1
Exhibit 10.13
JTS borrowed funds from cerain JTS stockholders pursuant to convertible
promissory notes in the form hereto as Exhibit A. The holders, date and
principal amounts of such convertible notes are as follows:
NAME DATE PRINCPAL
1. Entities affiliated with Burr Egan 10/11/94 $247,400
10/11/94 $2,600
10/26/94 $371,100
10/26/94 $3,900
12/29/94 $1,040
12/29/94 $98,960
1/18/95 $100,569
1/18/95 $1,057
6/22/95 $989,600
6/22/95 $10,400
2. Brentwood Associates VI, L.P. 11/1/94 $412,500
1/18/95 $67,073
6/22/95 $500,000
3. Entities affilated with Sofinnova 2/7/94 $107,000
10/25/94 $125,000
10/28/94 $125,000
1/18/95 $20,325
1/18/95 $8,885
1/18/95 $11,441
4. Entities affiliated with Advanced
Technology Ventures 2/7/94 $214,000
10/26/94 $250,000
1/18/95 $40,650
5. Steven L. Kaczeus 6/22/95 $250,000
6. Entities affiliated with Western Digital 12/20/94 $400,000
1/4/95 $100,000
1/6/95 $300,000
7. David T. Mitchell 6/22/95 $1,000,000
2
Exhibit A
3
THIS NOTE AND THE SECURITIES THAT MAY BE PURCHASED HEREBY HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OF DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. NEITHER SUCH NOTE NOR SUCH SECURITIES MAY BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY AND ITS LEGAL COUNSEL STATING THAT
SUCH SALE, TRANSFER OR ASSIGNMENT IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
$____________ _______ 1995
Palo Alto, California
CONVERTIBLE PROMISSORY NOTE
For value received, the undersigned, JT STORAGE, INC., a Delaware
corporation ("Borrower"), promises to pay _______ ("Lender") the principal sum
of _____________ dollars (_________), with interest from the date hereof at a
rate of 8% per annum, compounded monthly. Said principal and interest shall be
due and payable on demand after the first to occur of the following: (a)
August 15, 1995, or (b) the closing of an additional sale by Borrower of its
Series A Preferred Stock ("Stock") to investors ("Investors").
1. Conversion. If at any time before this note is paid Borrower
proposes to sell Stock to Investors, then Borrower shall prior to the proposed
closing of such sale (the "Closing") provide Lender with notice of such
proposed sale, together with any offering materials provided to such Investors.
At its sole option, Lender may at such Closing, upon notice to the Company at
least one (1) day prior to the Closing, exchange this Note at the Closing for
shares of Stock, and receive the full amount of the principal and interest then
due hereunder as credit against the purchase price of such Stock, which
purchase price per share shall be equal to the per share price of, and which
purchase shall be on terms no less favorable than, either the Stock offered to
or purchased by the Investors. Lender shall exercise its conversion option by
tendering this Note as full or partial payment of the purchase price of the
Stock purchased by Lender. In the event that the amount of principal and
interest then due hereunder shall be less than the aggregate purchase price of
the Stock so purchased by Lender, Lender shall deliver to Borrower at the
Closing a check in the amount of such difference. Lender may not acquire
fractional shares.
If Lender elects to convert part but not all of the principal and
interest subject to this Note into Stock, Borrower shall deliver to Lender a
check in the amount of all unconverted principal plus interest, if any, at the
same time and place such conversion occurs. Payment of principal and interest
not converted into Stock in accordance with this Agreement shall be made in
lawful money of the United States to the holder of this Note at the Borrower's
principal
4
offices or, at the option of the Lender, at such other place in the United
States as such Lender shall have designated to the Borrower in writing.
THIS NOTE SHALL NOT BE CONVERTIBLE INTO SECURITIES OF BORROWER IF SUCH
CONVERSION WOULD VIOLATE FEDERAL SECURITIES LAWS OR APPLICABLE STATE SECURITIES
LAWS.
2. Representations and Warranties. The Lender represents and
warrants that:
(a) It is familiar with Borrower, the nature of its
business, its financial prospects and the merits and risks of an investment in
Borrower, and has the capacity to protect its own interest; and
(b) It is acquiring the Note and the securities that may
be purchased thereby for investment for its own account, not as a nominee or
agent, and not with a view to, or for resale in connection with any
distribution thereof. It understands that the Note and the securities that may
be purchased thereby have not been, and will not be, registered under the
Securities Act of 1933, as amended, by reason of a specific exemption from the
registration provisions of such Act, the availability of which depends upon,
among other things, the bona fide nature of the investment intent and the
accuracy of Lender's representations as expressed herein.
3. Waiver. Borrower hereby waives presentment, demand for
payment, notice of dishonor and any and all other notices and demands in
connection with the delivery, acceptance, performance, default or enforcement
of this Note, except such demands and notices expressly required hereunder, and
hereby consents to any and all extensions of time, renewals, releases of liens,
waivers or modifications that may be made or granted by the Lender to any party
hereto. No delay by the Lender in exercising any power or right hereunder
shall operate as a waiver of any power or right; nor shall any single or
partial exercise of any power or right preclude other or further exercise
thereof, or the exercise of any power or right hereunder or otherwise; and no
waiver or modification of the terms hereof shall be valid unless in writing
signed by Lender and then only to the extent therein set forth.
4. Transfer. This Note may not be sold, transferred or assigned
without Borrower's prior written consent, which consent shall not be
unreasonably withheld.
5. Notice. All notices and other communications required or
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given upon receipt or, if earlier, (a) five
(5) days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery,
if delivered by hand, (c) one business day after the business day of deposit
with Federal Express or similar overnight courier, freight prepaid or (d) one
business day after the business day of facsimile transmission, if delivered by
facsimile transmission with copy by first class mail, postage prepaid, and
shall be addressed (i) if to the Borrower, at the address of its principal
corporate offices and (ii) if to the Lender, at the address of its principal
corporate offices, or at
2
5
such other address as a party may designate by ten days' advance written notice
to the other party pursuant to the provisions above.
6. Governing Law. This Note and the obligations of the Borrower
hereunder shall be governed by and construed in accordance with the laws of the
State of California. The parties expressly stipulate that any litigation under
this Note shall be brought in the State courts of the County of Santa Clara,
California and in the United States District Court for the Northern District of
California. The parties agree to submit to the jurisdiction and venue of those
courts.
Issued this _________ day of ________ 1995.
"BORROWER"
JT STORAGE, INC.
By:____________________________________
Title:_________________________________
"LENDER"
AGREED TO AND ACCEPTED:
By:_____________________________
Title:__________________________
3