Electronically transmitted to the Securities and Exchange Commission on August
19, 1999 Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------------
Ampex Corporation
(Exact name of Registrant as specified in its charter)
-------------------------------
Delaware 13-3667696
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) I.D. Number)
500 Broadway
Redwood City, CA 94063-3199
(650) 367-2011
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
JOEL D. TALCOTT, Esq.
500 Broadway
Redwood City, CA 94063-3199
(650) 367-3330
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
With a copy to:
DAVID D. GRIFFIN, Esq.
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
-------------------------------
Approximate date of commencement of proposed sale to public: From time to
time following the effectiveness of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ X ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
=============================================================================================================
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Offering Price Aggregate Amount of
Registered Amount to be Registered Per Share(1) Offering Price(1) Registration Fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock 816,667 shares $3.34 $2,727,667.78 $ 758.29
=============================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c).
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
PROSPECTUS
----------
Ampex Corporation
816,667 Shares of Class A Common Stock
-------------------------------
Our Class A Common Stock is traded on the American Stock Exchange under the
symbol "AXC." On August 16, 1999, the closing sale price of the Class A Common
Stock on the American Stock Exchange was $3.375 per share.
These shares are being sold by the selling stockholders listed below. The
selling stockholders acquired their shares either in connection with our recent
investment in Executive Branch Webcasting Corporation or in connection with a
consulting agreement we recently signed with Erracht Productions, Ltd. for
program hosting, development and related services for our Internet video
operations. The selling stockholders will determine the selling price of the
shares at the time of sale, and we will not receive any proceeds from the sale
of these shares.
--------------------------------------
See "Risk Factors" beginning on page 6 for certain factors that you should
consider before investing in the shares.
--------------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
--------------------------------------
The date of this prospectus is August 19, 1999.
<PAGE>
TABLE OF CONTENTS
Page
WHERE YOU CAN FIND MORE INFORMATION.......................................... 3
FORWARD-LOOKING STATEMENTS................................................... 4
THE COMPANY.................................................................. 4
RISK FACTORS................................................................. 6
USE OF PROCEEDS.............................................................. 15
SELLING STOCKHOLDERS......................................................... 15
DESCRIPTION OF CAPITAL STOCK................................................. 16
PLAN OF DISTRIBUTION......................................................... 22
LEGAL MATTERS................................................................ 24
EXPERTS...................................................................... 24
2
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy these documents at the SEC's
Public Reference Room, located at 450 Fifth Street, N.W., Washington, D.C.
Please call the SEC at 1-800-SEC-0330 for more information about the Public
Reference Room. The SEC also maintains an Internet site that contains reports,
proxy and information statements and other information regarding issuers that
file electronically with the SEC. The address of the SEC's Internet site is
http://www.sec.gov. You may also read our SEC filings at the American Stock
Exchange, Inc., 86 Trinity Place, New York, New York. Additional information
about us is available on our web site at www.ampex.com.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, until the selling stockholders sell all the shares:
- Annual Report on Form 10-K for the year ended December 31,
1998;
- Quarterly Report on Form 10-Q for the quarter ended March
31, 1999;
- Quarterly Report on Form 10-Q for the quarter ended June 30,
1999;
- Proxy Statement dated April 9, 1999; and
- Registration Statement on Form 8-A filed with the SEC on
January 16, 1996.
This prospectus is part of the registration statement we filed with the SEC
(file no. 333-_____). You may request a copy of the information incorporated by
reference, at no cost, by contacting us at the following address or telephone
number:
Investor Relations
Ampex Corporation
500 Broadway
Redwood City, CA 94063-3199
(650) 367-4111.
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide you
with different information. The selling stockholders will not offer to sell
these shares in any state where the offer is not permitted. You should not
assume that the information in this prospectus is accurate as of any date other
than the date on the front of this prospectus.
3
FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Such statements involve known and unknown risks, uncertainties and
other important factors that could cause our actual results, performance or
achievements, or industry results, to differ materially from any future results,
performance or achievements expressed or implied by such statements. These
risks, uncertainties and other important factors include, among others, those
described under the "Risk Factors" section beginning on page 6. You should read
the Risk Factors section carefully, and should not place undue reliance on any
forward-looking statements, which speak only as of the date of this prospectus.
We undertake no obligation to release publicly any updating information about
forward-looking statements to reflect events or circumstances occurring after
the date of this prospectus or to reflect the occurrence of unanticipated
events.
THE COMPANY
General
Ampex is a holding company focusing on the acquisition, storage and
processing of information in visual form. We hold approximately 1,000 patents
and patent applications in digital image processing and recording technology,
from which we derive significant licensing income. Since our founding in 1944,
we have received numerous awards for technical achievements in electronic
imaging. As a leading innovator for the visual information age, we have
developed numerous breakthrough technologies for the electronics, entertainment,
corporate and government sectors. These include, among others, the first
commercially successful videotape recorder, three-dimensional (3-D) digital
special effects systems and the first digital videotape recorder utilizing data
compression.
We conduct our intellectual property licensing activities through Ampex,
and our other business operations primarily through three wholly-owned
subsidiaries: our manufacturing subsidiaries, Ampex Data Systems Corporation and
MicroNet Technology, Inc., and our Internet subsidiary, iNEXTV Corporation.
Ampex Data Systems Corporation. Ampex Data Systems Corporation is the
successor to the recording equipment business of Ampex Corporation, and designs
and manufactures high-capacity, high-performance tape-based digital image
storage solutions for large-scale corporate, government, network, entertainment
and telecommunications applications. Its customers include AT&T, the Federal
Aviation Administration, Fox Television, HBO, Netcom and TV Guide Network. Data
Systems has two principal product groups: its mass data storage and
instrumentation products group and its professional video and other products
group.
Data Systems' mass data storage products are designed for the storage and
retrieval of large amounts of computer data, primarily images. This product
group includes Data Systems' 19-millimeter scanning recorders and library
systems, and related tape and after-market equipment. Its DST(R) tape drives and
robotic library systems offer rapid data access times, high-speed data transfer
rates and low cost per megabyte of storage. Its DIS(TM) instrumentation
recorders allow users to record instrumentation data on DST tape cartridges, so
that the data can be used in a computer environment as well as in an
instrumentation environment. Also included in this product group are Data
Systems' DCRsi(R) instrumentation recorders, which are designed for demanding
aeronautical applications such as
4
commercial and military flight testing, as well as other applications involving
comparable data-gathering challenges in extreme environments.
Data Systems' professional video products group includes its DCT(R) video
recorders and image processing systems, and related tape products and television
after-market products. The DCT video recording products were developed for
high-end digital component recording applications in entertainment and imaging
markets, and pioneered the use of digital image compression in the professional
television industry. By licensing our patents for video technology, which were
developed for use in Data Systems' video operations, Ampex has recognized
significant royalty income, primarily from sales of consumer video products by
licensees. These royalties have fluctuated materially from year to year.
MicroNet Technology, Inc. In June 1998, we acquired MicroNet, a
manufacturer of disk arrays and related storage products for image-based markets
such as the video and commercial pre-press markets. MicroNet's DataDock and
Genesis disk drives are computer data storage systems based upon redundant
arrays of independent drives (RAID), which permit users to configure their disk
drives to store up to one terabyte of data. Users of MicroNet's products range
from individuals requiring high-performance storage to companies requiring
high-capacity RAID storage. Customers of MicroNet include Walt Disney,
Paramount, Warner Bros., Lucasfilm and Industrial Light and Magic.
iNEXTV Corporation. In order to leverage our core expertise in image-based
markets, we recently formed iNEXTV Corporation to assemble a network of
video-driven Internet sites targeted to specific markets. Operating as a network
center for these sites, iNEXTV provides funding for programming and production,
leading-edge technology and advertising sales and programming promotion.
iNEXTV's strategic objective is to become one of the leading providers of
streaming video content for the Internet.
The iNEXTV network of affiliated video web sites currently includes: TV
onthe Web, Inc. (www.tvontheweb.com), a leading Internet video provider;
Alternative Entertainment Network, Inc. (www.aentv.com), an on-demand streaming
video site; and TV1 Internet Television (www.tv1.de), one of Europe's top
webcasters. iNEXTV is also working with Executive Branch Webcasting Corporation
(www.exbtv.com) to develop a web site which will provide coverage of executive
agency and White House activities over the Internet, and a premier channel,
iSTYLETV, both of which are scheduled to launch in the second half of 1999.
iNEXTV is also working with its parent company, Ampex, to apply Ampex's digital
video expertise toward the development of enhanced video technology for use by
iNEXTV and its affiliates. iNEXTV currently produces video programming in New
York, Los Angeles, Reston, Virginia, Washington, D.C. and Munich, Germany, and
has announced that it intends to expand its European operations to Berlin in
2000. Affiliates of iNEXTV also provide Internet video services to third
parties. In order for iNEXTV to become profitable, it will be required to sell
video advertising and eventually to sell products electronically to customers
who are viewing its programming content. iNEXTV has not yet generated any
material advertising or sales revenues and, as with any new venture, can be
expected to be unprofitable for a substantial period of time. See "Risk Factors
- -- iNEXTV is Subject to Special Risks Related to Internet Video Providers."
Ampex was incorporated in Delaware in January 1992 as the successor to a
business originally organized in 1944. References to "Ampex" or the "Company"
include subsidiaries and predecessors of Ampex Corporation, unless the context
indicates otherwise. Our principal executive offices are located at 500
Broadway, Redwood City, California 94063-3199, and our telephone number is (415)
367-2011.
5
The names "Ampex," "DCT," "DST," "DIS" and "DCRsi" are trademarks of
Ampex Corporation. "MicroNet," "DataDock" and "Genesis" are trademarks of
Micronet Technology, Inc. The names "iNEXTV" and "iSTYLETV" are service marks of
iNEXTV Corporation.
RISK FACTORS
Investment in the shares covered by this prospectus involves a significant
degree of risk. You should carefully consider all of the information in this
prospectus, and, in particular, should evaluate the following risks related to
an investment in the shares.
We Have Significant Indebtedness, Which May Affect Our Financial Condition
As of June 30, 1999 we had outstanding approximately $46.4 million of total
borrowings, which includes $44.0 million under our 12% Senior Notes due 2003 and
$2.4 million of subsidiary indebtedness. We have invested a portion of the
proceeds from the Senior Notes in our MicroNet and iNEXTV subsidiaries and for
general corporate purposes. We have invested a portion of the balance of those
proceeds in government securities and, in order to realize yields approaching
the interest rate on the Senior Notes, from time to time we have invested in
high yield mutual funds and corporate securities, some of which have longer
terms and lower credit quality than U.S. government securities. We may also
engage in various transactions in derivative securities, although we have not
done so to date. We may incur additional indebtedness from time to time to
finance acquisitions or capital expenditures or for other purposes, subject to
the restrictions in the indenture governing the Senior Notes. The degree to
which we are leveraged, and the types of investments we select, could have
important consequences to investors, including the following:
- a substantial portion of our consolidated cash flow from
operations must be dedicated to the payment of the principal
of and interest on our outstanding indebtedness, and will
not be available for other purposes;
- our ability to obtain additional financing in the future for
working capital needs, capital expenditures, acquisitions
and general corporate purposes may be materially limited or
impaired, or such financing may not be available on terms
favorable to us;
- we may be more highly leveraged than our competitors, which
may place us at a competitive disadvantage;
- our leverage may make us more vulnerable to a downturn in
our business or the economy in general;
- investments in securities with lower credit quality or
longer maturities could subject us to potential losses due
to non-payment or changes in market value of those
securities, and transactions in derivative securities could
expose Ampex to losses caused by stock market fluctuations;
and
6
- the financial covenants and other restrictions contained in
the Senior Note indenture and other agreements relating to
our indebtedness will restrict our ability to borrow
additional funds, to dispose of assets or to pay dividends
on or repurchase preferred or common stock.
We expect that our cash balances and cash flow from operations will be
sufficient to fund anticipated operating expenses, capital expenditures and our
debt service requirements as they become due, through the end of fiscal 1999.
However, we cannot assure you that the amounts available from these sources will
be sufficient for such purposes in future periods. Also, we cannot assure you
that additional sources of funding will be available if we need them or, if
available, will be on satisfactory terms. If we cannot service our indebtedness,
we will be forced to adopt alternative strategies. These strategies may include
reducing or delaying capital expenditures, selling assets, restructuring or
refinancing our indebtedness, or seeking additional equity capital. We cannot
give any assurance that any of these strategies will be successful or that they
will be permitted under the Senior Note indenture.
In addition, in order to fund additional investments in iNEXTV or our
Internet video affiliates, we may seek to raise additional capital, either
through the sale of debt or equity securities or the sale of some of our other
non-Internet operations. Any such transactions could increase our current level
of indebtedness or dilute the equity interests of our stockholders. However, we
cannot assure you that if we were to undertake any such capital-raising
transactions we would successfully be able to accomplish them.
Ampex derives a substantial portion of its operating income from its
subsidiaries. Accordingly, Ampex will be dependent on dividends and other
distributions from its subsidiaries to generate the funds necessary to meet its
obligations, including the payment of principal and interest on the Senior
Notes. The ability of our subsidiaries to pay such dividends will be subject to,
among other things, the terms of any debt instruments of our subsidiaries then
in effect and applicable law.
Our Sales May Continue to Decline, and We May Incur Future Losses
In recent years, Ampex's net sales have declined materially. These declines
primarily reflect declines in sales of Data Systems' products to U.S. and
foreign government agencies and defense contractors, which are material to our
operating results. These government agencies and contractors have experienced
continued pressure to reduce spending, which has particularly affected Data
Systems' sales to government contractors of its DCRsi instrumentation recorders,
which have generally been more profitable than its data storage and video
recording products. Sales of professional television and aftermarket products
are also expected to decline as a result of the announcement of new digital
television transmission standards.
In response to declining sales of these products, Ampex has been seeking to
expand its products and services, including through acquisitions such as the
MicroNet acquisition, and the formation of iNEXTV. Data Systems has also
instituted, and will continue to implement, cost reduction programs. We cannot
assure you that any of these strategies will be successful, or that we will be
able to reverse recent sales declines. Ampex reported losses in the first half
of 1999 and, due to our Internet video programming activities, promotional
expenses and amortization of goodwill relating to acquired businesses, we expect
those losses to increase in the second half of 1999.
7
iNEXTV is Subject to Special Risks Related to Internet Video Providers
Our Internet subsidiary, iNEXTV, was formed recently and has not yet
generated any material advertising or sales revenues. In evaluating the business
and prospects of iNEXTV, and of our Internet video strategy in general, you
should take into account the risks and uncertainties typical of companies in the
early stages of development, particularly in new and rapidly evolving markets
such as those for Internet content, advertising and electronic commerce
(e-commerce). The development of our Internet subsidiary, iNEXTV, and the
implementation of our strategy to expand our Internet video businesses involve
special risks and uncertainties, including but not limited to the following:
- our ability to identify, acquire and deliver compelling,
quality video programming over the Internet;
- market acceptance of streaming media technology, which is
currently of lower quality than television or radio
broadcasts, is subject to congestion and interruptions on
the Internet, and requires specialized software, technical
expertise and increased bandwith;
- dependence upon the continued acceptance and growth of the
Internet as a medium for advertising and e-commerce, and
upon our ability to generate advertising revenues and, in
future periods, to sell goods and services over the
Internet;
- vulnerability of Internet content delivery to system
failures and interruptions for a variety of reasons
(including telecommunications problems and natural
disasters), computer viruses and other breaches of security;
- dependence upon Internet service providers, web browsers,
providers of streaming media products and others to provide
Internet access to our websites and programming;
- the ability of iNEXTV and its affiliates to obtain and
manage resources for growth from their present size and to
become profitable;
- our ability to transfer audio or video technology to
Internet-based applications;
- competition among Internet broadcasters and providers of
products and services for users, advertisers, content and
new products and services;
- uncertainty about the adoption and application of new laws
and government regulations relating to Internet businesses,
which could slow Internet growth, expose us to potential
liabilities or otherwise adversely affect our Internet
businesses;
- our ability to expand successfully in the European market,
which is likely to be subject to cultural and language
barriers, different regulatory environments, currency
exchange rate fluctuations and other difficulties relating
to managing foreign operations. See "Risks Related to
International Operations," below; and
- likelihood of continued and significant expenses resulting
in material losses in future periods, which could negatively
affect the price of our securities and require us to seek
additional capital which may not be available on
satisfactory terms or at all.
8
We May Not Be Successful in Implementing Our Acquisition Strategy
In order to expand our products and services, we have made, and may
continue to make, acquisitions of and/or investments in other business entities,
including businesses involved in the production and distribution of Internet
video programming. We may not be able to identify or acquire additional
acquisition candidates in the future, or complete any further acquisitions or
investments on satisfactory terms. In order to pay for future acquisitions or
investments, we may have to:
- issue additional equity securities of Ampex or its
subsidiaries, which would dilute the ownership interests of
our existing stockholders;
- incur additional debt; and/or
- amortize goodwill and other intangibles or incur other
acquisition-related charges, which could materially impact
earnings.
Acquisitions and investments involve numerous additional risks, including
difficulties in the management of operations, services and personnel of the
acquired companies, and of integrating acquired companies with Ampex and/or each
other's operations. We may also encounter problems in entering markets and
businesses in which we have limited or no experience. Acquisitions can also
divert our management's attention from other business concerns. We may make
investments in companies in which we have less than a 100% interest. These
investments involve additional risks, including the risk that we may not be in a
position to control the management or policies of those entities, and risks of
potential conflicts with other investors. We have invested in companies that are
in the early stage of development and may be expected to incur substantial
losses. Ampex's financial resources may not be sufficient to fund the operations
of these companies. There can be no assurance that any acquisitions or
investments that Ampex has made, or may make in the future, will result in any
return, or as to the timing of any return, and Ampex could lose all or a
substantial portion of its investments.
Our Royalty Income is Subject to Material Fluctuations
Our results of operations in certain prior periods have benefitted from
significant royalty income. We have received a substantial portion of that
royalty income from negotiated settlements with manufacturers who had sold
products incorporating our patents before entering into license agreements with
us. Although we have a substantial number of outstanding and pending patents,
and our patents have generated substantial royalties in the past, we cannot
predict the amount of royalty income that we will receive in the future. Royalty
income has historically fluctuated widely due to a number of factors that we
cannot predict, such as the extent to which third parties use our patented
technology, the extent to which we must pursue litigation in order to enforce
our patents, and the ultimate success of our licensing and litigation
activities.
The costs of patent litigation can be material. If we begin patent
enforcement litigation against third parties, we may be subject to an increased
risk of counterclaims alleging infringement by us of patents held by others or
seeking to invalidate patents held by us. Moreover, we cannot assure you that we
will be able to develop patentable technology that will generate significant
patent royalties in future years to replace patents as they expire. Our royalty
income fluctuates significantly from quarter to quarter and from year to year,
and we cannot give any assurance as to the level of royalty income that will be
realized in future periods.
9
Our Operating Results are Subject to Quarterly Fluctuations
Ampex's sales and results of operations are generally subject to quarterly
and annual fluctuations. Various factors affect our operating results, some of
which are not within our control, including:
- customer ordering patterns;
- availability and market acceptance of new products and
services;
- timing of significant orders and new product announcements;
- order cancellations;
- receipt of royalty income;
- the amount and timing of capital expenditures and other
costs relating to the expansion of our operations; and
- general economic and industry conditions, including those
relating to the Internet, e- commerce and new media.
Data Systems' revenues are typically dependent upon receipt of a limited
number of customer orders involving relatively large dollar volumes and are
difficult to forecast in any given fiscal period. In addition, any acquisitions
or material investments that we may elect to make in a given quarter may
significantly affect our operating results. Therefore, our results may fluctuate
significantly from quarter to quarter and from year to year. Results of a given
quarter or year may not necessarily be indicative of results to be expected for
future periods. In addition, fluctuations in operating results may negatively
affect our debt service coverage, or our ability to issue debt or equity
securities should we wish to do so, in any given fiscal period. Material
fluctuations in our operating results in future periods could have a material
adverse effect on the price of the Class A Common Stock.
Seasonal Customer Ordering Patterns May Affect Our Business
Sales of most of our products have historically declined during the first
and third quarters of our fiscal year, due to the seasonal procurement practices
of our customers. Depending upon the ability of iNEXTV to generate Internet
advertising and sales revenues, we could experience different seasonal trends in
the recognition of these revenues. A substantial portion of our backlog at a
given time is normally shipped within one or two quarters thereafter. Therefore,
sales in any quarter are heavily dependent on orders received in that quarter
and the immediately preceding quarter.
We May be Unable to Respond to Rapid Technological Change and the Need to
Develop New Products
All the industries and markets from which we derive or expect to derive
revenues, directly or through our licensing program, are characterized by
continual technological change and the need to introduce new products, product
upgrades and patentable technology. This has required, and will continue to
require, that we spend substantial amounts for the research, development and
engineering of new products and advances to existing products and, with respect
to our Internet operations, new content
10
and services. We cannot assure you that our existing products, technologies and
services will not become obsolete or that any new products, technologies or
services will win commercial acceptance. Obsolescence of existing product lines,
or inability to develop and introduce new products and services, could have a
material adverse effect on our sales and results of operations in the future.
The development and introduction of new technologies, products and services are
subject to inherent technical and market risks, and there can be no assurance
that we will be successful in this regard.
We Encounter Significant Competition in All of Our Businesses
Data Systems encounters significant competition in all its product markets.
Many of its competitors have greater resources and access to capital than the
Company. In the mass data storage market, Data Systems competes with a number of
well-established competitors such as IBM, Storage Technology Corporation,
Exabyte Corporation and Quantum Corporation, as well as smaller companies. In
addition, other manufacturers of scanning video recorders may seek to enter the
mass data storage market in competition with us. For example, Sony Corporation
has entered this market with storage products based on its video recording
technology. In addition, price declines in competitive storage systems, such as
magnetic or optical disk drives, can negatively impact sales of Data Systems'
DST products.
In the instrumentation market, Data Systems competes primarily with
companies that depend on government contracts for a major portion of their sales
in this market, including Sony Corporation, Loral Data Systems, Datatape
Incorporated and Metrum Incorporated. The number of competitors in this market
has decreased in recent years as the level of government spending in many areas
has declined.
MicroNet's competitors include both large companies such as EMC
Corporation, Data General Corporation and IBM Corporation and other smaller
system integrators. There is no assurance that MicroNet will be able to compete
successfully in these markets in the future.
The market for Internet products and services is highly competitive and
characterized by multiple competitors and low barriers to entry. Ampex is
attempting to differentiate itself from its competitors by developing video
content specifically created for the Internet, and by utilizing certain
proprietary technology to improve the quality of video programming delivered
over the Internet. However, we cannot assure you that iNEXTV's Internet video
strategy will achieve competitive success in any market segment of the Internet.
In addition, the market for Internet advertising and electronic commerce, upon
which our Internet operations will be partially dependent to achieve ultimate
profitability, is intensely competitive and we believe that competition in this
field will intensify. See "Risks Related to iNEXTV and our Internet Video
Strategy."
We Are Dependent On Certain Suppliers
Ampex purchases certain components from a single domestic or foreign
manufacturer. Significant delays in deliveries or defects in such components
could adversely affect our manufacturing operations, pending qualification of an
alternative supplier. In addition, we produce highly engineered products in
relatively small quantities. As a result, our ability to cause suppliers to
continue production of certain products on which we may depend may be limited.
We do not generally enter into long-term raw materials or components supply
contracts.
11
We Are Subject to Certain Risks Related to Our International Operations
Although we significantly curtailed Data Systems' international operations
in connection with the restructuring of its operations in 1993, sales to foreign
customers (including U.S. export sales) continue to be significant to its
results of operations. The expansion of iNEXTV's European operations may
generate advertising and sales revenues in future periods, although we have not
recognized any material revenues to date. iNEXTV's European operations are
expected to be subject to certain risks and uncertainties, as set forth below
and under the caption "Risks Related to iNEXTV and our Internet Video Strategy."
International operations are subject to a number of special risks, including
limitations on repatriation of earnings, restrictive actions by local
governments, and fluctuations in foreign currency exchange rates and
nationalization. Additionally, export sales are subject to export regulation and
restrictions imposed by U.S. government agencies. Fluctuations in the value of
foreign currencies can affect our results of operations. We do not normally seek
to mitigate our exposure to exchange rate fluctuations by hedging our foreign
currency positions.
In January 1999, the new "Euro" currency was introduced in certain European
countries that are part of the European Monetary Union. Beginning in 2003, all
EMU countries are expected to be operating with the Euro as their single
currency. A significant amount of uncertainty exists as to the effect the Euro
will have on the marketplace generally. Some of the rules and regulations
relating to the governance of the currency have not yet been defined and
finalized. As a result, companies operating or conducting business in Europe
will need to ensure that their financial and other software systems are capable
of processing transactions and properly handling the Euro. We are currently
assessing the effect the introduction of the Euro will have on our internal
accounting systems and the potential sales of our products. We will take
appropriate corrective actions based on the results of such assessment. We have
not yet determined the costs related to addressing this issue. This issue is not
expected to have a material adverse effect on our business.
Our Stock Price May Be Subject to Continued Volatility
The trading price of our Common Stock has been and can be expected to be
subject to significant volatility, reflecting a variety of factors, including:
- quarterly fluctuations in operating results;
- announcements of the introduction of new products,
technologies or services by us or our competitors;
- announcements by us of acquisitions of, or investments in,
new businesses or other events; o reports and predictions
concerning the Company by analysts and other members of the
media;
- issuances of substantial amounts of Common Stock in order to
redeem outstanding shares of our Preferred Stock or for
other purposes; and
- general economic or market conditions.
12
The stock market in general, and Internet and technology companies in
particular, have experienced a high degree of price volatility, which has had a
substantial effect on the market prices of many such companies for reasons that
often are unrelated or disproportionate to operating performance. These broad
market and industry fluctuations may adversely affect the price of the Class A
Common Stock, regardless of Ampex's operating performance.
We Are Dependent on Certain Key Personnel
We are highly dependent on our management. Our success depends upon the
availability and performance of our executive officers and directors. Certain of
iNEXTV's affiliates have entered into employment agreements with their chief
executive officers. Except for these agreements, we have not entered into
employment agreements with any of our key employees, and the loss of their
services could have a material adverse effect on us. We do not maintain key man
life insurance on any of these individuals.
Our Charter Documents and Certain of Our Governing Instruments May Prevent a
Takeover
Our Certificate of Incorporation provides for a classified Board of
Directors, with members of each class elected for a three-year term. The
Certificate of Incorporation provides for nullification of voting rights of
certain foreign stockholders in certain circumstances involving possible
violations of security regulations of the United States Department of Defense.
The instrument governing our outstanding Preferred Stock, which had an aggregate
liquidation value of approximately $45.5 million at June 30, 1999, requires that
we make mandatory offers to redeem those securities out of legally available
funds in the event of a change of control. For this purpose, a change of control
includes the following events: a person or group of people acting together
acquires 30% or more of our voting securities; we merge, consolidate or transfer
all or substantially all of our assets; or the dissolution of Ampex. The
Certificate of Incorporation authorizes our Board of Directors to issue
additional shares of Preferred Stock without the vote of stockholders.
The indenture governing our outstanding Senior Notes, in the total
principal amount of $44 million, requires us to offer to repurchase the Senior
Notes at a purchase price equal to 101% of the outstanding principal amount
thereof together with accrued and unpaid interest in the event of a change of
control. Under the indenture, a change of control includes the following events:
a person or group of people acting together acquires 50% or more of our
outstanding voting stock; or the transfer of substantially all of our assets to
any such person or group, other than to certain of our subsidiaries and
affiliates.
We also hold certain promissory notes issued by our Chief Executive
Officer, Edward J. Bramson, and his designees. As of June 30, 1999, the unpaid
principal amount of these notes totalled $3.0 million. In September 1998, we
entered into two agreements which provide that, in the event of a change of
control (as defined in these agreements), Mr. Bramson will have the right to
surrender the 800,000 shares of Class A Common Stock currently securing the
notes in exchange for the full release and cancellation of any claims by us for
repayment of the notes, and the return of the notes and cash payments previously
paid by him for those shares, without interest.
These provisions could have anti-takeover effects by making an acquisition
of Ampex by a third party more difficult or expensive in certain circumstances.
13
We do Not Expect to Pay Dividends on our Common Stock
We have not declared dividends on our Common Stock since our incorporation
in 1992 and we have no present intention of paying dividends on our Common
Stock. We are also restricted by the terms of certain agreements and of our
outstanding Preferred Stock as to the declaration of dividends.
We are Dependent on Licensed Patents and Proprietary Technology
Our success depends, in part, upon our ability to establish and maintain
the proprietary nature of our technology through the patent process. There can
be no assurance that one or more of our patents will not be successfully
challenged, invalidated or circumvented or that we will otherwise be able to
rely on such patents for any reason. In addition, there can be no assurance that
competitors, many of whom have substantial resources and have made substantial
investments in competing technologies, will not seek to apply for and obtain
patents that prevent, limit or interfere with our ability to make, use and sell
our products either in the United States or in foreign markets. If any of our
patents are successfully challenged, invalidated or circumvented or our right or
ability to manufacture our products were to be proscribed or limited, our
ability to continue to manufacture and market our products could be adversely
affected, which would likely have a material adverse effect upon our business,
financial condition and results of operations.
Litigation may be necessary to enforce our patents, to protect trade
secrets or know-how owned by us or to determine the enforceability, scope and
validity of the proprietary rights of others. Any litigation or interference
proceedings brought against, initiated by or otherwise involving us may require
us to incur substantial legal and other fees and expenses and may require some
of our employees to devote all or a substantial portion of their time to the
prosecution or defense of such litigation or proceedings.
We Are Subject to Environmental Regulation and our Business Could be Negatively
Affected by the Costs of Compliance
Our facilities are subject to numerous federal, state and local laws and
regulations designed to protect the environment from waste emissions and
hazardous substances. Owners and occupiers of sites containing hazardous
substances, as well as generators and transporters of hazardous substances, are
subject to broad liability under various federal and state environmental laws
and regulations, including liability for investigative and cleanup costs and
damages arising out of past disposal activities. We have been named from time to
time as a potentially responsible party by the United States Environmental
Protection Agency with respect to contaminated sites that have been designated
as "Superfund" sites, and are currently engaged in various environmental
investigation, remediation and/or monitoring activities at several sites located
off Company facilities. There can be no assurance we will not ultimately incur
liability in excess of amounts currently reserved for pending environmental
matters, or that additional liabilities with respect to environmental matters
will not be asserted. In addition, changes in environmental regulations could
impose the need for additional capital equipment or other requirements. Such
liabilities or regulations could have a material adverse effect on us in the
future.
14
Failure of Our Computer Systems and Software to be Ready for Year 2000 Could
Negatively Affect Our Business
Many currently installed computer systems, software applications and other
control devices (collectively, "Systems") are coded to accept only two digit
entries in the date code field. As the year 2000 approaches, these code fields
will need to accept four digit entries to distinguish years beginning with "19"
from those beginning with "20". As a result, by the end of this year the Systems
used by many companies may need to be modified to comply with year 2000
requirements. Ampex relies on its internal Systems in operating and monitoring
all major aspects of its business, including its manufacturing processes,
engineering management controls, financial systems (such as general ledger,
accounts payable and payroll modules), customer services, infrastructure,
embedded computer chips, networks and telecommunications equipment and products.
We also rely on the external Systems of our suppliers and other organizations
with which we do business. Based on a review of our Systems and the nature of
the corrections needed to make the Systems compliant, we believe there is
minimal risk that the Systems will be non-compliant on January 1, 2000. However,
despite our efforts thus far to address the year 2000 impact, Ampex cannot
guarantee that all internal and external systems will be compliant, or that our
business will not be materially adversely affected by any such non-compliance.
USE OF PROCEEDS
All net proceeds from the sale of the shares covered by this prospectus
will go to the selling stockholders who offer and sell their shares.
Accordingly, Ampex will not receive any proceeds from the sale of these shares.
SELLING STOCKHOLDERS
On July 22, 1999, Ampex purchased 199 shares, or 19.9%, of the common stock
of Executive Branch Webcasting Corporation ("Executive Branch" or "EBWC"), an
internet video channel covering White House and executive agency activities,
together with options to purchase an additional 31.1% of EBWC. Ampex paid a
portion of the purchase price for the 199 shares in cash, and the balance by
issuing to Information Super Station, L.L.C. ("ISS"), which was the sole
stockholder of EBWC and is a selling stockholder, 153,846 shares of Class A
Common Stock and a warrant (the "Warrant") to purchase 512,821 additional shares
of Class A Common Stock (the "Warrant Shares"). Our option to acquire the
additional 31.1% of EBWC is exercisable in increments of 7.775%, for $200,000
per increment, in cash, on each of the following dates: September 15, 1999;
December 15, 1999; March 15, 2000; and July 15, 2000, in each case subject to
extension in certain circumstances.
Under the Warrant, ISS may purchase up to 512,821 Warrant Shares at $3.90
per share (subject to adjustment). The Warrant will become exercisable as to
128,205 Warrant Shares, or 25% of the total Warrant Shares, upon our exercise of
the March 15, 2000 option described above, and as to the remaining 384,615
Warrant Shares, or 75% of the total Warrant Shares, upon our exercise of the
July 15, 2000 option described above. If we do not exercise the March 15, 2000
option, the entire Warrant will expire on that date. If we do exercise that
option, but do not exercise the July 15, 2000 option, the Warrant will expire as
to 384,615 Warrant Shares on that date. The Warrant will also expire as to any
vested but unexercised portion on June 15, 2001. The number of shares of Class A
Common Stock being registered for sale by ISS includes the 153,846 shares we
issued in July 1999 and the 512,821 shares issuable upon exercise of the
Warrant.
15
On July 6, 1999, Ampex entered into a consulting agreement with Erracht
Productions, Ltd. ("Erracht"), pursuant to which we retained Erracht, as an
independent contractor, to provide the services of Mr. Hugh Downs to perform
program hosting and related services for our Internet video operations. As an
inducement to Erracht entering into the agreement, we agreed to issue to Erracht
150,000 shares of Class A Common Stock for a purchase price of $0.01 per share.
In connection with our investment in EBWC, we agreed to register the shares
of Class A Common Stock and the Warrant Shares for sale by ISS, as a selling
stockholder. We agreed to maintain the effectiveness of the registration
statement covering the shares of Class A Common Stock and the Warrant Shares for
24 months or until such earlier date that all such shares are sold by ISS or
become eligible for resale without registration under Rule 144 of the Securities
Act. In connection with the consulting agreement, we agreed to register the
150,000 shares for sale by Erracht, as a selling stockholder, on terms similar
to those applicable to ISS. Our registration of these shares does not
necessarily mean that any selling stockholder will sell any or all of its
shares.
The following table sets forth certain information with respect to the
selling stockholders. All of the shares beneficially owned by the selling
stockholders are being registered for the account of the selling stockholders.
However, the selling stockholders will only be able to offer for sale those
shares that they actually hold. ISS must therefore exercise the Warrant before
it can sell any of the Warrant Shares. In addition, the selling stockholders may
sell all or some of their shares. Accordingly, we cannot estimate the number of
shares that will be owned by the selling stockholder upon completion of the
offering to which this prospectus relates. The information set forth in the
table was furnished to us by the selling stockholders.
Number of Shares
of Class A
Selling Stockholder Common Stock
------------------- ------------
Information Super Station, 666,667*
L.L.C.
Erracht Productions, Ltd 150,000
-------
TOTALS: 816,667
=======
- ----------------
* Including Warrant Shares
DESCRIPTION OF CAPITAL STOCK
The following description is a summary of certain provisions of our
Certificate of Incorporation and By-Laws that relate to our capital stock. This
summary is qualified in its entirety by reference to those documents, copies of
which are filed or incorporated by reference as exhibits to the registration
statement that includes this prospectus.
16
General
Our authorized capital stock consists of (i) 226,000,000 shares of Common
Stock, of which 175,000,000 shares are designated as Class A Common Stock, and
50,000,000 shares are designated as Class C Common Stock; and (ii) 1,000,000
shares of Preferred Stock, of which 163,886 previously issued shares have been
canceled and retired. As of the date of this prospectus, no shares of Class C
Common Stock were outstanding.
Common Stock
Dividends. Holders of Common Stock are entitled to receive such dividends
as may be declared by the Board of Directors out of funds legally available for
such purpose. However, this right to receive dividends is subject to preferences
which may be granted to holders of Preferred Stock, and to the restrictions
contained in the Certificate of Designations. No dividend may be declared or
paid in cash or property on any share of Class A Common Stock or Class C Common
Stock, unless the same dividend is simultaneously declared or paid on each share
of Class A Common Stock and each share of Class C Common Stock. In the case of
any stock dividend, holders of each class of Common Stock are entitled to
receive the same ratable dividend. Such dividends will be payable to the holders
of Class A Common Stock in shares of Class A Common Stock and to the holders of
Class C Common Stock in shares of Class C Common Stock.
Liquidation Rights. Upon liquidation, dissolution or winding-up of the
Company, the holders of all classes of Common Stock shall be entitled to share
ratably, in accordance with the number of shares of Common Stock held by each
such holder, in all assets available for distribution to stockholders after
payment of creditors. This right is also subject to preferences that may be
granted to holders of Preferred Stock.
Voting Rights. Holders of Class A Common Stock are entitled to one vote for
each share held of record on matters submitted to a vote of stockholders.
Subject to the voting rights of any outstanding shares of Preferred Stock,
approval of matters brought before the stockholders requires the affirmative
vote of a majority of shares of Class A Common Stock, except that the
affirmative vote of the holders of at least 80% of the outstanding shares of
voting Common Stock is required in order to amend or repeal:
(i) the provisions relating to classification of the Board,
removal and number of directors and the 80% voting
requirement in such instances;
(ii) the provisions described below under "Directors' and
Officers' Liability;" and
(iii) as otherwise required by law.
Under Delaware law, the affirmative vote of the holders of a majority of
outstanding shares of any class of Common Stock is required to approve, among
other things, any adverse change in the powers, preferences or special rights of
the shares of such class. The number of authorized shares of Class A Common
Stock, Class C Common Stock and Preferred Stock may be increased or decreased
(but not below the number of shares then outstanding) by the affirmative vote of
the holders of a majority in voting power of the outstanding Class A Common
Stock.
17
The holders of Class C Common Stock generally have no voting rights and the
Class C Common Stock is not included in determining the number of shares voting
or entitled to vote or consent on any matter. However, the affirmative vote of
the holders of a majority of the outstanding shares of Class C Common Stock,
voting as a separate class (with each share entitled to one vote), is required
under Delaware law for any amendment to, or modification or waiver of, the
provisions of the Certificate of Incorporation that would adversely alter,
change or affect the powers, preferences or rights of the Class C Common Stock.
Subject to the voting rights of the holders of any outstanding shares of
Preferred Stock, directors are elected by a plurality vote of the holders of
voting Common Stock, voting as a single class. The number of directors
constituting the whole Board is currently fixed at five, and may be increased or
decreased (but not below three) by resolution of the Board, but no such decrease
can shorten the term of any director then in office. Holders of Common Stock are
not entitled to cumulate votes in the election of directors. Director
nominations may be made by stockholders in accordance with the Company's
By-Laws, generally not less than 70 days or more than 90 days before the first
anniversary of the preceding year's Annual Meeting of Stockholders.
Classification of Directors. Our Board of Directors is divided into three
classes, which need not be equal in number, designated Class I, Class II and
Class III, with terms expiring successively at each Annual Meeting of
Stockholders of the Company. At each Annual Meeting of Stockholders, the
successors to the class of directors whose term shall then expire will be
elected to hold office for a term expiring at the third succeeding Annual
Meeting of Stockholders. The Board of Directors, acting by a majority of the
directors then in office (although less than a quorum) or by a sole remaining
director, may fill vacancies and newly created directorships resulting from any
increase in the authorized number of directors, and may designate the class of
each director so chosen to fill a newly created directorship resulting from any
increase in the authorized number of directors, and each director so chosen to
fill a vacancy shall be a member of the same class as the director being
replaced.
Convertibility of Class C Common Stock. Each share of Class C Common Stock
is convertible into one share of Class A Common Stock automatically upon
transfer, unless the transferee elects not to have its Class C Common Stock
convert into Class A Common Stock, and the transferee notifies the Company of
its election in accordance with the procedures described in the Certificate of
Incorporation. Shares of Class A Common Stock are not convertible into shares of
Class C Common Stock. Shares of Class C Common Stock that have been converted
into shares of Class A Common Stock may not thereafter be exchanged for shares
of Class C Common Stock.
Business Combinations. As preconditions to any proposed merger,
consolidation or business combination with Sherborne Holdings Incorporated, a
Delaware corporation of which Edward J. Bramson, who is Chairman and Chief
Executive Officer of the Company, is the indirect controlling shareholder, or
any of its affiliates, Ampex directors who are disinterested as to such
transaction must:
(i) have been provided the right to select and engage, at the
Company's expense, legal, accounting and financial advisers to
assist them in the consideration of such transaction;
(ii) have received a letter of opinion from a qualified independent
investment banker of national reputation to the effect that
the terms of such transaction are fair to the holders of Class
A Common Stock and the Class C Common Stock; and
18
(iii) have approved, by a majority vote, the consummation of such
transaction.
The foregoing restriction does not apply to any merger, consolidation or
business combination with one or more wholly-owned subsidiaries of Ampex in
which Ampex is the surviving entity and in which no outstanding shares of Common
Stock are converted, exchanged or canceled. In any merger, consolidation or
business combination that is not so restricted, the consideration to be received
per share by holders of Class A Common Stock and Class C Common Stock must be
identical, except that in any such transaction in which shares of Common Stock
are distributed, such shares may differ as to voting and other special rights to
the extent such rights now differ among the classes of Common Stock. For this
purpose, an "affiliate" of any person or entity means any individual or entity
that, directly or indirectly, controls, is controlled by, or is under common
control with that person or entity (including, investment partnerships in which
that person or entity is or becomes, directly or indirectly, a general partner).
Nullification of Voting Rights of Certain Foreign Stockholders. The U.S.
Department of Defense has policies regarding foreign ownership, control or
influence over U.S. government contractors. These policies are designed to
protect against the risk to national security that may result if classified
information is made available to U.S. government contractors or subcontractors
who are owned, controlled or influenced by foreign governments, individuals or
organizations. These policies require Ampex, as well as the Defense Department's
other contractors and subcontractors, to submit information that will assist the
Defense Department in determining whether the award or continued performance of
a contract may pose an undue risk to the common defense and security of the
United States. One of the Defense Department's areas of inquiry is whether any
foreign interest has beneficial ownership of 5% or more of a contractor's or
subcontractor's voting securities. If the Defense Department determines that an
unacceptable level of foreign ownership, influence or control would result in
undue threat to the common defense and security of the United States, it may,
among other things, require specific mitigation of such unacceptable foreign
ownership, influence or control. If such mitigation cannot be achieved, the
Defense Department may terminate the contractor's or subcontractor's existing
contract with it and preclude future contract awards. For this reason, our
Certificate of Incorporation provides that with respect to any foreign holder of
Class A Common Stock identified by the Defense Department to be the subject of
any inquiry, investigation or other action that could adversely affect our
security clearances, the voting rights of such holder shall be nullified until
we are notified by the Department of its final determination that such holder's
ownership will not adversely affect the continuation of our facility security
clearances. Our Certificate of Incorporation also contains provisions that
require us to notify affected foreign holders of any such vote nullification and
subsequent reinstatement.
Other Provisions. The holders of Common Stock have no preemptive or other
subscription rights by virtue of their ownership of Common Stock, nor are there
any redemption or sinking fund provisions with respect to any class of Common
Stock. No class of Common Stock may be subdivided, consolidated, reclassified or
otherwise changed unless each other class of Common Stock is subdivided,
consolidated, reclassified or otherwise changed in the same proportion and in
the same manner.
Preferred Stock
Designation of Series. Our Certificate of Incorporation authorizes us to
issue up to 1,000,000 shares of Preferred Stock in one or more series, as
determined by our Board of Directors. Each series must be appropriately
designated by a distinguishing number, letter or title, before any shares of
that series can be issued. The Board is authorized to fix or alter the dividend
rights, dividend rate, conversion rights, voting rights, the rights and terms of
redemption (including sinking fund provisions), the
19
redemption price or prices, and the liquidation preferences of any wholly
unissued series of Preferred Stock, and the amount of shares constituting any
such series and the designation thereof. The Board can also increase or decrease
the number of shares of any series after shares of that series have been issued,
but not below the number of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the shares constituting
such decrease shall resume the status that they had before the adoption of the
resolution originally fixing the number of shares of such series. At the date of
this prospectus, there are two series of Preferred Stock outstanding:
(i) 1,885 shares of 8% Noncumulative Convertible Preferred Stock
(the "Convertible Preferred Stock"), having an aggregate
liquidation preference of $3.8 million, and
(ii) 20,821 shares of 8% Noncumulative Redeemable Preferred Stock
(the "Redeemable Preferred Stock"), having an aggregate
liquidation preference of $41.6 million.
The Company has no present plans to issue any additional shares of Preferred
Stock.
Voting Rights. Shares of the outstanding Preferred Stock are non-voting
except as required by law or as specified in the Certificate of Designations,
Preferences and Rights governing the Preferred Stock. In the event that we fail
to fulfill any of our mandatory redemption obligations with respect to the
outstanding Preferred Stock, our Board of Directors will be increased by one
director and the holders of all shares of outstanding Preferred Stock, voting as
a single class, will be entitled to elect the additional director. This voting
right will continue until we fulfill our mandatory redemption obligation. Under
the Certificate of Designations, the unanimous vote of the holders of the
Convertible Preferred Stock or the Redeemable Preferred Stock is required to
change the liquidation preference, dividend rate, calculation of dividends or to
change certain provisions relating to the redemption of that series. The vote of
the holders of at least 51% of the Convertible Preferred Stock or the Redeemable
Preferred Stock is required to make any changes to the Certificate of
Incorporation or the Certificate of Designations that would adversely affect the
rights, preferences or voting powers of the holders of such series, or to
authorize, create or issue any stock that is senior to or on a par with such
series with respect to dividends or liquidation rights.
Dividend Rights. The holders of the outstanding Preferred Stock are
entitled to receive, when and as declared by the Board, in its sole discretion,
out of funds legally available therefor, dividends on the liquidation preference
at the annual rate of 8%. Such dividends will be payable quarterly, if declared
by the Board, but will not accrue or cumulate unless so declared. The
Certificate of Designations restricts, among other things, our ability to engage
in transactions with affiliates, or to declare dividends or make distributions
with respect to, or purchase, redeem or exchange, any Common Stock or other
capital stock that ranks junior to the Preferred Stock. If we fail to comply
with certain restrictions and obligations, the applicable dividend rate will be
increased to an annual rate of 10%. In the event of any liquidation, dissolution
or winding up of Ampex, either voluntary or involuntary, the holders of the
outstanding Preferred Stock are entitled to receive out of Ampex's assets
available for distribution to stockholders, an amount equal to $2,000 per share
plus declared and unpaid dividends on such shares, before any payment or
distribution can be made to the holders of junior stock.
Redemption. We are required to redeem, out of legally available funds,
outstanding Preferred Stock at the times and in the amounts specified in the
Certificate of Designations. The Redeemable
20
Preferred Stock is mandatorily redeemable in quarterly installments beginning in
June 1999 and ending in December 2008, and is subject to acceleration in certain
circumstances. The Convertible Preferred is mandatorily redeemable in quarterly
installments beginning in June 2001 and ending in March 2008. We have the right
to pay any mandatory redemption payment either in cash or, at our option, in
shares of Class A Common Stock, valued at the higher of $2.50 or the market
value per share. In the first half of 1999, holders of 8,039 shares of
Convertible Preferred Stock converted those shares into 4,034,500 shares of
Class A Common Stock, and Ampex redeemed 1,038 shares of Redeemable Preferred
Stock by issuing 356,611 shares of Class A Common Stock. In addition, we may, at
our option on any date set by the Board, redeem, in whole or in part, out of
legally available funds, shares of outstanding Preferred Stock of either series
for an amount equal to the liquidation preference of the shares being redeemed,
plus all accrued and unpaid dividends thereon, provided that we may not redeem
the Convertible Preferred Stock at our option before June 30, 2001, and
provided, further, that all declared and unpaid dividends on all outstanding
shares of either series of outstanding Preferred Stock to be redeemed shall have
been paid on such series on or before the date of such redemption. If on any
mandatory redemption date we do not have legally available funds sufficient to
make a mandatory redemption payment in cash, we must make such payment by
issuing shares of our Common Stock valued at the higher of market value or $2.50
per share (subject to adjustment). Ampex has adopted a policy on the proportion
of redemption payments to be made in cash and Class A Common Stock. Under this
policy, we expect that redemption payments will be made in Class A Common Stock
until 2001 and in cash thereafter, to the extent we have sufficient funds
legally available for such payments. We plan to review this policy on an annual
basis, or more frequently if we feel that circumstances warrant it. In the event
of a change in control of Ampex, each holder of outstanding Preferred Stock will
have the right to require us to redeem in cash, out of legally available funds,
all or any portion of such holder's shares of Noncumulative Preferred Stock, at
the applicable redemption price. As defined in the Certificate of Designations,
a change in control includes (i) the acquisition by any person or persons acting
as a group, other than Sherborne & Company Incorporated or affiliates, of more
than 30% of the Company's voting securities, (ii) a consolidation or merger of
the Company or a transfer of all or substantially all of its assets, or (iii)
dissolution of the Company.
Effects of Preferred Stock. The Preferred Stock could have an anti-takeover
effect under certain circumstances. The issuance of shares of Preferred Stock
could enable the Board to render more difficult or discourage an attempt to
obtain control of Ampex by means of a merger, tender offer or other business
combination transaction directed at Ampex by, among other things, placing shares
of Preferred Stock with investors who might align themselves with the Board of
Directors, issuing new shares to dilute stock ownership of a person or entity
seeking control of Ampex or creating a class or series of Preferred Stock with
class voting rights. The issuance of shares of Preferred Stock as an
anti-takeover device might preclude stockholders from taking advantage of a
situation that they believe could be favorable to their interests.
Transfer Agent and Registrar
The transfer agent and registrar for our Common Stock is American Stock
Transfer & Trust Company, 40 Wall Street, New York, NY 10005. We act as the
transfer agent for the outstanding Preferred Stock.
21
Anti-Takeover Statute
Section 203 of the Delaware General Corporation Law generally prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless (i)
before the date the person became an interested stockholder, the transaction or
the business combination is approved by the board of directors of the
corporation, (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owns
at least 85% of the outstanding voting stock (other than certain shares of
voting stock, including shares owned beneficially by directors who are also
officers and employee stock plans in which employee participants do not have the
right to determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer), or (iii) on or after the date such
stockholder became an interested stockholder, the business combination is
approved by the board and by the affirmative vote, and not by written consent,
of at least 66-2/3% of the outstanding voting stock which is not owned by the
interested stockholder. A "business combination" includes mergers, certain asset
sales and certain other transactions resulting in a financial benefit to the
stockholder. An "interested stockholder" is a person who owns 15% or more of the
corporation's outstanding voting stock or is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock of
the corporation at any time within the three-year period immediately prior to
the date on which it is sought to be determined whether such person is an
interested stockholder; and the affiliates and associates of such person.
Directors' and Officers' Liability
Our Certificate of Incorporation includes provisions to (i) eliminate the
personal liability of our directors for monetary damages resulting from breaches
of their fiduciary duty to the fullest extent permitted by the Delaware General
Corporation Law and (ii) indemnify our directors and officers to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law. We
believe that these provisions are necessary to attract and retain qualified
persons as directors and officers.
PLAN OF DISTRIBUTION
Ampex is registering the shares on behalf of the selling stockholders. As
used herein, the term "selling stockholders" includes donees and pledgees
selling shares received from a named selling stockholder after the date of this
prospectus. The selling stockholder may offer and sell their shares as
principals or through one or more underwriters, brokers, dealers or agents, from
time to time, in one or more transactions (which may include block
transactions):
- on any exchange or in the over-the-counter market;
- in transactions otherwise than on an exchange or in the
over-the-counter market;
- through put and call options or short sales relating to the
shares;
- at a fixed offering price, which may be changed;
- at varying prices determined at the time of sale; or
22
- at negotiated prices.
Ampex will not receive any cash proceeds from the sale of the shares by the
selling stockholder. Any such underwriters, brokers, dealers or agents may
receive underwriting discounts and commissions, which may exceed customary
discounts, concessions or commissions. It is not possible at the present time to
determine the price to the public in any such sale. Accordingly, the public
offering price and the amount of any applicable underwriting discounts and
commissions will be determined at the time of such sale by the selling
stockholder.
The aggregate proceeds to the selling stockholder from the sale of its
shares will be the purchase price of their shares sold less all applicable
commissions and underwriters' discounts, if any, and other expenses of issuance
and distribution not borne by us. Ampex will pay substantially all the expenses
incident to the registration, offering and sale of the shares to the public by
the selling stockholder other than fees, discounts and commissions of
underwriters, brokers, dealers or agents, if any, transfer taxes, certain
counsel fees and other similar selling expenses attributable to the sale of the
shares.
The selling stockholder and any broker-dealers that act in connection with
the sale of shares might be deemed to be "underwriters" within the meaning of
the Securities Act, and any commissions received by such broker-dealers and any
profit on the resale of the shares sold by them while acting as principals might
be deemed to be underwriting discounts or commissions under the Securities Act.
Ampex has agreed to indemnify the selling stockholder against certain
liabilities, including liabilities arising under the Securities Act. The selling
stockholder may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities Act.
Because the selling stockholder may be deemed to be an "underwriter" under
the Securities Act, it will be subject to the prospectus delivery requirements
of the Securities Act. Ampex has informed the selling stockholder that the
anti-manipulative provisions of Regulation M promulgated under the Exchange Act
may apply to their sales of the Class A Common Stock in the market.
The selling stockholder also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided it meets the criteria and conforms to the requirements of such Rule.
Under the securities laws of certain states, the shares may be sold in such
states only through registered or licensed brokers or dealers. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.
If and to the extent required, the specific shares to be sold, the name of
the selling stockholder, the respective purchase prices and public offering
prices, the names of any agent, broker, dealer or underwriter, any applicable
commissions or discounts, and other facts material to the transaction will be
set forth in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement that includes this
prospectus. In addition, if we are notified by the selling stockholder that a
donee or pledgee intends to sell more than 500 shares, a supplement to this
prospectus will be filed.
23
LEGAL MATTERS
Battle Fowler LLP will give its opinion as to the validity, authorization
and issuance of the shares. Battle Fowler LLP regularly provides legal services
to us and our affiliates. David D. Griffin, who is of counsel to Battle Fowler
LLP, holds shares of Ampex Common Stock directly and through certain entities in
which he is an investor. With respect to questions of California law and certain
other matters, Battle Fowler LLP may rely upon an opinion of our General
Counsel.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1998 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in accounting and auditing.
24
No dealer, salesman or other person is authorized to give oral or written
information about this offering that is not included in this prospectus. If
given or made, such information or representation must not be relied upon as
having been authorized by Ampex. This prospectus does not constitute an offer to
sell, or solicitation of an offer to buy, Common Stock in any jurisdiction.
Neither the delivery of this prospectus nor any sale made hereunder shall, under
any circumstances, create an implication that there has been no change in the
affairs of Ampex since the date hereof.
--------------
AMPEX CORPORATION
PROSPECTUS
August 19, 1999
-----------------
--------------
-25-
PART II
Item 14. Other Expenses of Issuance and Distribution
The expenses payable by the Registrant in connection with the issuance and
distribution of the securities being registered is (other than underwriting
discounts or commissions) are estimated as set forth below, and the selling
stockholder is not expected to pay any portion of such expenses:
SEC Registration Fee......................................... $ 758.29
Accounting Fees and Expenses................................. 25,000.00
Legal Fees and Expenses.......................................50,000.00
Miscellaneous ............................................... 15,000.00
---------
TOTAL $90,758.29
==========
Item 15. Indemnification of Directors and Officers
The Registrant is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law (the "DGCL"), which provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person is or was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such officer,
director, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests and, for
criminal proceedings, had no reasonable cause to believe that his conduct was
unlawful. A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses that
such officer or director actually and reasonably incurred.
Reference is also made to Section 102(b)(7) of the DGCL, which enables a
corporation in its certificate of incorporation to eliminate or limit the
personal liability of a director for monetary damages for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Article VIII of the Registrant's By-laws provides as follows:
SECTION 1. Right to Indemnification. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys' fees) reasonably incurred
by such person. The Corporation shall be required to indemnify a person in
connection with a proceeding (or part thereof) initiated by such person only if
the proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation.
SECTION 2. Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred in defending any proceeding in advance of
its final disposition, provided, however, that the payment of expenses incurred
by a director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the director or officer to
repay all amounts advanced if it should be ultimately determined that the
director or officer is not entitled to be indemnified under this Article or
otherwise.
SECTION 3. Claims. If a claim for indemnification or payment of expenses
under this Article is not paid in full within sixty days after a written claim
therefor has been received by the Corporation, the claimant may file suit to
recover the unpaid amount of such claim, and if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification or payment of expenses under
applicable law.
SECTION 4. Non-Exclusivity of Rights. The rights conferred on any person by
this Article VIII shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the Restated
Certificate of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 5. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
SECTION 6. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article VIII shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE TEN of the Registrant's Certificate of Incorporation provides as
follows:
"A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from
liability or limitation thereof is not permitted under the GCL, as the
same exists or may hereafter be amended.
This ARTICLE TEN may not be amended or modified to increase
the liability of the Corporation's directors, or repealed, except upon
the affirmative vote of the holders of 80% or more in voting power of
the outstanding Common Shares. No such amendment, modification,
II-2
or repeal shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to
such amendment, modification, or repeal."
The Registrant has entered into agreements to indemnify its directors
in consideration of their agreement to serve as directors of the Registrant and
certain other corporations requested by the Registrant. These agreements
provide, among other things, that the Registrant will indemnify and advance
certain expenses, including attorneys' fees, to such directors to the fullest
extent permitted by applicable law, as such law may be amended from time to
time, and by the Registrant's Certificate of Incorporation, By-Laws and
resolutions.
The Company presently maintains a directors and officers liability
insurance policy (including entity coverage) with a $10 million aggregate limit
of liability in each policy year. The policy provides coverage to past, present
and future directors and officers of the Company and its subsidiaries for losses
resulting from claims for which any such officer or director was not indemnified
by the Company. The policy also provides for reimbursement to the Company and
its subsidiaries for amounts paid to indemnify officers and directors for loss
resulting from claims against such officers and directors. The policy is subject
to certain exclusions, such as claims against officers and directors for
dishonest, fraudulent or criminal acts or omissions, willful violations of law,
libel and slander, bodily injury and property damage, pollution, etc.
Item 16. Exhibits
The Exhibits to this registration statement on Form S-3 are listed in
the Exhibit Index which appears elsewhere herein and is incorporated herein by
reference.
Item 17. Undertakings
(a) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Registrant pursuant to the provisions described above in Item 15, or
otherwise, the Registrant has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(b) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the
time it was declared effective.
II-3
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range, if
applicable, may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) of the
Securities Act if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (c)(1)(i) and (c)(1)(ii) above do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-4
(d) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated herein by reference shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York on August 19, 1999.
AMPEX CORPORATION
By: /s/ Craig L. McKibben
------------------------
Craig L. McKibben
Vice President, Chief Financial
Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
Each person signing below also hereby appoints Edward J. Bramson,
Craig L. McKibben and Joel D. Talcott, and each of them singly, his lawful
attorney-in-fact, with full power to execute and file any amendments to the
registration statement, and generally to do all such things, as such
attorney-in-fact may deem appropriate to comply with the provisions of the
Securities Act of 1933 and all requirements of the Securities and Exchange
Commission.
<TABLE>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Edward J. Bramson Chairman, President, Chief Executive August 19, 1999
- ---------------------------- Officer and Director
Edward J. Bramson (Principal Executive Officer)
/s/ Craig L. McKibben Vice President, Director, Chief August 19, 1999
- ---------------------------- Financial Officer and Treasurer
Craig L. McKibben (Principal Financial Officer and
Principal Accounting Officer)
/s/ Douglas T. McClure, Jr. Director August 19, 1999
- -----------------------------
Douglas T. McClure, Jr.
/s/ Peter Slusser Director August 19, 1999
- -----------------------------
Peter Slusser
/s/ William A. Stoltzfus, Jr. Director August 18, 1999
- -----------------------------
William A. Stoltzfus, Jr.
</TABLE>
II-6
INDEX TO EXHIBITS
Exhibits
- --------
4.1 Restated Certificate of Incorporation of the Registrant dated June 1,
1993 (filed as Exhibit 4.01 to the Registrant's Form 10-Q for the
quarter ended March 31, 1993 and incorporated herein by reference);
Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant filed with the Secretary of State of Delaware on April
22, 1994 (filed as Exhibit 3.2 to the Registrant's Form 8-K filed on
May 2, 1994 and incorporated herein by reference); Certificate of
Amendment of Restated Certificate of Incorporation of the Registrant
filed with the Secretary of State of Delaware on April 20, 1995 (filed
as Exhibit 4.1 to the Registrant's Form 10-Q for the quarter ended
March 31, 1995 (the "First Quarter 1995 10-Q") and incorporated herein
by reference); and Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant filed with the Secretary of State of
Delaware on June 21, 1999
4.2 Certificate of Designations, Preferences and Rights of the
Registrant's 8% Noncumulative Convertible Preferred Stock and 8%
Noncumulative Redeemable Preferred Stock (filed as Exhibit 3.1 to the
Registrant's Form 8-K dated July 2, 1998 and incorporated herein by
reference)
4.3 By-Laws of the Registrant, as amended through April 20, 1995 (filed as
Exhibit 4.2 to the First Quarter 1995 10-Q and incorporated herein by
reference)
4.4 Form of Class A Common Stock Certificate (filed as Exhibit 4.4 to the
Registrant's Post-Effective Amendment No. 1 on Form S-3 to Form S-1
(File No. 33-91312) and incorporated herein by reference)
4.5 Contingent Warrant Agreement dated as of July 6, 1999, issued by the
Registrant to ISS, together with exhibits thereto.
4.6 Registration Rights Agreement dated July 6, 1999, between the
Registrant and ISS.
4.7 Registration Rights Agreement dated as of July 6, 1999, between the
Registrant and Erracht Productions, Ltd.
5.1 Opinion of Battle Fowler LLP as to legality of securities
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Battle Fowler LLP (included in Exhibit 5.1 hereto)
24.1 Power of Attorney (included in the signature pages of this
registration statement)
II-7
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
AMPEX CORPORATION
It is hereby certified that:
FIRST: (a) The present name of the Corporation (hereinafter called the
"Corporation") is Ampex Corporation.
(b) The name under which the Corporation was originally
incorporated was Ampex Delaware Incorporated, and the date of filing the
original Certificate of Incorporation of the Corporation with the Secretary of
State of the State of Delaware was January 22, 1992.
SECOND: Section 4.1 of ARTICLE FOURTH of the Restated Certificate of
Incorporation, as amended, of the Corporation is hereby amended in its entirety
to read as follows:
4.1 Capital Stock. the total number of shares of capital stock
which the Corporation shall have the authority to issue is 226,000,000,
consisting of three classes of capital stock: 175,000,000 shares of Class A
Common Stock, par value $0.01 per share (the "Class A Common Stock"); 50,000,000
shares of Class C Common Stock, par value $0.01 per share (the "Class C Common
Stock"); and 1,000,000 shares of Preferred Stock, par value $1.00 per share (the
"Preferred Stock").
THIRD: The amendment set forth above has been duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by its undersigned officer this 21st day of June, 1999.
/s/ Craig L. McKibben
---------------------
Name: Craig L. McKibben
Title: Vice President
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT.
CONTINGENT WARRANT AGREEMENT
This CONTINGENT WARRANT AGREEMENT (the "Agreement") is made and entered
into as of July 22, 1999 by and between AMPEX CORPORATION, a Delaware
corporation ("Ampex"), and INFORMATION SUPER STATION, L.L.C., a District of
Columbia limited liability company (the "Holder").
WHEREAS, the parties have entered into that certain Stock Purchase
Agreement, dated July 7, 1999 (the "Purchase Agreement"), among Ampex, the
Holder, and Executive Branch Webcasting Corporation, a Delaware corporation
("EBWC"), pursuant to which, among other things, the Holder has agreed to
contribute to EBWC certain intellectual property rights in exchange for (i)
$1,000,000, including all the Ampex Stock (as defined in the Purchase
Agreement), if any, from EBWC, and (ii) the Warrant (as defined below) from
Ampex.
WHEREAS, Ampex and the Holder have entered into that certain Registration
Rights Agreement, dated July 22, 1999 (the "Registration Rights Agreement"),
between Ampex and the Holder, pursuant to which Ampex has agreed to file a
registration statement with the Securities and Exchange Commission ("SEC")
covering the Warrant Shares (as defined below) and to use its best efforts to
register the Warrant Shares with the SEC under the Securities Act of 1933, as
amended (the "Securities Act").
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
Section 1. Grant of the Warrant. Pursuant to Section 1.2 of the Purchase
Agreement, Ampex hereby grants the Holder a warrant (the "Warrant") to purchase
at $3.90 per share (the "Exercise Price") up to 512,821 shares (the "Warrant
Shares") of Class A common stock, par value $.01 per share, of Ampex (the "Class
A Stock").
Section 2. Term. The Warrant shall expire on June 15, 2001, unless sooner
terminated pursuant to Section 3 hereof.
-1-
Section 3. Vesting. The Warrant shall vest according to the following
schedule:
Date Portion of Total Warrant
---- Which Is Exercisable
-----------------------
Upon the exercise of the March 15,
2000 Option (as defined in the
Purchase Agreement) and consummation
of the purchase of the shares of
common stock, par value $.01 per
share, of EBWC (the "EBWC Stock"),
underlying the March 15, 2000 Option. 25%
Upon the exercise of the July 15,
2000 Option (as defined in the
Purchase Agreement) and consummation
of the purchase of the EBWC Stock
underlying the July 15, 2000 Option. 75%
Notwithstanding anything herein to the contrary, the Warrant shall lapse (a) in
its entirety, on March 15, 2000, unless the March 15, 2000 Option is duly
exercised and paid for on or prior to such date, and (b) on July 15, 2000, with
respect to any unvested portion of the Warrant, unless the July 15, 2000 Option
is duly exercised and paid for on or prior to such date.
Section 4. Exercise.
(a) The vested portion of the Warrant may be exercised, in whole or in
part, but not as to any fractional shares, during the term of the Warrant by
written notice to Ampex specifying the number of Warrant Shares to be purchased
and place and date for the closing, which shall be no later than five (5)
business days from the date of the such notice.
(b) The Holder shall deliver (i) the Warrant, and (ii) unless the
Warrant Shares have been registered under the Securities Act pursuant to the
Registration Rights Agreement, a letter representing that the Warrant Shares so
acquired by it pursuant to this Agreement are being acquired for its own account
for investment and not with a view to any distribution thereof, and agreeing
that the Holder will not offer to sell or otherwise dispose of any such shares
of Class A Stock so acquired in violation of the Securities Act, or of the
securities laws of any state.
Section 5. Payment of Purchase Price and Delivery of Certificates. At any
closing hereunder with respect to the exercise of the Warrant by the Holder:
2
(a) Against delivery of the Warrant Shares to be purchased free and
clear of all liens, claims, charges and encumbrances of any kind or nature
whatsoever, the Holder shall make payment to Ampex of the aggregate price for
the Warrant Shares so purchased in immediately available funds.
(b) Ampex shall deliver to the Holder a duly executed certificate or
certificates representing the number of Warrant Shares so purchased, registered
in the name of the Holder or its designee. Unless the Warrant Shares have been
registered under the Securities Act pursuant to the Registration Rights
Agreement, each certificate for the Warrant Shares will be imprinted with a
legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT.
(c) Unless the Warrant has expired or all of the purchase rights
represented hereby have been exercised, Ampex shall prepare a new Warrant,
substantially identical hereto, representing the rights formerly represented by
the Warrant which have not expired or been exercised and shall deliver such new
Warrant, along with the certificate or certificates referred to in Section 5(b)
hereof to the Holder or its designee.
(d) The issuance of certificates for the Warrant Shares shall be made
without charge to the Holder for any issuance tax in respect thereof or other
cost incurred by Ampex in connection with the exercise of the Warrant and the
related issuance of Warrant Shares; provided, however, that Ampex shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance of the Warrant or any certificates for Warrant Shares
in a name other than that of the Holder, and Ampex shall not be required to
issue or deliver such Warrant or certificate for Warrant Shares unless and until
the Holder requesting the issuance thereof shall have paid to Ampex the amount
of such tax or shall have established to the reasonable satisfaction of Ampex
that such tax has been paid.
Section 6. Reservation of Warrant Shares. Ampex shall at all times reserve
and keep available out of its authorized but unissued shares of Class A Stock,
solely for the purpose of issuance upon the exercise of the Warrant, such number
of shares of Class A Stock issuable upon the exercise of the Warrant. All shares
of Class A Stock which are so issuable shall, when issued and upon the payment
of the Exercise Price therefor, be duly and validly issued, fully paid and
nonassessable. Ampex shall use its best efforts to take all such actions as may
be necessary to assure that all such Warrant Shares may be so issued without
violation of any applicable law or governmental regulation or any requirements
of any domestic securities exchange upon which shares of Class A Stock may be
listed (except for official notice of issuance which shall be immediately
delivered by Ampex upon each such issuance).
3
Section 7. Adjustments, Notice Provisions and Restrictions on Issuance of
Additional Securities.
(a) Adjustment of Exercise Price. Subject to the provisions of this
Section 7, the Exercise Price in effect from time to time shall be subject to
adjustment, as follows:
(i) In case Ampex shall (A) declare a dividend or make a
distribution on the outstanding shares of its Class A Stock in shares of its
Class A Stock, (B) subdivide or reclassify the outstanding shares of its Class A
Stock into a greater number of shares, or (C) combine or reclassify the
outstanding shares of its Class A Stock into a smaller number of shares, the
Exercise Price in effect immediately after the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted so that it shall equal the price determined
by multiplying the Exercise Price in effect immediately prior thereto by a
fraction, of which the numerator shall be the number of shares of Class A Stock
outstanding immediately before such dividend, distribution, subdivision,
combination or reclassification, and of which the denominator shall be the
number of shares of Class A Stock outstanding immediately after such dividend,
distribution, subdivision, combination or reclassification. Any shares of Class
A Stock of Ampex issuable in payment of a dividend shall be deemed to have been
issued immediately prior to the record date for such dividend for purposes of
calculating the number of outstanding shares of Class A Stock of Ampex under
Sections 7(a)(ii) and 7(a)(iii) hereof. Such adjustment shall be made
successively whenever any event specified above shall occur.
(ii) In case Ampex shall fix a record date for the issuance of
rights, options, warrants or convertible or exchangeable securities to all
holders of its Class A Stock entitling them (for a period expiring within 45
days after such record date) to subscribe for or purchase shares of its Class A
Stock at a price per share less than the Market Price (as defined below) on such
record date the Exercise Price shall be adjusted immediately thereafter so that
it shall equal the price determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
number of shares of Class A Stock outstanding on such record date plus the
number of shares of Class A Stock which the aggregate offering price of the
total number of shares of Class A Stock so offered would purchase at the Market
Price per share, and of which the denominator shall be the number of shares of
Class A Stock outstanding on such record date plus the number of additional
shares of Class A Stock offered for subscription or purchase. Such adjustment
shall be made successively whenever such a record date is fixed. To the extent
that any such rights, options, warrants or convertible or exchangeable
securities are not so issued or expire unexercised, the Exercise Price then in
effect shall be readjusted to the Exercise Price which would then be in effect
if such unissued or unexercised rights, options, warrants or convertible or
exchangeable securities had not been issuable.
(iii) In case Ampex shall fix a record date for the making of a
distribution to all holders of shares of its Class A Stock (A) of shares of any
class other than its Class A Stock, (B) of evidences of its indebtedness, (C) of
assets (excluding cash dividends or
4
distributions (other than extraordinary cash dividends or distributions), and
dividends or distributions referred to in Section 7(a)(i) hereof), or (D) of
rights, options, warrants or convertible or exchangeable securities (excluding
those rights, options, warrants or convertible or exchangeable securities
referred to in Section 7(a)(ii) hereof), then in each such case the Exercise
Price in effect immediately thereafter shall be determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction, of which the
numerator shall be the total number of shares of Class A Stock outstanding on
such record date multiplied by the Market Price per share on such record date,
less the aggregate fair market value as determined in good faith by the board of
directors of Ampex (the "Board of Directors") of said shares or evidences of
indebtedness or assets or rights, options, warrants or convertible or
exchangeable securities so distributed, and of which the denominator shall be
the total number of shares of Class A Stock outstanding on such record date
multiplied by such Market Price per share. Such adjustment shall be made
successively whenever such a record date is fixed. In the event that such
distribution is not so made, the Exercise Price then in effect shall be
readjusted to the Exercise Price which would then be in effect if such record
date had not been fixed.
(iv) For the purpose of any computation herein, the "Market
Price" per share at any date (the "Computation Date") shall be as follows: (A)
if the Class A Stock is listed on a national securities exchange or quoted on a
national quotation system, the Market Price shall be deemed to be the average of
the daily closing prices of the Class A Stock for the ten (10) consecutive
Trading Days (as defined below) ending on the Trading Day before such date;
provided, however, that if there shall have occurred prior to the Computation
Date any event described in Section 7(a)(i) or 7(a)(ii) which shall have become
effective with respect to market transactions at any time (the "Market-Effect
Date") on or after the beginning of such 10-day period, the closing price for
each Trading Day preceding the Market-Effect Date shall be adjusted, for
purposes of calculating such average, by multiplying such closing price by a
fraction the numerator of which is the Exercise Price as in effect immediately
prior to the Computation Date and the denominator of which is the Exercise Price
as in effect immediately prior to the Market-Effect Date, it being understood
that the purpose of this proviso is to ensure that the effect of such event on
the market price of the Class A Stock shall, as nearly as possible, be
eliminated in order that the distortion in the calculation of the Market Price
may be minimized; (B) if there is no public market for the Class A Stock, the
highest price at which shares of Class A Stock are offered for sale in a public
offering registered pursuant to the Securities Act or in an arms-length private
offering, if any such offering is pending (unless such offer is revoked prior to
such sale) on the date of determination of Market Price; or (C) if there is no
public market for Class A Stock and no such offering is pending, the fair market
value per share of Class A Stock as determined in good faith by the Board of
Directors; provided, however, that if the Class A Stock shall no longer be
traded on the National Market System of the National Association of Securities
Dealers, Inc. or any other national securities exchange, the term "Class A
Stock" shall mean the class or series of Class A Stock which is so traded. As
used herein the term "Trading Days" with respect to Class A Stock means (A) if
the Class A Stock is quoted on the National Market Automated Quotation System of
the National Association of Securities Dealers, Inc., or any similar system of
automated dissemination of quotations of securities prices, days on which trades
may be made on such system, or (B) if the
5
Class A Stock is listed or admitted for trading on any national securities
exchange, days on which such national securities exchange is open for business.
For all purposes of this Agreement all valuations made by the Board of Directors
shall be final and conclusive on Ampex and the Holders, their successors and
assigns, absent manifest error. In determining the Market Price, the Board of
Directors may obtain and rely on information provided by any source or sources
reasonably believed to be accurate.
(b) No Adjustments to Exercise Price. No adjustment in the Exercise
Price in accordance with the provisions of Section 7(a)(i), 7(a)(ii) or
7(a)(iii)) hereof need be made unless such adjustment would amount to a change
of at least 1% in such Exercise Price of the Warrant; provided, however, that
the amount by which any adjustment is not made by reason of the provisions of
this Section 7(b) shall be carried forward and taken into account at the time of
any subsequent adjustment in the Exercise Price.
(c) Adjustment of Number of Shares. Upon each adjustment of the
Exercise Price pursuant to Section 7(a)(i), 7(a)(ii) or 7(a)(iii) hereof, each
Warrant shall thereupon evidence the right to purchase that number of Warrant
Shares (calculated to the nearest hundredth of a share) obtained by multiplying
the number of Warrant Shares purchasable immediately prior to such adjustment
upon exercise of the Warrant by the Exercise Price in effect immediately prior
to such adjustment and dividing the product so obtained by the Exercise Price in
effect immediately after such adjustment. In the event that the Exercise Price
may not be adjusted due to the provisions of Section 7(e) hereof, the number of
Warrant Shares purchasable upon the exercise of each Warrant shall be adjusted
hereunder as if the Exercise Price had been so adjusted.
(d) Reorganizations. In case of any capital reorganization, other than
in the cases referred to in Section 7(a) hereof, or the consolidation or merger
of Ampex with or into another corporation (other than a merger or consolidation
in which Ampex is the continuing corporation and which does not result in any
reclassification of the outstanding shares of Class A Stock or the conversion of
such outstanding shares of Class A Stock into shares of other stock or other
securities or property), or the sale or conveyance of the property of Ampex as
an entirety or substantially as an entirety (collectively such actions being
hereinafter referred to as "Reorganizations"), there shall thereafter be
deliverable upon exercise of any Warrant (in lieu of the number of Warrant
Shares theretofore deliverable) the number of shares of stock or other
securities or property to which a holder of the number of Warrant Shares which
would otherwise have been deliverable upon the exercise of such Warrant would
have been entitled upon such Reorganization if such Warrant had been exercised
in full immediately prior to such Reorganization. In case of any Reorganization,
appropriate adjustment, as determined in good faith by the Board of Directors,
shall be made in the application of the provisions herein set forth with respect
to the rights and interests of Warrant holders so that the provisions set forth
herein shall thereafter be applicable, as nearly as possible, in relation to any
shares or other property thereafter deliverable upon exercise of the Warrant.
Ampex shall not effect any such Reorganization, unless upon or prior to the
consummation thereof the successor corporation, or if Ampex shall be the
surviving corporation in any such Reorganization and is not the issuer of
6
the shares of stock or other securities or property to be delivered to holders
of shares of the Class A Stock outstanding at the effective time thereof, then
such issuer, shall assume by written instrument the obligation to deliver to the
Holder of any Warrant such shares of stock, securities, cash or other property
as such Holder shall be entitled to purchase in accordance with the foregoing
provisions.
(e) Exercise Price Less Than Par Value. The Exercise Price shall not
be adjusted below the par value per share of the Class A Stock for the purpose
of making any adjustment as may be required pursuant to this Section 7.
(f) Notice of Certain Actions. In the event Ampex shall:
(i) declare any dividend payable in stock to the holders of its
Class A Stock or make any other distribution in property other than cash to the
holders of its Class A Stock; or
(ii) offer to the holders of its Class A Stock rights to
subscribe for or purchase any shares of any class of stock or any other rights
or options; or
(iii) effect any reclassification of its Class A Stock (other
than a reclassification involving merely the subdivision or combination of
outstanding shares of Class A Stock) or any capital reorganization or any
consolidation or merger (other than a merger in which no distribution of
securities or other property is made to holders of Class A Stock), or any sale,
transfer or other disposition of its property, assets and business substantially
as an entirety, or the liquidation, dissolution or winding up of Ampex; then, in
each such case, Ampex shall cause notice of such proposed action to be mailed to
the Holder at least thirty (30) days prior to such action. Such notice shall
specify the date on which the books of Ampex shall close, or a record be taken,
for determining holders of Class A Stock entitled to receive such stock dividend
or other distribution or such rights or options, or the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer, other
disposition, liquidation, dissolution, winding up or exchange shall take place
or commence, as the case may be, and the date as of which it is expected that
holders of record of Class A Stock shall be entitled to receive securities or
other property deliverable upon such action, if any such date has been fixed.
Ampex shall cause copies of such notice to be mailed to each Holder. Such notice
shall be mailed in the case of any action covered by Section 7(f)(i) or (ii)
hereof, at least ten (10) days prior to the record date for determining holders
of the Class A Stock for purposes of receiving such payment or offer, and in the
case of any action covered by of this Section 7(f)(iii), at least ten (10) days
prior to the earlier of the date upon which such action is to take place or any
record date to determine holders of Class A Stock entitled to receive such
securities or other property.
(g) Warrant Amendments. Irrespective of any adjustments pursuant to
this Section 7, the Warrant theretofore or thereafter issued need not be amended
or replaced, but certificates thereafter issued shall bear an appropriate legend
or other notice of any adjustments;
7
provided Ampex may, at its option, issue certificates evidencing the new Warrant
in such form as may be approved by its Board of Directors to reflect any
adjustment in the Exercise Price and number of Warrant Shares purchasable under
the Warrant and deliver the same to the Holder in substitution for the existing
Warrant.
Section 8. No Voting Rights. The Warrant shall not entitle the Holder to
any voting rights or other rights as a stockholder of Ampex.
Section 9. Restrictions. Subject to the provisions of this Section 9, the
Warrant and all rights hereunder are transferable, in whole or in part, without
charge to the Holder (subject to Section 5(d) hereof), upon surrender of the
Warrant with a properly executed Assignment (in the form of Exhibit A hereto) at
the principal office of Ampex. The Holder agrees that it will not sell, transfer
or otherwise dispose of the Warrant, in whole or in part, except pursuant to an
effective registration statement under the Securities Act or an exemption from
registration thereunder. Each certificate evidencing each Warrant issued upon
such transfer shall bear the restrictive legends set forth in Section 5(b)
hereof.
Section 10. Listing. Ampex will use its best efforts to cause the Warrant
Shares to be listed on any domestic securities exchange upon which shares of its
Class A Stock are listed at the time of issuance.
Section 11. Warrant Register. Ampex shall maintain at its principal
executive offices books for the registration and the registration of transfer of
the Warrant. Ampex may deem and treat the Holder as the absolute owner hereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone) for all purposes and shall not be affected by any notice to the
contrary.
Section 12. Fractional Shares. Ampex may, but shall not be required, to
issue a fraction of a share of a Class A Stock upon exercise of the Warrant in
whole or in part, including any which may result from adjustments in accordance
with Section 7 hereof to the Exercise Price or number of Warrant Shares
purchasable under each Warrant. With respect to any final fraction of a Warrant
Share called for upon the exercise of the Warrant, Ampex shall pay a cash
adjustment to the Holder of the Warrant in respect of such final fraction in an
amount equal to the same fraction of the Market Price of a Warrant Share as
determined by Ampex on the business day next preceding the date of such
exercise. The Holder of the Warrant, by its acceptance of the Warrant, shall
expressly waive any right to receive any fractional Warrant Share upon exercise
of the Warrant. All calculations under this Section 12 shall be made to the
nearest hundredth of a share.
Section 13. Notices. All notices or other communications under this
Agreement shall be sufficient if in writing and delivered by hand or sent by
telecopy, or sent, postage prepaid by registered, certified or express mail, or
by recognized overnight air courier service, and shall be deemed given when so
delivered by hand or telecopied, or if mailed or sent by overnight
8
courier service, on the third business day after mailing (first business day
after mailing in the case of express mail or overnight courier service) to the
parties at the following addresses:
If to Ampex:
Ampex Corporation
500 Broadway
Redwood City, California 94063
Facsimile: (650) 367-3440
Attention: General Counsel
with copies to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Facsimile: (212) 856-7816
Attention: David D. Griffin, Esq.
If to the Holder:
Information Super Station, L.L.C.
1120 G Street, N.W., Suite 250
Washington, D.C. 20005
Facsimile: (202) 756-4329
Attention: Dennis J. Dunbar
with copies to:
Porter, Wright, Morris & Arthur
1667 K Street, N.W.
Washington, D.C. 20006-1605
Facsimile: (202) 778-3063
Attention: James R. Hagerty, Esq.
or to such other addresses as either party may have furnished to the other in
writing in accordance herewith.
Section 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
its principles of conflicts of law.
Section 15. Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns but
shall not confer any rights upon
9
any other person. This Agreement may not be assigned by any party without the
consent of the other party(ies).
Section 16. Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, without the written consent of
Ampex and unless Ampex has obtained the written consent of the Holders of at
least a majority of the Warrant Shares.
Section 17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
Section 18. Effect of Invalidity. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
Section 19. Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
Section 20. Miscellaneous. The headings contained in this Agreement are for
reference only and shall not in any way affect the meaning or interpretation of
this Agreement. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
Section 21. Further Assurances. Each party hereto shall perform such
further acts and execute such further documents as may reasonably be required to
carry out the provisions of this Agreement.
10
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or caused this Agreement to be duly executed on its behalf on the date first
above written.
AMPEX CORPORATION
By: /s/ Edward J. Bramson
-------------------------
Name: Edward J. Bramson
Title: Chairman
INFORMATION SUPER STATION, L.L.C.
By: /s/ Dennis J. Dunbar
-------------------------
Name: Dennis J. Dunbar
Title: Managing Member
11
EXHIBIT A
ASSIGNMENT
FOR VALUE RECEIVED, __________________________ hereby sells, assigns
and transfers all the rights of the undersigned under the attached Contingent
Warrant Agreement with respect to the number of shares of the Class A common
stock, par value $.01 per share, of Ampex Corporation, covered thereby set forth
below, unto:
Names of Assignee Address Number of Shares
- ----------------- ------- ----------------
Dated: Signature
[Name]
Witness
12
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated July 22, 1999, between AMPEX
CORPORATION, a Delaware corporation ("Ampex"), and INFORMATION SUPER STATION,
L.L.C., a District of Columbia limited liability company ("ISS").
WHEREAS, the parties have entered into that certain Stock Purchase
Agreement, dated July 7, 1999 (the "Purchase Agreement"), among Ampex, ISS,
Executive Branch Webcasting Corporation, a Delaware corporation ("EBWC"), and
Dennis J. Dunbar, pursuant to which Ampex is purchasing from EBWC shares of
common stock of EBWC in exchange for, among other consideration, $1,200,000, of
which Ampex has elected, pursuant to Section 1.1 of the Purchase Agreement, to
pay $600,000 in 153,846 shares (the "Ampex Stock") of Class A Common Stock, par
value $.01 per share, of Ampex ("Class A Stock");
WHEREAS, pursuant to the Purchase Agreement, ISS has agreed to
contribute to EBWC certain intellectual property rights in exchange for, among
other consideration, (i) $1,000,000, including all the Ampex Stock, if any, from
EBWC, and (ii) the Warrant (as defined in the Purchase Agreement) from Ampex;
WHEREAS, pursuant to Section 2.2(b) of the Purchase Agreement, at
EBWC's direction, Ampex has agreed to issue and deliver the Ampex Stock to ISS;
WHEREAS, the parties have entered into this Agreement pursuant to
Sections 5.6 and 6.5 of the Purchase Agreement in order to provide for the
registration of the Ampex Stock and the shares of Class A Stock issuable upon
exercise of the Warrant (the "Warrant Shares," and, together with the Ampex
Stock, the "Registrable Securities") with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
In consideration of the execution of the Purchase Agreement and the
agreements and covenants contained herein, Ampex agrees with ISS, for the
benefit of the holders of the Registrable Securities (including ISS, herein the
"Holders") as follows:
1. Registration Rights. Subject to the restrictions on resale of the
Registrable Securities contained in Section 6 hereof, Ampex agrees to (a)
prepare and file with the Commission as soon as possible and in no event later
than 30 days from the date hereof one (1) shelf registration statement on Form
S-3 (the "Registration Statement") and use its best efforts to cause the
Registration Statement to become effective within 60 days of the date hereof in
order that the Holders may sell or distribute the Registrable Securities; (b)
prepare and file with the Commission such amendments and post-effective
amendments to the Registration Statement and supplements to the prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective for a period of 24 months following the date on which the Registration
Statement is declared effective by the Commission (the "Minimum Effective
-1-
Period"), subject to Section 4(b)(ii) hereof, and to comply with the provisions
of the Securities Act and the rules thereunder with respect to the offer or
distribution of the Registrable Securities covered by the Registration Statement
during the period permitted for sale or distribution of such Registrable
Securities; and (c) comply with the rules of any exchange on which the
Registrable Securities are listed. Notwithstanding the foregoing, Ampex's
obligation to maintain the Registration Statement in effect shall expire on the
earlier of the date all the Registrable Securities have been sold by the Holders
or the date the Registrable Securities become eligible for resale without
registration pursuant to Rule 144 of the rules and regulations promulgated under
the Securities Act by the Commission ("Rule 144"). In addition, Ampex's
obligation to maintain the Registration Statement in effect may be suspended for
a period of up to 120 days in any 12 month period if the negotiation or
consummation of a material transaction is pending or an event has occurred,
including, without limitation, any acquisition or divestiture of assets or a
business, which negotiation, transaction or event would require additional
disclosure by Ampex in the Registration Statement of previously non-public
material information which Ampex in its good faith judgment has a bona fide
business purpose for keeping confidential, and the nondisclosure of which in the
Registration Statement might cause the Registration Statement to fail to comply
with applicable disclosure requirements, provided that, within such 120 day
period Ampex complies with the requirements of Section 4(b) hereof. In the event
that any Registrable Securities included in the Registration Statement subject
to, or required by, this Agreement remain unsold at the end of the Minimum
Effective Period, Ampex may file a post-effective amendment to the Registration
Statement for the purpose of removing such Registrable Securities from
registered status.
2. Expenses. Ampex will bear all expenses in connection with the
Registration Statement, other than (i) transfer taxes, and (ii) expenses of the
Holders, including attorneys' fees.
3. Assurances.
(a) Ampex will notify the Holders promptly, (i) when the
Registration Statement has been declared effective and when any post-effective
amendment thereto is declared effective, (ii) of any request by the Commission
for amendments to the Registration Statement or supplements to the related
prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (iv) of the
receipt by Ampex of any notification with respect to the suspension of the
qualification of any of the registered Registrable Securities for sale in any
jurisdiction or the initiation of any proceedings for that purpose, and (v) of
the happening of any event during the period mentioned in Section 3(d) hereof
the result of which the Registration Statement or the related prospectus
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made (in the case of the
prospectus) not misleading. If at any time the Commission shall issue any order
suspending the effectiveness of the Registration Statements, Ampex will make
every reasonable effort to obtain the withdrawal of such order as soon as
practicable.
2
(b) Ampex will furnish to the Holders without charge, one (1)
signed copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules and all exhibits
(including those incorporated therein by reference to the extent not previously
furnished to the Holders), and such numbers of copies of the prospectus,
including each preliminary prospectus and any amendments or supplements thereto,
as any Holder may reasonably request in order to facilitate the disposition of
Registrable Securities owned by such Holder.
(c) Ampex shall make available for inspection by the Holders and
the representatives of such Holders (but not more than one firm of counsel to
the Holders), all financial and other information as shall be reasonably
requested by them, and provide the Holders and the representatives of such
Holders the opportunity to discuss the business affairs of Ampex with its
principal executives and independent public accountants who have certified the
audited financial statements included in the Registration Statement, in each
case all as necessary to enable them to exercise their due diligence
responsibility under the Securities Act, provided, however, that information
that Ampex determines, in good faith, to be confidential and which Ampex advises
such person is confidential shall not be disclosed unless such person signs a
confidentiality agreement reasonably satisfactory to Ampex or the related Holder
agrees to be responsible for such person's breach of confidentiality on terms
reasonably satisfactory to Ampex.
(d) Ampex consents, in connection with the offering and sale of
any Registrable Securities covered by any prospectus or any amendment or
supplement thereto and for any such period of time thereafter as such prospectus
is required by law to be delivered in connection therewith, to the use of such
prospectus or such amendment or supplement thereto by the Holders. If during
such period of time any event shall occur which should be set forth in any
prospectus in order to make the statements therein not misleading in the light
of the circumstances under which they were made, or if it is necessary to
supplement or amend any prospectus to comply with law, Ampex will forthwith
prepare and duly file with the Commission an appropriate supplement or amendment
thereto, and will deliver to the selling Holders, without charge, such number of
copies thereof as they may reasonably request.
(e) Prior to any public offering or distribution of any
Registrable Securities pursuant to this Agreement, Ampex will cooperate with the
Holders in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Holders may reasonably request in writing, provided that in
no event shall Ampex be obligated to qualify to do business in any jurisdiction
where it is not now so qualified, subject itself to taxation in any such
jurisdiction or to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject. Ampex will pay all
fees and expenses (including counsel fees and expenses) relating to the
qualification of the Registrable Securities under such securities or Blue Sky
laws.
(f) Ampex will make generally available to its security holders a
consolidated earnings statement (which need not be audited) satisfying the
provisions of Section 11(a) of the
3
Securities Act and Rule 158 of the rules and regulations promulgated thereunder
by the Commission for the first 12 month period after the Registration Statement
is declared effective as soon as it is reasonably practicable after the end of
such period.
(g) It shall be a condition precedent to the obligations of Ampex
to take action pursuant to this Agreement with respect to the Registrable
Securities of any Holder that such Holder shall furnish to Ampex such
information regarding such Holder, the number of the Registrable Securities
owned by it, and to cooperate with Ampex in preparing the Registration
Statement.
(h) The Holders agree that all information furnished to Ampex for
inclusion in any of the foregoing will not contain an untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
4. Representations and Warranties.
(a) Ampex represents and warrants to the Holders that the
preliminary prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the
of the rules and regulations promulgated under the Securities Act by the
Commission ("Rule 424"), will comply when so filed in all material respects with
the Securities Act, and when the Registration Statement becomes effective and at
all times subsequent thereto, the Registration Statement and the prospectus, and
any supplements or amendments thereto, will fully comply with the provisions of
the Securities Act and the rules of any exchange on which the Registrable
Securities are listed, and the Registration Statement and the prospectus at all
such times will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and warranty
does not apply to statements or omissions in any registration statement or any
prospectus or any preliminary prospectus made in reliance upon information
furnished to Ampex in writing by the Holders expressly for use therein.
(b) Each Holder represents and warrants to Ampex that:
(i) it will not offer or sell its Registrable Securities
under the Registration Statement until it has received copies of the
supplemented or amended prospectus contemplated by Section 1(b) hereof and
receives notice that any post-effective amendment (if required) has become
effective; and
(ii) upon receipt of any notice from Ampex of the happening
of any event of the kind described in the second to last sentence of Section 1
hereof, or Section 3(a)(ii), 3(a)(iii), 3(a)(iv), or 3(a)(v) hereof, the Holders
will forthwith discontinue disposition of such Registrable Securities covered by
the Registration Statement or prospectus until the Holders' receipt of the
copies of the supplemented or amended prospectus contemplated by Sections 1(b)
4
and 3(a)(i) hereof, or until advised in writing by Ampex that the use of the
applicable prospectus may be resumed, and have received copies of any additional
or supplemental filings which are incorporated by reference in such prospectus,
and, if so directed by Ampex, the Holders will deliver to Ampex all copies,
other than permanent file copies then in the Holders' possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice. Any such period during which the Holders are required to
discontinue disposition of the Registrable Securities is referred to as a
"Suspension Period." A Suspension Period shall commence on and include the date
that Ampex gives notice that the Registration Statement is no longer effective
or the prospectus included therein is no longer usable for offers and sales of
the Registrable Securities and shall end on the date when each Holder of the
Registrable Securities covered by the Registration Statement either receives the
copies of the supplemented or amended prospectus contemplated hereby may be
resumed. If one or more Suspension Periods occur, the Minimum Effective Period
referred to in Section 1 shall be extended by the number of days included in
each such Suspension Period.
5. Indemnification.
(a) In the event of any registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, Ampex shall
indemnify and hold harmless the Holders, each of their directors and officers,
and each other person, if any, who controls any Holder (collectively, the
"Indemnified Persons"), against any losses, claims, damages, liabilities or
expenses, joint or several, to which any Indemnified Person may become subject
under the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or other federal or state laws, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of,
or are based upon any of the following statements or omissions (collectively, a
"Violation"), (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereto,
or (ii) arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements made therein not misleading, and will reimburse such Indemnified
Person, as incurred, for any legal or other expenses, reasonably incurred by
them in connection with investigating or defending any such action or claim,
excluding any amounts paid in settlement of any loss, claim, damage, liability
or expense, if such settlement is effected without the prior written consent of
Ampex; provided that Ampex need not indemnify any such person for any such loss,
claim, damage, liability or expense which arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished to Ampex by such person or its affiliates or
representatives expressly for use in the preparation thereof.
(b) The indemnity provisions in Section 5(a) above are subject to
the condition that, insofar as they relate to any untrue statement (or alleged
untrue statement) or omission (or alleged omission) made in a preliminary
prospectus or prospectus but eliminated or remedied in the amended prospectus on
file with the Commission at the time the Registration Statement
5
becomes effective or any amended prospectus filed with the Commission pursuant
to Rule 424(b) or 424(c) (the "Final Prospectus"), such indemnity provisions
shall not inure to the benefit of the Holders, if Ampex has previously delivered
copies of such Final Prospectus to the Holders and if a copy of the Final
Prospectus was not furnished to the person or entity asserting the loss, claim,
damage, liability or expense at or prior to the time such action is required by
the Securities Act.
(c) In the event of any registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, the Holders
shall furnish to Ampex in writing such information as Ampex shall reasonably
request for use in connection with the Registration Statement or prospectus and
agrees to indemnify and hold harmless Ampex, each of its directors and officers
and each other person, if any, who controls Ampex within the meaning of the
Securities Act, against any losses, claims, damages, liabilities or expenses,
joint or several, to which Ampex or any such director, officer or controlling
person may become subject under the Securities Act, the Exchange Act, or other
federal or state laws, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) arise out of, or are based upon, any
Violation, in each case to the extent that such Violation is based on or arises
from written information furnished by the Holders to Ampex expressly for use in
connection with the Registration Statement, and will reimburse Ampex, each such
director, officer and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim, excluding any amounts paid in settlement of any loss,
claim, damage, liability or expense, if such settlement is effected without the
prior written consent of such person; but in all such cases only if, and to the
extent that, any such loss, claim, damage, liability or expense arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished to Ampex by such person or its affiliates or
representatives expressly for use in the preparation thereof and provided,
however, that such person shall not be obligated to indemnify Ampex if the
information supplied by such person for use in a preliminary prospectus contains
an untrue statement (or alleged untrue statement) or omission (or alleged
omission) and such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is corrected or eliminated prior to being contained in a
Final Prospectus.
(d) Promptly after receipt by a party entitled to indemnification
under this Section 5 of notice of the commencement of any action, suit,
proceeding, investigation, or threat thereof in writing, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5, notify the indemnifying party in writing of the
commencement thereof. In case any such action is brought against the indemnified
party and it shall so notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in, and, to the extent
that it so chooses, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party that it so chooses, such indemnifying party shall not be liable for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof; provided, however, that if the indemnifying
party fails to take reasonable steps necessary to diligently defend such claim,
within 20 days after receiving notice from the
6
indemnified party that the indemnified party believes the indemnifying party has
failed to take such steps, the indemnified party may assume its own defense and
the indemnifying party shall be liable for any expenses therefor. The indemnity
agreements in this Section 5 shall be in addition to any liabilities which the
indemnifying parties may have pursuant to law.
(e) If a claim by an indemnified party for indemnification under
this Section 5 is unenforceable even though the express provisions hereof
provide for indemnification in such case, then each applicable indemnifying
party, 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,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified party in
connection with the actions that resulted in such losses, claims, damages,
liabilities or expenses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any Violation has been
committed by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(e) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in this Section 5(e). No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to any contribution from any person who was
not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of Ampex and the Holders under this
Section 5 shall survive the completion of any offering of the Registrable
Securities pursuant to the Registration Statement, and otherwise.
6. Restrictions on Transfer of the Registrable Securities.
(a) The Holders may only transfer, sell or distribute the
Registrable Securities pursuant to (i) an effective registration statement under
the Securities Act, (ii) Rule 144, if such rule is available, or (iii) any other
legally available exemption from registration under the Securities Act, subject
to the conditions specified in this Section 6.
(b) Each certificate for the Registrable Securities will be
imprinted with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT.
7
(c) In connection with the transfer of any Registrable Securities
(other than a transfer referred to in Section 6(a)(i) above), the Holders will
deliver written notice to Ampex describing in reasonable detail the transfer or
proposed transfer, together with an opinion, in form and content reasonably
satisfactory to Ampex's counsel, of counsel to the Holders which (to Ampex's
reasonable satisfaction) is knowledgeable in securities law matters, to the
effect that such transfer of the Registrable Securities may be effected without
registration of such Registrable Securities under the Securities Act and under
any applicable state securities laws. Subject to the terms of this Section 6,
Ampex will promptly upon such contemplated transfer deliver new certificates for
such Registrable Securities which do not bear the legend set forth in Section
6(b) hereof upon surrender of the certificates for such Registrable Securities
to Ampex.
(d) Notwithstanding anything in this Agreement to the contrary,
in the event of any registration of the Registrable Securities pursuant to this
Agreement, Ampex or its transfer agent will as promptly as practicable deliver
to the Holders or the Holders' designee or designees new certificates not
bearing the legend set forth in this Section 6.
7. Rule 144. At all times so long as any of the Holders hold the
Registrable Securities the certificates for which bear the legend set forth in
Section 6(b) hereof, Ampex shall file reports required to be filed by it under
the Exchange Act, and will take such further action as may be reasonably
required to enable the Holders to sell such Registrable Securities pursuant to
Rule 144.
8. Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
including any transferee of a Holder, but shall not confer any rights upon any
other person. This Agreement may not be assigned by any party without the
consent of the other party(ies).
9. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York without regard to its
principles of conflicts of law.
10. Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, without the written consent of Ampex and
unless Ampex has obtained the written consent of the Holders of at least a
majority of the Registrable Securities.
11. Notices. All notices or other communications under this Agreement
shall be sufficient if in writing and delivered by hand or sent by telecopy, or
sent, postage prepaid by registered, certified or express mail, or by recognized
overnight air courier service, and shall be deemed given when so delivered by
hand or telecopied, or if mailed or sent by overnight courier service, on the
third business day after mailing (first business day after mailing in the case
of express mail or overnight courier service) to the parties at the following
addresses:
8
(a) If to a Holder, at the most current address given by such
Holder to Ampex in accordance with the provisions of this Section 11, which
address initially is, with respect to each Holder, the address of such Holder
maintained by the transfer agent for the Class A Stock; and
(b) If to Ampex, initially at the address of Ampex set forth in
the Purchase Agreement.
12. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
13. Miscellaneous. The headings contained in this Agreement are for
reference only and shall not in any way affect the meaning or interpretation of
this Agreement. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
[END OF TEXT]
9
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf on the
date first above written.
AMPEX CORPORATION
By: /s/ Edward J. Bramson
--------------------------
Name: Edward J. Bramson
Title: Chairman
INFORMATION SUPER STATION, L.L.C.
By: /s/ Dennis J. Dunbar
-------------------------
Name: Dennis J. Dunbar
Title: Managing Member
10
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated July ,
1999, between Ampex Corporation, a Delaware corporation (the "Company") and
Erracht Productions, Ltd., a New York corporation ("Erracht").
WHEREAS, the Company has agreed to issue 150,000 shares of Common
Stock (as defined below) to the Holder (as defined below) pursuant to a
Consulting Agreement of even date herewith and to grant to the Holder the
registration rights set forth in Section 2 hereof.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged,
hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which banking institutions in New York, New York are permitted or
required by any applicable law to close.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Class A Common Stock, $0.01 par value,
of the Company.
"Company" shall have the meaning set forth in the preamble and also
shall include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Holder" shall mean Erracht or any transferee(s) holding Registrable
Securities to whom the rights under this Agreement have been assigned in
accordance with Section 7(c)(ii).
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust, estate, or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof.
"Register," "Registered" and "Registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the
-1-
Securities Act, and the declaration or ordering by the Commission of
effectiveness of such registration statement or document.
"Registrable Securities" shall mean (i) the 150,000 shares of Common
Stock being issued to the Holder as of the date of this Agreement (ii) any
Common Stock or other securities issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange by the Company generally
for, or in replacement by the Company generally of, such Common Stock; and (iii)
any securities issued in exchange for such Common Stock in any merger,
combination or reorganization of the Company; provided, however, that
Registrable Securities shall not include any securities which have theretofore
been registered and sold pursuant to the Securities Act or which have been sold
to the public pursuant to Rule 144 or any similar rules promulgated by the
Commission pursuant to the Securities Act, and, provided further, the Company
shall have no obligation to register any Registrable Securities if the Company
shall deliver to the Holder requesting registration an opinion of counsel
reasonably satisfactory to the Holder and its counsel to the effect that the
proposed sale or disposition of all of the Registrable Securities for which
registration was requested does not require registration under the Securities
Act for a sale or disposition in a single public sale, and offers to remove any
and all legends restricting transfer absent registration under the Securities
Act from the certificates evidencing such Registrable Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
Section 2. Piggyback Registration.
(a) Request for Piggyback Registration. If at any time the
Company proposes to register (including for this purpose a registration effected
by the Company for shareholders of the Company other than the Holder) equity
securities under the Securities Act in connection with the public offering
solely for cash on Form S-1, S-2 or S-3 (as requested) (or any replacement or
successor forms) other than a registration of securities for a transaction
pursuant to Rule 145 promulgated under the Securities Act, the Company shall
promptly give the Holder written notice of such registration (a "Piggyback
Registration"). Upon the written request of the Holder given within 20 days
following the date of such notice, the Company shall cause to be included in
such registration statement and use its best efforts to be registered under the
Securities Act and included in any underwriting all the Registrable Securities
that the Holder shall have requested to be registered. The Company shall have
the absolute right to withdraw or cease to prepare or file any registration
statement for any offering referred to in this Section 2 without any obligation
or liability to the Holder.
(b) Limitations on Piggyback Registrations. The Company shall not
be required to include any Registrable Securities in any underwriting unless the
Holder accepts the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it, provided that the Holder shall be entitled
to the same pricing terms. If the managing
2
underwriter shall advise the Company in writing (with a copy to the Holder)
that, in its opinion, the amount of Registrable Securities requested to be
included in such registration would materially adversely affect such offering,
or the timing thereof, then the Company will include in such registration, to
the extent of the amount and class which the Company is so advised can be sold
without such material adverse effect in such offering (i) the securities
proposed to be sold by the Company for its own account; (ii) the Registrable
Securities requested to be included in such registration by the Holder pursuant
to this Section 2; and (iii) all other securities being registered pursuant to
the exercise of contractual rights comparable to the rights granted in this
Section 2, pro rata based on the estimated gross proceeds from the sale thereof.
Section 3. Registration Procedures.
(a) Obligations of the Company. Whenever required under Section 2
to effect a registration of any Registrable Securities, the Company shall, as
expeditiously as practicable:
(i) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use the
Company's best efforts to cause such registration statement to become
effective.
(ii) Notify the Holder when the registration statement and
any post-effective amendments thereto are declared effective.
(iii) Respond as promptly as practicable to any comments
received by the Commission with respect to the registration statement
and prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement or any document
incorporated therein by reference or file any other required document
as may be necessary to comply with the provisions of the Securities
Act and rules thereunder with respect to the disposition of all
securities covered by such registration statement and the instructions
applicable to the registration form used by the Company.
(iv) Furnish to the Holder, without charge, such numbers of
copies of the registration statement, any pre-effective or
post-effective amendment thereto, the prospectus, including each
preliminary prospectus and any amendments or supplements thereto, in
each case in conformity with the requirements of the Securities Act
and the rules thereunder, and such other related documents as the
Holder may reasonably request in order to facilitate the disposition
of Registrable Securities owned by the Holder.
(v) Use the Company's best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such states or jurisdictions as shall
be reasonably requested by the Holder) and to keep such qualification
effective during the period such registration
3
statement is effective, provided, however, that the Company shall not
be required in connection therewith or as a condition thereto to
qualify to do business, subject itself to taxation in any such
jurisdiction, or to file a general consent to service of process in
any such states or jurisdictions.
(vi) Promptly notify the Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith and
take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(vii) Promptly notify the Holder of the happening of any
transaction or event during the period a registration statement is
effective as a result of which such registration statement or the
related prospectus contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made (in the case of the prospectus), not
misleading.
(viii) Make generally available to the Company's security
holders copies of an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act no later than 90 days following
the end of the 12-month period beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of
each registration statement filed pursuant to this Agreement.
(ix) Use all reasonable efforts to cause the Registrable
Securities covered by such registration statement (i) if such
securities are then listed on a securities exchange or included for
quotation in a recognized trading market, to continue to be so listed
or included for a reasonable period of time after the offering, and
(ii) to be registered with or approved by such other United States or
state governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company to enable the
Holder to consummate the disposition of its Registrable Securities.
(x) Take such other actions as are reasonably required in
order to expedite or facilitate the disposition of Registrable
Securities included in each such registration.
(b) Holder's Obligations. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to Sections 2 and 3
hereof with respect to the Registrable Securities that the Holder shall furnish
to the Company such information regarding the Holder, the number of the
Registrable Securities owned by it, and the intended method of disposition of
such Registrable Securities as shall be required to effect the registration of
the Holder's Registrable Securities, and to cooperate with the Company in
preparing such registration.
4
Section 4. Agreements of Holder. In connection with any registration
pursuant to Section 2 hereof, the Holder agrees, as applicable:
(i) that it will not offer or sell its Registrable
Securities under the registration statement until it has received
copies of the supplemented or amended Prospectus contemplated by
Section 3(a)(iii) hereof and receives notice that any post-effective
amendment (if required) has become effective; and
(ii) that upon receipt of any notice from the Company of the
happening of any transaction or event of the kind described in Section
3(a)(vii) hereof, the Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a registration statement until the
Holder receives copies of the supplemented or amended Prospectus
contemplated by Section 3(a)(iii) hereof and receives notice that any
post-effective amendment (if required) has become effective, and, if
so directed by the Company, the Holder will deliver to the Company (at
the expense of the Company) all copies in its possession, other than
permanent file copies then in the Holder's possession, of the
Prospectus covering such Registrable Securities current immediately
preceding the time of receipt of such notice.
Section 5. Expenses of Registration. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows
with respect to each Piggyback Registration; the Company shall bear and pay all
expenses incurred in connection with any registration, filing, or qualification
of Registrable Securities with respect to such Piggyback Registration for the
Holder, including all registration, exchange listing, accounting, filing and
NASD fees, all fees and expenses of complying with securities or Blue Sky laws,
the reasonable fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one firm of counsel for the Holder, but
excluding underwriting discounts and commissions relating to Registrable
Securities (which shall be paid by the Holder).
Section 6. Indemnification; Contribution.
(a) Indemnification by the Company. If any Registrable Securities
are included in a registration statement under this Agreement:
(i) To the extent permitted by applicable law, the Company
shall indemnify and hold harmless the Holder, each Person, if any, who
controls the Holder within the meaning of the Securities Act, and each
officer, director, trustee, partner, and employee of the Holder and
such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint or several), including attorneys' fees
and disbursements and expenses of investigation, incurred by such
party pursuant to any actual or threatened action, suit,
5
proceeding or investigation, or to which any of the foregoing Persons
may become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any of the
following statements, omissions or violations (collectively, a
"Violation"):
(A) Any untrue statement or alleged untrue
statement of a material fact contained in such registration
statement, including any preliminary prospectus or final
prospectus contained therein, or any amendments or supplements
thereto or any document incorporated by reference therein;
(B) The omission or alleged omission to
state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading; or
(C) Any violation or alleged violation by
the Company of the federal securities laws, any applicable
state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any applicable
state securities law;
provided, however, that the indemnification required by this Section 6(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or
expense to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished to
the Company by the indemnified party expressly for use in connection with such
registration; provided, further, that the indemnity agreement contained in this
Section 6(a) shall not apply to any underwriter to the extent that any such loss
is based on or arises out of an untrue statement or alleged untrue statement of
a material fact, or an omission or alleged omission to state a material fact,
contained in or omitted from any preliminary prospectus if the final prospectus
shall correct such untrue statement or alleged untrue statement, or such
omission or alleged omission, and a copy of the final prospectus has not been
sent or given to such Person at or prior to the confirmation of sale to such
Person if such underwriter was under an obligation to deliver such final
prospectus and failed to do so.
(b) Indemnification by Holder. If any of the Holder's
Registrable Securities are included in a registration statement under this
Agreement, to the extent permitted by applicable law, the Holder shall indemnify
and hold harmless the Company, each of its directors, each of its officers who
shall have signed the registration statement, each Person, if any, who controls
the Company within the meaning of the Securities Act, and each officer,
director, partner, and employee of such controlling Person, against any and all
losses, claims, damages, liabilities and expenses (joint and several), including
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may otherwise
6
become subject under the Securities Act, the Exchange Act or other federal or
state laws, insofar as such losses, claims, damages, liabilities and expenses
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation is based on or arises from written
information furnished by such Selling Holder to the Company expressly for use in
connection with such registration; provided, however, that the indemnification
required by this Section 6(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or expense if settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under this Section 6 of notice of the
commencement of any action, suit, proceeding, investigation or threat thereof
made in writing for which such indemnified party may make a claim under this
Section 6, such indemnified party shall deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties. The
failure to deliver written notice to the indemnifying party within a reasonable
time following the commencement of any such action, if not otherwise known by
the Company and materially prejudices or results in forfeiture of substantial
rights or defenses shall relieve such indemnifying party of any liability to the
indemnified party under this Section 6 but shall not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
pursuant to this Section 6. Any such indemnified party shall have the right to
employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses, (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding, or (iii) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party, and such indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or in addition to those available to the indemnifying party and
that the assertion of such defenses would create a conflict of interest such
that counsel employed by the indemnifying party could not faithfully represent
the indemnified party (in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action, claim or proceeding on behalf of
such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action, claim or proceeding or
separate but substantially similar or related actions, claims or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
additional firm of attorneys (together with appropriate local counsel) at any
time for all such indemnified parties, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action,
claim or proceeding, in which event the indemnifying party shall be obligated to
pay the fees and expenses of such additional counsel or counsels). No
indemnifying
7
party shall be liable to an indemnified party for any settlement of any action,
proceeding or claim without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification required by this
Section 6 from the indemnifying party is unavailable to an indemnified party
hereunder, by virtue of statute or public policy as finally determined by a
court of competent jurisdiction, in respect of any losses, claims, damages,
liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, 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,
claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with
the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined
by reference to, among other things, whether any Violation has
been committed by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation. 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
Section 6(a) and Section 6(b), any legal or other fees or
expenses reasonably incurred by such party in connection with
any investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section
6(d) were determined by pro rata allocation or by any other
method of allocation which does not take into account the
equitable considerations referred to in Section 6(d)(i). 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.
(e) Survival. The obligations of the Company and the Holder under
this Section 6 shall survive the completion of any offering of Registrable
Securities pursuant to a registration statement under this agreement, and
otherwise.
Section 7. Miscellaneous.
(a) Amendments and Waivers.
(i) The provisions of this Agreement, including the
provisions of this Section 7(a), may not be amended, modified
or supplemented, and waivers or
8
consents to departures from the provisions hereof may not be
given without the written consent of the Company and the
Holders of a majority of the Registrable Securities.
(ii) Notice of any amendment, modification or
supplement to this Agreement adopted in accordance with this
Section 7 shall be provided by the Company to the Holders at
least thirty (30) days prior to the effective date of such
amendment, modification or supplement.
(b) Notices. All notices or other communications under this
Agreement shall be sufficient if in writing and delivered by hand or sent by
telecopy, or sent, postage prepaid by registered, certified or express mail, or
by recognized overnight air courier service and shall be deemed given when so
delivered by hand or telecopied, or if mailed or sent by overnight courier
service, on the third Business Day after mailing (one Business Day in the case
of express mail or overnight courier service) to the parties at the following
addresses:
(i) if to Erracht, to:
c/o Wolf, Block, Schorr and Solis-Cohen LLP
250 Park Avenue
New York, NY 10177
Attention: Robert E. Fischer, President
Fax: (212) 986-0604
(ii) if to the Company, to: Ampex Corporation 135
East 57th Street, 32nd Floor, New York, New
York 10022 Attention: Craig McKibben Fax:
(212) 754-9591
with a copy to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: David D. Griffin
Fax: (212) 856-7816
or at such other address as the addressee may have furnished in writing to the
sender as provided herein.
9
(c) Successors, Assigns and Transferees.
(i) This Agreement shall inure to the benefit of and
be binding upon the successors, assigns and transferees of
each of the parties.
(ii) If any successor, assignee or transferee of the
Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable
Securities such Person shall be entitled to receive the
benefits hereof and shall be conclusively deemed to have
agreed to be bound by all of the terms and provisions hereof,
provided, that the successor, assignee or transferee shall
have delivered to the Company reasonably promptly written
notification of such event, setting forth the name and address
of the successor, assignee, transferee and the number of
shares of the Registered Securities held by such successor,
assignee or transferee.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
(g) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(h) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
10
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
AMPEX CORPORATION
By: /s/ Craig L. McKibben
----------------------
Name: Craig McKibben
Title: Vice President
ERRACHT PRODUCTIONS, LTD.
By: /s/ Robert E. Fischer
---------------------
Name: Robert E. Fischer
Title: President
11
BATTLE FOWLER LLP
PARK AVENUE TOWER
75 EAST 55TH STREET
NEW YORK, NEW YORK 10022-3205
(212) 856-7000
Writer's Direct Dial Number
(212) 856-7076
Writer's Direct Facsimile Number
(212) 856-7816
Writer's Direct E-Mail
August 19, 1999
Ampex Corporation
500 Broadway
Redwood City, CA 94063
Re: Registration of 816,667 Shares of Class A Common Stock
Ladies and Gentlemen:
We have acted as counsel for Ampex Corporation, a Delaware corporation
(the "Company"), in connection with the preparation and filing of a registration
statement on Form S-3 (the "Registration Statement"), pursuant to which the
Company proposes to register for sale up to 816,667 shares of the Company's
Class A Common Stock, par value $0.01 per share (the "Shares"), of which 303,846
Shares are issued and outstanding (the "Outstanding Shares") and up to 512,821
Shares are issuable upon exercise of the Contingent Warrant referred to below.
Capitalized terms used and not defined herein shall have the meanings given to
them in the Registration Statement. You have requested that we furnish our
opinion as to the matters hereinafter set forth.
For the purposes of this letter, we have examined originals or copies
of the following:
1. Registration Statement, to which this opinion is an exhibit;
2. The Amended and Restated Certificate of Incorporation of the Company,
as amended to date, incorporated by reference as an exhibit to the
Registration Statement (the "Certificate of Incorporation");
3. By-Laws of the Company, as amended to date, incorporated by reference
as an exhibit to the Registration Statement (the "By-Laws");
4. A specimen certificate for the Company's Class A Common Stock,
incorporated by reference as an exhibit to the Registration Statement;
5. Records of corporate proceedings of the Company as certified to us by
an officer of the Company relative to the authorization and issuance of
the Shares; and
6. The Contingent Warrant Agreement filed as an exhibit to the
Registration Statement (the "Contingent Warrant").
In rendering the opinion herein expressed we have assumed the
genuineness of all signatures, the authenticity of all documents, instruments
and certificates submitted to us as originals, the conformity with the original
documents, instruments and certificates of all documents, instruments and
certificates submitted to us as copies and the legal capacity to sign of all
individuals executing such documents, instruments and certificates (the
"Documents"). In addition, we have assumed, other than with respect to those
signing on behalf of the Company, that all signatories of any Documents have
been duly authorized, pursuant to all applicable laws, regulations, corporate
charters and governing documents, to execute said Documents. As to facts
material to this opinion, we have relied, without independent investigation,
upon factual information provided to us by the Company, including without
limitation, the representations and statements made in an officer's fact
certificate furnished to us in connection with the preparation of this opinion,
and upon representations made in any of the other Documents referred to above.
We are not admitted to practice in any jurisdiction but the State of
New York and we do not express any opinion as to the laws of states of
jurisdiction other than the State of New York and matters of federal law and the
Delaware General Corporation Law. No opinion is expressed as to the effect that
the laws of any other jurisdiction may have upon the subject matter of the
opinions expressed herein under conflicts of law principles or otherwise.
On the basis of and in reliance upon the foregoing, and subject to the
foregoing limitations, qualifications and exceptions, we are of the opinion that
the Shares have been duly authorized and (i) the Outstanding Shares have been
duly issued, and are fully-paid and non-assessable, and (ii) the Warrant Shares,
upon exercise of the Contingent Warrant and assuming receipt by the Company of
the consideration therefor specified in the Contingent Warrant, will be duly
issued, fully-paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this opinion and to the
references to this firm under the caption "Legal Matters" in the Prospectus
forming a part of the Registration Statement. In giving this consent, we do not
admit thereby that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Commission.
Very truly yours,
/s/ Battle Fowler LLP
Exhibit 23.1
CONSENT OF PRICEWATERHOUSECOOPERS LLP, INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
registration statement on Form S-3 of our reports, dated March 5, 1999, relating
to the consolidated financial statements, and financial statement schedule,
which appear in Ampex Corporation's Annual Report on Form 10-K for the year
ended December 31, 1998. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
August 19, 1999
