As filed with the Securities and Exchange Commission on January ___, 2000
Registration No. 333-_______________
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)
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Delaware 95-2094565
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Century Boulevard, West Palm Beach, Florida 33417
- ----------------------------------------------- -------------
(Address of Principal Executive Offices) (Zip Code)
nStor Technologies, Inc.
1996 Stock Option Plan
(Full Title of the Plan)
Jack Jaiven
Vice President and Treasurer
nStor Technologies, Inc.
100 Century Boulevard
West Palm Beach, Florida 33417
(Name and address of agent for service)
(561) 640-3103
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed
Maximum
Title of Proposed Maximum Aggregate Amount of
Securities to Amount to Be Offering Price Offering Registration
be Registered Registered (2) Per Share (3) Price (3) Fee
- -------------- ---------------- ----------------- ----------- ------------
Common Stock,
par value $.05 4,500,000 shares $2.5625 $11,531,250 $3,044.25
per share (1)
(1) Represents shares issuable upon the exercise of options granted and/or
to be granted under the nStor Technologies, Inc. 1996 Stock Option Plan
(the "Plan").
(2) This Registration Statement also covers an indeterminate amount of
securities to be offered or sold as a result of any adjustments from stock
splits, stock dividends or similar transactions, pursuant to Rule 416 under
the Securities Act of 1933, as amended or as a result of the adjustment
provisions of the Plan.
(3) Estimated solely for the purpose of determining the amount of the
registration fee in accordance with Rule 457 under the Securities Act of
1933, as amended, and are based on the closing price per share of the
Registrant's Common Stock as reported on the American Stock Exchange on
January 3, 2000.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Commission pursuant to the Securities and Exchange Act of 1934, as amended (the
"Exchange Act") are hereby incorporated by reference in this Registration
Statement on Form S-8:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, as amended by Form 10-K/A filed with the
Commission on April 28, 1999.
2. The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, June 30, and September 30, 1999.
3. The Registrant's Current Reports on Form 8-K filed with the
Commission on June 23, 1999 (as amended by Form 8-K/A filed on
July 2, 1999) and November 5, 1999.
4. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as filed with the
Commission on April 16, 1997, pursuant to Section 12(b) of the
Exchange Act.
All documents and reports subsequently filed by the Registrant pursuant
to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof
and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all shares offered hereby have been sold or which
deregisters all shares then remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing of such
documents. Any statements contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or replaced for
purposes hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein) modifies or replaces such statement. Any
statement so modified or replaced shall not be deemed, except as so modified or
replaced, to constitute a part hereof.
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 Registrant, a Delaware corporation, has included in its Restated
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 General
Corporation Law. The Registrant believes that these provisions are necessary to
attract and retain qualified persons as directors and officers.
<PAGE> 3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits filed as part of this Registration Statement are as
follows:
Exhibit
Number Description
5.1 Opinion of Akerman, Senterfitt & Eidson, P.A.
10.1 nStor Technologies, Inc. 1996 Stock Option Plan, as amended(1)
10.2 Amendment to nStor Technologies, Inc. 1996 Stock Option Plan
23.1 Consent of Akerman, Senterfitt & Eidson, P.A. (contained in
Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24 Powers of Attorney (included as part of the signature page
hereto)
- ---------------
(1) Incorporated by reference to the Registrant's Registration Statement on Form
S-8 (File No.: 333-35495) filed with the Commission on September 12, 1997.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(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;
(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 (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with 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 the Registration Statement.
<PAGE> 4
(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
therein, 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 Securities and Exchange
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 or paid 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 or 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> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant 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, and the State of Florida, this
6th day of January, 2000.
nSTOR TECHNOLOGIES, INC.
By: /s/ Jack Jaiven
----------------------------
Jack Jaiven,
Vice President and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints H. Irwin Levy and Jack Jaiven, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution 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 on Form S-8, and to file the same, with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, 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 said attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
SIGNATURE TITLE DATE
- ------------------ ------------------------------- ---------------
/s/ H. Irwin Levy Chariman of the Board and Chief January 6, 2000
- ---------------- Executive Officer (Principal
H. Irwin Levy Executive Officer
- ------------------- Director January , 2000
Lawrence F. Steffan
/s/ Jack Jaiven Vice President and Treasurer January 6, 2000
- ----------------- (Principal Financial and
Accounting Officer
/s/ Mark F. Levy Director January 6, 2000
- ----------------
Mark F. Levy
/s/ Michael L. Wise Director January 6, 2000
- -------------------
Michael L.Wise
/s/ Bernard R. Green Director January 6, 2000
- --------------------
Bernard R. Green
<PAGE> 6
EXHIBIT INDEX
Exhibit
Number Description
5.1 Opinion of Akerman, Senterfitt & Eidson, P.A.
10.2 Amendment to nStor Technologies, Inc. 1996 Stock Option Plan
23.1 Consent of Akerman, Senterfitt & Eidson, P.A. (contained in
Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24 Powers of Attorney (included as part of the signature page hereto)
EXHIBIT 5.1
AKERMAN, SENTERFITT & EIDSON, P.A.
350 East Las Olas Boulevard
16th Floor
Fort Lauderdale, Florida 33301
January 7, 2000
nStor Technologies, Inc.
100 Century Boulevard
West Palm Beach, Florida 33417
Re: Registration Statement on Form S-8
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 4,500,000 shares (the "Shares") of the
common stock, $.05 par value per share of nStor Technologies, Inc. (the
"Company") 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 Restated Certificate of Incorporation,
as amended 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, it is our opinion that the
Shares are duly authorized, and, assuming the Shares are issued in accordance
with the terms and conditions of the Plan, will be, when issued against the
exercise price therefor and assuming no change in the applicable law or
pertinent facts, validly issued, fully paid and nonassessable.
We hereby consent to the reference to our firm under the caption "Legal
Matters" in the Registration Statement and 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,
Akerman, Senterfitt & Eidson, P.A.
/s/ Akerman, Senterfitt & Eidson, P.A.
EXHIBIT 10.2
AMENDMENT TO
nSTOR TECHNOLOGIES, INC.
1996 STOCK OPTION PLAN
The nStor Technologies, Inc. 1996 Stock Option Plan (the "Plan") is hereby
amended as follows:
1. Section 4 is hereby amended and restated in its entirety to read as follows:
4. Shares Subject to Plan. Subject to the provisions of Section 13 of
the Plan, the maximum aggregate number of Shares that may be
subject to Options under the Plan shall be 7,000,000. If an option
should expire or become unexercisable for any reason without
having been exercised, the unpurchased Shares that were subject to
the Option shall, unless the Plan has then terminated, be
available for other Options under the Plan.
Except as set forth above, the Plan shall remain unchanged.
EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
nStor Technologies, Inc.
West Palm Beach, Florida
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated March 5, 1999 (except for Note 15,
which is as of April 15, 1999) relating to the consolidated financial statements
of nStor Technologies, Inc. and subsidiaries appearing in the Company's Annual
Report on Form 10-K and 10-K/A for the year ended December 31, 1998.
BDO Seidman, LLP
Costa Mesa, California
January 7, 2000
