REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of April
12, 2001 between nSTOR TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and the persons set forth on the signature page hereto (the
"Investors").
RECITALS
In connection with the Exchange Agreements of even date herewith between
the Investors and the Company (the "Exchange Agreements"), the Company has
agreed, upon the terms and subject to the conditions of the Exchange Agreements,
to issue to the Investors shares of the Company's (i) Series H Convertible
Preferred Stock (the "Series H Preferred Stock") or (ii) Series I Convertible
Preferred Stock (the "Series I 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 relevant
Certificates of Designation for the Series H Preferred Stock and the Series I
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 H Preferred Stock and the Series I
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 Investors 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").
(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 Exchange 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 Investors
of all of the Registrable Securities.
(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
Investors 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) Whenever 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 Investors (a "Piggyback
Registration"), the Company shall give prompt written notice to the
Investors of its intention to effect such a registration and will
include in such registration the Registrable Securities of the Investors
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.
(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 Investors' 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 Investors wish to offer and sell such
securities, the Investors 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 and thereafter use its
best efforts to cause the Registration Statement to become effective on or
before September 30, 2001, and keep the Registration Statement effective at all
times until such date as is two years after the date such Registration Statement
is first ordered effective by the SEC. In any case, the Registration Statement
(including any amendments or supplements thereto and prospectuses contained
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;
(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 Investors (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 Investors may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by the Investors;
(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 Investors 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 Investors 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
Investors as the Investors may reasonably request;
(f) As promptly as practicable after becoming aware of such
event, notify the Investors of the issuance by the SEC of any stop order or
other suspension of effectiveness of the Registration Statement at the earliest
possible time;
(g) Permit a single firm of counsel designated as selling
stockholders' counsel by the Investors 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 Investors, any
underwriter participating in any disposition pursuant to the Registration
Statement and any attorney, accountant or other agent retained by the Investors
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 an Investors 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 Investors until
and unless the Investors 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
Investors agree that they 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 an Investors 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 Investors is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to the
Investors, to undertake, at Investors' expense, appropriate action to prevent
disclosure of, or to obtain a protective order for, such information;
(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 Investors 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 Investors may reasonably
request; and
(l) take all other reasonable actions necessary to expedite and
facilitate disposition by the Investors of the Registrable Securities pursuant
to the Registration Statement.
4. Obligations of the Investor. In connection with the registration
of the Registrable Securities, the Investors 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 with respect to
an Investor that the Investors 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 each Investor of the information the Company requires from such Investor
(the "Requested Information").
(b) The Investors agree 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 Investors agree 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 Investors will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement until such Investors' 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 Investors 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 Investors'
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.
(d) In the event any Investor determines to engage the services
of an underwriter, such 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 Investors 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 Investors, any underwriter (as defined in
the Securities Act) for any 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, or any prospectus included 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 Investors 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 any 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.
(b) By the Investors. In connection with any Registration
Statement in which an Investors is participating, such 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 Investors
expressly for use in connection with such Registration Statement or (ii) the
Investors' violation of Regulation M; and the Investors 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 Investors, 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 Investors. 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 Investors. 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.
(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
Investors the benefits of Rule 144 or any other similar rule or regulation of
the SEC that may at any time permit the Investors to sell securities of the
Company to the public without Registration, until such time as the Investors
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 each Investor so long as such 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 Investors to sell such securities pursuant to Rule 144 without Registration.
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 Investors. Any amendment of waiver
effected in accordance with this Section 8 shall be binding upon the Investors
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, with a copy to Xxxxx Xxxxxxxxx, President of
nStor, 00000 Xxxx Xxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, and if to the
Investors, at the address set forth under his, her or its name below, 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) 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.
(f) This Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of each of the parties hereto.
(g) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(h) The headings in the Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) 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]
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, as VP
------------------------
Xxxx Xxxxxx
Vice President
INVESTORS
THE XXXXXXXXX XXXXXX 1993 TRUST
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx, Trustee
0000 X. Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
/s/ Xxxxxxx Xxxxxxxx
---------------------------
Xxxxxxx Xxxxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
THE XXXXXXX XXXXXXXXX FAMILY
CHARITABLE FOUNDATION, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxxx, Director
0000 X.X. Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
HILCOAST DEVELOPMENT CORP.
By: /s/ H. Xxxxx Xxxx
-------------------------------
H. Xxxxx Xxxx, Chairman of the
Board of Directors
000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
/s/ H. Xxxxx Xxxx
-------------------------
H. Xxxxx Xxxx
000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxx 00000
MLL CORP.
By: /s/ H. Xxxxx Xxxx
--------------------------
H. Xxxxx Xxxx
Title:
000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxx 00000
/s/ Xxxxxxx Xxxx
---------------------------
Xxxxxxxx Xxxx
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxx Xxxxxx
-----------------------------
Xxxxxxx Xxxxxx
0000 X. Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
/s/ Xxxx Xxxxxx
------------------------------
Xxxx X. Xxxxxx
000 Xxxxx Xxxx Xxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
/s/ Xxxxx Xxxxxxxxx
----------------------------
Xxxxx Xxxxxxxxx
00000 Xxxx Xxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
XXXXX FAMILY TRUST
By: /s/ W. Xxxxx Xxxxx, Trustee
--------------------------
Name: W. Xxxxx Xxxxx
Title: Trustee
Address: 0000 Xxxxx Xxxxx
Xxx Xxx, XX 00000
XXXXX CHILDRENS TRUST OF 1993
By: /s/ Xxxxx X Xxxxxx III
---------------------------
Name: Xxxxx X. Xxxxxx III
Title: Trustee
Address: 0000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
