EXHIBIT 10.44
EXCHANGE AGREEMENT
------------------
This Exchange Agreement (the "Agreement") is dated as of July 15, 1998, by
---------
and among CalComp Technology, Inc., a Delaware corporation (the "Company"),
-------
CalComp Inc., a California corporation (the "Subsidiary") and Lockheed ▇▇▇▇▇▇
----------
Corporation, a Maryland corporation ("Lockheed ▇▇▇▇▇▇").
---------------
WITNESSETH
WHEREAS, the Company, the Subsidiary and Lockheed ▇▇▇▇▇▇ are parties to the
Amended and Restated Revolving Credit Agreement, dated as of December 20, 1996,
as amended March 20, 1998 (the "Credit Agreement") pursuant to which Lockheed
----------------
▇▇▇▇▇▇ has agreed to extend up to $73,000,000 in loans to the Company and the
Subsidiary;
WHEREAS, there is approximately $65,000,000 of indebtedness of the Company
and the Subsidiary (the "Debt") outstanding under the Credit Agreement;
----
WHEREAS, the Company and the Subsidiary have requested Lockheed ▇▇▇▇▇▇ to
exchange up to $60 million of the Debt for shares of the Company's Series A
Cumulative Redeemable Preferred Stock (the "Exchange"); and
WHEREAS, Lockheed ▇▇▇▇▇▇ has agreed to effect the Exchange and in
connection therewith the parties desire to decrease the commitment under the
Credit Agreement from $73,000,000 to $13,000,000.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Authorization and Exchange of the Series A Preferred Stock.
----------------------------------------------------------
1.1. Authorization of the Series A Preferred Stock. Prior to Closing
---------------------------------------------
(as defined in Section 1.3), the Company shall designate 1,000,000 shares of its
Series A Cumulative Redeemable Preferred Stock (the "Preferred Shares"). The
----------------
Preferred Shares shall have the designations, preferences, voting powers,
relative, participating, optional, or other special rights and privileges, and
the qualifications, limitations and restrictions set forth in the Certificate of
Designation (the "Certificate") attached hereto as Exhibit A. Prior to Closing,
-----------
the Company shall authorize for issuance hereunder 1,000,000 Preferred Shares.
Prior to Closing, the Certificate shall be filed with the Secretary of State of
the State of Delaware.
1.2. Issuance of Series A Preferred Stock. At the Closing, and
------------------------------------
pursuant to the terms and subject to the conditions of this Agreement, the
Company agrees to issue and deliver to Lockheed ▇▇▇▇▇▇ and Lockheed ▇▇▇▇▇▇
agrees to acquire from the Company, 1,000,000 Preferred Shares, in full
repayment of $60 million of the Debt then outstanding under the Credit
Agreement.
A-1
1.3 Closing and Delivery of Shares. (a) The closing of the Exchange
------------------------------
(the "Closing") shall take place at such time and place on or prior to July 20,
-------
1998 as the Company and Lockheed ▇▇▇▇▇▇ shall agree.
(b) At the Closing, the Company shall deliver to Lockheed ▇▇▇▇▇▇ one
or more stock certificates representing 1,000,000 Preferred Shares, duly
executed and registered by the Company in the name of Lockheed ▇▇▇▇▇▇, and
Lockheed ▇▇▇▇▇▇ shall deliver to the Company an acknowledgement of the repayment
of $60 million of the Debt in form and content attached hereto as Exhibit C.
(c) At Closing, the Company shall deliver a Secretary's Certificate
in form and content reasonably satisfactory to Lockheed ▇▇▇▇▇▇ to the effect
that (i) the Preferred Shares are validly authorized, duly issued, fully paid
and non-assessable shares of the Company entitled to the rights set forth in the
Certificate; (ii) the representations and warranties of the Company set forth in
this Agreement are true and correct; (iii) the Company has complied in all
material respects with all of its covenants and agreements contained in the
Agreement; and (iv) the Company's Fourth Amended and Restated Certificate of
Incorporation (together with the Certificate) in the form attached to the
Secretary's Certificate is in full force and effect.
2. Amendment to Credit Agreement. At the Closing, each of the Company,
-----------------------------
the Subsidiary and Lockheed ▇▇▇▇▇▇ shall execute and deliver Amendment No. 2 to
the Credit Agreement in the form set forth in Exhibit B.
---------
3. Representations and Warranties of the Company. The Company hereby
---------------------------------------------
represents and warrants to Lockheed ▇▇▇▇▇▇ that:
3.1 Due Authorization. Each of the Company and the Subsidiary has the
-----------------
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement and the
issuance and exchange of the Preferred Shares have been duly authorized by the
Board of Directors of the Company. No further approval or authorization of the
Board of Directors or the shareholders of the Company will be required for the
issuance and exchange of the Preferred Shares as contemplated herein. This
Agreement has been duly executed and delivered by each of the Company and the
Subsidiary, and constitutes a legal, valid and binding obligation of the Company
and the Subsidiary enforceable against the Company and the Subsidiary in
accordance with its terms.
3.2 Corporate Organization and Other Related Matters.
------------------------------------------------
(a) Each of the Company and the Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, and has the requisite corporate power and authority to own,
lease, and operate its assets, properties and business and to carry on its
business as it is now being
A-2
conducted or proposed to be conducted. The Company owns 100% of the outstanding
capital stock of the Subsidiary.
(b) The Company has full corporate power and authority to enter
into this Agreement, to issue the Preferred Shares and to carry out and perform
its obligations under the terms of this Agreement.
(c) Subject to receiving the authorizations, approvals and
permits, if any, of the type described in subsection 5.1(b) of this Agreement
and except as otherwise contemplated by the Certificate attached hereto as
Exhibit A, none of the execution and delivery of this Agreement, the issuance of
---------
the Preferred Shares, the performance by the Company of its obligations
hereunder, or the consummation of the transactions contemplated hereby will (i)
violate any provision of the Company's Fourth Amended and Restated Certificate
of Incorporation or bylaws, (ii) with or without the giving of notice or the
passage of time, or both, violate, or be in conflict with, or constitute a
default under, or cause or permit the termination or the acceleration of the
maturity of, any debt or obligation of the Company or any of its subsidiaries;
(iii) require notice to or the consent of any party to any agreement or
commitment, including, without limitation, any lease or license to which the
Company or any of its subsidiaries is a party, or by which any of them or their
properties are bound or subject; (iv) result in the creation or imposition of
any security interest, lien or other encumbrance upon any property or assets of
the Company or any of its subsidiaries under any agreement or commitment to
which it is a party or by which it or its properties is bound or subject which,
individually or in the aggregate, would have a material or adverse effect on the
Company and its business; or (v) violate any statute or law or any judgment,
decree, order, regulation or rule of any court or governmental authority to
which the Company or any of its assets or properties is bound or the subject
which, individually or in the aggregate, would have a material adverse effect on
the Company and its business.
3.3 Capitalization. The Company has authority to issue up to
--------------
125,000,000 shares, par value $.01 per share, of common stock and up to
5,000,000 shares, par value $.01 per share, of preferred stock. At the Closing
the authorized capitalization of the Company, and shares of capital stock
outstanding shall consist of:
(a) Preferred Stock. A total of 5,000,000 shares, par value $.01
---------------
per share, of preferred stock, 1,000,000 shares of which shall be designated as
Series A Cumulative Redeemable Preferred Stock. 1,000,000 Preferred Shares shall
be issued and outstanding immediately following Closing.
(b) Common Stock. A total of 125,000,000 shares Common Stock,
------------
approximately 47,120,650 of which shall be issued and outstanding. In addition,
at Closing there will be outstanding warrants or options to acquire
approximately 8,108,131 additional shares of Common Stock.
Except as set forth above, at the Closing, there shall be no other securities of
the Company outstanding.
A-3
3.4 Securities Act. Subject to the accuracy of Lockheed ▇▇▇▇▇▇'▇
--------------
representations in Section 4, the Exchange of the Preferred Shares in conformity
with the terms of this Agreement constitutes a transaction exempt from the
registration requirements of Section 5 of the Securities Act of 1933, as amended
(the "Securities Act").
--------------
3.5 Governmental Consents. No consent, approval, order or
---------------------
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the valid execution, delivery and
performance of this Agreement or the Exchange of the Preferred Shares, except
for the qualification (or the taking of such action as may be necessary to
secure an exemption from qualification, if available) of the Exchange under
applicable blue sky laws, which filings and qualifications, if required, will be
accomplished in a timely manner; provided, however, that solely with respect to
the federal securities laws and the state "blue sky" securities laws, the
representations and warranties of the Company provided in this Section 3.5 shall
be subject to the accuracy of the representations of Lockheed ▇▇▇▇▇▇ set forth
in Section 4 hereof.
3.6 Valid Issuance of the Preferred Stock. The Preferred Shares, when
-------------------------------------
issued in accordance with this Agreement, will be duly and validly issued and
will be nonassessable capital shares of the Company and will have the
designations, preferences, voting powers, relative, participating, optional, or
other special rights and privileges, and the qualifications, limitations and
restrictions set forth in the Certificate and will be fully paid capital shares
of the Company. The Preferred Shares, when issued, will be free of any liens,
claims, encumbrances or restrictions on transfer other than the restrictions on
transfer under applicable state and federal securities laws.
3.7 Litigation, etc. Except as set forth on Schedule 3.7, there is no
---------------
action, proceeding or investigation pending or, to the best of the Company's
knowledge, threatened (or any basis therefor known to the Company), that
questions the validity of this Agreement or any of the transactions contemplated
hereby or the Preferred Shares to be issued pursuant to this Agreement or which
could have a material adverse effect on the financial condition, results of
operations, business or properties of the Company and its subsidiaries, taken as
a whole.
3.8 Disclosure. No representation or warranty of the Company
----------
contained in this Agreement or in any written certificate furnished or to be
furnished to Lockheed ▇▇▇▇▇▇ pursuant hereto or thereby, when read together,
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made.
3.9 No Violation. Neither the Company's execution and delivery of
------------
this Agreement nor the consummation by the Company of the transactions
contemplated hereby will breach a material agreement to which the Company or any
subsidiary of the
A-4
Company is a party or by which its or any of its subsidiaries' assets are bound,
or cause any such violation or breach, or accelerate or allow any person to
accelerate, terminate, modify or cancel any material rights under any such
agreement, or will result in the creation of any material lien on the assets or
properties of the Company or any of its subsidiaries. Such execution, delivery
and consummation will not violate or breach or constitute a default under any
law, judgment, order, or decree to which the Company or any of its subsidiaries
is subject or by which the properties or assets of the Company or any of its
subsidiaries are bound.
4. Representations and Warranties of Lockheed ▇▇▇▇▇▇. Lockheed ▇▇▇▇▇▇
-------------------------------------------------
represents and warrants that:
4.1 Authorization. This Agreement constitutes Lockheed ▇▇▇▇▇▇'▇ valid
-------------
and legally binding obligation, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or affecting enforcement
of the rights and remedies of creditors or by general principles of equity
(whether applied at law or in equity); and Lockheed ▇▇▇▇▇▇ has full corporate
power and authority to enter into this Agreement.
4.2 Purchase for Own Account. Lockheed ▇▇▇▇▇▇ is acquiring the
------------------------
Preferred Shares for its own account and not with a view to or for sale in
connection with any distribution of the Preferred Shares.
4.3 Disclosure of Information. Lockheed ▇▇▇▇▇▇ has received from the
-------------------------
Company all information it has requested and considers necessary or appropriate
for deciding whether to acquire the Preferred Shares in exchange for $60.0
million of the Company's Debt. Lockheed ▇▇▇▇▇▇ has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the Exchange of the Preferred Shares.
4.4 Restricted Securities. Lockheed ▇▇▇▇▇▇ understands that the
---------------------
Preferred Shares will be "restricted securities" under the Securities Act
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that, under the Securities Act and applicable
regulations thereunder, such securities may be resold without registration under
the Securities Act only in certain limited circumstances.
4.5 Legends. Lockheed ▇▇▇▇▇▇ understands that the certificates
-------
evidencing the securities will bear the legend set forth below, together with
any other legends required by applicable state securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT FOR THE HOLDER'S OWN ACCOUNT AND NOT WITH A VIEW TO OR FOR SALE
IN CONNECTION WITH ANY DISTRIBUTION OF THE SECURITIES.
A-5
THE SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED, AS APPLICABLE, UNDER
THE SECURITIES ACT OF 1933 ("SECURITIES ACT") OR UNDER ANY APPLICABLE STATE
--------------
SECURITIES LAW ("BLUE SKY LAWS"). AN OFFER TO SELL OR TRANSFER OR THE SALE
-------------
OR TRANSFER OF THESE SECURITIES IS UNLAWFUL UNLESS MADE PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR PERMIT, AS APPLICABLE UNDER THE
SECURITIES ACT OR APPLICABLE BLUE SKY LAWS, OR UNLESS AN EXEMPTION FROM
REGISTRATION AND/OR QUALIFICATION UNDER THE SECURITIES ACT AND APPLICABLE
BLUE SKY LAWS (INCLUDING, WITHOUT LIMITATION, REGULATION S THEREUNDER) IS
AVAILABLE.
The legend set forth above shall be removed by the Company from any certificate
evidencing Securities upon delivery to the Company of an opinion, in form and
substance and by counsel reasonably satisfactory to the Company, that a
registration statement under the Securities Act is at that time in effect with
respect to the legended security or that such security can be freely transferred
without such a registration statement being in effect and that such transfer
will not jeopardize the exemption or exemptions from registration pursuant to
which the Preferred Shares were issued.
5. Conditions to Closing.
---------------------
5.1 Conditions to Lockheed ▇▇▇▇▇▇'▇ Obligations at the Closing.
----------------------------------------------------------
Lockheed ▇▇▇▇▇▇'▇ obligation to purchase the Preferred Shares at the Closing is
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) Representations and Warranties True: Performance of
----------------------------------------------------
Obligations. Except for representations and warranties that by their terms speak
-----------
only as of a specified date, the representations and warranties made by the
Company in Section 3 hereof shall be true and correct in all material respects
as of the Closing with the same force and effect as if they had been made as of
the Closing, and the Company and the Subsidiary shall have performed all
obligations and conditions herein required to be performed or observed by them
on or prior to the Closing.
(b) Securities Law Compliance. All authorizations, approvals and
-------------------------
permits, if any, of every governmental authority or regulatory body of the
Untied States or of any state that is required in connection with the Exchange
pursuant to this Agreement shall have been duly obtained and shall be effective
on and as of the Closing.
(c) Corporate Documents. The Company shall have delivered to
-------------------
Lockheed ▇▇▇▇▇▇ or its counsel, copies of all corporate documents of the Company
as Lockheed ▇▇▇▇▇▇ shall reasonably request.
A-6
(d) Fairness Opinion. Receipt by the Company of an opinion of
----------------
Duff & ▇▇▇▇▇▇ as to the fairness, from a financial point of view, of the
transactions contemplated by this Agreement to the stockholders of the Company.
(e) Payment of Interest and Fees. Payment of interest and fees
----------------------------
associated with the portion of the Debt being repaid.
5.2 Conditions to Obligations of the Company. The Company's
----------------------------------------
obligation to exchange the Preferred Shares at the Closing is subject to the
satisfaction, at Closing, to the conditions that (i) the representations and
warranties made by Lockheed ▇▇▇▇▇▇ in Section 4 hereof shall be true and correct
as of the Closing with the same force and effect as if they had been made as of
the Closing, and (ii) the Company shall have received an opinion of Duff &
▇▇▇▇▇▇ as to the fairness, from a financial point of view, of the transactions
contemplated by this Agreement to the holders of Common Stock of the Company in
form and content reasonably satisfactory to the Company.
6. Miscellaneous.
-------------
6.1 Entire Agreement; Successors and Assigns. This Agreement,
----------------------------------------
together with its exhibits and schedules, shall collectively constitute the
entire agreement among the Company, the Subsidiary and Lockheed ▇▇▇▇▇▇ relating
to the Exchange of the Preferred Shares and supersede any and all prior or
contemporaneous oral or written agreements, understandings and discussions with
respect thereto. Subject to the limitations hereof, the provisions hereof shall
inure to the benefit of and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto.
6.2 Expenses. The Company, the Subsidiary and Lockheed ▇▇▇▇▇▇ will
--------
each bear their respective legal and other fees and expenses in connection with
the transactions contemplated in this Agreement.
6.3 Governing law. This Agreement shall be governed by and construed
-------------
in accordance with the internal laws of the State of Delaware without reference
to any conflict of laws provisions of such laws.
6.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 Headings. The headings of the Sections and subsections of this
--------
Agreement are for convenience and shall not by themselves determine the
interpretation of this Agreement.
6.6 Notices. Any notice required or permitted hereunder shall be
-------
given in writing and shall be conclusively deemed effectively given upon
personal delivery, on the date of receipt if sent by telecopier or overnight
courier, charges prepaid,
A-7
or five days after deposit in the United States mail, by registered or certified
mail, postage prepaid, or facsimile, receipt confirmed, addressed as follows:
If to the Company or the Subsidiary, addressed to:
CalComp Technology, Inc.
▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President and Corporate Secretary
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ and
▇▇▇-▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Exon, Esquire
Facsimile: 949-798-0511
If to Lockheed ▇▇▇▇▇▇, addressed to:
Lockheed ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With copies (which shall not constitute notice) to:
Lockheed ▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
Assistant General Counsel - Finance
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Miles & Stockbridge P.C.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Facsimile: 410-385-3700
A-8
or at such other address as one party may designate to the others by ten days'
advance written notice to Lockheed ▇▇▇▇▇▇ or the Company, respectively.
6.7. Survival of Representations and Warranties. The representations
------------------------------------------
and warranties of the parties contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closing.
6.8. Amendments and Waivers. Any term or provision of this Agreement
----------------------
may be amended and the observance of any term, condition, or provision of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument signed by the
Company, the Subsidiary and Lockheed ▇▇▇▇▇▇.
6.9. Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were excluded and shall be enforceable in
accordance with its terms.
6.10. Contract Interpretation. Ambiguities, inconsistencies, and
-----------------------
conflicts in this Agreement shall be resolved by applying the most reasonable
interpretation under the circumstances, giving full consideration to the
parties' intentions at the time this Agreement is entered into. No
consideration shall be given as to the party that actually drafted the
Agreement.
* * * * * *
A-9
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed by their duly authorized representatives as of the date
first written above.
CALCOMP TECHNOLOGY, INC., a
Delaware corporation
By:___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President and Chief
Financial Officer
CALCOMP INC., a California corporation
By:___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President and Chief
Financial Officer
LOCKHEED ▇▇▇▇▇▇ CORPORATION, a
Maryland corporation
By:___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
A-10
EXHIBIT A
---------
CERTIFICATE OF DESIGNATION
OF
SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
CALCOMP TECHNOLOGY, INC.
CalComp Technology, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware, (the "Corporation"), certifies
that the following resolution has been duly adopted by the Board of Directors of
the Corporation:
RESOLVED, that under the authority contained in Article 4(a) of the Fourth
Amended and Restated Certificate of Incorporation of the Corporation, the Board
of Directors of the Corporation hereby designates 1,000,000 unissued shares of
the Preferred Stock of the Corporation as 1,000,000 shares of "Series A
Cumulative Redeemable Preferred Stock" having the powers, designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations of such preferences and/or rights as set by the
Board of Directors of the Corporation as follows:
Section 1. Designation and Amount.
----------------------
The shares of such series shall be designated as Series A Cumulative
Redeemable Preferred Stock (the "Series A Preferred Stock"), par value $0.01 per
share, and the number of shares constituting such series shall be 1,000,000.
Section 2. Dividends.
---------
(A) Subject to the prior and superior rights of any shares of any series of
preferred stock ranking prior and superior to the Series A Preferred Stock in
respect of dividends, the holders of shares of the Series A Preferred Stock, in
preference to the holders
A-11
of shares of Common Stock, par value $0.01, of the Corporation (the "Common
Stock") and any other stock of the Corporation ranking junior to the Series A
Preferred Stock as to dividends, shall be entitled to receive, when as and if
declared by the Board of Directors, out of funds legally available for the
payment of dividends, cumulative dividends payable at the annual rate of $4.80
per share, and, subject to the provisions of Section 3 below, no more, in equal
quarterly payments on March 31, June 30, September 30 and December 31 (or if any
of such days is not a Business Day, the next succeeding Business Day) in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date that is at least
30 days after the date of original issue of the shares of Series A Preferred
Stock. A holder of Series A Preferred Stock shall be entitled to receive payment
of dividends by wire transfer by giving written instructions to the Corporation
at least two business days prior to the payment date.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the date of original issue of the
shares. Dividends shall accrue and be payable based on the number of days in
each year and the numbers of days actually elapsed. Accrued but unpaid dividends
payable under this Section 2 or any other Section of this Certificate of
Designation shall accrue additional dividends at the rate of 8% per annum on the
accrued but unpaid amount, and references in this Certificate of Designation to
accrued but unpaid dividends shall be deemed to include such additional
dividends. Dividends paid on the shares of Series A Preferred Stock in an amount
less than the total amount of dividends at the time accrued and payable on the
shares of Series A Preferred Stock shall be allocated pro rata on a share-by-
share basis among all the shares at the time outstanding. The Board of Directors
may fix a record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive payment of a dividend declared thereon,
which record date shall be no more than 45 days and no less than 10 days prior
to the date fixed for the payment thereof.
Section 3. Increase in Dividend Rate On Change of Control.
----------------------------------------------
(A) Notwithstanding the provisions of Section 2, after the occurrence of a
Change of Control (as defined below), the dividend rate on shares of Series A
Preferred Stock then outstanding shall be increased to $9.00 per share per annum
plus 15% per annum on any accrued but unpaid dividends (and additional
dividends, if any) (the "Adjusted Dividend Rate"). The Adjusted Dividend Rate
shall apply until the earlier to occur of (i) the redemption by the Corporation
of the Series A Preferred Stock or (ii) the acquisition of shares of Series A
Preferred Stock by any Person (or group of Persons) who acquires more than 50%
of the combined voting power of the then outstanding voting stock of the
Corporation entitled to vote generally in the election of directors, if any, but
the Adjusted Dividend Rate shall only be terminated to the extent that such
Series A Preferred Stock is owned by such Person (or group of Persons).
(B) For purposes of this Certificate of Designation, "Change in Control"
shall mean a reduction in ownership by Lockheed ▇▇▇▇▇▇ Corporation and its
subsidiaries to 50% or below in the combined voting power of the then
outstanding voting stock of the Corporation entitled to vote generally in the
election of directors.
A-12
Section 4. Voting Rights.
-------------
Subject to the right to consent in certain limited circumstances as set
forth in Section 5 below, the holders of shares of Series A Preferred Stock
shall have no voting rights.
Section 5. Certain Restrictions.
--------------------
(A) For so long as any shares of Series A Preferred Stock are outstanding,
the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock ("Junior Stock");
(ii) declare or pay dividends on or make any other distributions on
any shares of other stock ranking in parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock
("Parity Stock"), except dividends paid ratably on the Series A Preferred Stock
and all such Parity Stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled; or
(iii) redeem or purchase or otherwise acquire for consideration any
shares of Parity Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such Parity Stock in exchange for
shares of any Junior Stock.
(B) Without the prior written consent of the holders of a majority of the
Series A Preferred Stock, the Corporation shall not issue any shares of capital
stock ranking senior with respect to dividends or other distributions or in the
event of dissolution, liquidation or winding up or in any way amend this
Certificate of Designation or the Fourth Amended and Restated Certificate of
Incorporation of the Corporation in any manner that would have an adverse effect
on the rights of holders of Series A Preferred Stock.
(C) The Corporation shall not permit any subsidiary of the Corporation or
any employee stock ownership plan (or related trust) or other employee benefit
plan (or related trust) for the employees of the Corporation or any subsidiary
(other than, with respect to any plans other than an employee stock ownership
plan, (i) in the normal operation of a plan qualified under Section 401(k) of
the Internal Revenue Code of 1986, as amended, (ii) any plan (or related trust)
in existence on the date of this Certificate of Designation or (iii) any plan
(or related trust) subsequently approved by the Corporation's stockholders), to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 5,
purchase or otherwise acquire such shares at such time and in such manner.
A-13
Section 6. Redemption.
----------
(A) Provided that there are no dividend arrearages on the Series A
Preferred Stock and the Corporation is in full compliance with the terms and
conditions of this Certificate of Designation, the Corporation shall have the
right, at its sole option and election, to redeem all or, subject to the
provisions of the following sentence, a portion of the outstanding shares of the
Series A Preferred Stock by paying therefor in cash $60 per share plus any
unpaid dividends to the date of redemption (the "Redemption Price"). In the
event that less than all of the outstanding shares of Series A Preferred Stock
are to be redeemed, the aggregate Redemption Price for any such redemption shall
be not less than $1,000,000.
(B) Notice of any redemption of any shares of Series A Preferred Stock
shall be given by mailing to each holder of shares of Series A Preferred Stock
to be redeemed, at the holder's address as it appears on the books of the
Corporation, written notice of redemption not less than 30 days and not more
than 90 days prior to the date fixed for redemption (the "Redemption Date"). To
facilitate the redemption of shares of Series A Preferred Stock, the Board of
Directors may fix a record date for the determination of shares of Series A
Preferred Stock to be redeemed and holders of shares of Series A Preferred Stock
entitled to notice of redemption, provided that the record date may not be less
than 30 days and may not be more than 60 days prior to the Redemption Date. Any
notice that is mailed in such manner shall be conclusively presumed to have been
duly given, whether or not any holder entitled to notice of redemption actually
receives the notice. The failure of the Corporation to give such notice to any
holder entitled to notice of redemption shall not affect the validity of the
proceedings for the redemption of any shares of Series A Preferred Stock from
any other holder of shares of Series A Preferred Stock.
(C) Notice of redemption shall specify (i) the number of shares of Series
A Preferred Stock shall be redeemed, (ii) the Redemption Date, (iii) the
redemption price (which price shall include accrued but unpaid dividends
thereon), and (iv) the place where payment of the redemption price is to be made
upon surrender of the certificates representing the shares of Series A Preferred
Stock.
(D) In respect of each share of Series A Preferred Stock called for
redemption in accordance with this Section 6, the Corporation shall be obligated
to pay to the registered holder thereof the Redemption Price, upon surrender of
the certificate or certificates representing the shares of Series A Preferred
Stock at the office of the Corporation or any transfer or paying agent specified
for that purpose, on or after the Redemption Date. In the event that less than
all of the outstanding shares of Series A Preferred Stock are redeemed, the
Corporation shall deliver a replacement certificate or certificates representing
any unredeemed shares to the holder tendering such certificates. Unless the
Corporation shall default in the payment of, or in providing for the payment of,
the Redemption Price, dividends on each share of Series A Preferred Stock called
for redemption, shall cease to accrue as of the Redemption Date. Except as
otherwise expressly
A-14
provided in the preceding sentence, holders of shares of Series A Preferred
Stock called for redemption shall not be entitled to any interest on the
Redemption Price.
(E) If, after notice of redemption has been given pursuant to paragraph
(B) of this Section 5, on or prior to the Redemption Date in respect of any
shares of Series A Preferred Stock, the Corporation deposits with a bank or
trust company in the United States that, as of the date of the most recent
available financial statements of the bank or trust company, has a capital and
surplus of at least $50,000,000, a sum sufficient to redeem, on the Redemption
Date, the shares called for redemption, with instructions to the bank or trust
company to pay on or after the Redemption Date the redemption price to the
respective holders of shares of Series A Preferred Stock upon surrender of the
certificate or certificates representing the shares of Series A Preferred Stock,
then from and after the date on which such moneys are deposited the deposit
shall be deemed to constitute full payment to the holders for such shares of
Series A Preferred Stock, and the holders shall have no rights in respect of the
shares of Series A Preferred Stock called for redemption except the right to
receive payment of the redemption price from the bank or trust company. Any
moneys or, if applicable, other property held by any such bank or trust company
that shall remain unclaimed by the holders of Series A Preferred Stock at the
end of six years after the Redemption Date shall become the property of and be
paid to the Corporation.
Section 7. Conversion.
----------
The shares of Series A Preferred Stock shall have no conversion rights.
Section 8. Reacquired Shares.
-----------------
Any shares of Series A Preferred Stock redeemed, purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of preferred stock and
may be reissued as part of a new series of preferred stock to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
Section 9. Rank.
----
The Series A Preferred Stock shall rank, with respect to voting powers,
preferences and relative, participating, optional and other special rights of
the shares of such series and the qualifications, limitations and restrictions
thereof, including, without limitation, with respect to the payment of dividends
and the distribution of assets, whether upon liquidation or otherwise, (i)
equally with respect to all shares of Parity Stock, (ii) prior to all shares of
Junior Stock and to all shares of the Common Stock and (iii) prior to all shares
of any other class or series of preferred stock of the Corporation, unless such
other class or series by its terms ranks equally with or senior to the Series A
Preferred Stock.
A-15
Section 10. Liquidation, Dissolution, Winding Up and Other Events.
-----------------------------------------------------
Upon the liquidation (voluntary or otherwise), dissolution, reorganization,
sale of all or any substantial portion of the assets or winding up of the
Corporation, no distribution shall be made to the holders of the Common Stock
unless, prior thereto, the holders of shares of the Series A Preferred Stock
shall have received the product of $60 times any unredeemed shares of the Series
A Preferred Stock, plus any accrued but unpaid dividends to the date of payment
(the "Series A Liquidation Preference"). Following payment of the full amount of
the Series A Liquidation Preference, no additional distributions shall be made
to the holders of the Series A Preferred Stock. In the event there are not
sufficient assets available to permit payment in full of the Series A
Liquidation Preference, then such remaining assets shall be distributed ratably
to the holders of the Series A Preferred Stock.
Section 11. Definitions.
-----------
For the purposes of the provisions governing the shares of Series A
Preferred Stock, the following terms have the meanings set forth below:
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Person" shall mean any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a corporation, a
partnership, a trust or other entity. A Person, together with such person's
Affiliates and Associates (as those terms are defined in Rule 12b-2 under the
Securities Exchange Act of 1934), and any Persons acting as a partnership,
limited partnership, joint venture, association, syndicate or other group
(whether or not formally organized), or otherwise acting jointly or in concert
or in a coordinated or consciously parallel manner (whether or not pursuant to
any express agreement), for the purpose of acquiring, holding, voting or
disposing of securities of the Corporation with such Person, shall be deemed a
single "Person."
A-16
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be signed in its name and on its behalf on this 14th day of July
1998, by its President who acknowledges that this Certificate of Designation is
the act of the Corporation and that to the best of his knowledge, information
and belief and under penalties for perjury, all matters and facts contained in
this Certificate of Designation are true in all material respects.
ATTEST: CALCOMP TECHNOLOGY, INC.
____________________________ By:_______________________(SEAL)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Secretary President and Chief Executive Officer
A-17
EXHIBIT B
---------
AMENDMENT NO. 2 TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Amendment No. 2, dated July 15, 1998 (the "Amendment"), to the Amended and
Restated Revolving Credit Agreement, dated as of December 20, 1996, as amended
March 20, 1998 (the "Credit Agreement"), among CalComp Technology, Inc., a
Delaware corporation ("Technology"), CalComp Inc., a California corporation
("CalComp", and together with Technology, the "Borrowers"), and Lockheed ▇▇▇▇▇▇
Corporation, a Maryland corporation (the "Lender"). Capitalized terms used but
not defined herein shall have the meaning given them in the Credit Agreement.
WHEREAS, the Borrowers and the Lender are parties to an Exchange Agreement,
dated July __, 1998 (the "Exchange Agreement"), pursuant to which they have
agreed to (i) exchange all or a portion of the outstanding Loans for shares of
Technology's Series A Cumulative Redeemable Preferred Stock, and (ii) reduce
Lender's Commitment under the Credit Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Exchange Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Borrowers and the Lender agree as follows:
1. Reduction in Commitment. The definition of "Commitment" contained in Section
-----------------------
1.1 of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
"Commitment" means $13,000,000, as such amount may be reduced from
time to time pursuant to Section 2.7 hereof. The Commitment represents a
reduction in the Original Commitment."
2. April 1998 Waiver. Borrowers and Lender agree that (i) the transactions
-----------------
contemplated by the Exchange Agreement are outside the scope of Section
2.1(c) of the Credit Agreement and thus Lender's April 1, 1998 waiver (the
"April ▇▇▇▇ ▇▇▇▇▇▇") of its rights under Section 2.1(c) of the Credit
Agreement is inapplicable to such transactions, and (ii) with respect to the
Commitment established by this Amendment, the April 1998 waiver shall remain
in effect until January 31, 1999.
3. Additional Waivers. Lender hereby waives any Defaults existing at the date
------------------
hereof. With respect to the transactions contemplated by the Exchange
Agreement, Lender waives compliance with Section 2.8 of the Credit Agreement
to the extent payments of Loan principal are required to be made in
immediately available funds.
B-1
4. No Other Changes. Except as specifically modified by this Amendment, the
----------------
Credit Agreement shall remain in full force and effect and no additional
changes, modifications, or amendments shall be inferred that are not
expressly set forth herein.
5. Counterparts. This document may be signed in any number of counterparts with
------------
the same effect as if the signatures thereto and hereto were upon the same
instrument.
6. Governing Law. This document shall be construed in accordance with and
-------------
governed by the laws of the State of Maryland, without reference to the
conflict of laws provisions of such laws.
IN WITNESS WHEREOF, the parties have caused this document to be duly executed
and delivered as of the day and year first above written.
LOCKHEED ▇▇▇▇▇▇ CORPORATION CALCOMP TECHNOLOGY, INC.
By: _____________________________ By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer Sr. Vice President and Chief
Financial Officer
CALCOMP INC.
By: _____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇. Vice President and Chief
Financial Officer
B-2
EXHIBIT C
---------
ACKNOWLEDGEMENT OF REPAYMENT OF DEBT
Lockheed ▇▇▇▇▇▇ Corporation ("LMC") hereby acknowledges receipt of 1,000,000
shares of Series A Cumulative Redeemable Preferred Stock of Calcomp Technology,
Inc. (the "Company") in full satisfaction of Sixty Million Dollars ($60,000,000)
of Loans outstanding on the date hereof under the Amended and Restated Revolving
Credit Agreement, dated as of December 20, 1996, as amended, among LMC, the
Company and CalComp Inc., a California corporation.
July 15, 1998 LOCKHEED ▇▇▇▇▇▇ CORPORATION
By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
C-1
