Exhibit 4.3
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT TO THE SECURITIES OR "BLUE
SKY" LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER
SUCH ACT, (ii) RULE 144 OR RULE 144A UNDER SUCH ACT, OR (iii) ANY OTHER
EXEMPTION FROM REGISTRATION UNDER SUCH ACT, PROVIDED THAT, IF REQUESTED BY THE
ISSUER, AN OPINION OF COUNSEL (REASONABLY SATISFACTORY TO THE ISSUER) IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER IS FURNISHED TO THE ISSUER
THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.
IN ADDITION, ANY SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS
SECURITY IS RESTRICTED BY, AND THE RIGHTS OF THE HOLDER OF SUCH SECURITY ARE
SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN, A NOTE PURCHASE AGREEMENT
DATED AS OF NOVEMBER 6, 2000 AMONG AMPEX DATA SYSTEMS CORPORATION, AS ISSUER,
AMPEX CORPORATION, AS GUARANTOR, AND THE OTHER PARTIES REFERENCED THEREIN, A
COMPLETE AND CORRECT COPY OF THE FORM OF WHICH WILL BE FURNISHED BY THE ISSUER
TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
AMPEX DATA SYSTEMS CORPORATION
Senior Discount Note due May 31, 2001
No. 2 $1,895,405.56
Ampex Data Systems Corporation, a Delaware corporation (hereinafter
called the "Issuer", which term includes any successor entity under that certain
Agreement referred to herein), for value received, hereby promises to pay to
Goldman Sachs & Company FFC B III Capital Partners, L.P., or registered assigns,
the principal sum of One Million Eight Hundred Ninety Five Thousand Four Hundred
Five Dollars and Fifty Six Cents ($1,895,405.56) on May 31, 2001.
Reference is hereby made to the further provisions of this Note set
forth on the following four (4) pages, which further provisions shall for all
purposes have the same effect as if set forth at this place, and to the
Agreement referred to herein.
Pursuant to the Agreement referred to herein, the payment of this Note
is unconditionally guaranteed by the Guarantor. The guaranty by the Guarantor
is endorsed hereon.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officer and a facsimile of its
seal to be affixed hereto or imprinted hereto.
AMPEX DATA SYSTEMS CORPORATION
By:
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Name:
Title:
AMPEX DATA SYSTEMS CORPORATION
Senior Discount Note due May 31, 2001
1. Note Purchase Agreement. The Issuer issued this Note pursuant to
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that certain Note Purchase Agreement, dated as of November 6, 2000 (as may be
amended from time to time, the "Agreement"), by and among the Issuer, Ampex
Corporation, as Guarantor, the Purchasers named therein, and DDJ Capital
Management, LLC, as agent for the holders from time to time of the Senior
Discount Notes issued pursuant to the Agreement (the "Holders' Agent").
Capitalized terms used herein without definition have the meanings ascribed to
such terms in the Agreement. This Note is one of the Senior Discount Notes
referred to in the Agreement, and the terms of this Note are subject to, and
qualified by, all of the terms and conditions set forth in the Agreement,
certain of which are summarized herein.
2. Maturity. This Note shall mature and shall be due and payable in
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full on the earliest to occur of (i) May 31, 2001 (the "Stated Maturity Date"),
(ii) a Mandatory Redemption Date, or (iii) a Designated Voluntary Redemption
Date.
3. Principal Amount. The face principal amount of this Note
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represents the Accreted Value of this Note at the Stated Maturity Date. This
Note is being issued at a discount. The price paid for this Note at the time of
issue is less than the face principal amount of this Note and is set forth in
the Agreement.
4. Interest. This Note will accrete in value from and after the
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Issue Date. No interest will accrue on this Note prior to the earliest to occur
of (i) the Stated Maturity Date, (ii) a Mandatory Redemption Date, or (iii) a
Designated Voluntary Redemption Date. If the Issuer fails to pay to the Holder
of this Note cash in an amount equal to the Accreted Value of this Note as of
any such Redemption Date, interest shall accrue on the unpaid portion of the
Accreted Value of this Note at the Default Rate for each day from and after such
Redemption Date until the entire Accreted Value of this Note as of such
Redemption Date, and all accrued interest thereon, shall have been paid in full.
5. Redemption. This Note may be voluntarily redeemed by the Issuer
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at any time, without premium or penalty, in accordance with the provisions of
Section 6.1 of the Agreement. This Note shall be subject to mandatory
redemption upon the earliest to occur of (a) the Stated Maturity Date, (b) a
Change of Control, (c) an Asset Disposition, or (d) an acceleration of maturity
pursuant to Subsections 9.2(a) or 9.2(b) of the Agreement. Except as otherwise
expressly provided herein, this Note may not be prepaid prior to the Stated
Maturity Date.
6. Payments on this Note. All payments due in respect of this Note
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shall be paid to the registered Holder of this Note as of the date such payment
is due in accordance with the payment instructions provided in writing to the
Issuer by such Holder. The Issuer shall pay the Accreted Value of this Note
(and, if applicable, interest at the Default Rate) in money of the United States
that at the time of payment is legal tender for payment of public and private
debts, by wire transfer of immediately available funds.
7. Transfer and Exchange. This Note may be transferred, exchanged
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and/or registered subject to, and in accordance with, the terms, provisions and
conditions set forth in the Agreement.
8. Persons Deemed Owners. The registered holder of this Note shall
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be treated as its owner for all purposes.
9. Amendments and Waivers. This Note may be amended or supplemented
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pursuant to, and in accordance with, the terms, provisions and conditions set
forth in the Agreement.
10. Defaults and Remedies. Events of Default and the rights and
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remedies of the Holder of this Note and of the Holders' Agent upon the
occurrence thereof are as set forth in the Agreement.
11. No Recourse Against Others. No director, officer, employee,
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incorporator or shareholder of the Issuer shall have any liability for any
obligation of the Issuer under the Agreement or this Note or for any claim based
on, in respect of, or by reason of, any such obligation or the creation of any
such obligation. The Holder hereof, by accepting this Note, waives and releases
such Persons from all such liability, and such waiver and release is part of the
consideration for the issuance of this Note.
12. Governing Law. This Note shall be governed by and construed in
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accordance with the internal laws of The Commonwealth of Massachusetts, without
regard to the conflict of laws provisions thereof.
13. Copies of Agreement. The Issuer will furnish to the Holder of
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this Note, upon written request and without charge, a copy of the Agreement,
which has in it the terms of this Note. Requests may be made to: Ampex Data
Systems Corporation, 500 Broadway, Redwood City, CA 94063-3199, Attention:
General Counsel and Secretary.
GUARANTEE
The undersigned Guarantor unconditionally and irrevocably guarantees
to each Holder (a) the full and punctual payment of the Accreted Value of this
Note when due, whether at maturity, by acceleration, by redemption or otherwise,
together with accrued interest at the Default Rate, if applicable, and all other
amounts payable by the Issuer under the Agreement and this Note, and (b) the
full and punctual performance of all other obligations of the Issuer under the
Agreement and this Note (all the foregoing described in (a) and (b) being
hereinafter collectively called the "Guaranteed Obligations").
The Guarantor waives presentation to, demand of payment from and
protest to the Issuer of any of the Guaranteed Obligations and also waives
notice of any Default or Event of Default under the Guaranteed Obligations not
provided for in the Agreement.
The obligations of the Guarantor to the Holder of this Note pursuant
to the Guarantee and the Agreement are expressly set forth in Article 14 of the
Agreement and reference is hereby made to such Agreement for the precise terms
of the Guarantee therein made.
GUARANTOR:
AMPEX CORPORATION
By:
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Name:
Title: