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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3) 1
SelecTronics, Inc.
(Name of issuer)
Common Stock, par value $0.01 per share
(Title of class of securities)
816314108
(CUSIP Number)
Martin S. Wagner
Assistant Secretary
Xerox Corporation
800 Long Ridge Road
P.O. Box 1600
Stamford, Connecticut 06904-1600
(203) 968-3000
(Name, address and telephone number of person
authorized to receive notices and communications)
July 1, 1995
(Page 1 of 23)
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box. / /
Check the following box if a fee is being paid with this
statement. / / (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting beneficial
ownership of more than five percent of the class of securities described
in Item 1; and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See Rule
13d-7.)
Note. Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
(Page 2 of 23)
CUSIP No. 816314108
______________________________________________________________________
(1) NAMES OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS
Xerox Corporation I.R.S. Identification Number 16-0468020
______________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(SEE INSTRUCTIONS) (a) / / (b) /X/
______________________________________________________________________
(3) SEC USE ONLY
______________________________________________________________________
(4) Source Of Funds (SEE INSTRUCTIONS)
WC, OO
______________________________________________________________________
(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) / /
______________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
______________________________________________________________________
(7) SOLE VOTING POWER
None
_____________________________________________
Number of Shares (8) SHARED VOTING POWER
Beneficially 32,458,651 Shares of Common Stock (See Item
Owned by Each 5 hereof)
Reporting _____________________________________________
Person With (9) SOLE DISPOSITIVE POWER
None
_____________________________________________
(10) Shared Dispositive Power
32,458,651 Shares of Common Stock (See Item
5 hereof)
______________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
32,458,651 Shares of Common Stock (See Items 3 and 5 hereof)
______________________________________________________________________
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) / /
______________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 25.35% (See Item 5 hereof)
______________________________________________________________________
(14) TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
______________________________________________________________________
(Page 3 of 23)
INTRODUCTORY STATEMENT
This Amendment No. 3 amends and supplements the Schedule 13D filed
on November 29, 1989, as amended by Amendment Nos. 1 and 2 thereto filed
on December 7, 1990 and June 8, 1994, respectively (as amended,
'Schedule 13D'), by Xerox Corporation, a New York corporation ('Xerox'),
relating to the Common Stock, par value $.01 per share (the 'Common
Stock'), of SelecTronics, Inc. ('SelecTronics'). This Amendment No. 3
is being filed pursuant to Section 13(d)(2) of the Securities Exchange
Act of 1934, as amended, and Rule 13d-2 promulgated thereunder, in order
to disclose the shared voting and dispositive power between Xerox and
Horsley Bridge Partners, Inc., a Delaware corporation ('HBP'), with
respect to the Common Stock beneficially owned by Xerox and the increase
in the percentage of Common Stock beneficially owned by Xerox resulting
from the issuance to Xerox by SelecTronics of additional warrants to
purchase additional shares of Common Stock. All capitalized terms used
but not defined herein have the meanings assigned to such terms in
Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND
Item 2 of Schedule 13D is hereby amended in its entirety as
follows:
This statement is being filed by Xerox, whose principal executive
offices are located at P.O. Box 1600, 800 Long Ridge Road, Stamford,
Connecticut 06904-1600. Xerox is a global company serving the worldwide
document processing markets.
Set forth below is the name of each director of Xerox, the present
principal occupation of such director and the business address of such
director:
Director's Present Principal
Name Occupation Address
Paul A. Chairman of the Board and Xerox Corporation
Allaire Chief Executive Officer, 800 Long Ridge Road
Chairman of the Executive P. O. Box 1600
Committee of the Board Stamford, CT 06904-1600
Robert A. Chairman Emeritus of The Prudential Insurance
Beck the Board Company of America
Corporate Office,
Prudential Plaza
Newark, NJ 07101
B. R. Investor Suite 650-221
Inman 3300 Bee Cave Road
Austin, TX 78747
(mailing address)
Vernon E. Partner Akin, Gump, Strauss, Hauer
Jordan, Jr. & Feld, LLP
1333 New Hampshire Ave,
N.W., Suite 400
Washington, D.C. 20036
(Page 4 of 23)
Yotaro Chairman and Chief Fuji Xerox Co., Ltd.
Kobayashi Executive Officer 3-5 Akasaka 3-chome
Minato-ku, Tokyo 107,
Japan
Hilmar Spokesman of the Board Deutsche Bank AG
Kopper of Managing Directors Taunusanlage 12
60262 Frankfurt, Germany
Ralph S. Chairman and Chief Johnson & Johnson
Larsen Executive Officer One Johnson & Johnson
Plaza
New Brunswick, NJ 08933
John D. Principal JDM Investment Group
Macomber 2806 N Street, N.W.
Washington, D.C. 20007
Nicholas J. Investor 15 West 53rd Street, 34F
Nicholas, Jr. New York, NY 10019
(mailing address)
John E. President Procter & Gamble Company
Pepper, Jr. One Procter & Gamble Plaza
Cincinnati, OH 45202
Martha R. Distinguished Visiting Water Park Tower
Seger Professor of Finance, 1501 Crystal Drive
Central Michigan University Arlington, VA 22202
(mailing address)
Thomas C. Partner, William Blair Suite 3300
Theobald Capital Management 222 West Adams Street
Chicago, IL 60606-5312
(mailing address)
Each of the directors named above (other than Messrs. Yotaro
Kobayashi and Hilmar Kopper) is a United States citizen. Messr. Yotaro
Kobayashi is a citizen of Japan, and Messr. Hilmar Kopper is a citizen
of Germany.
Set forth below is the name of each executive officer of Xerox and
the title of such officer at Xerox:
Officer's Name Title
Paul A. Allaire Chairman of the Board and Chief Executive
Officer, Chairman of the Executive Committee
of the Board
A. Barry Rand Executive Vice President
Barry D. Romeril Executive Vice President and Chief Financial
Officer
Stuart B. Ross Executive Vice President
Peter van Cuylenburg Executive Vice President
William F. Buehler Senior Vice President
Allan E. Dugan Senior Vice President
Julius L. Marcus Senior Vice President
(Page 5 of 23)
Mark B. Myers Senior Vice President
David R. Myerscough Senior Vice President
Richard S. Paul Senior Vice President and General Counsel
Leonard Vickers Senior Vice President
Patricia C. Barron Vice President
Richard S. Barton Vice President
John Seely Brown Vice President
Charles E. Buchheit Vice President
Ronald B. Campbell, Jr. Vice President
David T. Erwin Vice President
J. Michael Farren Vice President
Eunice M. Filter Vice President, Treasurer and Secretary
Phillip D. Fishbach Vice President and Controller
Maurice F. Holmes Vice President
Charles P. Holt Vice President
James H. Lesko Vice President
Roger E. Levien Vice President
John A. Lopiano Vice President
Patrick J. Martin Vice President
Alan R. Monahan Vice President
Hector J. Motroni Vice President
Anne M. Mulcahy Vice President
Colin J. O'Brien Vice President
Russell Y. Okasako Vice President
Carlos Pascual Vice President
Wilbur I. Pittman Vice President
Norman E. Rickard Vice President
Ronald E. Rider Vice President
Brian E. Stern Vice President
Patricia M. Wallington Vice President
The organization in which the present principal occupation of each
of the executive officers named above is conducted is Xerox, the
principal executive offices of which are located at P.O. Box 1600, 800
Long Ridge Road, Stamford, Connecticut 06904-1600. Each of the officers
named above (other than Messrs. Barry D. Romeril, Peter van Cuylenburg,
Leonard Vickers and Carlos Pascual) is a United States citizen. Messrs.
Barry D. Romeril, Peter van Cuylenburg and Leonard Vickers are citizens
of Great Britain, and Messr. Carlos Pascual is a citizen of Spain.
During the past five years, neither Xerox nor, to its knowledge,
any of its directors or executive officers named in this Item 2 has been
(i) convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a
result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 of Schedule 13D is hereby supplemented by adding thereto the
following:
During the period from September 13, 1994 to April 19, 1995, Xerox
advanced to SelecTronics a series of loans totaling $635,000 in the
aggregate. Said loans were evidenced by the following demand promissory
(Page 6 of 23)
notes: $225,000 8% Promissory Note dated September 13, 1994; $100,000
8% Promissory Note dated January 26, 1995; $110,000 8% Promissory Note
dated February 10, 1995; $150,000 8% Promissory Note dated March 23,
1995; and $50,000 8% Promissory Note dated April 19, 1995.
In connection with such loans, SelecTronics issued to Xerox
warrants to purchase an aggregate of 635,000 shares of Common Stock.
The warrants are exercisable at any time in whole or from time to time
in part at the prices set forth therein and expire on the fifth
anniversary of the date of issue. For a description of the terms and
provisions of the warrants, reference is hereby made to said warrants,
copies of which are filed as Exhibits 7 through 11 hereto and
incorporated herein by reference.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of Schedule 13D is hereby supplemented by adding thereto the
following:
The acquisition of the warrants described in Item 3 above have been
made for investment purposes only.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 of Schedule 13D is hereby amended and restated in its
entirety as follows:
(a) Xerox beneficially owns an aggregate of 32,458,651 shares of
Common Stock, of which 14,042,000 shares are represented by 1,404,200
shares of Convertible Preferred Stock, 1,665,000 shares by the Warrants
(which term shall include the warrants described in Item 3 above) and
1,000,000 shares by the Option. Xerox owns the remaining 15,751,651
shares directly in the form of Common Stock. The 32,458,651 shares of
Common Stock represent approximately 25.35% of the 128,023,377 shares of
Common Stock outstanding as of a recent date. To Xerox' knowledge, none
of its directors and executive officers named in Item 2 above
beneficially owns any shares of Common Stock.
(b) As stated in Item 6 below, pursuant to the HBP Management
Agreement referred to therein, Xerox has granted to HBP power to vote or
direct the vote of and to dispose or direct the disposition of Common
Stock owned by Xerox and to be acquired by Xerox upon exercise of the
Warrants or Options or upon conversion of the Convertible Preferred
Stock. To Xerox' knowledge, none of its directors and executive officers
named in Item 2 above has either sole or shared power to vote or to
direct the vote or to dispose or direct the disposition of any shares of
Common Stock.
(c) Except as otherwise described in this Amendment No. 3 and
Schedule 13D, neither Xerox nor, to its knowledge, any of its directors
and executive officers named in Item 2 above has effected any
transaction in shares of Common Stock during the past 60 days.
(d) None.
(e) Not applicable.
(Page 7 of 23)
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 of Schedule 13D is hereby supplemented by adding thereto the
following:
Effective on July 1, 1995, Xerox and HBP entered into an Asset
Management Agreement (the 'HBP Management Agreement'), pursuant to which
Xerox appointed HBP to act as investment manager with respect to all
securities issued by Kurzweil, including the Common Stock and the
Warrants, which are owned by Xerox. Pursuant to the HBP Management
Agreement, HBP has power to vote or direct the vote of and to dispose or
direct the disposition of Common Stock owned by Xerox to be acquired by
Xerox upon exercise of the Warrants or Options or upon conversion of the
Convertible Preferred Stock. For a description of the terms and
provisions of the HBP Management Agreement, reference is hereby made to
the HBP Management Agreement, a copy of which is filed as Exhibit 12
hereto and incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of Schedule 13D is hereby supplemented by adding thereto the
following:
EXHIBIT NO. DESCRIPTION
(7) Warrant to purchase 225,000 shares of Common Stock dated
September 13, 1994 in favor of Xerox Corporation.
(8) Warrant to purchase 100,000 shares of Common Stock dated
January 26, 1995 in favor of Xerox Corporation.
(9) Warrant to purchase 110,000 shares of Common Stock dated
February 10, 1995 in favor of Xerox Corporation.
(10) Warrant to purchase 150,000 shares of Common Stock dated
March 23, 1995 in favor of Xerox Corporation.
(11) Warrant to purchase 50,000 shares of Common Stock dated
April 19, 1995 in favor of Xerox Corporation.
(12) Asset Management Agreement dated as of July 1, 1995 between
Xerox Corporation and Horsley Bridge Partners, Inc.
(Page 8 of 23)
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
August 18, 1995 XEROX CORPORATION
By: /s/ Martin S. Wagner
Assistant Secretary
(Page 9 of 23)
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(7) Warrant to purchase 225,000 shares of Common Stock dated
September 13, 1994 in favor of Xerox Corporation.
(8) Warrant to purchase 100,000 shares of Common Stock dated
January 26, 1995 in favor of Xerox Corporation.
(9) Warrant to purchase 110,000 shares of Common Stock dated
February 10, 1995 in favor of Xerox Corporation.
(10) Warrant to purchase 150,000 shares of Common Stock dated
March 23, 1995 in favor of Xerox Corporation.
(11) Warrant to purchase 50,000 shares of Common Stock dated
April 19, 1995 in favor of Xerox Corporation.
(12) Asset Management Agreement dated as of July 1, 1995 between
Xerox Corporation and Horsley Bridge Partners, Inc.
(Page 10 of 23)
EXHIBIT (7)
WARRANT
This Warrant Grant is made this 13th day of September 1994, between
SelecTronics, Inc., a Delaware corporation (herein referred to as the
'Company') and Xerox Corporation (herein referred to as 'Xerox').
WITNESSETH:
1. The Company hereby grants to Xerox for good and valuable
consideration received a warrant to purchase an aggregate of 225,000
shares of the $.01 par value Common Stock of the Company (herein
referred to as 'Shares'). The price shall be the lower of (i) ten cents
($.10) per Common Share, or (ii) the lowest price per share realized in
a public or private sale by the Company of its Common Stock in any
transaction closed after the date of this Warrant in which such
transaction the aggregate gross sales price was one million dollars
($1,000,000) or more.
2. The warrant may be exercised at any time or from time to time as to
all or any part of the Shares then available for exercise.
3. This warrant, to the extent not exercised, shall expire on the fifth
anniversary of the warrant date.
4. The warrant is not transferable by Xerox.
5. In order for the warrant to be exercised, in whole or in part, Xerox
must give notice to the Company in writing and the notice must be
accompanied by payment in full of the warrant exercise price for the
Shares being purchased.
6. Upon the exercise of the warrant, Xerox shall not thereafter
transfer, encumber, or dispose of the Shares so purchased unless: (a) an
effective registration statement covering such Shares is filled pursuant
to the Securities Act of 1933, as amended, and applicable state law; or
(b) an opinion letter of Xerox' counsel is obtained, satisfactory to the
Company and its counsel, that such transfer is not in violation of any
applicable federal or state securities laws or regulations.
7. This warrant shall be binding upon and inure to the benefit of any
successor or assignee of the Company and to any successor of Xerox.
IN WITNESS WHEREOF, the Company has caused this warrant to be executed
in its behalf by its duly authorized officer and to be sealed with its
corporate seal, attested by its Secretary or Assistant Secretary.
Dated: 13 September 1994
Pittsford, New York
ATTEST: SELECTRONICS, INC.
_______________________ By:_______________________
(Page 11 of 23)
EXHIBIT (8)
WARRANT
This Warrant Grant is made this 26th day of January 1995, between
SelecTronics, Inc., a Delaware corporation (herein referred to as the
'Company') and Xerox Corporation (herein referred to as 'Xerox').
WITNESSETH:
1. The Company hereby grants to Xerox for good and valuable
consideration received a warrant to purchase an aggregate of 100,000
shares of the $.01 par value Common Stock of the Company (herein
referred to as 'Shares'). The price shall be the lower of (i) ten cents
($.10) per Common Share, or (ii) the lowest price per share realized in
a public or private sale by the Company of its Common Stock in any
transaction closed after the date of this Warrant in which such
transaction the aggregate gross sales price was one million dollars
($1,000,000) or more.
2. The warrant may be exercised at any time or from time to time as to
all or any part of the Shares then available for exercise.
3. This warrant, to the extent not exercised, shall expire on the fifth
anniversary of the warrant date.
4. The warrant is not transferable by Xerox.
5. In order for the warrant to be exercised, in whole or in part, Xerox
must give notice to the Company in writing and the notice must be
accompanied by payment in full of the warrant exercise price for the
Shares being purchased.
6. Upon the exercise of the warrant, Xerox shall not thereafter
transfer, encumber, or dispose of the Shares so purchased unless: (a) an
effective registration statement covering such Shares is filled pursuant
to the Securities Act of 1933, as amended, and applicable state law; or
(b) an opinion letter of Xerox' counsel is obtained, satisfactory to the
Company and its counsel, that such transfer is not in violation of any
applicable federal or state securities laws or regulations.
7. This warrant shall be binding upon and inure to the benefit of any
successor or assignee of the Company and to any successor of Xerox.
IN WITNESS WHEREOF, the Company has caused this warrant to be executed
in its behalf by its duly authorized officer and to be sealed with its
corporate seal, attested by its Secretary or Assistant Secretary.
Dated: 26 January 1995
Pittsford, New York
ATTEST: SELECTRONICS, INC.
_______________________ By:_______________________
(Page 12 of 23)
EXHIBIT (9)
WARRANT
This Warrant Grant is made this 10th day of February 1995, between
SelecTronics, Inc., a Delaware corporation (herein referred to as the
'Company') and Xerox Corporation (herein referred to as 'Xerox').
WITNESSETH:
1. The Company hereby grants to Xerox for good and valuable
consideration received a warrant to purchase an aggregate of 110,000
shares of the $.01 par value Common Stock of the Company (herein
referred to as 'Shares'). The price shall be the lower of (i) ten cents
($.10) per Common Share, or (ii) the lowest price per share realized in
a public or private sale by the Company of its Common Stock in any
transaction closed after the date of this Warrant in which such
transaction the aggregate gross sales price was one million dollars
($1,000,000) or more.
2. The warrant may be exercised at any time or from time to time as to
all or any part of the Shares then available for exercise.
3. This warrant, to the extent not exercised, shall expire on the fifth
anniversary of the warrant date.
4. The warrant is not transferable by Xerox.
5. In order for the warrant to be exercised, in whole or in part, Xerox
must give notice to the Company in writing and the notice must be
accompanied by payment in full of the warrant exercise price for the
Shares being purchased.
6. Upon the exercise of the warrant, Xerox shall not thereafter
transfer, encumber, or dispose of the Shares so purchased unless: (a) an
effective registration statement covering such Shares is filled pursuant
to the Securities Act of 1933, as amended, and applicable state law; or
(b) an opinion letter of Xerox' counsel is obtained, satisfactory to the
Company and its counsel, that such transfer is not in violation of any
applicable federal or state securities laws or regulations.
7. This warrant shall be binding upon and inure to the benefit of any
successor or assignee of the Company and to any successor of Xerox.
IN WITNESS WHEREOF, the Company has caused this warrant to be executed
in its behalf by its duly authorized officer and to be sealed with its
corporate seal, attested by its Secretary or Assistant Secretary.
Dated: 10 February 1995
Pittsford, New York
ATTEST: SELECTRONICS, INC.
_______________________ By:_______________________
(Page 13 of 23)
EXHIBIT (10)
WARRANT
This Warrant Grant is made this 23rd day of March 1995, between
SelecTronics, Inc., a Delaware corporation (herein referred to as the
'Company') and Xerox Corporation (herein referred to as 'Xerox').
WITNESSETH:
1. The Company hereby grants to Xerox for good and valuable
consideration received a warrant to purchase an aggregate of 150,000
shares of the $.01 par value Common Stock of the Company (herein
referred to as 'Shares'). The price shall be the lower of (i) ten cents
($.10) per Common Share, or (ii) the lowest price per share realized in
a public or private sale by the Company of its Common Stock in any
transaction closed after the date of this Warrant in which such
transaction the aggregate gross sales price was one million dollars
($1,000,000) or more.
2. The warrant may be exercised at any time or from time to time as to
all or any part of the Shares then available for exercise.
3. This warrant, to the extent not exercised, shall expire on the fifth
anniversary of the warrant date.
4. The warrant is not transferable by Xerox.
5. In order for the warrant to be exercised, in whole or in part, Xerox
must give notice to the Company in writing and the notice must be
accompanied by payment in full of the warrant exercise price for the
Shares being purchased.
6. Upon the exercise of the warrant, Xerox shall not thereafter
transfer, encumber, or dispose of the Shares so purchased unless: (a) an
effective registration statement covering such Shares is filled pursuant
to the Securities Act of 1933, as amended, and applicable state law; or
(b) an opinion letter of Xerox' counsel is obtained, satisfactory to the
Company and its counsel, that such transfer is not in violation of any
applicable federal or state securities laws or regulations.
7. This warrant shall be binding upon and inure to the benefit of any
successor or assignee of the Company and to any successor of Xerox.
IN WITNESS WHEREOF, the Company has caused this warrant to be executed
in its behalf by its duly authorized officer and to be sealed with its
corporate seal, attested by its Secretary or Assistant Secretary.
Dated: 23 March 1995
Pittsford, New York
ATTEST: SELECTRONICS, INC.
_______________________ By:_______________________
(Page 14 of 23)
EXHIBIT (11)
WARRANT
This Warrant Grant is made this 19th day of April 1995, between
SelecTronics, Inc., a Delaware corporation (herein referred to as the
'Company') and Xerox Corporation (herein referred to as 'Xerox').
WITNESSETH:
1. The Company hereby grants to Xerox for good and valuable
consideration received a warrant to purchase an aggregate of 50,000
shares of the $.01 par value Common Stock of the Company (herein
referred to as 'Shares'). The price shall be the lower of (i) ten cents
($.10) per Common Share, or (ii) the lowest price per share realized in
a public or private sale by the Company of its Common Stock in any
transaction closed after the date of this Warrant in which such
transaction the aggregate gross sales price was one million dollars
($1,000,000) or more.
2. The warrant may be exercised at any time or from time to time as to
all or any part of the Shares then available for exercise.
3. This warrant, to the extent not exercised, shall expire on the fifth
anniversary of the warrant date.
4. The warrant is not transferable by Xerox.
5. In order for the warrant to be exercised, in whole or in part, Xerox
must give notice to the Company in writing and the notice must be
accompanied by payment in full of the warrant exercise price for the
Shares being purchased.
6. Upon the exercise of the warrant, Xerox shall not thereafter
transfer, encumber, or dispose of the Shares so purchased unless: (a) an
effective registration statement covering such Shares is filled pursuant
to the Securities Act of 1933, as amended, and applicable state law; or
(b) an opinion letter of Xerox' counsel is obtained, satisfactory to the
Company and its counsel, that such transfer is not in violation of any
applicable federal or state securities laws or regulations.
7. This warrant shall be binding upon and inure to the benefit of any
successor or assignee of the Company and to any successor of Xerox.
IN WITNESS WHEREOF, the Company has caused this warrant to be executed
in its behalf by its duly authorized officer and to be sealed with its
corporate seal, attested by its Secretary or Assistant Secretary.
Dated: April 19, 1995
Pittsford, New York
ATTEST: SELECTRONICS, INC.
_______________________ By:_______________________
(Page 15 of 23)
EXHIBIT (12)
ASSET MANAGEMENT AGREEMENT
This Asset Management Agreement is made and entered into as of the
1st day of July, 1995, by and between Xerox Corporation, a New York
corporation ('Xerox'), and Horsley Bridge Partners, Inc., a Delaware
corporation ('Investment Manager').
1. Appointment of Investment Manager.
Xerox hereby appoints Horsley Bridge Partners, Inc. to act as its
investment manager, commencing as of the date hereof, with respect to
(i) all of the limited partnership investments listed on Exhibit A
hereto; (ii) all securities listed on Exhibit B hereto; and (iii) all
securities which are distributed by any of the partnerships described in
clause (i) hereof (collectively, the 'Investment Assets'). All cash
proceeds of the Investment Assets shall be transferred to Xerox, and
Investment Manager shall have no responsibility with respect to the
management thereof.
2. Representations of Investment Manager.
The Investment Manager represents and warrants that it is duly
registered with the Securities and Exchange Commission as an investment
adviser pursuant to the Investment Advisers Act of 1940, as amended, and
that it has completed, obtained or performed all registrations, filings,
approvals, authorizations, consents or examinations required by any
government or governmental authority for the performance of the acts
contemplated by this Agreement.
3. Duties of the Investment Manager
(a) The Investment Manager shall use its best efforts to
protect and enhance the value of the Investment Assets. Such efforts
shall include without limitation to visit periodically the issuers of
securities constituting the Investment Assets, to receive all
distributions from the limited partnerships listed on Exhibit A and to
manage the Investment Assets to cash. Such efforts shall not include
serving as a director of any issuer.
(b) The Investment Manager is authorized, in its
discretion to make all decisions with respect to the investment and
disposition of any of the Investment Assets, provided, however, that
Investment Manager shall have the authority to direct the purchase only
of securities of issuers the securities of which are listed on Exhibit B
hereto, and the successors of such issuers, and only in an aggregate
amount up to $1,500,000 during the term of this Agreement. If the
Investment Manager believes it is advisable to purchase securities with
an aggregate purchase price in excess of such $1,500,000, it shall make
such purchases only after obtaining the written approval therefor from
Xerox.
(Page 16 of 23)
(c) The Investment Manager is authorized to place orders
with brokers or dealers or other persons to sell, exchange or liquidate
any of the Investment Assets. The Investment Manager shall have custody
of the Investment Assets, provided that it shall return all cash it
receives with respect to the Investment Assets (other than cash received
from Xerox for the purchase of securities) to Xerox pursuant to
instructions provided by Xerox. Xerox shall, at the request of the
Investment Manager, execute and deliver any documents that the
Investment Manager reasonably deems necessary or appropriate to enable
the Investment Manager to perform its duties hereunder.
(i) Any instruction or direction which the Investment
Manager wishes to give Xerox in the performance of its responsibilities
under this Agreement shall be given in any manner which is agreeable to
the Investment Manager and Xerox. However, all instructions and
directions shall be either given or confirmed in writing.
(ii) An officer of the Investment Manager shall from
time to time certify to Xerox the name of the person or persons
authorized to act on its behalf, and furnish Xerox a specimen of his or
their signatures. Any person so certified shall be deemed to be the
Investment Manager's authorized representative. When any person so
certified shall cease to have authority to act on its behalf, the
Investment Manager shall promptly give notice to that effect to Xerox,
but until such notice is received by Xerox such person shall continue to
be an authorized representative.
(d) With respect to any action it takes or omits that is
within the power and authority granted to it hereunder, the Investment
Manager shall be fully protected and have no liability to Xerox,
provided it has used the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims.
(e) The Investment Manager is hereby authorized as Xerox's
agent and attorney-in-fact to take all actions with respect to the
voting of the Investment Assets, including the execution of proxies, and
the execution, on behalf of Xerox, of all agreements, amendments
thereto, consents and other documents relating to the Investment Assets.
(f) The Investment Manager shall provide (i) quarterly
reports to Xerox, which shall include a list of the Investment Assets
and a current valuation thereof, (ii) an annual meeting to provide
current information about the Investment Assets and the Investment
Manager's activities pursuant to this Agreement and (iii) such
information and updates concerning developments with respect to the
Investment Assets and its activities hereunder as Xerox shall from time
to time reasonably request.
4. Duties of Xerox
Xerox shall provide the Investment Manager with all of the
information and documents which the Investment Manager may from time to
time reasonably require with respect to the investment Assets.
5. Compensation
(Page 17 of 23)
(a) Xerox shall pay to the Investment Manager in cash during
the term of this Agreement, as full payment for the services rendered by
the Investment Manager hereunder, annual compensation, payable quarterly
in advance equal to the following:
Years Amount
July 1, 1995 - June 30, 1996 $450,000
July 1, 1996 - June 30, 1997 $350,000
July 1, 1997 - June 30, 1999 $200,000 - $350,000*
July 1, 1999 - June 30, 2002 $150,000 - $250,000*
After June 30, 2002 Up to $100,000*
__________________________
* Subject to annual negotiation within the ranges shown prior to the
commencement of each such year.
(b) in addition to the compensation provided pursuant to
paragraph (a) of this Section 5, Xerox will reimburse the Investment
Manager for all reasonable actual out-of-pocket expenses, including
reasonable attorneys' and accountants' fees, incurred by the Investment
Manager in connection with or as a result of the services rendered by
the Investment Manager hereunder, provided, however, the Investment
Manager shall not incur any such attorneys' or accounts fees in excess
of $7,500 in any contract year without the prior approval of Xerox.
Such reimbursement shall be made by Xerox after presentation by the
Investment Manager of invoices or other reasonable evidence of the
incurrence of such expenses in accordance with its customary practices
for making payments to service providers.
6. Termination
(a) This Agreement shall continue in effect until terminated by
either party by giving the other party notification in writing at least
thirty (30) days prior to the date of termination; provided, however,
that the Investment Manager shall not have the right to terminate this
Agreement prior to seven (7) years after the effective date hereof
except in the event of (i) a breach by Xerox of its obligations under
this Agreement that is not cured within thirty (30) days after notice of
such breach is given to Xerox by investment Manager or (ii) failure of
Xerox and the Investment Manager to reach agreement on the fee for any
year beginning after June 30, 1997 per Section 5 (a).
(b) Any compensation payable to the Investment Manager pursuant
to Section 5 of this Agreement shall be pro rated to the date of
termination and the Investment Manager shall return to Xerox any
unearned fees that had been previously paid.
7. Indemnification
Xerox shall indemnify and hold harmless the Investment Manager and
each director, officer, employee and agent of the Investment Manager
(the 'Indemnified Parties') against any cost, expense (including
reasonable attorneys' fees, including those incurred in enforcing this
indemnity), loss, judgment, liability or amount paid
(Page 18 of 23)
in settlement in accordance with this Section 7incurred by or imposed
upon the Indemnified Parties, in connection with any action, suit or
proceeding, to which such Indemnified Parties may be made a party or
with which they shall be threatened, by reason of this Agreement or the
services performed hereunder, provided, however, that no Indemnified
Party shall be entitled to any indemnity hereunder with respect to any
matters as to which the Indemnified Party shall have been finally
adjudicated to have acted in violation of this Agreement, in bad faith
or in a negligent manner.
Promptly after receipt by an Indemnified Party of notice of any
complaint or the commencement of any action or proceeding with respect
to which indemnification is being sought hereunder, such person will
notify Xerox in writing of such complaint or of the commencement of
such action or proceeding, but failure so to notify Xerox will relieve
Xerox from any obligation or liability that it may have hereunder only
if, and to the extent that such failure results in forfeiture by Xerox
of any substantial rights and defenses, and will not in any event
relieve Xerox from any other obligation or liability that it may have
to any Indemnified Party otherwise than under this Agreement. If Xerox
so elects or is requested by such Indemnified Party, Xerox will assume
the defense of such action or proceeding, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the payment
of the fees and disbursements of such counsel. In the event, however,
such Indemnified Party reasonably determines in its reasonable judgment
that having common counsel would present such counsel with a conflict
of interest or if the defendants in, or targets of any such action or
proceeding include both an Indemnified Party and Xerox, and such
Indemnified Party reasonably concludes that there may be legal defenses
available to it or other Indemnified Parties that are different from or
in addition to those available to Xerox, or if Xerox fails to assume
the defense of the action or proceeding or to employ counsel reasonably
satisfactory to such Indemnified Party, in either case in a timely
manner, then such Indemnified Party may employ separate counsel to
represent or defend it in any such action or proceeding and Xerox will
pay the reasonable fees and disbursements of such counsel, provided,
however, that Xerox will not be required to pay the fees and
disbursements of more than one separate counsel for all Indemnified
Parties in any jurisdiction in any single action or proceeding. In any
action or proceeding the defense of which Xerox assumes, the
Indemnified Party will have the right to participate in such litigation
and retain its own counsel at such Indemnified Party's own expense.
Xerox will not, without the Investment Manager's prior written
consent, settle, compromise, consent to the entry of any judgment in or
otherwise seek to terminate any action, claim, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not
any Indemnified Party is a party thereto) unless such settlement,
compromise, consent or termination includes a release of each
Indemnified Party from any liabilities arising out of such action,
claim, suit or proceeding. No Indemnified Party seeking
indemnification, reimbursement or contribution under this Agreement may,
without Xerox' prior written consent, settle, compromise, consent to
the entry of any judgment in or otherwise seek to terminate any action,
claim, suit, investigation or proceeding in respect of which
indemnification has or will be sought hereunder.
(Page 19 of 23)
8. Assignment
This Agreement shall not be assignable by either party.
9. Disclosure Statement
Xerox hereby acknowledges receipt of a copy of Part II of the
Investment Manager's current Form ADV.
10. Change in Control
The Investment Manager shall notify Xerox within five business days
if there is any change in control or ownership of the investment
Manager.
11. Notices.
All notices hereunder shall be in writing and shall be delivered in
person, or sent by overnight courier service, or transmitted by
facsimile, to the address of the party set forth below, or to such other
address as may be designated in writing in accordance with this Section:
(a) If to Xerox:
Xerox Corporation
800 Long Ridge Road
Stamford, CT 06904
Attention: Vice President, Treasurer and Secretary
Fax No. (203) 968- 4301
(b) If to Investment Manager:
Horsely Bridge Partners, Inc.
505 Montgomery Street
San Francisco, CA 94111
Fax No. (415) 986-7744
12. Entire Agreement.
This Agreement contains the entire understanding of the parties on
the subject hereof and terminates and supersedes all previous verbal and
written agreements on such subject.
13. Severability.
In the event that any court of competent jurisdiction shall
determine that one or more of the provisions contained in this Agreement
shall be unenforceable in any respect, then such provision shall be
deemed limited and restricted to the extent that such court shall deem
it to be enforceable, and as so limited or restricted shall remain in
full force and effect. In the event that any such provision or
provisions shall be deemed wholly unenforceable, the remaining
provisions shall remain in full force and effect.
(Page 20 of 23)
14. Governing Law
The validity of this Agreement and the rights and liabilities of
the parties hereunder shall be determined in accordance with the laws of
the State of New York, without regard to the choice of law principles
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XEROX CORPORATION
By: /s/ Eunice M. Filter
Its: Vice President, Treasurer and Secretary
HORSLEY BRIDGE PARTNERS, INC.
By: /s/ N. Dan Reeve
Its:Managing Director & Assistant Secretary
(Page 21 of 23)
EXHIBIT A
XEROX LIMITED PARTNERSHIPS
COLORADO VENTURE MANAGEMENT III & IV
OXFORD II
PEREGRINE I & II
(Page 22 of 23)
EXHIBIT B
XEROX SECURITIES
PRIVATE COMPANIES
CARDIFF SOFTWARE INC.
CHAPMAN INSTRUMENTS
CYMER LASER
MANAGEMENT ACQUISITION CORP.(GESCAN INT'L)(1)
NETWISE INCORPORATED
SPECTRA INC.
SUPERCONDUCTIVITY INC.
ULTRA FINE POWDER TECHNOLOGY
VERBEX
PUBLIC COMPANIES
BASHAW HOLDINGS( formerly BALLARD BATTERY)
BALLARD POWER (2)
C.P. CHARE (3)
INTERNATIONAL SOFTWARE GROUP (formerly CORTEX CORP.)
KURZWEIL Applied Intelligence
MICROTEC, INC. (formerly READY SYSTEMS)
M.R.S. TECHNOLOGY
SELECTRONICS
SOFTDESK (formerly ASG)
XEROGRAPHIC LASER IMAGING CORP.
____________________________________________________
(1) XVC has royalty rights. No securities actually owned.
(2) Only 25,000 shares left. May be sold prior to 7/1/95
(3) IPO on 6/21/95. XVC sold 10,000 out of 169,012 shares owned.
(Page 23 of 23)