYEE BENEFIT PLANS,
FIDELITY HIGH YIELD COLLECTIVE PORTFOLIO
By: /s/ Thomas Soviero
Name: Thomas Soviero
Title: Vice President
Notice Address:
82 Devonshire Street - E20F
Boston, Massachusetts 02109
Attn: Portfolio Manager
Telecopier: (617) 476-3316
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
Patricia A. Johansen Pitt & Co.
Senior Legal Counsel Tax I.D. No. 13-6065488
Fidelity Investments (Use Nominee tax I.D. # if securities are
82 Devonshire Street-E20E registered in Nominee name)
Boston, Massachusetts 02109
Telecopier: (617) 476-7774
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
230
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
33
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
73
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
9,861
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
EVERGREEN STRATEGIC INCOME
By: /s/ Christopher P. Conkey
Name: Christopher P. Conkey
Title: Chief Investment Officer, Fixed Income
Notice Address:
200 Berkeley Street
Boston, Massachusetts 02116
Attn: Portfolio Manager
Telecopier: (617) 587-4114
Nominee Name (name in which New Preferred
Stock and New Common Stock should be
registered if different from name of Holder):
Seaward Co.
Tax I.D. No. 04-2945032
(Use Nominee tax I.D. # if securities are
registered in Nominee name)
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
2,156
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
308
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
674
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
92,440
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
EVERGREEN HIGH YIELD BOND
By: /s/ Christopher P. Conkey
Name: Christopher P. Conkey
Title: Chief Investment Officer, Fixed Income
Notice Address:
200 Berkeley Street
Boston, Massachusetts 02116
Attn: Portfolio Manager
Telecopier: (617) 587-4114
Nominee Name (name in which New Preferred
Stock and New Common Stock should be
registered if different from name of Holder):
French Co.
Tax I.D. No. 04-6056310
(Use Nominee tax I.D. # if securities are
registered in Nominee name)
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
24,562
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
3,510
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
7,671
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
1,053,108
<PAGE>
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
EQUIFAX INC. U.S. RETIREMENT
By: /s/ Christopher P. Conkey
Name: Christopher P. Conkey
Title: Chief Investment Officer, Fixed Income
Notice Address:
200 Berkeley Street
Boston, Massachusetts 02116
Attn: Portfolio Manager
Telecopier: (617) 587-4114
Nominee Name (name in which New Preferred
Stock and New Common Stock should be
registered if different from name of Holder):
Hare Co.
Tax I.D. No. 04-2780513
(Use Nominee tax I.D. # if securities are
registered in Nominee name)
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
916
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
131
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
287
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
39,275
<PAGE>
PREFERRED STOCKHOLDER SIGNATURE PAGE
TO
EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed by its officer thereunder duly authorized, as of the date first above
written.
HOLDER:
ICETIDE & CO.
By: /s/ Kate McManus
Name: Kate McManus
Title: Assistant Secretary
State Street Bank & Trust
One Enterprise Drive
Quincy, Massachusetts 02171
Attn: Kate McManus
Telecopier:(617) 537-5359
Nominee Name (name in which Shares
should be registered if different
from name of Holder):
Icetide & Co.
Tax I.D. No. 22-2135952
Aggregate number of Shares
of Old Preferred Stock held:
323
Number and class of Exchange Shares
to be issued in Exchange:
13,850 shares of Class A c/s
46 shares of Convertible p/s
101 shares of Redeemable p/s
<PAGE>
PREFERRED STOCKHOLDER SIGNATURE PAGE
TO
EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed by its officer thereunder duly authorized, as of the date first above
written.
HOLDER:
POOLSIDE & CO.
By: /s/ Cheryl A. Hopson
Name: Cheryl A. Hopson
Title: Vice President
One Enterprise Drive
Quincy, Massachusetts 02171
Attn: Kate McManus
Telecopier:
Nominee Name (name in which Shares
should be registered if different
from name of Holder):
Tax I.D. No. 94-3159739
Aggregate number of Shares
of Old Preferred Stock held:
2,618
Number and class of Exchange Shares
to be issued in Exchange:
112,248 shares in Class A c/s
375 shares of Convertible p/s
818 shares of Redeemable p/s
<PAGE>
<TABLE>
SCHEDULE I
<CAPTION>
Old New Convertible New Redeemable New Class A
Name of Holder Nominee Preferred Preferred Stock Preferred Stock Common Stock
Stock
<S> <C> <C> <C> <C> <C>
Variable Insurance Products Fund:
High Income Portfolio ............ Hudd & Co. 1,589 227 497 68,129
Fidelity Summer Street Trust:
Fidelity Capital & Income Fund ... Hudd & Co. 23,995 3,429 7,494 1,028,798
Fidelity Fixed Income Trust:
Spartan High Income Fund ... Hudd & Co. 2,723 389 851 116,750
Fidelity Magellan Fund ............. Sailboat & Co. 4,415 631 1,379 189,295
Fidelity Puritan Trust:
Fidelity Puritan Fund ............ M. Gardiner & Co. 2,581 369 807 110,662
Fidelity Advisor Series II:
Fidelity Advisor High Yield Fund . Hudd & Co. 584 84 182 25,040
Northern Trust Company, as
Master Trustee.................... How & Co. 1,066 152 333 45,705
Illinois State Board of Investments How & Co. 563 80 175 24,138
Pension Investment Committee of
General Motors for General Motors
Employees Domestic Pension Trust ... Mac & Co. 1,412 202 442 60,540
Commonwealth of Massachusetts
Pension Reserves Investment
Management Board ................. Catamaran & Co. 237 34 75 10,161
Fidelity Management Trust Company,
as Trustee for the Fidelity Group Trust
for Employee Benefit Plans, Fidelity
High Yield Collective Portfolio Pitt & Co. 230 33 73 9,861
Evergreen Strategic Income.......... Seaward & Co. 2,156 308 674 92,440
Evergreen High Yield Bond ..... French & Co. 24,562 3,510 7,671 1,053,108
Equifax, Inc. U.S. Retirement....... Hare & Co. 916 131 287 39,275
Buffalo Color Master Trust ......... Icetide & Co. 323 46 101 13,850
Ampex Retirement Master Trust ...... Poolside & Co. 2,618 375 818 112,248
TOTAL: ............................. 69,970 10,000 21,859 3,000,000
</TABLE>
