Exhibit 2.1
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT, (this "Agreement") is entered into as of
January 19, 2000 between nSTOR TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and __________________ (the "Investor").
RECITALS
Pursuant to that certain Employment Agreement (the "Employment
Agreement") of even date herewith among nStor Taiwan, Inc., a Florida
corporation and a wholly-owned subsidiary of the Company and the Investor, the
Company desires, upon the terms and conditions set forth in this Agreement and
the Employment Agreement, to issue shares of the Company's common stock, par
value $.05 per shares (the "Common Stock") to the Investor.
TERMS OF AGREEMENT
In consideration of the premises and the mutual covenants contained
herein and in the Employment Agreement 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. Issuance of Shares. The Company agrees to issue to the Investor, on
the terms and conditions set forth in this Agreement and the
Employment Agreement, _________ shares of Common Stock on the date
hereof.
2. Certain Representations of the Investor.
The Investor hereby represents and warrants to the Company, its
officers and directors, as follows:
(1) The Investor is an individual resident in Taiwan.
(2) The Investor has carefully read and understands this Agreement and has
consulted his own attorney or accountant with respect to the investment
contemplated hereby and its suitability for the Investor.
(3) The Company has made available to the Investor, or his designated
representative, during the course of this transaction and prior to the issuance
of any of the securities referred to herein, the opportunity to ask questions of
and receive answers from the officers and directors of the Company concerning
the terms and conditions of the offering or otherwise relating to the financial
data and business of the Company, to the extent that the Company or its officers
and directors possess such information or can acquire it without unreasonable
effort or expense. The Company has also made available to the Investor for
inspection, documents, records, books and other written information about the
Company, its business and this investment at the office of the Company at 000
Xxxxxxx Xxxx., Xxxx Xxxx Xxxxx, XX 00000.
(4) The Investor understands and represents that: (i) the Investor must bear the
economic risk of this investment until such time as the Common Stock is
registered under the Securities Act of 1933, as amended (the "1933 Act") in
accordance with Section 4 below; (ii) the Investor is acquiring the Common Stock
for investment for his own account and not for the account of any other person;
and (iii) the Investor agrees not to resell or otherwise dispose of all or any
part of the Common Stock, except as permitted by law, including, without
limitation, any and all applicable provisions of this Agreement, the regulations
promulgated under the 1933 Act, and the Company's xxxxxxx xxxxxxx policy.
(5) The Investor has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of an investment
in the Common Stock. The Investor is aware that an investment in the Common
Stock is highly speculative and subject to substantial risks. The Investor is
capable of bearing the high degree of economic risk and burdens of this
investment, including the possibility of a complete loss of his investment. The
financial condition of the Investor is such that he is under no present or
contemplated future need to dispose of any of the Common Stock to satisfy any
existing or contemplated undertaking, need or indebtedness.
(6) All of the information that the Investor has set forth or represented in
this Agreement, with respect to his financial position and business and
investment experience is correct and complete as of the date of this Agreement
and, if there should be any material change in such information prior to the
issuance of the Common Stock, the Investor will immediately furnish the revised
or corrected information to the Company.
(7) The Investor agrees that he shall be bound by all of the terms, conditions,
duties and obligations of this Agreement insofar as such matters affect the
Company and/or the Investor.
3. Restricted Stock. The Investor acknowledges that the Common Stock offered
hereunder are being offered pursuant to a private placement exemption under the
1933 Act, and that the Common Stock are deemed "restricted securities" as
defined in the 1933 Act until the Common Stock become registered with the
Securities and Exchange Commission (the "SEC") in accordance with Section 4
below.
4. Registration Statement. The Company shall prepare and file with the SEC as
soon as reasonably practicable, but in no event more than 30 days after the date
hereof, a Registration Statement on Form S-8 relating to the issuance of the
Common Stock. The Company shall advise the Investor of the time when the
Registration Statement has become effective, of any supplement or amendment that
has been filed, of the issuance of any stop order, of the suspension or the
qualification of the shares of Common Stock for offering or sale in any
jurisdiction, or of any request by the SEC for amendment of the Registration
Statement or for additional information.
5. Sales of Common Stock. The Investor shall not, directly or indirectly, offer,
sell, contract to sell, pledge or otherwise dispose of the Common Stock prior to
the date that is 90 days from the date the Registration Statement described
above is declared effective under the 1933 Act. After such date, the Investor
understands and acknowledges that he will be subject to various resale
restrictions and procedures imposed by United States federal securities laws and
regulations and the Company's xxxxxxx xxxxxxx policy, and agrees that he will
not offer, sell, contract to sell, pledge or otherwise dispose of the shares of
Common Stock held by him except in compliance with any such laws, regulations
and policy.
6. No Assignment. This Agreement is neither transferable nor assignable
by the Investor without the prior written consent of the Company.
7. General.
(1) This Agreement shall be binding upon the Investor and the Company and their
respective representatives, successors, and permitted assigns.
(2) 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.
(3) All covenants, agreements, representations and warranties made herein or
otherwise made in writing by any party pursuant hereto shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(4) 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.
(5) 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 overnight delivery service if to the Company, at nStor Technologies, Inc.,
000 Xxxxxxx Xxxx., Xxxx Xxxx Xxxxx, XX 00000, Attn: H. Xxxxx Xxxx, and if to the
Investor, at the address set forth under its name below, or at such other
address as each such party furnishes by notice given in accordance with this
Section 5(e), and shall be effective, upon receipt.
(6) 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.
(7) 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.
(8) All pronouns and any variations thereof refer to the masculine, feminine or
neuter, singular or plural, as the context may require.
(9) The headings in the Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
January 19, 2000.
nSTOR TECHNOLOGIES, INC. INVESTOR
By:__________________________ _______________________________________
Xxxxx Xxxxxxxxx Name:______________________________
President Address:_______________________________
Telephone:______________________________
Facsimile:______________________________
Exhibit 2.2
SUBSCRIPTION AGREEMENT
This Subscription Agreement (the "Agreement") is entered into as of the
26th day of April, 2000 by and between nStor Technologies, Inc., a Delaware
corporation ("nStor") and Fairway Partnership ("Noteholder").
WHEREAS, nStor is the issuer of a certain promissory note issued to the
Noteholder in the amount of $1,000,000 (the "Note");
WHEREAS, nStor and the Noteholder desire that the Note should be
canceled without payment of principal or accrued interest in accordance with
their terms in exchange for the issuance by nStor to the Noteholder of the
aggregate number of 296,296 shares of its common stock, par value $.05 per
share ("nStor Common Stock");
NOW THEREFORE, the parties hereto agree as follows:
1. Exchange of Notes for Stock
a. In lieu of cash, nStor agrees to pay the Noteholder the principal amount
of the Note in shares of nStor Common Stock based on a stock price of $3.38
per share, which represents an average of the closing market price of one
share of nStor Common Stock on the American Stock Exchange for the two (2)
days preceding the date hereof.
b. nStor will file a Registration Statement on Form S-3 (the "Registration
Statement") covering the shares of nStor Common Stock issued to the Noteholder
pursuant to Section 1(a) above (the "Stock") as soon as practicable after the
date hereof. nStor shall notify the Noteholder immediately upon the
effectiveness of the Registration Statement, at which time the Noteholder
shall have the right to sell all or any part of the Stock subject to any rules
or regulations under the Securities Act of 1933, as amended (the "Securities
Act").
2. Representations of nStor. nStor hereby represents and warrants to
the Noteholder the following:
a. nStor is a corporation validly existing under the laws of the State
of Delaware.
b. The Stock, when delivered to the Noteholder in accordance with the
terms hereof, will be duly authorized, validly issued, fully paid,
and nonassessable.
3. Representations of the Noteholder. The Noteholder hereby represents
and warrants to nStor the following:
a. The Noteholder is the sole lawful holder of its Note, possesses all
right, title and interest therein, has the requisite legal capacity and
authority to transfer its Note, and has not transferred, pledged, or
hypothecated its Note or any interest therein to any third party.
b. The Noteholder understands and represents that (i) it must bear the
economic risk of this investment for an indefinite period of time because the
Stock has not been registered under the Securities Act, or under any state
securities laws and, therefore, cannot be resold unless it is subsequently
registered under the Securities Act and the pertinent state securities laws or
unless an exemption from such registration is available; and (ii) it is
purchasing the Stock for investment for its own account and not for the account
of any other person, and not with any present view toward resale or other
"distribution" thereof within that meaning of the Securities Act.
c. The Noteholder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the Stock. The Noteholder is aware that an investment in the Stock
is highly speculative and subject to substantial risks. The Noteholder is
capable of bearing the high degree of economic risk and burdens of this
investment, including the possibility of a complete loss of its investment. The
financial condition of the Noteholder is such that it is under no present or
contemplated future need to dispose of any of the Stock to satisfy any existing
or contemplated undertaking, need or indebtedness.
d. nStor has made available to the Noteholder, or its designated
representative, during the course of this transaction and prior to the issuance
of any of the Stock, the opportunity to ask questions of and receive answers
from the officers and directors of nStor concerning the terms and conditions of
the offering or otherwise relating to the financial data and business of nStor,
to the extent that nStor or its officers and directors possess such information
or can acquire it without unreasonable effort or expense. nStor has also made
available to the Noteholder for inspection, documents, records, books and other
written information about nStor, its business and this investment at nStor's
principal executive offices at 000 Xxxxxxx Xxxx., Xxxx Xxxx Xxxxx, XX 00000 and
00000 Xxxx Xxx Xxxx, Xxx Xxxxx, XX 00000.
4. Restricted Stock and Legend. The Noteholder acknowledges that the Stock
offered hereunder are being offered pursuant to a private placement exemption
under the Securities Act, and that the Stock is deemed "restricted securities"
as defined in the Securities Act. Until the securities offered hereunder become
registered with the Securities and Exchange Commission (the "Commission"), each
certificate representing the Stock shall bear a legend in substantially the
following form:
THE SHARE(S) REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY
STATE SECURITIES LAWS, AND THE CORPORATION HAS RELIED UPON AN EXEMPTION
TO THE REGISTRATION REQUIREMENT UNDER THE ACT FOR THE SALE OF THE
SHARE(S) REPRESENTED BY THIS CERTIFICATE TO ITS HOLDER. THEREFORE, THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED STOCK AND MAY NOT
BE SOLD OR TRANSFERRED TO ANY THIRD PARTY WITHOUT EITHER BEING
REGISTERED UNDER THE ACT OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT.
5. Resales. The Noteholder agrees not to resell or otherwise dispose of
all or any part of the Stock, except as permitted by law, including, without
limitation, any and all applicable provisions of this Agreement and any
regulations under the Securities Act.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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.
/s/ Xxxx Xxxxxx
By:__________________________
Xxxx Xxxxxx
Vice President and Treasurer
NOTEHOLDER:
/s/ Xxxxxxx Xxxxxxxx
By:_________________________
Xxxxxxx Xxxxxxxx, Trustee,
Xxxxxxx Xxxxxxxxx Revocable Trust,
General Partner of Fairway
Partnership
