Exhibit 4.01
AMPEX CORPORATION
2000 STOCK BONUS PLAN
1. Purpose.
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The purpose of the Plan is to promote the interests of Ampex
Corporation, a Delaware corporation (the "Corporation"), by providing eligible
individuals with the opportunity to acquire, through stock bonus or direct stock
purchase, a proprietary interest, or otherwise increase their existing
proprietary interest, in the Corporation, as an incentive for them to perform
services for the benefit of the Corporation (or any Parent or Subsidiary as
defined below).
2. Definitions.
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For purposes of the Plan:
2.1 "Board" shall mean the Corporation's Board of Directors.
2.2 "Change in Capitalization" shall mean any increase or reduction
in the number of outstanding shares of Common Stock, or any change (including,
but not limited to, a change in par value) in the shares of Common Stock or
exchange of shares of Common Stock for a different number or kind of shares or
other securities of the Corporation, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, spin-off, split-up,
issuance of warrants or rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, combination or exchange
of shares, repurchase of shares, change in corporate structure or otherwise.
2.3 "Change of Control" shall mean a change in ownership or control
of the Corporation effected through any of the following:
(a) a merger, consolidation or reorganization approved by the
Corporation's stockholders, unless securities representing more than fifty
percent (50%) of the total combined voting power of the voting securities of the
successor corporation are immediately thereafter beneficially owned, directly or
indirectly, and in substantially the same proportion, by the persons who
beneficially owned the Corporation's outstanding voting securities immediately
prior to such transaction;
(b) any stockholder-approved sale or other transfer of all or
substantially all the Corporation's assets as an entirety;
(c) the acquisition, directly or indirectly, by any person or
related group of persons (other than the Corporation or a person that as of the
Plan Effective Date, directly or indirectly controls, is controlled by or is
under common control with, the Corporation), of beneficial ownership (within the
meaning of Rule 13d-3 under the 1934 Act) of securities possessing more than
fifty (50%) of the total combined voting power of the Corporation's outstanding
voting securities pursuant to a tender or exchange offer or otherwise; or
(d) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who either (A) have been Board
members continuously since the beginning of such period or (B) have been elected
or nominated for election as Board members during such period
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by at least a majority of the Board members described in clause (A) who were
still in office at the time the Board approved such election or nomination.
2.4 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.5 "Committee" shall mean a committee as described in Section 3.1
hereof, consisting of at least two (2) nonemployee directors (within the meaning
of Rule 16b-3 under the 1934 Act) of the Corporation appointed by the Board to
administer the Plan and to perform the functions set forth herein.
2.6 "Common Stock" shall mean the Corporation's Class A Common Stock,
par value $0.01 per share.
2.7 "Corporation" shall have the meaning set forth in Section 1
hereof.
2.8 "Eligible Individual" shall mean any of the following who provide
services to the Corporation (or any Parent or Subsidiary), and who are
designated by the Committee, in its sole discretion, as eligible to receive
Stock Awards under the Plan, subject to the conditions set forth herein: (i)
officers (including officers who serve as directors), (ii) employees, (iii)
non-employee directors, or (iv) consultants or advisors, provided that with
respect to such consultants or advisors (x) they are natural persons, (y) they
provide bona fide services to the Corporation (or such Parent or Subsidiary) and
(z) the services for which a Stock Award is made hereunder are not in connection
with the offer or sale of securities in a capital-raising transaction, and do
not directly or indirectly promote or maintain a market for the Corporation's
securities.
2.9 "Fair Market Value" on any date shall mean the closing price of
the Common Stock on the last trading day immediately prior to such date on the
principal national securities exchange on which such Common Stock is listed or
admitted to trading, or, if such Common Stock is not so listed or admitted to
trading, the arithmetic mean of the per share closing bid price and per share
closing asked price of the Common Stock on the last trading day immediately
prior to such date as quoted on the National Association of Securities Dealers
Automated Quotation System or such other market in which such prices are
regularly quoted, or, if there have been no published bid or asked quotations
with respect to the Common Stock on such date, the Fair Market Value shall be
the value established by the Board in good faith.
2.10 "Grantee" shall mean a person to whom a Stock Award has been
granted under the Plan.
2.11 "1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
2.12 "Parent" shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations ending with the Corporation if each of the
corporations other than the Corporation owns stock possessing 50% or more of the
combined voting power of all classes of stock in one of the other corporations
in such chain. The Committee shall have authority, at its discretion, to
determine that an unincorporated entity which holds, directly or indirectly, at
least a 50% voting interest in one of the other corporation in the chain, shall
be treated as a corporation for purposes of this definition.
2.13 "Plan" shall mean the Corporation's 2000 Stock Bonus Plan.
2.14 "Plan Effective Date" shall mean June 9, 2000, the date on which
the Plan was approved by the affirmative vote of the holders of a majority of
the securities of the Corporation present, or represented by proxy, and entitled
to vote at a meeting of stockholders duly held in accordance with the applicable
laws of the State of Delaware.
2.15 "Stock Award" shall mean shares of Common Stock or rights to
acquire shares of Common Stock awarded to an Eligible Individual pursuant to
Section 5 hereof.
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2.16 "Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Corporation if each of the corporations other
than the last corporation in the unbroken chain owns stock possessing 50% or
more of the combined voting power of all classes of stock in one of the other
corporations in such chain. The Committee shall have authority, at its
discretion, to determine that an unincorporated entity in which the Corporation
holds, directly or indirectly, at least a 50% voting interest, shall be treated
as a corporation for purposes of this definition.
2.17 "Withholding Taxes" shall mean the Federal, state and local
income and employment withholding tax liabilities and any other tax which the
Corporation is required by any law or regulation of any governmental authority
to withhold in connection with the shares of Common Stock granted hereunder.
3. Administration.
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3.1 The Plan shall be administered by the Committee, which shall hold
meetings at such times as may be necessary for the proper administration of the
Plan. The Committee shall keep minutes of its meetings. A quorum shall consist
of not less than two (2) members of the Committee and a majority of a quorum may
authorize any action. Any decision or determination reduced to writing and
signed by a majority of all of the members of the Committee shall be as fully
effective as if made by a majority vote at a meeting duly called and held. Each
member of the Committee shall be a nonemployee director within the meaning of
Rule 16b-3 promulgated under the 1934 Act. Such Committee members shall also be
"outside directors" within the meaning of Section 162(m)(4)(C) of the Code and
the regulations thereunder. No member of the Committee shall be liable for any
action, failure to act, determination or interpretation made in good faith with
respect to this Plan or any transaction hereunder, except for liability arising
from his or her own willful misfeasance, gross negligence or reckless disregard
of his or her duties. The Corporation hereby agrees to indemnify each member of
the Committee for all costs and expenses and, to the extent permitted by
applicable law, any liability incurred in connection with defending against,
responding to, negotiating for the settlement of or otherwise dealing with any
claim, cause of action or dispute of any kind arising in connection with any
actions in administering this Plan or in authorizing or denying authorization to
any transaction hereunder.
3.2 Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time to select, upon recommendation
by the Corporation's management, those Eligible Individuals to whom Stock Awards
shall be granted under the Plan and to determine the number of shares of Common
Stock to be granted pursuant to each Stock Award, the consideration therefor,
and the terms and conditions of each Stock Award, including the restrictions,
performance criteria or vesting schedule, if any, relating to such shares of
Common Stock; provided, however, that: (i) the Committee shall have the power to
fix the purchase price per share of Common Stock subject to direct stock
purchase, which may not be less than the Fair Market Value per share at the date
of issuance; and (ii) any Stock Award to be granted as a bonus, rather than
pursuant to a direct stock purchase, shall not be valued by the Committee at
less than Fair Market Value. Subject to Section 6 below, the purchase price for
shares of Common Stock sold to a Grantee shall be payable by or on behalf of
such Grantee to the Corporation in cash or by check.
3.3 Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time:
(a) to construe and interpret the Plan and the Stock Awards
granted hereunder and to establish, amend and revoke rules and regulations for
the administration of the Plan, including, but not limited to, correcting any
defect or supplying any omission, or reconciling any inconsistency in the Plan,
in the manner and to the extent it shall deem necessary or advisable to make the
Plan fully effective and comply with applicable law, including Rule 16b-3 under
the Exchange Act and the Code, to the extent applicable. All decisions and
determinations by the Committee in the exercise of this power shall be final,
binding and conclusive upon the Corporation, its Parent and Subsidiaries and
Grantees, and all other persons having any interest therein;
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(b) to determine the duration and purposes for leaves of
absence which may be granted to a Grantee on an individual basis without
constituting a termination of service for purposes of the Plan;
(c) to amend, modify or cancel any outstanding Stock Award
with the consent of the Grantee, or to accelerate the vesting of any Stock Award
or waive the Grantee's obligations to surrender shares or the Corporation's
repurchase rights with respect to any Stock Award;
(d) to exercise its discretion with respect to the powers and
rights granted to it as set forth in the Plan;
(e) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of the
Corporation with respect to the Plan; and
(f) to provide for the limited transferability of Stock Awards
to certain family members, family trusts or family partnerships of Grantees.
4. Stock Subject to the Plan.
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4.1 The stock issuable under the Plan shall be shares of authorized
but unissued or reacquired Common Stock, including shares repurchased by the
Corporation on the open market. The maximum number of shares of Common Stock
initially reserved for issuance over the term of the Plan shall not exceed
2,500,000.
4.2 Except for a person who prior to the time of grant of a Stock
Award has not been an Eligible Individual, no one person participating in the
Plan may receive Stock Awards for more than 250,000 shares of Common Stock in
the aggregate per calendar year, beginning with the 2000 calendar year.
4.3 Upon the granting of a Stock Award, the number of shares of
Common Stock available under Section 4.1 hereof for the granting of further
Stock Awards shall be reduced by the number of shares of Common Stock in respect
of which the Stock Award is granted. Unvested shares issued under the Plan and
subsequently surrendered to the Corporation, or repurchased by the Corporation
at the original issue price paid per share pursuant to the Corporation's
repurchase rights under the Plan, shall be added back to the number of shares of
Common Stock reserved for issuance under the Plan and accordingly be available
for re-issuance under the Plan.
4.4 In the event of a Change in Capitalization, the Committee shall,
in its sole discretion, conclusively determine the appropriate adjustments, if
any, to the maximum number and class of shares of Common Stock or other stock or
securities with respect to which Stock Awards may be granted under the Plan. The
adjustments, if any, determined by the Committee shall be binding and
conclusive.
5. Stock Awards.
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5.1 The Committee may grant Stock Awards to Eligible Individuals.
Subject to Section 3.2 above, Stock Awards may be granted (i) as a bonus for
past services rendered to the Corporation (or any Parent or Subsidiary), (ii) as
an incentive for future services to be rendered to the Corporation (or any
Parent or Subsidiary), or (iii) as an inducement for the recipient's entering
into an employment or consulting agreement with the Corporation (or any Parent
or Subsidiary).
5.2. Subject to Section 3.2 above, the Committee may issue shares of
Common Stock in fulfillment of Stock Awards which are fully and immediately
vested upon grant, or which are to vest in one or more installments over the
Grantee's period of service or earlier upon attainment of designated performance
goals established by the Committee, and may grant Stock Awards that provide for
future issuance of a specified number of shares of Common
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Stock upon the attainment of service requirements or earlier upon attainment of
one or more performance goals established by the Committee.
5.3. Upon the issuance of shares of Common Stock in fulfillment of a
Stock Award, whether or not the Grantee's interest in the shares shall have
fully vested at the time of issuance, the Grantee shall have all of the rights
of a stockholder with respect to the shares issued, including the right to vote
the shares and to receive all dividends or other distributions paid or made with
respect to such shares, subject, however, to the Grantee's obligations to
surrender, and the Corporation's rights to repurchase, unvested shares pursuant
to this Plan and to any restrictions on transferability established by the
Committee with respect to such shares at the time of grant. No Stock Award
granted under this Plan that is subject to any Grantee's obligation to surrender
shares, the Corporation's repurchase rights or any other restrictions pursuant
to this Plan or any Stock Award may be transferred by a Grantee, except by will
or the laws of descent and distribution; provided, however, that any Stock
Awards transferred shall remain subject to all such obligations, rights and
restrictions.
5.4. Any new, substituted or additional securities or other property
(including money paid other than as a regular cash dividend) which the Grantee
may have the right to receive with respect to the Grantee's unvested shares of
Common Stock by reason or any Change in Capitalization shall be issued subject
to (i) the same vesting requirements, if any, applicable to the Grantee's
unvested shares and (ii) such escrow arrangements as the Committee shall deem
appropriate.
5.5. Should the Grantee cease to remain in the service of the
Corporation (or any Parent or Subsidiary) while holding one or more unvested
shares of Common Stock, then those shares shall be immediately surrendered to
the Corporation for cancellation, and the Grantee shall have no further
stockholder rights with respect to those shares. To the extent the surrendered
shares were previously issued to the Grantee for consideration paid in cash or
cash equivalent (including the Grantee's purchase money indebtedness), the
Corporation shall repay to the Grantee the cash consideration paid for the
surrendered shares and shall cancel the unpaid principal balance of any
outstanding purchase money indebtedness attributable to the surrendered shares.
Notwithstanding the foregoing or any other provision of this Plan to the
contrary, in the event of any such cessation of service by reason of death,
disability, normal retirement, early retirement with the consent of the
Corporation, termination of employment or consulting services to enter public or
military service with the consent of the Corporation or leave of absence
approved by the Corporation, or in the event of hardship or other special
circumstances, of a Grantee who holds a Stock Award with respect to unvested
shares that are subject to a Grantee's obligations to surrender the shares, the
Corporation's rights to repurchase the shares, or any restrictions on transfer,
the Committee may take any action that it deems to be equitable under the
circumstances or in the best interests of the Corporation, including without
limitation waiving or modifying any limitation, requirement or restriction with
respect to any Stock Award under this Plan.
5.6. Outstanding Stock Awards that provide for future issuance of
Common Stock shall automatically terminate, and no shares of Common Stock shall
actually be issued in fulfilment of those Stock Awards, if the service
requirements established for such Awards are not attained. The Committee,
however, shall have the authority to issue shares of Common Stock in fulfilment
of one or more unattained Stock Awards in its discretion.
5.7. In the event of a Change of Control, the obligations of each
Grantee to surrender unvested shares and the Corporation's repurchase rights
with respect to such shares shall terminate automatically, and all of such
unvested shares shall immediately vest in full, except to the extent (i) such
repurchase rights and the benefit of such obligations are assigned to the
successor corporation (or parent thereof) or otherwise continue in full force
and effect pursuant to the terms of the Change of Control, or (ii) such
accelerated vesting is precluded by other limitations imposed by the Committee
at the time the Stock Award is granted; provided, however, that such unvested
shares shall not vest if and to the extent that such vesting would cause the
disallowance to the Corporation under the "excess parachute payment" rules under
Section 280G of the Code of a deduction with respect to such shares.
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5.8. Shares of Common Stock which have been issued but have not yet
fully vested may, in the Committee's discretion, be held in escrow by the
Corporation until the Grantee's interest in such shares vests, or may be issued
directly to the Grantee with restrictive legends on the certificates
representing the unvested shares, evidencing the Grantee's obligations to
surrender, and, if applicable, the Corporation's right to repurchase those
shares pursuant to the Plan.
6. Financing.
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The Committee may permit any Grantee to pay all or a portion of the
purchase price of shares issued under the Plan by delivering a full-recourse,
interest bearing promissory note, payable in one or more installments. The terms
of the note (including the interest rate, maturity date and terms of repayment)
shall be established by the Committee in its sole discretion. In no event may
the maximum credit available to the Grantee exceed the sum of (i) the aggregate
purchase price payable for the shares plus (ii) any Federal, state or local
income tax liability incurred by the Grantee in connection with such share
purchase.
7. Tax Withholding.
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The Corporation's obligation to deliver shares of Common Stock in
connection with the granting or vesting of a Stock Award under the Plan shall be
subject to the satisfaction of all applicable Federal, state and local income
and employment tax withholding requirements. If a Grantee is to experience a
taxable event in connection with any Stock Award under the Plan, the Grantee
must make arrangements satisfactory to the Corporation to provide for the timely
payment of all applicable Withholding Taxes upon such taxable event. The
Committee may, in its sole discretion, authorize the Corporation to permit a
Grantee to satisfy the obligation to pay all or a portion of any such
Withholding Taxes by having the Corporation withhold a portion of the shares of
Common Stock otherwise issuable, deliverable or released from escrow to the
Grantee having an aggregate Fair Market Value, on the date of issuance, delivery
or release, as applicable, equal to the amount of such Withholding Taxes
designated by the Grantee and approved by the Committee.
8. Effective Date And Term Of The Plan.
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8.1. The Plan shall become effective immediately upon the Plan
Effective Date.
8.2. The Plan shall terminate upon the earliest of (i) the close of
business on June __, 2010, the day immediately preceding the tenth anniversary
of the Plan Effective Date, or (ii) the date on which all shares of Common Stock
available for issuance under the Plan shall have been issued, and no Stock Award
may be granted thereafter; provided, however, that the Board, in its sole
discretion, may sooner terminate the Plan.
9. Amendment Of The Plan.
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The Board shall have complete and exclusive power and authority to amend
or modify the Plan in any or all respects. However, no such amendment or
modification shall adversely affect the rights and obligations with respect to
unvested stock issuances at the time outstanding under the Plan unless the
Grantee consents to such amendment or modification. To the extent necessary
under Section 16(b) of the 1934 Act and the rules and regulations promulgated
thereunder or under applicable laws or securities exchange rules, no amendment
to the Plan shall be effective unless approved by the stockholders of the
Corporation in accordance with applicable laws and regulations.
10. Regulatory Approvals.
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10.1 The implementation of the Plan and the issuance of any shares of
Common Stock under the Plan shall be subject to the Corporation's procurement of
all approvals and permits required by regulatory authorities
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having jurisdiction over the Plan and the shares of Common Stock issued pursuant
to it.
10.2 No shares of Common Stock or other assets shall be issued or
delivered under the Plan unless and until there shall have been compliance with
all applicable requirements of Federal and state securities laws, including the
filing and effectiveness of the Form S-8 registration statement for the shares
of Common Stock issuable under the Plan, and all applicable listing requirements
of any stock exchange on which the Common Stock is then listed for trading.
11. Non-Exclusivity of the Plan.
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The adoption of the Plan by the Board shall not be construed as
amending, modifying, or rescinding any previously approved incentive
arrangement, or as creating any limitations on the power of the Board to adopt
such other incentive arrangement as it may deem desirable, including, without
limitation, the granting of stock awards otherwise than under the Plan.
12. Limitation of Liability.
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As illustrative of the limitations of liability of the Corporation, but
not intended to be exhaustive thereof, nothing in the Plan shall be construed
to:
(a) give any person any right to be granted a Stock Award
other than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to
shares of Common Stock except as specifically provided in the Plan;
(c) limit in any way the right of the Corporation, or any
Parent or Subsidiary, as the case may be, to terminate the employment of any
person at any time; or
(d) be evidence of any agreement or understanding, expressed
or implied, that the Corporation, or its parent or subsidiary corporations, as
the case may be, will employ any person at any particular rate of compensation
or for any particular period of time.
13. Multiple Awards.
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The terms of each Stock Award may differ from other Stock Awards granted
under the Plan at the same time, or at some other time. The Committee may also
grant more than one Stock Award per year to a given Grantee during the term of
the Plan.
14. Governing Law.
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Except as to matters of federal law, this Plan and the rights of all
persons claiming hereunder shall be construed and determined in accordance with
the laws of the State of Delaware without giving effect to conflicts of law
principles thereof.
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