EXCHANGE AGREEMENT
Ampex Corporation
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June 22, 1998
To: Each of the Holders Who Executes
a Preferred Stockholder Signature Page hereto
Re: 8% Noncumulative Preferred Stock
Ladies and Gentlemen:
(a) Reference is made to the captioned Preferred Stock, par value
$1.00 per share, issued by Ampex Corporation, a Delaware corporation (the
"Corporation") under a certificate of Designations, Preferences and Rights,
dated February 14, 1995 (the "Certificate of Designations"), consisting of
69,970 outstanding shares with an aggregate Liquidation Preference (as defined
in the Certificate of Designations) of $69,970,000 (the "Old Preferred Stock").
The Corporation has offered to redeem all the outstanding shares of Old
Preferred Stock in exchange (the "Exchange") for an aggregate of (i) 3,000,000
shares of Class A Common Stock, par value $.01 per share ("New Common Stock"),
of the Corporation, (ii) 10,000 shares of a new series of convertible preferred
stock, par value $1.00 per share ("Convertible Preferred Stock"), of the
Corporation, having a liquidation preference of $2,000 per share, and (iii)
21,859 shares of a new series of redeemable preferred stock, par value $1.00 per
share ("Redeemable Preferred Stock" and, collectively with the Convertible
Preferred Stock, the "New Preferred Stock") of the Corporation, having a
liquidation preference of $2,000 per share, all on and subject to the terms and
conditions set forth below. The shares of New Common Stock and New Preferred
Stock to be issued in the Exchange are hereinafter sometimes collectively called
the "Exchange Securities"). The Corporation and each of the holders of the
Preferred Stock who executes a counterpart of the preferred stockholder
signature page hereto (each a "Holder" and collectively, the "Holders"), are
entering into this Agreement in order to set forth the terms and conditions of
the Exchange.
(b) Capitalized terms used but not defined elsewhere in this Agreement
have the meanings assigned to them in Section 6.1 below.
NOW THEREFORE, the parties hereto, for good and valid consideration,
intending to be legally bound hereby, have agreed as follows:
THE EXCHANGE
SECTION 1.1 Exchange of Securities. (a) At the Closing (as defined in
Section 1.2), subject to the terms and conditions set forth herein, the
Corporation shall deliver to each Holder, and each Holder agrees to accept from
the Corporation, in exchange for the shares of Old Preferred Stock held by such
Holder the number of shares of Class A Common Stock and the number of shares of
Convertible Preferred Stock and Redeemable Preferred Stock set opposite such
Holder's name on Schedule 1 hereto.
(b) At the Closing, each Holder, in reliance upon the representations
and warranties of the Corporation contained herein and subject to the terms and
conditions set forth herein, agrees to tender or cause to be tendered to the
Corporation for cancellation all shares of Old Preferred Stock beneficially held
or owned by such Holder as set forth opposite such Holder's name on Schedule 1
hereto. Such tender shall be irrevocable and unconditional, subject only to (i)
the issuance and delivery of the Exchange Securities, (ii) completion of the
Exchange and (iii) the satisfaction or waiver of the closing conditions set
forth in Section 2.1 below.
(c) The Company and the Holders hereby represent and agree that the
"issue price" of the shares of New Preferred Stock for all Federal income and
other tax purposes shall be equal to the face amount of such shares of New
Preferred Stock.
SECTION 1.2 The Closing. The Exchange shall take place at a closing
(the "Closing") at the offices of Battle ▇▇▇▇▇▇ LLP, counsel to the Corporation,
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on a date specified by the Corporation
upon not less than three (3) Business Days' prior notice to the Holders, as
promptly as practicable after the execution and delivery of this Agreement (but
in no event later than July 31, 1998) (the "Closing Date"). At the Closing, the
Corporation will deliver to each Holder certificates representing the Exchange
Securities (in such denominations and registered in the name of such Holder or
the nominee of such Holder as such Holder shall have requested) against delivery
of the certificates representing the shares of Old Preferred Stock held by each
Holder. Upon (i) delivery of the Exchange Securities to the Holders, and (ii)
the satisfaction or waiver of the closing conditions set forth in Sections 2.1
and 2.2, the Corporation shall be deemed, without further action on the part of
the Holders or the Corporation, to have accepted each of the Holders' tenders of
the Old Preferred Stock.
CLOSING CONDITIONS
SECTION 2.1. Conditions Precedent to Obligations of Holders to Close.
The obligation of each Holder to accept the Exchange Securities pursuant to this
Agreement in exchange for the Old Preferred Stock shall be subject to the
satisfaction of the following conditions, at or prior to Closing:
(i) The representations and warranties of the Corporation set
forth in this Agreement shall be true and correct on and as of the Closing Date;
and the Corporation shall have complied with and performed all covenants and
agreements hereunder required to be complied with or performed by it at or prior
to the Closing; and the Corporation shall have furnished to each Holder a
certificate of an authorized officer, dated the Closing Date, (A) to the
foregoing effect, and (B) to the further effect that the conditions specified in
this Section 2.1 have been satisfied at and as of the Closing;
(ii) the Certificate of Designations, Preferences and Rights (the
"New COD") relating to the New Preferred Stock, in the form attached hereto as
Exhibit A, shall have been duly executed, delivered and filed by the Company in
all requisite public offices in the State of Delaware, and the Holders shall
have received such evidence as they shall have reasonably requested indicating
that the New COD is in full force and effect, in such form, on the Closing Date;
(iii) The Exchange Securities shall have been duly authorized,
issued and delivered by the Corporation, and the New Common Stock issuable to
the Holders shall have been duly listed for trading on the American Stock
Exchange, subject only to official notice of issuance;
(iv) Each Holder's exchange of the Old Preferred Stock held by
such Holder for Exchange Securities hereunder shall not be prohibited by or
contrary to any law or regulation of any Governmental Authority applicable to
such Holder and shall not be enjoined (temporarily or permanently) or prohibited
by or contrary to any injunction, order or decree applicable to such Holder; and
(v) Each Holder shall have received the favorable opinion of
Battle ▇▇▇▇▇▇ LLP, counsel to the Corporation, dated the Closing Date, in form
and substance reasonably satisfactory to each Holder, to the effects provided in
clause (iii) of this Section 2.1, Section 2.2(ii), Section 2.2(iii), Section 3.1
and Section 3.2, and as to such other matters as counsel to the Holders may
reasonably request.
SECTION 2.2. Conditions Precedent to Obligation of the Corporation to
Close. The obligation of the Corporation to issue the Exchange Securities in
exchange for the Old Preferred Stock pursuant to this Agreement is subject to
the satisfaction, at or prior to the Closing, of the following conditions:
(i) The representations and warranties of each of the Holders
(severally and not jointly) set forth in Section 4.1 hereof shall be true and
correct on and as of the Closing Date; and each of the Holders shall have
complied with and performed all covenants and agreements hereunder required to
be complied with or performed by it at or prior to the Closing;
(ii) The Corporation's issuance and exchange of the Exchange
Securities for the Old Preferred Stock hereunder shall not be prohibited by or
contrary to any law or regulation of any Governmental Authority applicable to
the Corporation and shall not be enjoined (temporarily or permanently) or
prohibited by or contrary to any injunction, order or decree applicable to the
Corporation; and
(iii) The offer, sale and issuance of the Exchange Securities
hereunder shall be exempt from registration under the Securities Act (as defined
below) by virtue of the exemption contained in Section 3a(9) thereof, and shall
be exempt from registration or qualification under applicable state securities
or blue sky laws (or, if required, shall have been duly registered or qualified
under the Securities Act and/or such state laws).
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation hereby represents and warrants that:
SECTION 3.1. Organization and Authorization. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The execution, delivery and performance by the
Corporation of this Agreement and the New COD, the issuance to the several
Holders of the Exchange Securities pursuant hereto, and the consummation of the
Exchange, are within the Corporation's corporate powers, and have been duly
authorized by all necessary corporate action on the part of the Corporation.
SECTION 3.2. Validity and Binding Effect. This Agreement has been duly
executed and delivered by the Corporation, and is a valid and binding agreement
of the Corporation, enforceable against the Corporation in accordance with its
terms, except: (i) that such enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally; (ii) that such enforceability
may be subject to general equitable principles, including, without limitation,
the principle that the availability of equitable remedies, such as specific
enforcement, injunctive relief or reformation, is subject to the discretion of
the court before which any proceeding might be brought; and (iii) as rights to
indemnity referred to or provided in any such agreement may be limited by
federal or state securities laws or public policy underlying such laws.
SECTION 3.3. Capitalization. The Corporation's authorized capital
stock consists of (i) 1,000,000 shares of preferred stock, $1.00 value per
share, of which 69,970 shares (comprising the Old Preferred Stock) are issued
and outstanding, and (ii) 175,000,000 shares of Common Stock, consisting of (x)
125,000,000 shares of Class A Common Stock, of which 46,056,047 shares were
issued and outstanding as of March 31, 1998, and (y) 50,000,000 shares of Class
C Stock, of which no shares are issued and outstanding; all of such outstanding
shares have been and, each of the Exchange Securities to be issued at the
Closing will be, duly authorized, validly issued, fully paid and non-assessable,
and not subject to any preemptive or other similar rights. Since March 31, 1998,
there has been no material change in the capitalization of the Corporation.
Except for (i) stock options issued or to be issued under the Corporation's 1992
Stock Incentive Plan, as in effect on the date of this Agreement, (ii) up to
720,000 shares of Common Stock issuable pursuant to a proposed Acquisition
Agreement, among the Corporation, Ampex Holdings Corporation, a Delaware
corporation and the several shareholders of Micronet Technology, Inc., a
Delaware corporation, (iii) shares contingently issuable pursuant to
registration rights agreements currently in effect between the Company and the
Holders, (iv) shares issuable pursuant to Warrants issued pursuant to the
Warrant Agreement dated as of January 26, 1998, between the Corporation and
American Stock Transfer and Trust Company, as Warrant Agent, and (v) shares of
New Common Stock issuable pursuant to this Agreement, or the terms of the New
Preferred Stock to be issued hereunder, there are no, and as of the Closing Date
there will be no outstanding subscriptions, options, warrants, rights,
convertible or exchangeable securities or other agreements or commitments of any
character obligating the Corporation to issue any securities.
SECTION 3.4. Private Offering; No Commissions, etc. No form of general
solicitation or general advertising including, but not limited to,
advertisements, articles, notices or other communications, published in any
newspaper, magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising, was used by the Corporation or its
representatives, or, to the knowledge of the Corporation, any other Person
acting on behalf of the Corporation, in connection with the offering of the
Exchange Securities being issued hereunder. Neither the Corporation nor any
Person acting on its behalf, has directly or indirectly offered the Exchange
Securities being issued hereunder, or any part thereof or any other similar
securities, for sale to, or sold or solicited any offer to buy any of the same
from, or otherwise approached or negotiated in respect thereof with any Person
or Persons other than the Holders and their representatives, and no commission
or other remuneration has been or will be paid or given, directly or indirectly,
for soliciting the exchange contemplated hereby. The Corporation further
represents, to each Holder individually and not jointly with any other Holder,
that, assuming the accuracy of the representations of such Holder as set forth
in Section 4.1(a), (c) and (d) hereof, neither of the Corporation nor any Person
acting on its behalf has taken or will take any action which would subject the
issuance of the Exchange Securities being issued hereunder to the provisions of
Section 5 of the Securities Act, except as contemplated by this Agreement.
Except as set forth in Section 3.3 hereof or an effective registration statement
filed with the Commission under the Securities Act, no securities of the same
class as the Exchange Securities (or any similar securities) have been offered
or sold by the Corporation within the six-month period immediately prior to the
date of this Agreement (other than shares of Common Stock issued and sold to
officers and directors of the Corporation in one or more non-public
transactions).
SECTION 3.5. Broker's or Finder's Commissions. The Corporation agrees
that it will indemnify and hold harmless each Holder from and against any and
all claims, demands or liabilities for broker's, finder's, placement agent's or
other similar fees or commissions incurred or alleged to have been incurred by
the Corporation or any Person acting on its behalf in connection with the
issuance of the Exchange Securities, or any other transaction contemplated by
this Agreement.
SECTION 3.6. SEC Documents. The Corporation has duly and timely filed
with the Commission all the periodic and other reports ("SEC Documents")
required to be filed by the Corporation pursuant to Section 13 of the Exchange
Act during the preceding 12 months; all such SEC Documents comply as to form
with the applicable rules and regulations of the Commission in all material
respects; and none of such SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Except as disclosed in the SEC Documents,
there is no material fact known to the Company which the Company has not
disclosed to the Holders or Holders' counsel in writing which has or, insofar as
the Company can reasonably foresee, may have or will have a material adverse
effect on the Company and its Subsidiaries on a consolidated basis or a material
adverse effect on the ability of the Company to perform its obligations under
this Agreement or any document contemplated hereby.
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
SECTION 4.1 Representations and Warranties of Holders. Each of the
Holders, severally and not jointly, represents and warrants that:
(a) The Holder, by reason of its business and financial experience,
has such knowledge, sophistication and experience in business and financial
matters as to be capable of evaluating the merits and risk of the prospective
investment, and is acquiring the Exchange Securities for its own account (and/or
on behalf of managed accounts that are acquiring for their own account) and with
no present intention of distributing or reselling the same or any part thereof
other than pursuant to a registration statement under the Securities Act or an
exemption thereunder, without prejudice, however, to its right (subject to the
terms of this Agreement) at all times to sell or otherwise dispose of all or any
part of said Exchange Securities pursuant to a registration statement under the
Securities Act, or under an exemption from registration under the Securities
Act, or under an exemption from such registration available under the Securities
Act, and subject, nevertheless, to the disposition of its assets being at all
times within its control.
(b) The Holder has full power and authority to execute, deliver and
perform this Agreement and to carry out the transactions contemplated by this
Agreement; the execution, delivery and performance of this Agreement have been
duly authorized by all requisite corporate (or similar) action on the part of
the Holder; and this Agreement has been duly executed and delivered by the
Holder and this Agreement and is a legal, valid and binding obligation of the
Holder enforceable in accordance with its terms, except: (i) that such
enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally; (ii) that such enforceability may be subject to
general equitable principles, including, without limitation, the principle that
the availability of equitable remedies, such as specific enforcement, injunctive
relief or reformation, is subject to the discretion of the court before which
any proceeding might be brought; and (iii) as rights to indemnity referred to or
provided in such agreement may be limited by Federal or state securities laws or
public policy underlying such laws.
(c) The Holder acknowledges that the Exchange Securities being
acquired by it have not been registered under the Securities Act in reliance
upon the exemption from registration contained in Section 3a(9) of the
Securities Act. The Holder is not an Affiliate of the Corporation and has not
been such an Affiliate for at least three months prior to the date of this
Agreement. A period of at least two years has elapsed since the date the shares
of Old Preferred Stock held by the Holder were acquired from the Corporation.
(d) The Holder has full power and authority to tender, sell, assign
and transfer the shares of Old Preferred Stock held by such Holder, and upon
acceptance of the shares of Old Preferred Stock by the Corporation at the
Closing, the Corporation will acquire good and marketable title thereto, free
and clear of all liens, restrictions, charges and encumbrances, and none of such
shares will be subject to any adverse claim. The Holder will, upon request,
execute and deliver all additional documents and instruments of transfer deemed
by the Corporation to be reasonably necessary or desirable to complete the sale,
assignment and transfer of the Old Preferred Stock to the Corporation.
REGISTRATION RIGHTS
SECTION 5.1. Registration Rights of Holders; Restrictions on Transfer.
(a) In the event that any of the Exchange Securities or any of the shares of
Class A or Class C Common Stock of the Corporation issuable upon conversion or
redemption of the New Preferred Stock may not be sold by a Holder pursuant to
paragraph (k) of Rule 144 (as defined below) under the Securities Act, the
Corporation will promptly, upon the request of such Holder, execute and deliver
to such Holder, at the Corporation's expense, a registration rights agreement
with respect to the prompt registration of such shares under the Securities Act.
Any such registration rights agreement shall be in substantially the form of the
Registration Rights Agreements, dated as of February 14, 1995, entered into by
the Corporation and the Initial Holders in connection with the issuance of the
Old Preferred Stock, and shall otherwise be in form and substance reasonably
satisfactory to the Corporation and such Holder.
(b) Each certificate for shares of Class A or Class C Common Stock
issuable upon conversion or exchange of the New Preferred Stock to any Initial
Holder or subsequent transferee shall bear a restrictive legend, in
substantially the form imprinted on the certificates for the shares of Old
Preferred Stock, unless such shares have been registered under the Securities
Act or the issuance of such shares is exempt from registration by reason of
Section 3a(9) thereof. If at any time subsequent to the issuance of such shares,
the offer and sale of such shares shall be registered under an effective
registration statement under the Securities Act or, in the opinion of counsel to
the Corporation, may be sold without registration under the Securities Act, then
promptly upon the request of the Holder thereof, the Corporation will deliver,
or cause its transfer agent to deliver, new certificates for such shares which
do not bear the legend referred to in this Section 5.1(b).
SECTION 5.2. Rule 144. The Corporation covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
or, if the Corporation is not required to file such reports, it will, upon the
request of any Holder, make publicly available other information so long as
necessary to permit sales of Exchange Securities under Rule 144 under the
Securities Act, and it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Exchange Securities without registration under the Securities Act
within the limitations of the exemptions provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission ("Rule 144"). Upon the
request of any Holder, the Corporation will deliver to such Holder a written
statement as to whether it has complied with such requirements.
SECTION 5.3 Rule 144A. Upon the request of any Holder, the Corporation
will deliver to such Holder within 10 days following receipt by the Corporation
of such request, the information required by Section(d)(4) of Rule 144A under
the Securities Act, as such Rule may be amended from time to time or any similar
rule or regulation hereafter adopted by the Commission ("Rule 144A"), and will
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Exchange Securities
without registration under the Securities Act within the limitations of the
exemptions provided by Rule 144A. All information shall be "reasonably current"
as defined in Rule 144A.
DEFINITIONS
SECTION 6.1. Definitions. As used in this Agreement, the following
terms have the meanings indicated:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof
then in effect.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the City of New York, New York are authorized
or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission or any
successor agency then having jurisdiction to enforce the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the sales and regulations promulgated thereunder.
"Governmental Authority" means any governmental or quasi-governmental
authority, including, without limitation, any federal, state, territorial,
county, municipal or other governmental or quasi-governmental agency, board,
branch, bureau, commission, court, department or other instrumentality or
political unit or subdivision, whether domestic or foreign.
"Holder" means (i) each Initial Holder, and (ii) each assignee or
transferee of any Exchange Security, other than the Corporation and its
Affiliates, who becomes a holder of such security.
"Initial Holder" means each Person who accepts and agrees to the terms
of this Agreement as indicated by a signature on an execution page hereof, and
each Person, if any, on whose behalf any such Person executes this Agreement and
tenders Old Preferred Stock.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or a political subdivision, agency or instrumentality thereof or
other entity or organization of any kind.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations promulgated thereunder.
MISCELLANEOUS
SECTION 7.1. Survival of Representations, Warranties and Covenants.
(a) The Corporation and each Holder (severally and not jointly) agrees
that each representation, warranty, covenant and agreement made by it in this
Agreement or in any certificate, instrument or other document delivered pursuant
to this Agreement or in connection with the transactions contemplated hereby
shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of such party, or (ii) consummation of the
Exchange pursuant hereto. The provisions of Section 7.5 shall survive any
termination of this Agreement. All such representations, warranties, covenants
and agreements shall be binding upon any successors and assigns of the
Corporation. In addition, whether or not express agreement has been made, except
as otherwise provided in this Section 7.1, all Holders shall be entitled to the
benefits of the covenants and agreements of the Corporation to be performed or
observed by it hereunder, including, without limitation, as set forth in
Sections 5.1 and 5.2 hereof.
(b) Subject to Section 7.1(a) above, this Agreement shall be binding
upon and inure to the benefit of the Corporation and the Holders and their
respective successors and assigns.
(c) All provisions of this Agreement purporting to give rights to any
Holders are for the express benefit of such Holders, and, without limitation to
the foregoing, the Corporation hereby acknowledges and agrees that each Holder
shall be entitled to enforce such rights and the corresponding obligations of
the Corporation under this Agreement.
(d) All provisions of this Agreement purporting to give rights to any
Holders shall extend to and include those Persons who on the Closing Date
received the beneficial interests of the Exchange Securities acquired by such
Holder at the Closing.
SECTION 7.2. Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by any Holder (but only as to itself) if any of the conditions
specified in Section 2.1 of this Agreement has not been satisfied or waived by
such Holder by July 31, 1998 (other than by reason of the default of such
Holder); or
(b) by the Corporation if any of the conditions specified in Section
2.2 of this Agreement has not been satisfied or waived by the Corporation by
July 31, 1998 (other than by reason of the default of the Corporation).
Notwithstanding the foregoing, this Agreement shall terminate (other
than the provisions in Section 7.5) without further liability to any of the
parties at such time as all of the obligations of the Corporation under this
Agreement with respect to the Exchange Securities have been fully satisfied and
discharged.
SECTION 7.3. No Waivers; Amendments. No failure or delay on the part
of the Corporation or any Holder in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Corporation or any Holder at law or in
equity or otherwise. This Agreement may be amended by the Corporation with the
prior written consent of the holders of at least a majority of the Old Preferred
Stock or the Exchange Securities (as the case may be) outstanding at the time
such action is taken by the Corporation.
SECTION 7.4. Communications and Notices. Except as otherwise provided
in this Agreement, this Section 7.4 all communications and notices provided for
in this Agreement shall be in writing and, if to the Corporation, mailed or
delivered to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇), or at any
other office that the Corporation may hereafter designate by written notice to
the Holders, and, if to the Holders, mailed or delivered to their respective
addresses specified on an execution page of this Agreement, or to such other
address and for such attention as any Holder may from time to time designate by
written notice to the Corporation. Each such notice, request or other
communication shall be effective (i) if given by telex or telecopy, when such
telex or telecopy is transmitted to the telex or telecopy number specified in or
pursuant to this Section 7.4 and (in the case of telex) the appropriate
answer-back, or (in the case of a telecopy) telephonic confirmation of receipt,
is received, (ii) if given by mail, four (4) days after such communication is
deposited in the U.S. mails with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered at the address
specified in or pursuant to this Section 7.4.
SECTION 7.5. Indemnification; Costs, Expenses and Taxes. The
Corporation agrees (for the benefit of each Holder and whether or not the
transactions contemplated hereby are consummated), to pay, and to hold each
Holder harmless against liability for the payment of, all reasonable costs and
expenses in connection with the negotiation, preparation, execution and delivery
of this Agreement, the Exchange Securities and any and all other documents
furnished pursuant hereto or thereto or in connection herewith or therewith,
including, without limitation, the reasonable fees and disbursements of counsel
to the Holders incurred in connection with the preparation of and the
out-of-pocket expenses incurred by the Initial Holders and their agents in
connection with the negotiations and execution of this Agreement, all the
reasonable fees and expenses incurred in connection with the registration or
qualification of the Exchange Securities for offer and sale under the state
securities, "Blue Sky" or insurance laws of such jurisdictions as may be
necessary or desirable in connection with validating or attempting to obtain an
exemption from such requirements, the cost of insured delivery to each Initial
Holders' home office of the New Preferred Stock and New Common Stock to be
acquired by it, and all reasonable costs and expenses in connection with the
administration of this Agreement. The Corporation agrees (for the benefit of
each Initial Holder and Holder), to pay, and to hold each Initial Holder and
Holder harmless from and against, all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses), if any, in connection with
the enforcement against the Corporation of this Agreement, or any other
agreement or instrument furnished pursuant hereto or thereto or in connection
herewith or therewith in any action in which any Initial Holder and Holder
attempting to enforce any of the foregoing shall prevail or in any action in
which the Initial Holders and Holders shall validly assert any provision of any
of the foregoing as a defense. In addition, the Corporation agrees (for the
benefit of each Initial Holder and Holder), to pay any and all stamp, transfer
and other similar taxes (together in each case with interest and penalties, if
any) payable or determined to be payable in connection with the execution and
delivery of this Agreement and the issuance of the Exchange Securities and to
hold each Holder harmless from and against any and all liabilities with respect
to or resulting from any delay in paying, or omission to pay, such taxes. In the
event that the Exchange is not consummated and the issuance of the Exchange
Securities does not occur, the Corporation agrees to pay the aforesaid costs and
expenses to be paid by the Corporation pursuant to this Section 7.5. The
obligations of the Corporation in this Section 7.5 shall survive the payment or
transfer of any of the Exchange Securities.
(b) In addition to any and all obligations of the Corporation to
indemnify the Initial Holders and Holders hereunder, the Corporation shall,
without limitation as to time (except as otherwise provided herein) indemnify
each Initial Holder and Holder and their respective Affiliates, employees,
officers, directors, agents and investment advisors (collectively, the
"Indemnified Parties") against, and hold each Indemnified Party harmless from,
all losses, claims, damages, liabilities, costs (including the costs of
preparation and reasonable attorneys' fees) and expenses (collectively, the
"Losses") incurred by such Indemnified Party (i) in connection with or arising
from any breach of any warranty, or the inaccuracy of any representation made by
the Corporation or the failure of the Corporation to fulfill any of its
agreements or undertakings under this Agreement, (ii) pursuant to any
investigation or proceeding against the Corporation or any indemnified party,
brought by any third-party, arising out of or in connection with this Agreement
(or any other document or instrument executed herewith or pursuant hereto or
thereto) or the transactions to which they relate, whether or not the
transactions contemplated herein are consummated, which investigation or
proceeding requires the participation of, or is commenced or filed against, such
Indemnified Party because of this Agreement (or any other document or instrument
executed herewith or pursuant hereto or thereto) or the transactions to which
they relate, whether or not the transactions contemplated herein are
consummated, which investigation or proceeding requires the participation of, or
is commenced or filed against, such Indemnified Party because of this Agreement
(or any such document or instrument executed herewith or pursuant hereto or
thereto) or the transactions contemplated hereby or thereby, or (iii) in
connection with or arising from (A) the failure of the Corporation or any of its
Subsidiaries to comply with any federal, state or local environmental, health or
safety law, ordinance, regulation, rule or other legally enforceable
requirement, or (B) the presence, treatment, recycling, storage, disposal or
actual or potential release of any hazardous waste, hazardous substance,
hazardous material, or oil or any petroleum product (as these terms are defined
in applicable Federal or state environmental laws and regulations) or pollutant
or contaminant at, on or under any property owned by the Corporation or any of
its Subsidiaries, or at, on or under any other place if such hazardous waste,
hazardous substance, hazardous material, oil, petroleum product, pollutant or
contaminant was transported or generated by the Corporation or any of its
Subsidiaries. Notwithstanding the foregoing, the Corporation shall not be liable
for any Losses resulting from action on the part of any Indemnified Party which
is finally determined in such proceeding to be an act of gross negligence,
recklessness or willful misconduct by such Indemnified Party and is unrelated to
any wrongful act by the Corporation or its representatives, or was not taken by
any Indemnified Party in reliance upon any of the warranties, covenants or
promises of the Corporation herein or in any other documents contemplated
hereby, including certificates delivered by the Corporation or its
representatives pursuant hereto or thereto. The Corporation agrees to reimburse
any Indemnified Party promptly for all such Losses as they are incurred by any
Indemnified Party, subject to repayment by such Indemnified Party in the case of
any Losses referred to in the previous sentence. The obligations of the
Corporation to the Indemnified Parties hereunder shall be separate obligations
to each indemnified party, and the liability of the Corporation to any
Indemnified Party hereunder shall not be extinguished solely because any other
Indemnified Party is not entitled to indemnity hereunder. The obligations of the
Corporation under this Section 7.5(b) shall survive any transfer of the Exchange
Securities and the termination of this Agreement.
(c) If the indemnification provided for in Section 7.5(b) is
unavailable to any Indemnified Party in respect of any Losses referred to
therein, then the Corporation in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses in such proportions as is appropriate to reflect the
relative fault of the Corporation, on the one hand and such Indemnified Party,
on the other hand, in connection with the actions which resulted in such Losses
as well as any other relevant equitable considerations. The relative fault of
the Corporation, on the one hand, and the Indemnified Party, on the other hand.
shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been taken by, or
relates to information supplied by, the Corporation on the one hand or such
Indemnified Party, on the other hand, and the Corporation's and such Indemnified
Party's relative intent, knowledge, access to information and opportunity to
correct or prevent any such action, statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.5(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of this Section 7.5(c), any
reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or proceeding. The
obligations of the Corporation under this Section 7.5(c) shall survive any
transfer of the Exchange Securities and the termination of this Agreement.
SECTION 7.6 Lost, etc. Securities. Notwithstanding any provision to
the contrary in the by-laws of the Corporation, if any Exchange Security of
which any Holder (or nominee thereof) is the owner is mutilated, destroyed, lost
or stolen, then the affidavit of such Holder's treasurer or assistant treasurer
(or other responsible official), setting forth the circumstances with respect to
such mutilation, destruction, loss or theft, shall be accepted as satisfactory
evidence thereof, and an indemnity, security or payment of charges or expenses
may be required as a condition to the execution and delivery by the Corporation
of certificates evidencing a like number of shares of Common Stock or Preferred
Stock in substitution therefor. The Corporation may charge such Holder for its
reasonable expenses in replacing such shares.
SECTION 7.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
signature pages each of which counterparts when so executed and delivered shall
be deemed an original and all of which counterparts taken together shall
constitute but one and the same Agreement.
SECTION 7.8 Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with such laws without regard to
principles of conflicts of laws thereof.
SECTION 7.9 Entire Agreement. This Agreement and any other agreement
or instrument furnished pursuant hereto or in connection herewith embody the
entire agreement and understanding between the Holders and the Corporation, and
supersede all prior agreements and understandings relating to the subject matter
hereof.
SECTION 7.10. Severability. In the event that any one or more of the
provisions of this Agreement, or the application thereof in specific
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
SECTION 7.11. Headings. The Section headings used or contained in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
SECTION 7.12. Obligations Several and Not Joint; Limitation of
Liability and Representations and Warranties. Anything herein to the contrary
notwithstanding, the representations, warranties, covenants, agreements and
obligations of the Holders set forth herein are several and not joint. The
Corporation acknowledges and agrees that the liability of each Holder is limited
to the extent (if any) set forth on the signature page to this Agreement
executed by such Holder. The Corporation further acknowledges and agrees that
the representations and warranties made by each Holder hereunder are limited as
and to the extent (if any) expressly described on the signature page to this
Agreement executed by such Holder.
[Remainder of Page Intentionally Left Blank]
CORPORATION SIGNATURE PAGE
TO
EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed by its officer thereunto duly authorized, as of the date first above
written.
AMPEX CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
VARIABLE INSURANCE PRODUCTS FUND:
HIGH INCOME PORTFOLIO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Hudd & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
1,589
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
227
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
497
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
68,129
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY SUMMER STREET TRUST:
FIDELITY CAPITAL & INCOME FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Hudd & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
23,995
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
3,429
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
7,494
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
1,028,798
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY FIXED-INCOME TRUST:
SPARTAN HIGH INCOME FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Hudd & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
2,723
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
389
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
851
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
116,750
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY MAGELLAN FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Sailboat & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
4,415
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
631
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
1,379
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
189,295
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY PURITAN TRUST:
FIDELITY PURITAN FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
2,581
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
369
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
807
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
110,662
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY ADVISOR SERIES II:
FIDELITY ADVISOR HIGH YIELD FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Hudd & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
584
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
84
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
182
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
25,040
Holder is a portfolio of a Massachusetts business trust. A copy of the
Holder's Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts. The Company acknowledges and agrees that
this agreement is not executed on behalf of or binding upon any of the
trustees, officers, directors or shareholders of Holder individually, but
is binding only upon the assets and property of Holder. With respect to all
obligations of Holder arising out of this agreement, the Company shall look
for payment or satisfaction of any claim solely to the assets and property
of Holder. The Company is expressly put on notice that the rights and
obligations of each series of shares of Holder under its Declaration of
Trust are separate and distinct from those of any and all other series.
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
NORTHERN TRUST COMPANY, AS MASTER TRUSTEE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trust Officer
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ How & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
1,066
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
152
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
333
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
45,705
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
ILLINOIS STATE BOARD OF INVESTMENTS
FIDELITY MANAGEMENT TRUST COMPANY, AS INVESTMENT MANAGER
UNDER POWER OF ATTORNEY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ How & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
563
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
80
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
175
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
24,138
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
PENSION INVESTMENT COMMITTEE OF GENERAL MOTORS
FOR GENERAL MOTORS EMPLOYEES DOMESTIC PENSION TRUST
FIDELITY MANAGEMENT TRUST COMPANY, AS INVESTMENT MANAGER
UNDER POWER OF ATTORNEY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Mag & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
1,412
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
202
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
442
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
60,540
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
COMMONWEALTH OF MASSACHUSETTS PENSION
RESERVES INVESTMENT MANAGEMENT BOARD
FIDELITY MANAGEMENT TRUST COMPANY, AS INVESTMENT MANAGER
UNDER POWER OF ATTORNEY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Catamaran & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
237
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
34
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
75
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
10,161
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
FIDELITY MANAGEMENT TRUST COMPANY, AS TRUSTEE FOR THE
FIDELITY GROUP TRUST FOR EMPLOYEE BENEFIT PLANS,
FIDELITY HIGH YIELD COLLECTIVE PORTFOLIO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
with a copy to: Stock and New Common Stock should be
registered if different from name of Holder):
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Pitt & Co.
Senior Legal Counsel Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Fidelity Investments (Use Nominee tax I.D. # if securities are
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ registered in Nominee name)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
230
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
33
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
73
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
9,861
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
EVERGREEN STRATEGIC INCOME
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Investment Officer, Fixed Income
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
Stock and New Common Stock should be
registered if different from name of Holder):
Seaward Co.
Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
(Use Nominee tax I.D. # if securities are
registered in Nominee name)
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
2,156
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
308
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
674
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
92,440
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
EVERGREEN HIGH YIELD BOND
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Investment Officer, Fixed Income
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
Stock and New Common Stock should be
registered if different from name of Holder):
French Co.
Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
(Use Nominee tax I.D. # if securities are
registered in Nominee name)
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
24,562
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
3,510
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
7,671
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
1,053,108
EXCHANGE AGREEMENT FOR 8% NONCUMULATIVE CONVERTIBLE PREFERRED
STOCK, 8% NONCUMULATIVE REDEEMABLE PREFERRED STOCK
AND COMMON STOCK
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Holder:
EQUIFAX INC. U.S. RETIREMENT
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Investment Officer, Fixed Income
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which New Preferred
Stock and New Common Stock should be
registered if different from name of Holder):
Hare Co.
Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
(Use Nominee tax I.D. # if securities are
registered in Nominee name)
Aggregate number of shares
of Old Preferred Stock to be
exchanged by you:
916
Aggregate number of shares
of new Convertible Preferred Stock
to be acquired by you:
131
Aggregate number of shares of
New Redeemable Preferred Stock
to be acquired by you:
287
Aggregate number of shares of
New Class A Common Stock to be
acquired by you:
39,275
PREFERRED STOCKHOLDER SIGNATURE PAGE
TO
EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed by its officer thereunder duly authorized, as of the date first above
written.
HOLDER:
ICETIDE & CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
State Street Bank & Trust
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier:(▇▇▇) ▇▇▇-▇▇▇▇
Nominee Name (name in which Shares
should be registered if different
from name of Holder):
Icetide & Co.
Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Aggregate number of Shares
of Old Preferred Stock held:
323
Number and class of Exchange Shares
to be issued in Exchange:
13,850 shares of Class A c/s
46 shares of Convertible p/s
101 shares of Redeemable p/s
PREFERRED STOCKHOLDER SIGNATURE PAGE
TO
EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed by its officer thereunder duly authorized, as of the date first above
written.
HOLDER:
POOLSIDE & CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier:
Nominee Name (name in which Shares
should be registered if different
from name of Holder):
Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
Aggregate number of Shares
of Old Preferred Stock held:
2,618
Number and class of Exchange Shares
to be issued in Exchange:
112,248 shares in Class A c/s
375 shares of Convertible p/s
818 shares of Redeemable p/s
SCHEDULE I
Old New Convertible New Redeemable New Class A
Name of Holder Nominee Preferred Preferred Stock Preferred Stock Common Stock
Stock
Variable Insurance Products Fund:
High Income Portfolio ............ Hudd & Co. 1,589 227 497 68,129
Fidelity Summer Street Trust:
Fidelity Capital & Income Fund ... Hudd & Co. 23,995 3,429 7,494 1,028,798
Fidelity Fixed Income Trust:
Spartan High Income Fund ... Hudd & Co. 2,723 389 851 116,750
Fidelity Magellan Fund ............. Sailboat & Co. 4,415 631 1,379 189,295
Fidelity Puritan Trust:
Fidelity Puritan Fund ............ ▇. ▇▇▇▇▇▇▇▇ & Co. 2,581 369 807 110,662
Fidelity Advisor Series II:
Fidelity Advisor High Yield Fund . Hudd & Co. 584 84 182 25,040
Northern Trust Company, as
Master Trustee.................... How & Co. 1,066 152 333 45,705
Illinois State Board of Investments How & Co. 563 80 175 24,138
Pension Investment Committee of
General Motors for General Motors
Employees Domestic Pension Trust ... Mac & Co. 1,412 202 442 60,540
Commonwealth of Massachusetts
Pension Reserves Investment
Management Board ................. Catamaran & Co. 237 34 75 10,161
Fidelity Management Trust Company,
as Trustee for the Fidelity Group Trust
for Employee Benefit Plans, Fidelity
High Yield Collective Portfolio Pitt & Co. 230 33 73 9,861
Evergreen Strategic Income.......... Seaward & Co. 2,156 308 674 92,440
Evergreen High Yield Bond ..... French & Co. 24,562 3,510 7,671 1,053,108
Equifax, Inc. U.S. Retirement....... Hare & Co. 916 131 287 39,275
Buffalo Color Master Trust ......... Icetide & Co. 323 46 101 13,850
Ampex Retirement Master Trust ...... Poolside & Co. 2,618 375 818 112,248
TOTAL: ............................. 69,970 10,000 21,859 3,000,000