EXHIBIT 4.1
OPTION ONE AGREEMENT
THIS OPTION AGREEMENT (this "Agreement"), dated as of March 1, 2002 (the
"Effective Date"), is between nStor Technologies, Inc. a Delaware corporation
("Optionor"), and Pacific Technology Services, Inc., a Nevada corporation
("Optionee").
WHEREAS, Optionor desires to grant to Optionee an option to purchase an
equity interest in Optionor, subject to the terms and conditions set forth in
this Agreement, and
WHEREAS, there are approximately, but not exceeding, 115 million shares
of Optionor's common stock currently issued and outstanding.
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows:
1. Option Grant. Optionor hereby grants to Optionee a nonassessable
option to purchase up to 30 Million newly-issued shares of Optionor's
common stock for a purchase price equal to $0.40 per share (the
"Option").
2. Term. The term (the "Term") of the Option shall be nine (9) months
commencing on the Effective Date hereof and extending until midnight
on November 30, 2002 (the "Expiration Date").
3. Exercise. Optionee may exercise the Option, in whole or in part, at
any time and from time to time during the Term of the Option, by
giving Optionor written notice of Optionee's intent to exercise the
Option ("Notice"), pursuant to the notice provisions herein.
4. Closing. The closing (the "Closing") of the exercise of the Option by
Optionee shall occur no later than ten (10) calendar days following
the date on which notice is deemed to have been received by Optionor
pursuant to Paragraph 8 of this Agreement. At each Closing, Optionee
shall pay the respective purchase price to Optionor in cash via in one
or more wire transfers, or as otherwise agreed, and shall furnish to
Optionor an acknowledgement that the shares have been purchased for
investment purposes and not with a view of resale. At each Closing,
Optionor shall deliver the certificates evidencing the purchased
interest and any instruments of transfer necessary to vest in Optionee
good and marketable title to the purchased interest. In the event
Optionee does not pay the respective purchase price to Optionor within
the prescribed ten (10) calendar days, Optionee's right to exercise
that number of shares which would have been issued at the Closing
shall be deemed to be terminated.
5. Termination. This Agreement shall automatically terminate without any
further action of any party upon the Expiration Date, and no party
shall thereafter have any further obligations hereunder.
6. Representations and Warranties of Optionor. Optionor represents and
warrants to Optionee as follows:
(a) Optionor has the right, power and capacity to execute, deliver
and perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of
this Agreement by Optionor and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Optionor. This
Agreement has been duly and validly executed and delivered by
Optionor and constitutes the legal, valid and binding obligation
of Optionor, enforceable in accordance with its terms.
(b) Optionor has, and, on the date of each Closing, Optionor will
have, full legal right, power and authority to issue and deliver
the purchased interest to Optionee.
(c) Optionor has reserved, and will maintain at all times during the
term of this Agreement, sufficient shares to fulfill the exercise
in full of the Option.
(d) All shares representing purchased interests will, when issued, be
duly authorized and validly issued, fully paid and nonassessable.
7. Representations and Warranties of Optionee. Optionee represents and
warrants to Optionor as follows:
(a) Optionee has had an opportunity to conduct due diligence to
Optionee's satisfaction concerning the terms and conditions of
the Option and an investment in Optionor.
(b) Optionee is a sophisticated investor with knowledge and
experience in business and financial matters and/or is an
accredited investor, within the meaning of the Securities Act of
1933, as amended.
(c) Upon exercise of the Option, Optionee will acquire the equity in
Optionor for investment purposes and not with a view of resale.
(d) Optionee is an indirect wholly-owned subsidiary of Pacific
Electric Wire & Cable Co., Ltd.
8. Notices. All notices, demands, and other communications required or
permitted to be given hereunder shall be deemed to have been duly
given and received if in writing and (a) effective immediately if
delivered personally; or (b) effective seventy-two (72) hours after
mailing if deposited in the United States mail, first class, postage
prepaid, registered or certified mail, return receipt requested,
addressed as set forth below; or (c) effective after twenty-four (24)
hours if sent by facsimile to a party's fax number set forth below
and, on the same day, a copy of said notice is sent by a nationally
recognized overnight courier (e.g., FedEx, DHL, etc.) to the party at
such party's address set forth below:
If to Optionor: nStor Technologies, Inc.
00000 Xxxx Xxx Xxxx
Xxx Xxxxx, XX 00000
Attn: President
Fax No: (000) 000-0000
With courtesy copy to: nStor Technologies, Inc.
000 Xxxxxxx Xxxx.
Xxxx Xxxx Xxxxx, XX 00000
Attn: H. Xxxxx Xxxx
Fax No. (000) 000-0000
If to Optionee: Pacific Technology Services, Inc.
0000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: CEO
Fax No. (000) 000-0000
With courtesy copy to: Pacific USA Holdings Corp.
0000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: General Counsel
Fax No. (000) 000-0000
The addresses provided above may be changed by notice given to the other
parties in accordance with this Paragraph. A party's failure to provide a
courtesy copy shall not invalidate notice otherwise given in accordance with
this Paragraph.
9. Closing Costs. Each of Optionor and Optionee shall pay all of its own
fees and expenses in connection with this Agreement and the
consummation of the transactions contemplated hereby, including
without limitation all accounting, legal and third-party consultants'
fees and expenses; provided that Optionor shall pay any transfer taxes
that become due in connection with the issuance to Optionee of any
purchased interest.
10. Assignment. The rights and obligations arising under this Agreement
may not be assigned without the prior written consent of Optionor,
which consent will not be unreasonably withheld; provided that
Optionee may, upon notice to and without the prior consent of
Optionor, assign its rights and obligations under this Agreement to
any affiliate of Optionee. For purposes of this Agreement, an
affiliate shall mean any entity owned more than 50% by Pacific USA
Holdings Corp., a Texas corporation.
11. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and
assigns.
12. Severability. If any provision of this Agreement should be held to be
invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby,
and the unenforceable provision shall be enforced to the extent
permitted by law.
13. Entire Agreement. This Agreement embodies the complete understanding
and agreement of each of the parties as to the matters herein. This
Agreement may be modified and amended only by an instrument in writing
executed by both parties.
14. Governing Law; Choice of Venue. This Agreement shall be governed by
the law of the State of California in all respects. The parties hereto
irrevocably and unconditionally submit to the jurisdiction of a
federal or state court located in the County of San Diego, and State
of California, in connection with any proceedings commenced regarding
this Agreement, and all parties irrevocably submit to the jurisdiction
of such courts for the determination of all issues in such
proceedings, without regard to any principles of conflicts of laws,
and irrevocably waive any objection to venue or inconvenient forum.
15. Counterparts. This Agreement may be executed by facsimile in multiple
counterparts, each of which shall be deemed an original, and all of
which together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date hereof.
OPTIONOR:
nStor Technologies, Inc.
By: /s/ H. Xxxxx Xxxx
Name: H. Xxxxx Xxxx
Title: CEO V Chairman of the Board
OPTIONEE:
Pacific Technology Services, Inc.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: President
