SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
Under THE SECURITIES ACT OF 1933
_______________
nSTOR TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2094565
(State of incorporation) (I.R.S. Employer I.D. #)
100 Century Blvd., West Palm Beach, FL 33417 - (561) 640-3103
(Address and telephone number of registrant's
principal executive offices)
nSTOR TECHNOLOGIES, INC. 1996 STOCK OPTION PLAN
(Full title of plan)
Mark F. Levy
100 Century Blvd., West Palm Beach, FL 33417 - (561) 640-3103
(Agent's name and telephone number)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Offering Registration
to be Registered Registered (1) Per Share Price (2) Fee
- ------------------- -------------- --------- --------- ------------
Common Stock, par
value $.05 per share 2,500,000 $2.12 $5,300,000 $1,606
__________
(1) This Registration Statement also covers any additional shares that may
hereafter become purchasable as a result of the adjustment provisions of
the Plan.
(2) Estimated solely for the purpose of calculating the registration fee based
upon the average of the high and low prices reported on the consolidated
reporting system for the American Stock Exchange on September 8, 1997, of
$2.12.
<PAGE>
EXPLANATORY NOTE
The first part of this Registration Statement has been
prepared in accordance with the requirements of Form S-8 and is
intended to be used to register shares to be issued and sold
pursuant to the nStor Technologies, Inc. 1996 Stock Option Plan
(the "Plan"). The Reoffer Prospectus filed as part of this
Registration Statement has been prepared in accordance with the
requirements of Form S-3 and may be used for reofferings or
resales of common stock previously acquired or to be acquired by
the participants in the Plan who are deemed control persons of
the Company.
REOFFER PROSPECTUS
nSTOR TECHNOLOGIES, INC.
1,465,000 SHARES
COMMON STOCK
PAR VALUE $.05 PER SHARE
______________________________
The shares of common stock, $.05 par value (the "Common
Stock"), of nStor Technologies, Inc. (the "Company") offered
hereby (the "Shares") are being sold by certain executive officers
and directors of the Company (the "Selling Stockholders"). The
Shares have been or may be acquired by the Selling Stockholders
from time to time from the Company upon the exercise of options to
purchase such Shares granted to the Selling Stockholders by the
Company pursuant to the Company's 1996 Stock Option Plan (the
"Plan"). Options to purchase 1,465,000 Shares authorized pursuant
to the Plan are currently held by the Selling Stockholders. See
"Selling Stockholders."
All expenses of registration incurred in connection with this
offering are being borne by the Company, but all brokerage
commissions, discounts and other expenses incurred by individual
Selling Stockholders will be borne by the individual Selling
Stockholder. The Company will not be entitled to any of the
proceeds from such sales, although the Company is entitled to
receive the exercise price of the options under which the shares of
Common Stock are acquired by the Selling Stockholders.
The shares of Common Stock are quoted on the American Stock
Exchange under the symbol "NSO". On September 8, 1997, the last
reported sales price of the Common Stock on the American Stock
Exchange was $2.12 per share.
INVESTORS SHOULD CAREFULLY CONSIDER CERTAIN SPECIAL FACTORS
RELATING TO THE COMPANY. SEE "RISK FACTORS" BEGINNING ON PAGE 4.
THESE SECURITIES HAVE NOT BEEN APPROVED
OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION NOR HAS THE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE
___________________________________________________
No person has been authorized to give any information or to
make any representations, other than those in this Prospectus, in
connection with the offer contained in this Prospectus, and, if
given or made, such information or representations must not be
relied upon as having been authorized by the Company. This
Prospectus does not constitute an offer to sell or the solicitation
of an offer to buy any of the securities offered hereby in any
state to or from any person to whom it is unlawful to make or
solicit such offer in such state. Neither the delivery of this
Prospectus nor any sales made hereunder shall under any
circumstances create any implication that there has been no change
in the information herein since the date hereof.
The date of this Prospectus is September 12, 1997
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). All
reports, proxy statements and other information filed by the
Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and at the regional offices
of the Commission located at 7 World Trade Center, Suite 1300, New
York, New York 10048, and the Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained by mail at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549. The Commission
maintains a web site that contains reports, proxy and information
statements, and other information regarding registrants that file
electronically with the Commission with a web site address of
http://www.sec.gov. All reports, proxy statements and other
information filed by the Company with the Commission will also be
filed with the American Stock Exchange and should be available for
inspection at its facility at 86 Trinity Place, New York, New York
10006.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE;
ADDITIONAL INFORMATION
The following documents filed with the Securities and Exchange
Commission by the Company are incorporated herein by reference:
I. The Company's Annual Report filed on Form 10-K for the
fiscal year ended October 31, 1996;
(1) The Company's Transition Report on Form 10-Q filed for
the period ending December 31, 1996 and the Company's Quarterly
Report on Form 10-Q filed for the period ending March 31, 1997 and
June 30, 1997.
(2) The Company's reports on Form 8-K filed with the
Commission on November 15, 1996, December 9, 1996, January 13,
1997, March 14, 1997, and April 18, 1997.
(3) All documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that
all remaining securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this prospectus and to be part
thereof from the date of filing of such documents.
(4) The description of the Company's Common Stock contained
in the Company's Registration Statement filed on Form 8-A, as filed
with the Commission on April 16, 1997, pursuant to Section 12(b) of
the Securities Exchange Act of 1934.
Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference
herein modifies or replaces such statement. Any statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
The Company undertakes to provide without charge to each
person, including any beneficial owner, to whom this prospectus is
delivered, upon written or oral request of such person, a copy of
any and all information that has been incorporated by reference in
this prospectus (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically
incorporated by reference into the information that this prospectus
incorporates). Such request should be directed to the President,
nStor Technologies, Inc., 100 Century Boulevard, West Palm Beach,
Florida 33417, telephone number (561) 640-3103.
<PAGE>
FORWARD LOOKING STATEMENTS
From time to time, information provided by the Company or
statements made by its directors, officers or employees may
constitute "forward-looking" statements under the Private
Securities Litigation Reform Act of 1995 and are subject to
numerous risks and uncertainties. Any statements made in this
Registration Statement, including any statements incorporated
herein by reference (see "Incorporation of Certain Information by
Reference"), that are not statements of historical fact are
forward-looking statements (including, but not limited to,
statements concerning the characteristics and growth of the
Company's market and customers, the Company's objectives and plans
for future operations and products and the Company's expected
liquidity and capital resources). Such forward-looking statements
and other forward-looking statements made by the Company or its
representatives are based on a number of assumptions and involve a
number of risks and uncertainties, and, accordingly, actual results
could differ materially. Factors that may cause such differences
include, but are not limited to: the continued and future
acceptance of the Company's products; the rate of growth in the
industries to which the Company markets its products; the presence
of competitors with greater technical, marketing and financial
resources; the Company's ability to promptly and effectively
respond to technological change to meet evolving customer needs;
capacity and supply constraints or difficulties; and the Company's
ability to successfully expand its operations. For a further
discussion of these and other significant factors to consider in
connection with forward-looking statements, reference is made to
the discussion in this Registration Statement under the heading
"Risk Factors."
THE COMPANY
Since 1996 nStor Technologies, Inc. (the "Company") has been
developing, manufacturing, and marketing a full range of
multi-platform storage solutions including advanced external RAID
(Redundant Array of Independent Disks) subsystems (the "RAID
Business"), tape backup systems, UNIX-based memory products,
digital media management products and enterprise resource planning
software. The Company was incorporated as a Delaware corporation
in 1959.
In October 1992, the Company exchanged substantially all of
the operating assets of its previous business for securities issued
by IMNET Systems, Inc. ("IMNET"). In 1996, the Company sold its
IMNET securities and in June 1996, through its wholly owned
subsidiary, nStor Corporation, Inc. ("nStor"), acquired the RAID
Business. In December 1996, nStor acquired substantially all of
the assets and assumed certain liabilities of Parity Systems, Inc.
("Parity"). The assets acquired from Parity are used in the
<PAGE>
design, manufacture and sale of computer storage subsystems, memory
devices and peripheral equipment, and the integration of storage
management solutions, digital index management, and client/server
systems for RISC-based UNIX and Windows NT server environments.
(UNIX and Windows NT are computer operating systems.)
On August 31, 1997, the Company had 105 full time employees.
nStor's operations are primarily conducted at a facility located in
Lake Mary, Florida (in the Orlando area). The Company's executive
offices are located at 100 Century Boulevard, West Palm Beach,
Florida 33417, its telephone number is (561) 640-3103, and its
internet address is http://www.nstor.com.
RISK FACTORS
In addition to the other information in this Prospectus or
incorporated herein by reference, the following risk factors should
be considered carefully in evaluating the Company and its business
before purchasing the shares offered in this Prospectus.
New Products and Technological Changes
The markets for the Company's products are characterized by
rapidly changing technology, evolving industry standards and
relatively short product life cycles. The Company's ability to
compete successfully will depend on its ability to enhance its
existing products and introduce new products on a timely and
cost-effective basis. There can be no assurance that the Company
will be successful in introducing such new products or
enhancements. Delays in product enhancements and developments or
the failure of the Company's new products or enhancements to gain
market acceptance would have an adverse effect on the Company's
business and operating results. In addition, there can be no
assurance that new products or technologies developed by others, or
the emergence of new industry standards, will not render the
Company's products or technologies noncompetitive or obsolete.
Despite testing, new products may be affected by quality,
reliability or interoperability problems, which could result in
returns, delays in collecting accounts receivable, unexpected
service or warranty expenses, reduced orders or a decline in the
Company's competitive position.
Competition
The market for the Company's products is highly competitive.
The Company's competitors may offer systems at lower prices than
those offered by the Company and the Company must compete on the
basis of product performance in specific applications. Many of
these competitors have greater financial, manufacturing and
marketing resources than those of the Company.
<PAGE>
The Company's ability to compete successfully depends upon its
ability to continue to develop high performance products that
obtain market acceptance and can be sold at competitive prices.
Although the Company believes that its products have certain
competitive advantages, there can be no assurance that the Company
will be able to compete successfully in the future or that other
companies may not develop products with better performance and thus
reduce the demand for the Company's products. As more companies
enter the markets in which the Company sells its products, the
Company may encounter increased price competition for such products
which could materially and adversely affect the Company's operating
results. The Company's original equipment manufacturer customers
and other manufacturers could develop their own disk arrays or
could integrate competitive RAID disk arrays into their systems
rather than the Company's products, which could materially and
adversely affect the Company's operating results.
Recent Acquisitions and Unproven Track Record
The Company has acquired all of its operating assets within
the last year. The success of the Company's recent business
combinations will depend in large part on the Company's ability to
consolidate its operations, integrate departments, systems and
procedures and obtain business efficiencies, economies of scale and
related cost savings. The significant management challenges
presented by such consolidation and integration may prevent the
desired cost savings. There can be no assurance that the Company
will be able to successfully consolidate its business operations or
achieve returns that would justify the Company's investment in its
acquired businesses.
Litigation
In June and August 1996, the Company, two of its directors and
nStor were served with two separate Complaints filed in the Supreme
Court of the State of New York, County of Nassau, in which the
plaintiffs claim to have had contractual and proprietary interests
in the prospect of a transaction to purchase certain net assets
acquired by nStor. The plaintiffs seek compensatory damages,
punitive damages, and equitable relief for alleged interference
with the plaintiffs' alleged rights and for alleged breach of
contract. Both cases are in the preliminary stages. Counsel for
the Company believes that the Company has good defenses to both
claims and that it will not incur any material liability. The
Company is unaware of any facts that would support any of the
plaintiff's claims and, accordingly, the Company believes that the
claims are without merit. An unfavorable outcome in such
litigation could have an adverse effect on the Company.
<PAGE>
Customers
The Company has no long-term purchase commitments from its
customers and customers generally may cancel their orders on 30
days' notice. Accordingly, there can be no assurance that orders
from existing customers, including the Company's principal
customers, will continue at their historical levels, or that the
Company will be able to obtain orders from new customers. In
addition, there can be no assurance that existing customers,
including the Company's principal customers, will not develop their
own storage solutions internally and as a result reduce or
eliminate purchases from the Company. Loss of one or more of the
Company's principal customers, or cancellation or rescheduling of
material orders already placed, could materially and adversely
affect the Company's operating results.
Risks Related to Patents and Proprietary Technology
The Company does not presently hold any patents applicable to
its products and relies on a combination of trade secret, copyright
and trademark laws and employee and third-party nondisclosure
agreements to protect its intellectual property rights. There can
be no assurance that the steps taken by the Company to protect its
rights will be adequate to prevent misappropriation of the
Company's technology or to preclude competitors from developing
products with features similar to the Company's products.
Furthermore, there can be no assurance that, in the future, third
parties will not assert infringement claims against the Company or
with respect to its products for which the Company has
indemnification obligations to certain of its customers. Asserting
the Company's rights or defending against third-party claims could
involve substantial expense, which the Company may not be able to
afford and which could have a material adverse effect on the
Company's operating results. In the event a third party were
successful in a claim that one of the Company's products infringed
the third party's proprietary rights, the Company may have to pay
substantial damages or royalties, remove that product from the
marketplace or expend substantial amounts in order to modify the
product so that it no longer infringes such proprietary rights, any
of which could have a material adverse effect on the Company's
operating results.
Dependence on Suppliers
The Company depends heavily on its suppliers to provide high
quality materials on a timely basis and at reasonable prices.
Although many of the components for the Company's products are
available from numerous sources at competitive prices, certain of
the components used in the Company's products are presently
available to the Company from a limited number of suppliers or from
a single supplier. Furthermore, because of increased industry
<PAGE>
demand for many of those components, their manufacturers may, from
time to time, not be able to make delivery on orders on a timely
basis. In addition, manufacturers of components on which the
Company relies may choose, for numerous reasons, not to continue to
make those components, or the next generation of those components,
available to the Company.
The Company has no long-term supply contracts. There can be
no assurance that the Company will be able to obtain, on a timely
basis, all of the components it requires. If the Company cannot
obtain essential components as required, the Company could be
unable to meet demand for its products, thereby materially
adversely affecting its operating results and allowing competitors
to gain market share. In addition, scarcity of such components
could result in cost increases and adversely affect the Company's
operating results.
Dependence on Key Personnel
The Company's success depends to a significant degree upon the
continued contributions of key personnel, many of whom would be
difficult to replace and are not subject to employment or
noncompetition agreements. If certain key employees were to leave
the Company, the Company's operating results could be materially
adversely affected. The Company believes its future success will
also depend, in large part, upon its ability to hire and retain
highly skilled engineering, managerial, sales and marketing
personnel. Competition for such personnel is intense, and there
can be no assurance that the Company will be successful in
attracting and retaining such personnel.
Possible Volatility of Stock Price
The Company's Common Stock has experienced in the past, and
could experience in the future, substantial price volatility as a
result of a number of factors, including quarter to quarter
variations in the actual or anticipated financial results of the
Company, announcements by the Company, its competitors or its
customers, government regulations, and developments in the
industry. In addition, the stock market has experienced extreme
price and volume fluctuations which have affected the market price
of many technology companies in particular and which have at times
been unrelated to the operating performance of the specific
companies whose stock is traded. Broad market fluctuations and
general economic conditions may adversely affect the market price
of the Company's Common Stock.
Potential Fluctuations in Quarterly Results
The Company's quarterly operating results may vary, depending
upon factors such as the timing of large orders and new product
announcements. The Company's expense levels are based, in part, on
<PAGE>
its expectations as to future revenue. If revenue levels are below
expectations, operating results are likely to be adversely
affected. In addition, the Company's operating results may
fluctuate as a result of increased competition, delays in new
product introduction and market acceptance of its new products.
Sustaining and Managing Growth
The Company is currently undergoing a period of rapid growth
and there can be no assurance that such growth can be sustained or
managed successfully. This growth has resulted in, and is expected
to continue to create, the need for additional capacity, new and
increased responsibilities for management personnel, and added
pressures on the Company's operating and financial systems. The
Company's ability to manage future growth effectively and
accomplish its overall goals will depend on its ability to hire and
retain qualified management, sales and technical personnel.
Competition for such personnel in the Company's industry is high.
The Company has commenced a number of programs in response to its
growth, including the expansion of its manufacturing space and the
upgrading of its internal computer systems. If the Company is
unable to manage growth effectively or hire and retain qualified
personnel, the Company's business and operating results could be
materially and adversely affected.
Future Capital Needs; Uncertainty of Additional Funding
The Company has expended and will continue to be required to
expend substantial funds to continue research and development, and
for other aspects of its business. Although the Company believes
that it has or has access to funds sufficient to fund the
operations of the Company for at least the next twelve months, the
Company may need or elect to raise additional capital. The
Company's capital requirements will depend on many factors,
including the problems, delays, expenses and complications
frequently encountered by technology companies; the progress of
the Company's research, development and product testing programs;
the success of the Company's sales and marketing programs; costs in
filing, prosecuting, defending and enforcing intellectual property
rights; the extent and terms of any collaborative research,
manufacturing, marketing or other arrangements; and changes in
economic, regulatory or competitive conditions or the Company's
planned business. Estimates about the adequacy of funding for the
Company's activities are based on certain assumptions, including
the assumption that research, development and testing relating to
the Company's products under development can be conducted at
projected costs and within projected time frames and are
successfully marketed.
To satisfy its capital requirements, the Company may seek to
raise funds in the public or private capital markets. The
Company's ability to raise additional funds in the public or
<PAGE>
private markets will be adversely affected if the results of the
Company's ongoing or future research and development programs are
not favorable. The Company may seek additional funding through
corporate collaborations and other financing vehicles. There can
be no assurance that any such funding will be available to the
Company, or if available, that it will be available on acceptable
terms. If adequate funds are not available, the Company may be
required to curtail its operations significantly, or it may be
required to obtain funds through arrangements with future
collaborative partners or others that may require the Company to
relinquish rights to some or all of its technologies or products
under development. If the Company is successful in obtaining
additional financing, the terms of the financing may have the
effect of diluting or adversely affecting the holdings or the
rights of the holders of Common Stock.
Future Acquisitions
The Company may pursue acquisitions of complementary
technologies, product lines or businesses. Future acquisitions by
the Company could result in dilutive issuances of equity securities
and the incurrence of additional debt and amortization expenses
related to goodwill and intangible assets that could adversely
affect the Company's operating results. In addition, gross margins
of acquired products, necessary product or technology development
expenditures and other factors that may be involved in any such
acquired business could result in dilution to the Company's
earnings. Acquisitions also may involve numerous other risks,
including difficulties in the assimilation of the operations and
products of the acquired business, dependence on new products and
processes, the diversion of management's attention from other
business concerns, risks of entering markets in which the Company
has no or limited direct prior experience, the potential loss of
key employees of the acquired business and difficulties in
attracting additional key employees necessary to absorb added
management responsibilities. Although there are currently no
agreements with respect to any acquisition, no assurance can be
given as to the effect of any future acquisition on the Company's
business or operating results.
Anti-Takeover Provisions
The Company's Certificate of Incorporation authorizes the
issuance of 1,000,000 shares of Preferred Stock. The Company's
Board of Directors has the power to issue any or all of the shares
of Preferred Stock, including the authority to establish one or
more classes or series and to fix the powers, preferences, rights
and limitations of such class or series, without seeking
shareholder approval. Furthermore, as a Delaware corporation, the
Company is subject to Section 203 of the Delaware General
Corporation Law regarding "business combinations." This statutory
provision and the power to issue Preferred Stock may, in certain
<PAGE>
circumstances, deter or discourage takeover attempts and other
changes in control of the Company not approved by management and
the Board of Directors. As a result, the Company's shareholders
may lose opportunities to dispose of their shares at the higher
prices generally available in takeover attempts or that may be
available under a merger proposal. In addition, the statutory
provision and the existence of Preferred Stock may have the effect
of permitting the Company's current management to retain its
position and place it in a better position to resist changes that
shareholders may wish to make if they are dissatisfied with the
conduct of the business.
SELLING STOCKHOLDERS
The following table lists the names of the Selling
Stockholders, the number of shares of the Common Stock beneficially
owned by each of them (including shares subject to options
exercisable within 60 days) as of August 31, 1997, and the number
of shares each Selling Stockholder will be eligible to sell
pursuant to this Prospectus upon the exercise of options granted to
them under the Plan, and the number and the percent of shares of
Common Stock to be held by such Selling Stockholder after the
offering. As of August 31, 1997, the Company had 18,670,477 shares
of Common Stock issued and outstanding.
<TABLE>
Amount to be Held
Number of After Offering
Number of Shares ------------------
Shares Covered % of
Beneficially By This Number Common
Selling Stockholder Owned (1) Prospectus of Shares Stock
- ------------------- ------------ ---------- --------- ------
<S> <C> <C> <C> <C>
Jack Jaiven (2) 63,000 25,000 38,000 *
H. Irwin levy 3,243,767 80,000 3,163,767 16.87%
Mark Levy (3) 692,500 80,000 612,500 3.3%
R. Daniel Smith 1,000,000 1,000,000 1,000,000 5.1%
Joseph Weingard (4) 858,780 80,000 778,780 4.2%
Michael L. Wise (5) 1,041,312 160,000 881,312 4.7%
Bernard Green (6) 250,000 20,000 250,000 1.3%
Richard Reiss, Jr. 50,000 20,000 20,000 *
</TABLE>
____________
* Less than one percent (1%)
(1) Unless otherwise indicated, each stockholder listed has the sole power to
vote and direct disposition of the shares of Common Stock shown as
beneficially owned by such stockholder. For purposes of this table, a
person or group of persons is deemed to have "beneficial ownership" of
the following shares which such person or group has the right to acquire
pursuant to options exercisable within 60 days: Mr. Wise-160,000, owned
by Yadgim Partners, a general partnership, controlled by Mr. Wise's wife
and as to which Mr. Wise disclaims beneficial ownership; Mr. H. Irwin
Levy-80,000 shares; Mr. Weingard-80,000 shares; Mr. Mark F. Levy-80,000
shares; and Mr. Jaiven-25,000 shares. Shares covered by this Prospectus
<PAGE>
for the benefit of Messrs. Smith, Green and Reiss are not included in the
number of shares beneficially owned by such persons because the options
pursuant to which such shares may be acquired are not exercisable within
60 days.
(2) Includes 34,500 shares owned jointly with Mr. Jaiven's wife. Also includes
3,500 shares as to which Mr. Jaiven disclaims beneficial ownership, owned
by Mr. Jaiven's adult children.
(3) Includes 7,500 shares as to which Mr. Levy disclaims beneficial ownership,
owned by Mr. Levy as guardian for his children.
(4) Includes 582,002 shares owned jointly with Mr. Weingard's wife. Also
includes 3,000 shares as to which Mr. Weingard disclaims beneficial
ownership, owned by Mr. Weingard's wife.
(5) Includes 84,000 shares owned directly by Mr. Wise and 227,410 shares owned
by a retirement trust controlled by Mr. Wise. The balance, as to which
Mr. Wise disclaims beneficial ownership, consists of 389,502 shares owned
by Mr. Wise's wife, 130,000 shares owned by Mr. Wise's children and 50,400
shares owned jointly by Mr. Wise's wife and his mother.
(6) Includes 20,000 shares owned by Mr. Green's wife and 10,000 shares owned by
a trust in which Mr. Green's wife is a trustee. Mr. Green disclaims
beneficial ownership as to those shares.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of
Common Stock by the Selling Stockholders, although the Company is
entitled to receive the exercise price of the options under which
the Shares are acquired by the Selling Stockholders. The proceeds
received by the Company as a result of the exercise of the options
may be used for general corporate purposes.
PLAN OF DISTRIBUTION
The shares of Common Stock are being registered for reoffers
and resales by the Selling Stockholders for their own accounts.
Such shares of Common Stock may be sold from time to time by any of
the Selling Stockholders or by pledges, donees, transferees or
other successors in interest, directly to purchasers, in one or
more transactions (which may involve one or more block
transactions) on the American Stock Exchange, in sales occurring in
the public market outside of the American Stock Exchange in
separately negotiated transactions or in a combination of such
transactions, at market prices prevailing at the time of such sale,
at prices related to such prevailing prices or at prices otherwise
negotiated.
Certain of the Selling Stockholders may be limited in the
amount of shares of Common Stock which they may sell during any
three month period as a result of the volume limitations contained
in Rule 144 of the Securities Act. The amount of shares of Common
<PAGE>
Stock which may be sold by such Selling Stockholders within any
three month period may not exceed the greater of (i) one percent of
the shares of Common Stock of the Company outstanding as shown by
the most recent report filed by the Company; or (ii) the average
weekly reported volume of trading in shares of Common Stock on the
American Stock Exchange during the four calendar weeks preceding
the filing of the forms required under Rule 144 (or if no such
notice is required, the date of receipt of the order by a
broker-dealer to execute the transaction directly with a market
maker), or (iii) the average weekly volume of trading in the shares
of Common Stock reported through the consolidated transaction
reporting system under the Exchange Act during such four week
period.
The Selling Stockholders may effect such transactions by
selling the shares to or through broker-dealers and such
broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of the shares for whom such broker-dealers
may act as agent (which compensation may be less than or in excess
of customary commissions). The Selling Stockholders and any
broker-dealers that participate in the distribution of the shares
may be deemed "underwriters" within the meaning of Section 2(11) of
the Securities Act and any commissions received by them and any
profit on the resale of the shares sold by them may be deemed to be
underwriting discounts and commissions under the Securities Act.
Upon the Company being notified by a Selling Stockholder that
any material arrangement has been entered into with a broker-dealer
for the sale of shares of Common Stock through a block trade, a
special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, a supplemental prospectus will
be filed, if required, pursuant to Rule 424(c) of the Securities
Act, disclosing (i) the name of each such Selling Stockholder and
of the participating broker-dealer(s), (ii) the number of shares
involved, (iii) the price at which such shares were sold, (iv) the
commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s)
did not conduct any investigation to verify the information set out
or incorporated by reference in this Prospectus and (vi) other
facts material to the transaction.
There can be no assurances that any of the Selling
Stockholders will sell any or all of the shares of Common Stock
offered by them hereunder.
<PAGE>
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company, a Delaware corporation, has included in its
Certificate of Incorporation and Bylaws provisions to (i) eliminate
the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty, provided that such
provision does not eliminate liability for breaches of the duty of
loyalty, acts or omissions not in good faith or which involves
intentional misconduct or a knowing violation of law, violations
under Section 174 of the Delaware General Corporation Law or for
any transaction from which the director derived an improper
personal benefit and (ii) indemnify its directors and officers to
the fullest extent permitted by the Delaware corporation law. The
Company believes that these provisions are necessary to attract and
retain qualified persons as directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company, the Company has been informed that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable.
LEGAL MATTERS
The validity of the issuance of the shares being offered
hereby will be passed upon for the Company by Holland & Knight LLP,
One East Broward Boulevard, Ft. Lauderdale, Florida 33301.
EXPERTS
The financial statements incorporated by reference in this
Prospectus have been audited by BDO Seidman, LLP, independent
certified public accountants, to the extent and for the periods set
forth in their report incorporated herein by reference, and are
incorporated herein in reliance upon such report given upon the
authority of said firm as experts in auditing and accounting.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission by the Company are incorporated herein by reference:
(1) The Company's Annual Report filed on Form 10-K for the
fiscal year ended October 31, 1996;
(2) The Company's Transition Report on Form 10-Q filed for the
period ending December 31, 1996 and the Company's Quarterly Report
on Form 10-Q filed for the period ending March 31, 1997 and June
30, 1997.
(3) The Company's reports on Form 8-K filed with the Commission
on November 15, 1996, December 9, 1996, January 13, 1997, March 14,
1997, and April 18, 1997.
(4) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
remaining securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated by reference in this prospectus and to be part thereof
from the date of filing of such documents.
(5) The description of the Company's Common Stock, par value
$.05 per share, contained in the Company's Registration Statement
filed on Form 8-A, as filed with the Commission on April 16, 1997,
pursuant to Section 12(b) of the Securities Exchange Act of 1934.
Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference
herein modifies or replaces such statement. Any statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
The Company undertakes to provide without charge to each person,
including any beneficial owner, to whom this prospectus is
delivered, upon written or oral request of such person, a copy of
any and all information that has been incorporated by reference in
this prospectus (not including exhibits to the information that is
<PAGE>
incorporated by reference unless such exhibits are specifically
incorporated by reference into the information that this prospectus
incorporates). Such request should be directed to the President,
nStor Technologies, Inc., 100 Century Boulevard, West Palm Beach,
Florida 33417, telephone number (561) 640-3103.
Item 4. Description of Securities.
Not applicable; the class of securities to be offered is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company, a Delaware corporation, has included in its
Certificate of Incorporation and Bylaws provisions to (i) eliminate
the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty, provided that such
provision does not eliminate liability for breaches of the duty of
loyalty, acts or omissions not in good faith or which involves
intentional misconduct or a knowing violation of law, violations
under Section 174 of the Delaware General Corporation Law or for
any transaction from which the director derived an improper
personal benefit and (ii) indemnify its directors and officers to
the fullest extent permitted by the Delaware corporation law. The
Company believes that these provisions are necessary to attract and
retain qualified persons as directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company, the Company has been informed that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits filed as part of this Registration Statement are as
follows:
<PAGE>
Exhibit
Number Description
4.1 Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 of the Registrant's Form 10-K
for its fiscal year ended October 31, 1996.)
4.2 Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 of the Company's Form 10-K for its fiscal
year ended October 31, 1996).
4.3 nStor Technologies, Inc. 1996 Stock Option Plan
(incorporated by reference to Exhibit 10.8 of the
Company's Form 10-K for its fiscal year ended October 31,
1996).
5.1 Opinion of Holland & Knight LLP.
23.1 Consent of BDO Seidman, LLP
23.3 Consent of Holland & Knight LLP (included in opinion
filed as Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page to
this Registration Statement).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
A. (1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs
(a) (1) (i) and (1) (ii) do not apply if the information
<PAGE>
required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed or
furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act, and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred by a director, officer or
controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer of controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, nStor Technologies, Inc., certifies that it has
reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of West Palm Beach, State of Florida,
on the 10 day of September, 1997.
nSTOR TECHNOLOGIES, INC.
/s/ Mark F. Levy
By:_______________________________
Mark F. Levy, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark F. Levy and Jack Jaiven
and each of them, his true and lawful attorney-in-fact and agents,
with full power of substitution and resubstitution for him and in
his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following
persons in their capacities on September 10, 11 or 12, 1997.
<PAGE>
Signature Title Date
/s/ Michael L. Wise
_________________________ Chairman of the Board September 12, 1997
Michael L. Wise
/s/ Mark F. Levy
_________________________ President and Director September 10, 1997
Mark F. Levy (Principal Executive Officer)
/s/ Jack Jaiven
_________________________ Chief financial Officer and September 10, 1997
Jack Jaiven Vice President (Principal
Financial and Accounting Officer)
/s/ Joseph D. Weingard
_________________________ Director September 12, 1997
Joseph D. Weingard
/s/ R. Daniel Smith
_________________________ Executive Vice President September 10, 1997
R. Daniel Smith and Director
/s/ H. Irwin Levy
_________________________ Director September 11, 1997
H. Irwin Levy
/s/ Bernard R. Green
_________________________ Director September 10, 1997
Bernard R. Green
/s/ Richard Reiss
_________________________ Director September 12, 1997
Richard Reiss, Jr.
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
5.1 Opinion of Holland & Knight LLP
23.1 Consent of BDO Seidman, LLP
23.3 Consent of Holland & Knight LLP
(included in opinion filed as Exhibit 5.1).
Exhibit 5.1
HOLLAND & KNIGHT LLP
One East Broward Boulevard
Fort Lauderdale, Florida 33301
September 11, 1997
nStor Technologies, Inc.
100 Century Boulevard
West Palm Beach, FL 33417
Re: nStor Technologies, Inc. (the "Company") -
Registration Statement on Form S-8
Ladies & Gentlemen:
You have requested our opinion in connection with the
above-referenced Registration Statement, (the "Registration
Statement") in connection with the registration for sale of an
aggregate of 2,500,000 shares (the "Shares") of the common stock,
$.05 par value per share, of the Company (the "Common Stock"),
which may be issued by the Company to participants in The nStor
Technologies, Inc. 1996 Stock Option Plan (the "Plan").
We have reviewed copies of the Articles of Incorporation and
Bylaws of the Company, and have examined such corporate documents
and records and other certificates, and have made such
investigations of law, as we have deemed necessary in order to
render the opinion hereinafter set forth.
Based upon and subject to the foregoing, we are of the opinion
that the Shares are duly authorized, and, assuming the Company
receives greater than par value for the Shares, when the Shares
are fully paid for in accordance with the terms and conditions
set forth in the Plan such Shares will be, assuming no changes in
the applicable law or pertinent facts, validly issued, fully paid
and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not hereby
admit that we come within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
HOLLAND & KNIGHT
/s/ Donn Beloff
By:________________________
Donn Beloff
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
nStor Technologies, Inc.
West Palm Beach, Florida
We hereby consent to the incoropration by reference in the
Prospectus constituting a part of this Registration Statement of
our report dated January 10, 1997 relating to the consolidated
financial statements of nStor Technologies, Inc. and subsidiaries
appearing in the Company's Annual Report on Form 10-K for the
year ended October 31, 1996.
We also consent to the reference to us under the caption
"Experts" in the Prospectus.
BDO SEIDMAN, LLP
/s/ BDO Seidman, LLP
Orlando, Florida
September 10, 1997
