EXHIIT 10.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made
and entered into as of April , 1998, by and
between nSTOR TECHNOLOGIES, INC., a Delaware
corporation, CPR (USA) INC., a Delaware corporation,
LIBERTYVIEW PLUS FUND, a Bermuda corporation,
LIBERTYVIEW FUND, LLC, a Delaware limited liability
company, and H. XXXXX XXXX, an individual resident of
the state of Florida ("Levy") (collectively referred to
as the
"Investors") and HOLLAND & KNIGHT LLP, a Florida
limited liability partnership (the "Escrow Agent").
R E C I T A L S:
WHEREAS, The Investors have subscribed for 3.5
million dollars of convertible preferred stock (the
"Preferred Stock") pursuant to that certain
eight percent (8%) Convertible Preferred Stock Series A
Subscription Agreement dated April 14, 1998 (the
"Subscription Agreement");
WHEREAS, In order to convert the Preferred Stock
into shares of Common Stock of the Company as provided
under the Subscription Agreement, it is necessary for
the shareholders of the Company, at the next annual
meeting of the Company, to approve an increase the
number of authorized shares from 24,000,000 to
40,000,000, and to approve the issuance of more than
twenty percent (20%) of the Company's Common Stock at
below market prices as required by Rule 713(a) of the
American Stock Exchange; and
WHEREAS, in the event the shareholders fail to
approve the increase in authorized stock or fail to
approve the sale of twenty percent (20%) of the
Company's Common Stock at below market price, or there
is no shareholders meeting 90 days from the date
hereof, the Investors shall have the option of
requiring the Company to redeem $1 million of Preferred
Stock initially purchased by the Investors upon the
terms and conditions provided herein.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties,
each intending to be legally bound, hereby agree as
follows:
4. Recitals. The recitals stated above are true and
correct and are hereby incorporated by reference
herein.
5. Appointment. The Company hereby appoints the
Escrow Agent and the Escrow Agent hereby accepts
appointment as the Escrow Agent under the terms and
subject to the conditions of this Agreement.
6. Term. The term (the "Term") of this Agreement
commences on the date of its execution and continues
until the earlier of: (a) the business day after the
Corporation has concluded its next annual meeting or
(b) the close of business on such date ninety (90) days
from the date hereof.
7. Deposit of Escrow Funds. Corporation shall
deposit with the Escrow Agent an amount of $1,000,000
which shall be the purchase price for the number of
shares of Preferred Stock to be purchased by H. Xxxxx
Xxxx pursuant to the Subscription Agreement (the
"Escrow Funds"). The Escrow Agent shall promptly
deposit the Escrow Funds in an interest bearing account
insured by the Federal Deposit Insurance Corporation
(the "Escrow Account") in accordance with the terms and
subject to the conditions set forth herein.
Disbursements. The Escrow Agent shall disburse the
Escrow Funds as follows:
In the event an annual or special meeting of the
shareholders of the Corporation ("Meeting") is held
within 90 days of the date hereof, and Escrow Agent
receives a copy of the minutes of the Meeting, signed
by the Secretary of the Corporation, indicating that
the shareholders of the Corporation approved (i) an
amendment to the Articles of Incorporation of the
Company to increase the Company's authorized Common
Stock from 24 million to 40 million shares, and (ii)
the issuance of over twenty percent (20%) of the
Company's outstanding Common Stock at below market
price, as required by American Stock Exchange Rule
713(a), then the Escrow Funds shall be immediately
disbursed to the Company and this Escrow Agreement
shall terminate.
5.2 In the event no Meeting is held within 90 days
of the date hereof, or in the event such Meeting is
held and the Escrow Agent receives a copy of the
minutes of the Meeting, signed by the Secretary of the
Corporation, indicating that the shareholders of the
Corporation did not approve either (i) an amendment to
the Articles of Incorporation of the Company to
increase the Company's authorized Common Stock from 24
million to 40 million shares, or (ii) the issuance of
over twenty percent (20%) of the Company's outstanding
Common Stock at below market price, as required by
American Stock Exchange Rule 713(a), then Investors
shall have the option, any time within 30 days after
the Meeting, to redeem such of the Series A Preferred
Stock purchased by the Investors in accordance with the
Subscription Agreement. The Investors shall exercise
their option by providing the Company with (i) written
notice of their intent to exercise their options to
require the Company to redeem such shares at the
redemption price set forth in Section 10.1 of the
Subscription Agreement, and (ii) upon original share
certificate representing such shares to be redeemed.
Upon receipt, Escrow Agent shall release the Escrow
Funds, including any interest thereon, to the Investors
in full redemption of the Series A Preferred Stock, and
Escrow Agent shall return such stock certificates to
the Company.
Escrow Agent.
Duties. The Escrow Agent shall be required to act in
respect of the Escrow Funds only as specifically
provided hereunder. This Agreement sets forth all of
the duties and obligations of the Escrow Agent with
respect to any and all matters relating to the Escrow
Funds as contemplated hereunder, and no additional
obligations of the Escrow Agent shall be implied from
the terms of this Agreement or any other agreements.
Resolution of Doubt. If the Escrow Agent is in doubt
as to its duties and liabilities under this Agreement,
then the Escrow Agent may continue to hold the Escrow
Funds until all parties concerned mutually agree to the
release thereof, or until a judgment of a court of
competent jurisdiction determines the rights of the
parties hereto, or may deposit all monies then held
under this Agreement with a court of competent
jurisdiction having jurisdiction over the dispute.
Reliance on Documents. The Escrow Agent may act in
good faith reasonable reliance upon (a) any document,
instrument or signature, including any statement or
assertion made in any such document or instrument and
(b) any notice or instructions that the Escrow Agent
reasonably believes to be authorized under this
Agreement. In the event that the Escrow Agent acts in
good faith reasonable reliance upon any document,
instrument, signature, statement or assertion made in
any such document or instrument, or any notice or
instructions that it reasonably believes to be
authorized under this Agreement, the Escrow Agent shall
not be liable for the sufficiency, accuracy or
authenticity of such document or instrument and its
duties shall be limited to those set forth in this
Agreement.
Resignation. The Escrow Agent and any successor escrow
agent may resign at any time upon giving the Company
forty-five (45) days' prior written notice. After the
expiration of such notice period, the Escrow Agent
shall deliver the Escrow Funds and any and all
documents relating thereto then in its possession to a
successor escrow agent which shall be selected by the
Company. Such resignation shall not be effective until
a successor escrow agent agrees to act hereunder;
provided, however, that if no successor is appointed
and acting hereunder within this forty-five day period,
the Escrow Agent may deliver the Escrow Funds to a
court of competent jurisdiction.
Fees and Expenses. The Escrow Agent shall receive no
fees of any kind for its service hereunder, and the
Company shall not be obligated to pay or reimburse any
expenses incurred by the Escrow Agent in connection
with its service hereunder.
No Warranties. The Escrow Agent shall not be liable in
any manner for the sufficiency or correctness as to
form, manner and execution, or validity of any
instrument deposited with the Escrow Agent, nor as to
the identity, authority, or right of any person
executing the same.
Delivery of Instruments or Documents. The Escrow Agent
shall, if requested by the Company, issue written
notices acknowledging receipt of the Escrow Funds.
Notices. All notices, requests, demands, waivers and
other communications hereunder shall be in writing and
shall be deemed to have been duly given if hand
delivered or sent by recognized overnight delivery
service to the parties at the following addresses:
The Company: nStor Technologies, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx
The Escrow Agent: Holland & Knight LLP
Xxx Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement, the
prevailing party shall be entitled to recover
reasonable attorneys' fees, including attorneys' fees
for any appeal and costs incurred in bringing such
action or proceeding, in addition to any other
available remedy. Such party shall be deemed to have
been successful if such action or claim is concluded
pursuant to (a) a court order or final judgment which
is not subject to appeal, (b) a settlement agreement or
(c) a dismissal of the principal claims.
Entire Agreement; Amendment. This Agreement and the
other agreements contemplated herein constitute the
entire agreement among the parties hereto regarding the
subject matter hereof, and supersede all prior
agreements, understandings and arrangements, expressed
or implied, both oral and written, among the parties
hereto with respect to the subject matters hereof.
This Agreement may only be amended or modified by a
written amendment signed by both of the parties hereto.
Governing Law; Venue. The Agreement shall be
construed, governed and enforced in accordance with the
laws of the State of Florida without regard to its
principles of conflicts of laws. Any action or
proceeding which is brought by any party hereto for any
dispute, claim, disagreement or controversy arising directly or
indirectly out of or in connection with this Agreement
shall be brought in the state or federal courts in
Broward County, Florida. The parties hereto covenant
and agree that they will not challenge the selection of
such venue in any such action or proceeding for any
reason, including, without limitation, on the grounds
that such venue is an inconvenient forum.
Successors; Permitted Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties
hereto and their respective heirs, personal
representatives, successors and permitted assigns.
Severability. The provisions of this Agreement are
severable, and the invalidity of any provision shall
not affect the validity of any other provision. If any
court of competent jurisdiction determines that any
provision of this Agreement or the application thereof
is unenforceable because of the duration or scope
thereof, the parties hereto acknowledge and agree that
such court shall have the power to reduce the duration
and scope of such provision to the extent necessary to
make it enforceable and that this Agreement in its
reduced form shall be valid and enforceable to the full
extent permitted by applicable law.
No Waiver. No waivers of any of the terms and
conditions hereof extended by any party hereto to any
party shall be construed as a waiver of any breach on
the part of such other party, nor shall any waiver by
any party hereto of any of the terms and conditions
hereof be construed as a general or continuing waiver
by such party.
Captions. The captions of this Agreement are for
convenience and reference only and in no way define,
describe, extend or limit the scope or intent of this
Agreement or the intent of any provision hereof.
Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an
original and both of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Escrow Agreement as of the date first
above written.
nSTOR TECHNOLOGIES, INC.
/s/ H. Xxxxx Xxxx /s/ Xxxx X. Xxxx
_________________________ By:_______________________
X. XXXXX XXXX Xxxx X. Xxxx, President
LIBERTVIEW FUND, LLC HOLLAND & KNIGHT LLP
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxx
By: ____________________ By:_______________________
Xxxxxx X. Xxxxxx Xxxx Xxxxxx
Name:___________________ Name:_____________________
Authorized Signatory
Its: ___________________
LIBERTYVIEW PLUS FUND CPR (USA) INC.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
By:_____________________ By:_____________________
Xxxxxx X. Xxxxxx Xxxxxx X.Xxxxxx
Name:___________________ Name:___________________
Authorized Signatory Chief Administrative Officer
Its: ___________________ Its:____________________
EXHIBIT 10.2
AGREEMENT AMONG OPTIONHOLDERS
THIS AGREEMENT AMONG OPTIONHOLDERS (this
"Agreement") is made and entered into as of this day of April, 1998,
by and among the undersigned holders of options to purchase shares in
nStor Technologies, Inc. (the "Corporation").
WHEREAS, the Directors of the Corporation have determined that
there is an immediate need to raise additional working capital for the
Corporation, and that it is in the best interest of the Corporation to raise
such additional capital through a private placement of convertible
preferred stock (the "Private Placement");
WHEREAS, prior to issuing such Private Placement it is necessary
for the Corporation to have sufficient authorized Common Stock available
for conversion of the Private Placement shares;
WHEREAS, there are currently options outstanding to the
undersigned for the purchase of Common Stock of the Corporation in an
amount which would cause there to be insufficient shares of Common
Stock to be issued pursuant to conversion of the Private Placement shares;
WHEREAS, the undersigned constitute substantially all of the
holders of currently vested options to purchase shares of Common Stock
in the Corporation;
NOW THEREFORE, in consideration of the above, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, hereby agree as follows:
1. Agreement Not to Exercise Options for a Limited Period of Time:
In consideration of the need to raise additional capital through the issuance
of preferred shares that are convertible into Common Stock of the
Corporation in connection with the Private Placement, the undersigned
holders of all of the outstanding options to purchase shares of Common
Stock of the Corporation, hereby agree not to take any action to exercise
their options, in whole or in part, until such time as the Corporation has
amended its Articles of Incorporation to provide for additional shares of
authorized but unissued Common Stock of the Corporation in an amount
sufficient to cover (i) the conversion of any amount of convertible
preferred stock issued pursuant to the Private Placement, and (ii) any
amount of Common Stock issued pursuant to all outstanding options.
2. Action to Amend the Articles of Incorporation: The undersigned
hereby further agree to take all necessary action to cause the Corporation
to prepare and file all papers required to amend the Articles of
Incorporation of the Corporation to increase the number of authorized
shares of Common Stock at the next Annual Meeting of the Shareholders
and Directors of the Corporation.
IN WITNESS WHEREOF, the undersigned parties have duly
executed this Agreement as of the date first written above.
nSTOR TECHNOLOGIES, INC.
/s/ Xxxx X. Xxxx
By: ___________________________________
Xxxx X. Xxxx, President
Option
Optionholder Name: Shares
/s/ Xxxx X. Xxxx 130,000
________________________________
Xxxx X. Xxxx, Director
/s/ H. Xxxxx Xxxx 100,000
________________________________
H. Xxxxx Xxxx, Director
/s/ R. Xxxxxx Xxxxx 1,000,000
________________________________
R. Xxxxxx Xxxxx, Director
/s/ Xxxxxxx X. Xxxx 200,000
________________________________
Xxxxxxx X. Xxxx, Director
/s/ Xxxxxx X. Xxxxxxxx 100,000
________________________________
Xxxxxx X. Xxxxxxxx, Director
/s/ Xxxxxxx Xxxxx 20,000
________________________________
Xxxxxxx Xxxxx, Director
/s/ Xxxxxxx Xxxxx 20,000
________________________________
Xxxxxxx Xxxxx, Director
EXHIBIT 10.3
AGREEMENT AMONG STOCKHOLDERS
THIS AGREEMENT AMONG STOCKHOLDERS (this
"Agreement") is made as of the day of April, 1998, by and among
the undersigned Stockholders who collectively own more than 50% of the
issued and outstanding Common Stock of nSTOR TECHNOLOGIES,
INC., a Delaware corporation ("Corporation").
WHEREAS, the Directors of the Corporation have determined that
there is an immediate need to raise additional working capital for the
Corporation, and that it is in the best interest of the Corporation to raise
such additional capital through a private placement of convertible
preferred stock (the "Private Placement");
WHEREAS, prior to issuing such Private Placement it is necessary
(i) for the Shareholders to approve the issuance of any preferred stock that
may be convertible into Common Stock equal to 20% or more of the
current issued and outstanding Common Stock, as required by the
American Stock Exchange Company Guide ("ASECG") Section 713(a);
and (ii) for the Corporation to amend its Articles of Incorporation to
increase the number of authorized shares of Common Stock from
24,000,000 shares to 40,000,000 shares in order to have sufficient
authorized Common Stock available for conversion of the Private
Placement shares; and
WHEREAS, the approval of the sale of stock under ASECG
Section 713(a), and the amendment of the Corporation's Articles of
Incorporation requires the approval of the holders of a majority of the
issued and outstanding Common Stock of the Corporation at a meeting
duly called and held for such purpose, or the written consent of a majority
of the Stockholders in lieu of such meeting.
NOW THEREFORE, in consideration of the above, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, constituting the holder's of a majority of
the issued and outstanding Common Stock of the Corporation, hereby
agree as follows:
1. Agreement to Approve Amendment to Articles of Incorporation
and Sale of Stock: At the next Annual Meeting of the Stockholders of the
Corporation, which shall be held no later than 60 days from the date
hereof, the undersigned Stockholders agree to vote their shares, in person,
or by proxy, to approve (i) the issuance of preferred stock convertible into
Common Stock equal to 20% or more of the current issued and
outstanding Common Stock, in accordance with ASECG Section 713(a);
and (ii) an amendment to the Articles of Incorporation of the Corporation
to increase the number of authorized shares of Common Stock from
24,000,000 to 40,000,000 shares, effective upon the date of filing of such
amendment.
2. All Other Actions: The undersigned hereby further agree to
authorize the officers of the Corporation, or any of them, to take all other
actions, and to incur such costs as may be necessary to prepare and file all
papers required to amend the Articles of Incorporation of the Corporation
to increase the number of authorized shares of Common Stock as
described above.
IN WITNESS WHEREOF, the undersigned parties have duly executed
this Agreement as of the date first written above.
Shares Shares
Stockholder Name: Owned Stockholder Name: Owned
Xxxx Xxxxxxxx 600,000
Xxxx X. Xxxx 612,500
H. Xxxxx Xxxx 3,163,767
Xxxxxxx X. Xxxxx 250,000
Xxxx X. Xxxx,
President of
Xxxxxx & Xxxxx
Xxxx Trust 20,000
Xxxxxx X. Xxxxxxxx 750,000
Xxxxxxx Xxxxx, Xx. 50,000
R. Xxxxxx Xxxxx 1,005,000
Xxxxxx Xxxxx 91,000
Xxxxxx Xxxxx as
Custodian 90,300
Xxxxxx Xxxxx 575,660
Xxxxxx Xxxxx as
Trusteee 175,560
Xxxxxxx Xxxxx 90,000
Xxxxxxxx Xxxxx 83,000
Xxxxxxxx Xxxx 97,000
Xxxxxxx X. Xxxx 311,400
Xxxxx Xxxx 504,902
Xxxxxx Xxxx 72,500
Xxxxxx Xxxx 125,500
Xxxx & Xxxx Xxxxxxxxxx 350,425
Xxxxxx Xxxxxx 425,017
Xxxxxx Xxxxxxx 79,000
