ADVANCE DISPLAY TECHNOLOGIES, INC. Series G Preferred Stock SUBSCRIPTION AGREEMENT
EXHIBIT
4.1
ADVANCE
DISPLAY TECHNOLOGIES, INC.
_________________________________
Series
G Preferred Stock
_________________________________
#774606.2
ADVANCE
DISPLAY TECHNOLOGIES, INC.
Series
G Preferred Stock
THIS
SUBSCRIPTION AGREEMENT (this
“Agreement”) is executed and delivered, as of the date set forth on the
signature page hereof, by and between Advance Display Technologies, Inc.,
a
Colorado corporation (the “Company”), and the undersigned subscriber (the
“Subscriber”).
1. Subscription. Subject
to the terms and conditions set forth in this Agreement, the Subscriber hereby
agrees to subscribe for the number of shares of Series G Preferred Stock
of the
Company for the total capital commitment (the “Total Capital Commitment”) as set
forth in the subscription schedule on the signature page (the “Subscription
Schedule”).
2. Acceptance. The
Company, in consideration of and in reliance on the representations, warranties,
covenants, and the Subscriber’s agreements and payment of the capital
commitment, hereby accepts the subscription of the Subscriber and agrees
to
issue Series G Preferred Stock to the Subscriber, subject to the terms and
conditions of this Agreement.
3. Issuance
of shares. The Company shall have no obligation to issue any
shares of Series G Preferred Stock to the Subscriber unless and until the
Subscriber has made to the Company, and the Company has accepted, full payment
of the Subscriber’s Total Capital Commitment as set forth in the Subscription
Schedule.
4. Termination
of Subscription. The Company may terminate its obligations under
this Agreement at any time prior to the Company’s acceptance of full payment of
the Total Capital Commitment and be relieved of all further obligations under
this Agreement without thereby waiving any other rights the Company may
have. In addition, the Company may, at its election, do one of the
following:
(a) Accept
all or any part of the Total Capital Commitment which the Subscriber has
made to
the Company and issue the related shares of Series G Preferred Stock;
or
(b) Reject
all or any part of the Total Capital Commitment which the Subscriber has
made to
the Company and have no obligation to issue to Subscriber any shares of Series
G
Preferred Stock.
5. Restrictions
on Transfer.
5.1 The
certificates representing the Series G Preferred Stock will bear a legend
in
substantially the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR
HYPOTHECATED
IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
5.2 No
holder
of Series G Preferred Stock may sell, transfer or dispose of any Series G
Preferred Stock (except pursuant to an effective registration statement under
the Securities Act) without first delivering to the Company an opinion of
counsel (reasonably acceptable in form and substance to the Company) that
neither registration nor qualification under the Securities Act and applicable
state securities laws is required in connection with such transfer.
6. Subscriber’s
Representations, Warranties, Covenants and Agreements. The
Subscriber hereby represents and warrants to, and covenants and agrees with,
the
Company as follows:
6.1 The
Subscriber has been given adequate access to all information about the Company
and its investment in the Company that was material to its decision to invest
therein. The Subscriber has reviewed the Certificate of Incorporation
of the Company. The Subscriber acknowledges that it is fully informed
and knowledgeable about the Company, its business (the “Business”), management
and personnel; that it has had discussions with the Company concerning the
Business and has obtained information from the Company; and that the Company
has
answered all questions that the undersigned had concerning the
Business. The Subscriber has been furnished materials relating to the
Company, the Business and the financial condition of the Company and the
offering of the Series G Preferred Stock that it has requested and has been
afforded the opportunity to ask questions and receive answers concerning
an
investment in the Company. The Subscriber acknowledges that it has
had the opportunity to request such additional information from the President
of
the Company.
6.2 The
Subscriber acknowledges that investment in the Company involves a substantial
degree of risk and is suitable only for persons with adequate means who have
no
need for liquidity in their investments.
6.3 The
Subscriber acknowledges that no market for the Series G Preferred Stock exists
nor is anticipated to develop and that, therefore, investment in the Company
will not be liquid.
6.4 The
Subscriber has knowledge and experience in financial and business matters
and is
capable of evaluating the merits and risks of an investment in the Company
and
the suitability of the investment for Subscriber.
6.5 The
Subscriber is making this capital contribution for investment purposes only
and
has no present intention to sell or exchange the Series G Preferred Stock;
the
Subscriber has adequate means for providing for its current needs in any
foreseeable contingency; and the Subscriber has no need to sell the Series
G
Preferred Stock in the foreseeable future.
6.6 The
Subscriber, if a corporation, partnership, trust or other entity, is duly
organized, and is authorized and otherwise duly qualified to purchase and
hold
the Series G Preferred Stock, and such entity has its principal place of
business at the address set forth on the signature page hereof.
6.7 The
Subscriber, if an individual, is at least 21 years of age, has the legal
capacity to execute, deliver and perform this Agreement, and has his or her
residence at the address set forth on the signature page hereof.
6.8 The
Subscriber is an “accredited investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act of 1933, as
amended.
6.9 All
information which the Subscriber has provided to the Company concerning
Subscriber, his or her financial position and knowledge of financial and
business matters, or, in the case of a corporation, partnership, trust or
other
entity, the knowledge of financial and business matters of the person making
the
investment decision on behalf of such entity, including all information
contained herein, is true and complete as of the date set forth at the end
hereof, and if there should be any adverse change in such information prior
to
this subscription being accepted, the Subscriber will immediately provide
the
Company with accurate and complete information concerning any such
change.
6.10 The
Subscriber acknowledges that no federal or state agency has made any finding
or
determination as to the fairness of this investment, nor any recommendation
or
endorsement, of the investment in the Series G Preferred Stock.
6.11 The
Subscriber acknowledges that the Series G Preferred Stock has not been
registered under the Securities Act of 1933, as amended (the “Act”), or the blue
sky laws of any state.
6.12 The
Subscriber understands that the Company has relied upon an exemption from
registration provided in the Act and upon all of the foregoing representations
and warranties of the Subscriber.
6.13 The
Subscriber certifies, under penalties of perjury, (i) that the social security
or Federal taxpayer identification number shown on the signature page of
this
Agreement is true and complete and (ii) that the Subscriber is not subject
to
backup withholding either because Subscriber has not been notified that he
or
she is subject to backup withholding as a result of a failure to report all
interest or dividends, or the Internal Revenue Service has notified Subscriber
that he or she is no longer subject to backup withholding.
7. Confidential
Information. The Subscriber acknowledges that the information,
observations and data obtained by him or her during the course of his or
her
ownership of any interest in the Company concerning the business and affairs
of
the Company are the property of the Company, including information concerning
acquisition opportunities in or reasonably related to the Business of which
Subscriber becomes aware during such period. Therefore, the
Subscriber agrees that he or she will not disclose to any unauthorized person
or
use for his or her
own
account any of such information, observations or data without the written
consent of the President of the Company unless and to the extent that the
aforementioned matters become generally known to and available for use by
the
public other than as a result of the Subscriber’s acts or
omissions. The Subscriber agrees to deliver to the Company on the
date of disposition of the Series G Preferred Stock held by him or her, or
at
any other time the Company may request in writing, all memoranda, notes,
plans,
records, reports and other documents (and copies thereof) relating to the
Business (including, without limitation, all acquisition prospects, lists
and
contact information) which he or she may then possess or have under his or
her
control.
8. Indemnification. The
Subscriber agrees to indemnify and hold harmless the Company, its directors,
officers, employees, stockholders and affiliates, and any person acting on
behalf of the Company, from and against any and all damage, loss, liability,
cost and expense (including attorneys’ fees) which any of them may incur by
reason of the failure by the Subscriber to fulfill any of the terms or
conditions of this Agreement, or by reason of any breach of the representations
and warranties made by the Subscriber herein, or in any other document provided
by the Subscriber to the Company. All representations, warranties and
covenants contained in this Agreement, and the indemnification contained
in this
paragraph, shall survive the acceptance of this subscription.
9. Headings. The
headings throughout this Agreement are for convenience of reference only,
and
shall in no way be deemed to define, limit, or add to the meaning of any
of the
provisions of this Agreement.
10. Counterparts. This
Agreement may be executed in counterparts, both of which when taken together
shall be deemed one original.
11. No
Waiver. Notwithstanding any of the representations, warranties,
acknowledgments or agreements made herein by the Subscriber, the Subscriber
does not thereby or in any other manner waive any of the rights granted to
him
or her under federal or state securities laws.
12. Entire
Agreement; Modification. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof,
and neither this Agreement nor any of the provisions hereof shall be waived,
changed, discharged or terminated except by an instrument in writing signed
by
the party against whom any waiver, change, discharge or termination is
sought.
13. Notice. Notices
required or permitted to be given under this Agreement shall be in writing
and
shall be deemed to be sufficiently given when sent by registered or certified
mail, postage prepaid, addressed to the other party at the address of such
party
set forth on the signature page to this agreement, or to such other address
furnished by notice given in accordance with this paragraph.
Successors
/ Binding Effect. Except as otherwise provided herein, this
Agreement shall be irrevocable and binding upon and inure to the benefit
of the
parties hereto and their respective heirs, executors, administrators,
successors, legal representatives and assigns. If the Subscriber is
more than one person, the obligations of the Subscriber shall be joint and
several and the agreements, representations, warranties and acknowledgments
herein
contained
shall be deemed to be made by and be binding upon each such person and his
or
her respective heirs, executors, administrators, successors, legal
representatives and assigns.
14. Assignment. Subscriber
agrees not to transfer or assign this Agreement, or any of Subscriber’s interest
herein without the written consent of the Company, which consent may be withheld
in its sole discretion, and any such transfer or assignment in violation
of this
Agreement shall be null and void
ab initio. Further, the Subscriber agrees that the
transfer or assignment of the Series G Preferred Stock shall be made only
in
accordance with this Agreement, the Company’s Certificate of Incorporation and
applicable laws.
15. Applicable
Law. This Agreement and all rights and remedies hereunder shall
be governed by and construed in accordance with the laws of the State of
Colorado, without regard to the conflicts of laws thereof.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the undersigned Subscriber does represent and certify under
penalty of perjury that the foregoing statements are true and correct and
that
it has, by the following signature, originally executed this Agreement as
of
April 4, 2007.
SUBSCRIBER:
New
Iplan
AR LLC
|
By: /s/
Xxxxxxxx X. XxXxxxxx
Name: Xxxxxxxx
X. XxXxxxxx
Title: General
Partner
|
Address
for Notices:
________________________
________________________
________________________
|
|
Taxpayer
Identification or Social Security Number of Subscriber:
______________________
|
Telephone:
________________________
|
Subscription
Schedule
|
Number
of shares subscribed for
|
Capital
Commitment per share
|
Total
Capital Commitment
|
|
8,400
|
$100
|
$840,000
|
Subscription
accepted on
April
4,
2007.
ADVANCE
DISPLAY TECHNOLOGIES, INC.
0000
Xxxxx Xxxxx Xxx, Xxxxx X
Xxxxxxxxxx,
XX 00000
(000)
000-0000
By: /s/
Xxxxxxx X.
Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
