REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated July ,
1999, between Ampex Corporation, a Delaware corporation (the "Company") and
Erracht Productions, Ltd., a New York corporation ("Erracht").
WHEREAS, the Company has agreed to issue 150,000 shares of Common
Stock (as defined below) to the Holder (as defined below) pursuant to a
Consulting Agreement of even date herewith and to grant to the Holder the
registration rights set forth in Section 2 hereof.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged,
hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which banking institutions in New York, New York are permitted or
required by any applicable law to close.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Class A Common Stock, $0.01 par value,
of the Company.
"Company" shall have the meaning set forth in the preamble and also
shall include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Holder" shall mean Erracht or any transferee(s) holding Registrable
Securities to whom the rights under this Agreement have been assigned in
accordance with Section 7(c)(ii).
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust, estate, or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof.
"Register," "Registered" and "Registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the
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Securities Act, and the declaration or ordering by the Commission of
effectiveness of such registration statement or document.
"Registrable Securities" shall mean (i) the 150,000 shares of Common
Stock being issued to the Holder as of the date of this Agreement (ii) any
Common Stock or other securities issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange by the Company generally
for, or in replacement by the Company generally of, such Common Stock; and (iii)
any securities issued in exchange for such Common Stock in any merger,
combination or reorganization of the Company; provided, however, that
Registrable Securities shall not include any securities which have theretofore
been registered and sold pursuant to the Securities Act or which have been sold
to the public pursuant to Rule 144 or any similar rules promulgated by the
Commission pursuant to the Securities Act, and, provided further, the Company
shall have no obligation to register any Registrable Securities if the Company
shall deliver to the Holder requesting registration an opinion of counsel
reasonably satisfactory to the Holder and its counsel to the effect that the
proposed sale or disposition of all of the Registrable Securities for which
registration was requested does not require registration under the Securities
Act for a sale or disposition in a single public sale, and offers to remove any
and all legends restricting transfer absent registration under the Securities
Act from the certificates evidencing such Registrable Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
Section 2. Piggyback Registration.
(a) Request for Piggyback Registration. If at any time the
Company proposes to register (including for this purpose a registration effected
by the Company for shareholders of the Company other than the Holder) equity
securities under the Securities Act in connection with the public offering
solely for cash on Form ▇-▇, ▇-▇ or S-3 (as requested) (or any replacement or
successor forms) other than a registration of securities for a transaction
pursuant to Rule 145 promulgated under the Securities Act, the Company shall
promptly give the Holder written notice of such registration (a "Piggyback
Registration"). Upon the written request of the Holder given within 20 days
following the date of such notice, the Company shall cause to be included in
such registration statement and use its best efforts to be registered under the
Securities Act and included in any underwriting all the Registrable Securities
that the Holder shall have requested to be registered. The Company shall have
the absolute right to withdraw or cease to prepare or file any registration
statement for any offering referred to in this Section 2 without any obligation
or liability to the Holder.
(b) Limitations on Piggyback Registrations. The Company shall not
be required to include any Registrable Securities in any underwriting unless the
Holder accepts the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it, provided that the Holder shall be entitled
to the same pricing terms. If the managing
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underwriter shall advise the Company in writing (with a copy to the Holder)
that, in its opinion, the amount of Registrable Securities requested to be
included in such registration would materially adversely affect such offering,
or the timing thereof, then the Company will include in such registration, to
the extent of the amount and class which the Company is so advised can be sold
without such material adverse effect in such offering (i) the securities
proposed to be sold by the Company for its own account; (ii) the Registrable
Securities requested to be included in such registration by the Holder pursuant
to this Section 2; and (iii) all other securities being registered pursuant to
the exercise of contractual rights comparable to the rights granted in this
Section 2, pro rata based on the estimated gross proceeds from the sale thereof.
Section 3. Registration Procedures.
(a) Obligations of the Company. Whenever required under Section 2
to effect a registration of any Registrable Securities, the Company shall, as
expeditiously as practicable:
(i) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use the
Company's best efforts to cause such registration statement to become
effective.
(ii) Notify the Holder when the registration statement and
any post-effective amendments thereto are declared effective.
(iii) Respond as promptly as practicable to any comments
received by the Commission with respect to the registration statement
and prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement or any document
incorporated therein by reference or file any other required document
as may be necessary to comply with the provisions of the Securities
Act and rules thereunder with respect to the disposition of all
securities covered by such registration statement and the instructions
applicable to the registration form used by the Company.
(iv) Furnish to the Holder, without charge, such numbers of
copies of the registration statement, any pre-effective or
post-effective amendment thereto, the prospectus, including each
preliminary prospectus and any amendments or supplements thereto, in
each case in conformity with the requirements of the Securities Act
and the rules thereunder, and such other related documents as the
Holder may reasonably request in order to facilitate the disposition
of Registrable Securities owned by the Holder.
(v) Use the Company's best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such states or jurisdictions as shall
be reasonably requested by the Holder) and to keep such qualification
effective during the period such registration
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statement is effective, provided, however, that the Company shall not
be required in connection therewith or as a condition thereto to
qualify to do business, subject itself to taxation in any such
jurisdiction, or to file a general consent to service of process in
any such states or jurisdictions.
(vi) Promptly notify the Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith and
take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(vii) Promptly notify the Holder of the happening of any
transaction or event during the period a registration statement is
effective as a result of which such registration statement or the
related prospectus contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made (in the case of the prospectus), not
misleading.
(viii) Make generally available to the Company's security
holders copies of an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act no later than 90 days following
the end of the 12-month period beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of
each registration statement filed pursuant to this Agreement.
(ix) Use all reasonable efforts to cause the Registrable
Securities covered by such registration statement (i) if such
securities are then listed on a securities exchange or included for
quotation in a recognized trading market, to continue to be so listed
or included for a reasonable period of time after the offering, and
(ii) to be registered with or approved by such other United States or
state governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company to enable the
Holder to consummate the disposition of its Registrable Securities.
(x) Take such other actions as are reasonably required in
order to expedite or facilitate the disposition of Registrable
Securities included in each such registration.
(b) Holder's Obligations. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to Sections 2 and 3
hereof with respect to the Registrable Securities that the Holder shall furnish
to the Company such information regarding the Holder, the number of the
Registrable Securities owned by it, and the intended method of disposition of
such Registrable Securities as shall be required to effect the registration of
the Holder's Registrable Securities, and to cooperate with the Company in
preparing such registration.
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Section 4. Agreements of Holder. In connection with any registration
pursuant to Section 2 hereof, the Holder agrees, as applicable:
(i) that it will not offer or sell its Registrable
Securities under the registration statement until it has received
copies of the supplemented or amended Prospectus contemplated by
Section 3(a)(iii) hereof and receives notice that any post-effective
amendment (if required) has become effective; and
(ii) that upon receipt of any notice from the Company of the
happening of any transaction or event of the kind described in Section
3(a)(vii) hereof, the Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a registration statement until the
Holder receives copies of the supplemented or amended Prospectus
contemplated by Section 3(a)(iii) hereof and receives notice that any
post-effective amendment (if required) has become effective, and, if
so directed by the Company, the Holder will deliver to the Company (at
the expense of the Company) all copies in its possession, other than
permanent file copies then in the Holder's possession, of the
Prospectus covering such Registrable Securities current immediately
preceding the time of receipt of such notice.
Section 5. Expenses of Registration. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows
with respect to each Piggyback Registration; the Company shall bear and pay all
expenses incurred in connection with any registration, filing, or qualification
of Registrable Securities with respect to such Piggyback Registration for the
Holder, including all registration, exchange listing, accounting, filing and
NASD fees, all fees and expenses of complying with securities or Blue Sky laws,
the reasonable fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one firm of counsel for the Holder, but
excluding underwriting discounts and commissions relating to Registrable
Securities (which shall be paid by the Holder).
Section 6. Indemnification; Contribution.
(a) Indemnification by the Company. If any Registrable Securities
are included in a registration statement under this Agreement:
(i) To the extent permitted by applicable law, the Company
shall indemnify and hold harmless the Holder, each Person, if any, who
controls the Holder within the meaning of the Securities Act, and each
officer, director, trustee, partner, and employee of the Holder and
such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint or several), including attorneys' fees
and disbursements and expenses of investigation, incurred by such
party pursuant to any actual or threatened action, suit,
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proceeding or investigation, or to which any of the foregoing Persons
may become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any of the
following statements, omissions or violations (collectively, a
"Violation"):
(A) Any untrue statement or alleged untrue
statement of a material fact contained in such registration
statement, including any preliminary prospectus or final
prospectus contained therein, or any amendments or supplements
thereto or any document incorporated by reference therein;
(B) The omission or alleged omission to
state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading; or
(C) Any violation or alleged violation by
the Company of the federal securities laws, any applicable
state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any applicable
state securities law;
provided, however, that the indemnification required by this Section 6(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or
expense to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished to
the Company by the indemnified party expressly for use in connection with such
registration; provided, further, that the indemnity agreement contained in this
Section 6(a) shall not apply to any underwriter to the extent that any such loss
is based on or arises out of an untrue statement or alleged untrue statement of
a material fact, or an omission or alleged omission to state a material fact,
contained in or omitted from any preliminary prospectus if the final prospectus
shall correct such untrue statement or alleged untrue statement, or such
omission or alleged omission, and a copy of the final prospectus has not been
sent or given to such Person at or prior to the confirmation of sale to such
Person if such underwriter was under an obligation to deliver such final
prospectus and failed to do so.
(b) Indemnification by Holder. If any of the Holder's
Registrable Securities are included in a registration statement under this
Agreement, to the extent permitted by applicable law, the Holder shall indemnify
and hold harmless the Company, each of its directors, each of its officers who
shall have signed the registration statement, each Person, if any, who controls
the Company within the meaning of the Securities Act, and each officer,
director, partner, and employee of such controlling Person, against any and all
losses, claims, damages, liabilities and expenses (joint and several), including
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may otherwise
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become subject under the Securities Act, the Exchange Act or other federal or
state laws, insofar as such losses, claims, damages, liabilities and expenses
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation is based on or arises from written
information furnished by such Selling Holder to the Company expressly for use in
connection with such registration; provided, however, that the indemnification
required by this Section 6(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or expense if settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under this Section 6 of notice of the
commencement of any action, suit, proceeding, investigation or threat thereof
made in writing for which such indemnified party may make a claim under this
Section 6, such indemnified party shall deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties. The
failure to deliver written notice to the indemnifying party within a reasonable
time following the commencement of any such action, if not otherwise known by
the Company and materially prejudices or results in forfeiture of substantial
rights or defenses shall relieve such indemnifying party of any liability to the
indemnified party under this Section 6 but shall not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
pursuant to this Section 6. Any such indemnified party shall have the right to
employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses, (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding, or (iii) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party, and such indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or in addition to those available to the indemnifying party and
that the assertion of such defenses would create a conflict of interest such
that counsel employed by the indemnifying party could not faithfully represent
the indemnified party (in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action, claim or proceeding on behalf of
such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action, claim or proceeding or
separate but substantially similar or related actions, claims or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
additional firm of attorneys (together with appropriate local counsel) at any
time for all such indemnified parties, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action,
claim or proceeding, in which event the indemnifying party shall be obligated to
pay the fees and expenses of such additional counsel or counsels). No
indemnifying
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party shall be liable to an indemnified party for any settlement of any action,
proceeding or claim without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification required by this
Section 6 from the indemnifying party is unavailable to an indemnified party
hereunder, by virtue of statute or public policy as finally determined by a
court of competent jurisdiction, in respect of any losses, claims, damages,
liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with
the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined
by reference to, among other things, whether any Violation has
been committed by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation. The amount
paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in
Section 6(a) and Section 6(b), any legal or other fees or
expenses reasonably incurred by such party in connection with
any investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section
6(d) were determined by pro rata allocation or by any other
method of allocation which does not take into account the
equitable considerations referred to in Section 6(d)(i). No
Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
(e) Survival. The obligations of the Company and the Holder under
this Section 6 shall survive the completion of any offering of Registrable
Securities pursuant to a registration statement under this agreement, and
otherwise.
Section 7. Miscellaneous.
(a) Amendments and Waivers.
(i) The provisions of this Agreement, including the
provisions of this Section 7(a), may not be amended, modified
or supplemented, and waivers or
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consents to departures from the provisions hereof may not be
given without the written consent of the Company and the
Holders of a majority of the Registrable Securities.
(ii) Notice of any amendment, modification or
supplement to this Agreement adopted in accordance with this
Section 7 shall be provided by the Company to the Holders at
least thirty (30) days prior to the effective date of such
amendment, modification or supplement.
(b) Notices. All notices or other communications under this
Agreement shall be sufficient if in writing and delivered by hand or sent by
telecopy, or sent, postage prepaid by registered, certified or express mail, or
by recognized overnight air courier service and shall be deemed given when so
delivered by hand or telecopied, or if mailed or sent by overnight courier
service, on the third Business Day after mailing (one Business Day in the case
of express mail or overnight courier service) to the parties at the following
addresses:
(i) if to Erracht, to:
▇/▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Company, to: Ampex Corporation ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the addressee may have furnished in writing to the
sender as provided herein.
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(c) Successors, Assigns and Transferees.
(i) This Agreement shall inure to the benefit of and
be binding upon the successors, assigns and transferees of
each of the parties.
(ii) If any successor, assignee or transferee of the
Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable
Securities such Person shall be entitled to receive the
benefits hereof and shall be conclusively deemed to have
agreed to be bound by all of the terms and provisions hereof,
provided, that the successor, assignee or transferee shall
have delivered to the Company reasonably promptly written
notification of such event, setting forth the name and address
of the successor, assignee, transferee and the number of
shares of the Registered Securities held by such successor,
assignee or transferee.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
(g) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(h) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
AMPEX CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
ERRACHT PRODUCTIONS, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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