Exhibit 10.2
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT (THE "SUBORDINATION AGREEMENT") DATED AS OF FEBRUARY 12,
2013 AMONG SILICON VALLEY BANK ("SENIOR LENDER"), THE PURCHASERS (AS DEFINED
HEREIN), AND ACKNOWLEDGED BY OVERLAND STORAGE, INC. ("BORROWER") TO THE
INDEBTEDNESS (INCLUDING INTEREST) OWED BY BORROWER PURSUANT TO THAT CERTAIN LOAN
AND SECURITY AGREEMENT DATED AS OF AUGUST 9, 2011 BY AND AMONG BORROWER AND
SENIOR LENDER, AS SUCH LOAN AND SECURITY AGREEMENT (SUBJECT TO THE TERMS OF THE
SUBORDINATION AGREEMENT) HAS BEEN AND HEREAFTER MAY BE AMENDED, SUPPLEMENTED,
RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME AND (SUBJECT TO THE TERMS OF
THE SUBORDINATION AGREEMENT) TO INDEBTEDNESS REFINANCING THE INDEBTEDNESS UNDER
THAT AGREEMENT AS CONTEMPLATED BY THE SUBORDINATION AGREEMENT; AND PURCHASER
IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
THIS AMENDED AND RESTATED NOTE PURCHASE AGREEMENT ("Agreement") is made as of
the 1st day of November, 2013 by and among Overland Storage, Inc., a California
corporation (the "Company"), and the Purchasers set forth on the signature pages
affixed hereto (each a "Purchaser" and collectively the "Purchasers").
Recitals
A.
The Company and the Purchasers are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "Securities Act"); and
B.
The Company and the Initial Purchasers entered into that certain Note
Purchase Agreement dated as of February 12, 2013 (as amended as of March 5,
2013, the "Original Agreement") pursuant to which the Initial Purchasers
purchased from the Company, and the Company sold and issued to the Initial
Purchasers, upon the terms and conditions stated in the Original Agreement,
convertible promissory notes in the form attached hereto as Exhibit A-1 (as
amended, restated, modified or supplemented from time to time, the "Initial
Notes") in an aggregate principal amount equal to $13.25 million, which are
convertible into shares of the Company's Common Stock;
C.
The principal amount of the Initial Notes held by each Initial Purchaser
as of the date hereof is set forth opposite each such Initial Purchaser's name
on the signature pages attached hereto;
D.
The Additional Purchasers wish to purchase from the Company, and the
Company wishes to sell and issue to the Additional Purchasers, upon the terms
and conditions stated in this
Agreement, convertible promissory notes in the form attached hereto as Exhibit
A-2 (as amended, restated, modified or supplemented from time to time, the
"Additional Notes") up to an aggregate principal amount of $7 million, which
shall be convertible into shares of the Company's Common Stock; and
E.
Contemporaneous with the execution of this Agreement, the parties hereto
will execute and deliver an Amended and Restated Registration Rights Agreement,
in the form attached hereto as Exhibit