Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
November 20, 2001 between nSTOR TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and HALCO INVESTMENTS, L.C., a Florida limited liability company
(the "Investor").
RECITALS
In connection with the Preferred Stock Purchase Agreement of even date
herewith between the Investor, the Company and Xxxxxxx X. Xxxxxxxx (the
"Purchase Agreement"), the Company has agreed, upon the terms and subject to the
conditions of the Purchase Agreement, to issue to the Investor shares of the
Company's Series K Convertible Preferred Stock (the "Series K Preferred Stock"),
which are convertible into shares of the Company's common stock, $.05 par value
per share ("Common Stock") on the terms and subject to the conditions set forth
in the Certificate of Designation for the Series K Preferred Stock. The Company
has agreed to provide certain registration rights under the Securities Act of
1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the "Securities Act"), and applicable state
securities laws with respect to the Common Stock issuable upon conversion of the
Series K Preferred Stock (collectively, the "Conversion Shares").
TERMS OF AGREEMENT
In consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Investor hereby agree as
follows:
1. Definitions.
(a) As used in this Agreement, the following terms shall have the
following meanings:
(i) "Register", "registered" and "registration" refer
to a registration effected by preparing and filing a Registration Statement or
Statements on Form S-3 in compliance with the Securities Act and pursuant to
Rule 415 under the Securities Act or any successor rule providing for offering
securities on a continuous basis ("Rule 415") and the declaration or ordering of
effectiveness of such Registration Statement by the United States Securities and
Exchange Commission ("SEC").
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(ii) "Registration Statement" means a registration
statement under the Securities Act.
(iii) "Registrable Securities" means the Conversion Shares.
(b) Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Purchase Agreement.
2. Registration.
(a) Initial Registration.
(i) The Company shall prepare and file with the SEC a
Registration Statement on Form S-3 covering the resale by the Investor
of all of the Registrable Securities within seventy-five (75) days
following the issuance of the Conversion Shares to the Investor.
(ii) The Company represents and warrants that it meets the
requirements for the use of Form S-3 for registration of the sale by the
Investor of the Registrable Securities and the Company shall file all
reports required to be filed by the Company with the SEC in a timely
manner so as to maintain such eligibility for the use of Form S-3.
(b) Piggyback Registration.
(i) If at any time following the issuance of the
Conversion Shares to the Investor, the Company proposes to register any
of its Common Stock (either on its own behalf or on behalf of others)
under the Securities Act (other than a transaction described under Rule
145 of the Securities Act or pursuant to Forms X-0, X-0 or their
successor forms) and the registration form to be used may be used for
the registration of the Registrable Securities of the Investor (a
"Piggyback Registration"), the Company shall give prompt written notice
to the Investor of its intention to effect such a registration and will
include in such registration the Registrable Securities of the Investor
with respect to which the Company has received written requests for
inclusion therein within 20 days after the receipt of the Company's
notice.
(ii) If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities the Company proposes to
sell, and (ii) second, the Registrable Securities requested to be
included in such registration and any other shares of Common Stock for
which the Company has received a request for registration from the
holder thereof pursuant to an agreement between the Company and such
holder (the "Other Registrable Securities"), pro-rata among the holders
of such Registrable Securities and the Other Registrable Securities on
the basis of the number of shares of Registrable Securities and Other
Registrable Securities owned by each such holder.
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(iii) If a Piggyback Registration is an underwritten
secondary registration on behalf of holders of the Company's securities,
and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the
Company shall include in such registration (i) first, the securities
requested to be included therein by the holder exercising its demand
registration rights and (ii) second, the Registrable Securities
requested to be included in such registration and the Other Registrable
Securities, pro-rata among the holders of such Registrable Securities
and the Other Registrable Securities on the basis of the number of
shares of Registrable Securities and Other Registrable Securities owned
by each such holder.
(iv) In the event of any registration pursuant to this
Section 2 where the full amount of the Registrable Securities and/or the
Other Registrable Securities requested to be included in such
registration cannot be included in full, then the number of Registrable
Securities and Other Registrable Securities available for registration
shall be allocated among such group pro rata based upon the number of
Registrable Securities and Other Registrable Securities requested to be
included in such registration by each member of the group. The
obligation of the Company to include Registrable Securities and Other
Registrable Securities in a Piggyback Registration shall be subject to
the advice of the managing underwriter of such underwriter offering,
which may take into account the size of the offering, market conditions
and the appropriateness of the Investor's or Other Registrable
Securities holder's participation if he is an employee, officer or
director of the Company.
(v) The Company will have the right to select the
investment banker(s) and manager(s) to administer any offerings.
(c) Rule 144. Notwithstanding the registration of the resale of
Registrable Securities in accordance with Section 2(a) above, if at any time of
offer and sale of such Registrable Securities such securities can be sold
pursuant to Rule 144 promulgated under the Securities Act ("Rule 144") in the
manner, amount and on such terms as the Investor wishes to offer and sell such
securities, the Investor may endeavor to offer and sell such securities pursuant
to Rule 144.
3. Obligations of the Company. In connection with the
registration of the Registrable Securities, the Company shall:
(a) Prepare and file with the SEC a Registration Statement or
Statements with respect to the Registrable Securities within seventy-five (75)
days following the issuance of the Conversion Shares to the Investor, and
thereafter use its best efforts to cause the Registration Statement to become
effective and keep the Registration Statement effective at all times until 90
days following the date on which Halperin is no longer an "affiliate" of the
Company within the meaning of Rule 144. In any case, the Registration Statement
(including any amendments or supplements thereto, prospectuses contained therein
and documents incorporated by reference therein) filed by the Company shall not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
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(b) Prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective for the time periods set
forth in Section 3(a) above;
(c) Furnish to the Investor (i) promptly after the same is
prepared and publicly distributed, filed with the SEC or received by the
Company, one copy of the Registration Statement and any amendment thereto, each
preliminary prospectus and prospectus and each amendment or supplement thereto
and (ii) such number of copies of a prospectus, including a preliminary
prospectus, and all amendments and supplements thereto and such other documents
as the Investor may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by the Investor;
(d) Use reasonable efforts to register and qualify the
Registrable Securities covered by the Registration Statement under such other
securities or blue sky laws of such jurisdictions as the Investor may reasonably
request, prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements, take such other actions as may be
necessary to maintain such registrations and qualifications in effect at all
times that the Registration Statement is required to be effective under Section
3(a) hereof and take all other actions reasonably necessary or advisable to
qualify the Registrable Securities for sale in such jurisdictions; provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to (i) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), (ii)
subject itself to general taxation in any such jurisdiction, (iii) file a
general consent to service of process in any such jurisdiction, (iv) provide any
undertakings that cause more than nominal expense or burden to the Company or
(v) make any change in its charter or bylaws, which in each case the Board of
Directors of the Company determines to be contrary to the best interests of the
Company and its stockholders;
(e) As promptly as practicable after becoming aware of such
event, notify the Investor of the happening of any event of which the Company
has knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and use its best efforts promptly to prepare a supplement
or amendment to the Registration Statement to correct such untrue statement or
omission, and deliver a number of copies of such supplement or amendment to the
Investor as the Investor may reasonably request;
(f) As promptly as practicable after becoming aware of such
event, notify the Investor of the issuance by the SEC of any stop order or other
suspension of effectiveness of the Registration Statement at the earliest
possible time;
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(g) Permit a single firm of counsel designated as selling
stockholders' counsel by the Investor and other persons participating in the
offering to review the Registration Statement and all amendments and supplements
thereto a reasonable period of time prior to their filing with the SEC, and
shall not file any document in a form to which such counsel reasonably objects;
(h) Make available for inspection by the Investor, any
underwriter participating in any disposition pursuant to the Registration
Statement and any attorney, accountant or other agent retained by the Investor
or underwriter (collectively, the "Inspector"), all pertinent financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable each
Inspector to exercise its due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information which any Inspector
may reasonably request for purposes of such due diligence; provided, however,
that each Inspector shall hold in confidence (making such confidential
information known only to officers, agents or employees thereof who have a need
to know), shall not use any information so obtained for any purpose other than
preparation or review of the Registration Statement, and shall not make any
disclosure (except to the Investor or underwriter) of any Record or other
information which the Company determines in good faith to be confidential, and
of which determination the Inspectors are so notified, unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (ii) the release of such Records is requested
pursuant to a subpoena or other order from a court or government body of
competent jurisdiction, or (iii) the information in such Records has been made
generally available to the public other than by disclosure in violation of this
or any other agreement. The Company shall not be required to disclose any
confidential information in such Records to any Inspector or the Investor until
and unless the Investor or Inspector shall have entered into confidentiality
agreements (in a form as is customary in similar circumstances) with the Company
with respect thereto, substantially in the form of this Section 3(h). The
Investor agrees that it shall, upon learning that disclosure of such Records is
sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to the Company and allow the Company, at
the Company's expense, to undertake appropriate action to prevent disclosure of,
or to obtain a protective order for, the Records deemed confidential. The
Company shall hold in confidence and shall not make any disclosure of
information concerning the Investor provided to the Company pursuant to Section
4(a) hereof unless (i) disclosure of such information is necessary to comply
with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration
Statement, (iii) the release of such information is ordered pursuant to a
subpoena or other order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this or any other agreement. The
Company agrees that it shall, upon learning that disclosure of such information
concerning the Investor is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to the
Investor, to undertake, at Investor's expense, appropriate action to prevent
disclosure of, or to obtain a protective order for, such information;
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(i) Use its best efforts either to cause all the Registrable
Securities covered by the Registration Statement to be listed on the American
Stock Exchange or other national securities exchange and on each additional
national securities exchange on which similar securities issued by the Company
are then listed, if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange or secure designation of all the
Registrable Securities covered by the Registration Statement as a National
Association of Securities Dealers Automated Quotations System ("NASDAQ")
"national market system security" within the meaning of Rule 11Aa2-1 of the SEC
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the quotation of the Registrable Securities on the NASDAQ National Market
System; or, if, despite the Company's best efforts to satisfy the preceding
clause (i) or (ii), the Company is unsuccessful in satisfying the preceding
clause (i) or (ii), to arrange for at least two market makers to register with
the National Association of Securities Dealers, Inc. ("NASD") as such with
respect to such Registrable Securities;
(j) Provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of the
Registration Statement;
(k) Cooperate with the Investor to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be sold in the denominations or amounts
as the case may be, and registered in such names as the Investor may reasonably
request; and
(l) take all other reasonable actions necessary to expedite and
facilitate disposition by the Investor of the Registrable Securities pursuant to
the Registration Statement.
4. Obligations of the Investor. In connection with the registration
of the Registrable Securities,the Investor shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant to this Agreement that the
Investor shall furnish to the Company such information regarding itself and the
intended method of disposition of the Common Stock held by it as shall be
reasonably required to effect the registration of the Common Stock and shall
execute such documents in connection with such registration as the Company may
reasonably request. At least fifteen (15) days prior to the first anticipated
filing date of the Registration Statement, the Company shall notify the Investor
of the information the Company requires (the "Requested Information").
(b) The Investor agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation and
filing of the Registration Statement hereunder.
(c) The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(e) or
3(f), the Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement until the Investor's receipt
of the copies of the supplemented or amended prospectus contemplated by
Section3(e) or 3(f) and, if so directed by the Company, the Investor shall
deliver to the Company (at the expense of the Company) or destroy (and deliver
to the Company a certificate of destruction) all copies in the Investor's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.
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(d) In the event the Investor determines to engage the services
of an underwriter, the Investor agrees to enter into and perform its obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of the
Registrable Securities.
5. Expenses of Registration. All expenses (other than brokerage
commissions or discounts) incurred in connection with registrations, filings or
qualifications pursuant to Section 2, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees and
the fees and disbursements of counsel for the Company, shall be borne by the
Company; provided, however, that the Investor shall bear the fees and
out-of-pocket expenses of the one legal counsel selected pursuant to Section
3(g) hereof.
6. Indemnification.
(a) By the Company. To the extent permitted by law, the Company
will indemnify and hold harmless the Investor, any underwriter (as defined in
the Securities Act) for the Investor, the directors, if any, of such underwriter
and the officers, if any, of such underwriter, and each person, if any, who
controls any such underwriter within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, expenses or liabilities (joint or several) (collectively "Claims") to
which any of them become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such Claims (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations in the Registration Statement, or
any post-effective amendment thereof, any prospectus included therein or any
documents incorporated by reference therein: (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any post-effective amendment thereof or 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, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus if
used prior to the effective date of such Registration Statement, or contained in
the final prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the statements therein
were made, not misleading or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act or any state securities law or
any rule or regulation under the Securities Act, the Exchange Act or any state
securities law (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
6(d) with respect to the number of legal counsel, the Company shall reimburse
the Investor and each such underwriters or controlling person, promptly as such
expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a) (i) shall
not apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (ii) with respect
to any preliminary prospectus shall not inure to the benefit of any such person
from whom the person asserting any such Claim purchased the Registrable
Securities that are the subject thereof (or to the benefit of any person
controlling such person) if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected in the prospectus, as then
amended or supplemented; (iii) shall not be available to the extent such Claim
is based on a failure of the Investor to deliver or cause to be delivered the
prospectus made available by the Company; and (iv) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld.
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(b) By the Investor. In connection with any Registration
Statement in which the Investor is participating, the Investor agrees to
indemnify and hold harmless, to the same extent and in the same manner set forth
in Section 6(a), the Company, each of its directors, each of its officers who
signs the Registration Statement, each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act (each, an
"Indemnified Party"), against any Claim to which any of them may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such Claim
arises out of or is based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs (i) in reliance upon and in
conformity with written information furnished to the Company by the Investor
expressly for use in connection with such Registration Statement or (ii) the
Investor's violation of Regulation M; and the Investor will promptly reimburse
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Investor, which consent shall not be unreasonably withheld. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the transfer of
the Registrable Securities by the Investor. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any preliminary prospectus shall not inure to the
benefit of any Indemnified Party if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented.
(c) The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in any distribution, to the same extent as provided
above, with respect to information such persons so furnished in writing by such
persons expressly for inclusion in the Registration Statement.
(d) Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
action (including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, 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
control of the defense thereof with counsel mutually satisfactory to the
indemnifying parties and the Indemnified Person or the Indemnified Party, as the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel, with the fees and expenses to be
paid by the indemnifying party, if, in the reasonable written opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party or other party represented by such
counsel in such proceeding. The Company shall pay for only one separate legal
counsel for the Investor. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend such
action. The indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due and
payable.
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(e) Contribution. To the extent any indemnification provided for
herein is prohibited or limited by law, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it would
otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however, that no contribution shall be made under circumstances where
the maker would not have been liable for indemnification under the fault
standards set forth in Section 6, no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section11(f) of the
Securities Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation and
contribution by any seller of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such seller from the sale of such
Registrable Securities.
7. Reports under Exchange Act. With a view to making available to the
Investor the benefits of Rule 144 or any other similar rule or regulation of the
SEC that may at any time permit the Investor to sell securities of the Company
to the public without Registration, until such time as the Investor have sold
all the Registrable Securities pursuant to a Registration Statement or Rule 144,
the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to the Investor so long as the Investor owns
Registrable Securities, promptly upon request, a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company and such other information as may be reasonably requested to permit
the Investor to sell such securities pursuant to Rule 144 without Registration.
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8. Amendment of Registration Rights. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Investor. Any amendment of waiver
effected in accordance with this Section 8 shall be binding upon the Investor
and the Company.
9. Miscellaneous.
(a) If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Notices required or permitted to be given hereunder shall be
in writing and shall be deemed to be sufficiently given when personally
delivered or when sent by registered mail, return receipt requested, addressed
if to the Company, at nStor Technologies, Inc., 000 Xxxxxxx Xxxx., Xxxx Xxxx
Xxxxx, XX 00000, attn: Xxxx Xxxxxx, and if to the Investor, at 00000 Xxxxxxxxx
Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, or at such other address as each such party
furnishes by notice given in accordance with this Section 9(b), and shall be
effective, when personally delivered, upon receipt, and when so sent by
certified mail, four business days after deposit with the United States Postal
Service.
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) This Agreement shall be enforced, governed by and construed
in accordance with the laws of the State of Florida applicable to the agreements
made and to be performed entirely within such state, without giving effect to
rules governing the conflict of laws. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
hereof.
(e) Any dispute, claim or controversy arising out of or related
to this Agreement or the breach thereof shall be resolved by litigation in a
court with jurisdiction in Palm Beach County, Florida. The prevailing party in
any such litigation shall be entitled to attorneys fees.
(f) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
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(g) This Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of each of the parties hereto.
(h) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(i) The headings in the Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by telephone line facsimile transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
nSTOR TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxx
----------------
Xxxx Xxxxxx
Vice President
INVESTOR:
HALCO INVESTMENTS, L.C.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxx, Managing Member
