Series G Preferred Stock SUBSCRIPTION AGREEMENT
Exhibit
4.1
ADVANCE
DISPLAY TECHNOLOGIES, INC.
Series
G Preferred Stock
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.
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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.
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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.
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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, acknowledg-ments 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.
14. 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.
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15. 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.
16. 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.]
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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, executed this Agreement as of April 4,
2007.
SUBSCRIBER:
Iplan
AR
LLC
|
Address
for Notices:
|
||
| By: |
/s/
Xxxxxxxx X. XxXxxxxx
|
|
| Name: | Xxxxxxxx X. XxXxxxxx |
|
| Title: | General Partner |
|
|
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 |
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