SUBSCRIPTION AGREEMENT
Exhibit 10.35
The undersigned, Xxxxxxx X. Xxxxxxx (the “Investor”), hereby agrees with DPAC
Technologies Corp., a California corporation (the “Company”), as follows:
| 1. | Investor hereby purchases seven hundred fifty (750) shares of Series A Convertible Preferred Stock (“Series A Preferred Stock”), without par value (the “Preferred Stock”) of the Company at a price per share of $100.00, and agrees to pay to the Company on the date hereof a total purchase price of $75,000 (the “Purchase Price”), by wire transfer. | |
| 2. | Investor acknowledges, represents and warrants to the Company as follows: |
(a) Investor understands that neither the Preferred Stock nor the common stock,
without par value (the “Common Stock”) of the Company into which the Series
A Preferred Stock may convert into has been registered under the Securities Act of
1933, as amended (the “Federal Act”) or any state’s securities laws by
reason of specific exemptions under the provisions thereof which depend in part upon
the representations made by Investor in this Agreement. Investor understands that
the Company is relying upon Investor’s representations and agreements contained in
this Agreement (and any supplemental information furnished by Investor, if any) for
the purpose of determining whether this transaction meets the requirements for such
exemptions.
(b) Investor has such knowledge, skill and experience in business, financial and
investment matters so that Investor is capable of evaluating the merits and risks of
an investment in the Preferred Stock.
(c) Investor has made such independent investigation of the Company, its management,
and related matters as the Investor deems to be necessary or advisable in connection
with an investment in the Preferred Stock; and Investor has received all information
and data which the Investor believes to be necessary in order to reach an informed
decision as to the advisability of an investment in the Preferred Stock.
(d) Investor is an accredited investor within the meaning of Rule 501(a) of
Regulation D promulgated under the Federal Act.
(e) Investor understands that the Preferred Stock and the shares of Common Stock
issuable upon conversion of the Preferred Stock are “restricted securities” under
applicable Federal securities laws and that the Federal Act and the rules of the
Securities and Exchange Commission provide in substance that Investor may dispose of
the Preferred Stock or Common Stock issuable upon conversion of the Preferred Stock
only pursuant to an effective registration statement under the Federal Act or an
exemption from such registration, if available.
(f) Investor hereby confirms that Investor is acquiring the Preferred Stock for
investment only and not with a view to or in connection with any resale or
distribution of the Preferred Stock.
(g) Investor hereby confirms that its residence or principal place of business is
within the State of North Carolina.
| 3. | The Company acknowledges, represents and warrants to the Investor as follows: |
(a) All of the outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and nonassessable, and free and clear of all
preemptive rights, rights of first refusal, liens, charges, restrictions, claims and
any other encumbrances imposed by or through the Company other than the securities
laws. The Preferred Stock has been offered, issued, sold and delivered in
compliance with applicable federal and state securities laws, and none of such
securities are or were at the time of issuance of any preemptive rights. The
Preferred Stock and the Common Stock issuable upon conversion of the Preferred
Stock, will be, duly and validly issued, fully paid and nonassessable and free and
clear of all preemptive rights, rights of first refusal, liens, charges,
restrictions, claims and any other encumbrances imposed by or through the Company.
The aggregate authorized capital stock of the Company immediately prior to the
issuance of the Preferred Stock consists of one hundred twenty million (120,000,000)
shares of Common Stock, of which, as of February 20, 2008, 92,890,834 are currently
issued and outstanding, and eight million (8,000,000) shares of preferred stock, of
which 20,000 are issued and outstanding. The Certificate of Incorporation of the
Company (including the rights, preferences and other terms of the Preferred Stock)
and Bylaws of the Company are as set forth as Exhibits A and B
hereto. There are no outstanding options or warrants to purchase any capital stock
or any other security convertible into equity securities of the Company, except for
the following:
(i) Under the 1996 Stock Option Plan, as amended (the “Plan”), fifteen
million (15,000,000) shares of Common Stock are available to be purchased.
As of January 29, 2008, the total number of options outstanding was
11,922,000.
(ii) There are currently outstanding warrants to purchase six million nine
hundred twenty-three thousand seven hundred forty-nine (6,923,749) shares of
Common Stock. Additionally, the Company has issued a common stock purchase
warrant to Canal Mezzanine Partners, L.P. exercisable from time to time with
respect to three percent (3%) of the issued and outstanding capital stock of
the Company, calculated on a fully diluted basis.
(b) The Company is not an “investment company” nor a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as
amended.
(c) The Company is not a “dealer” as defined in the Securities Act nor a
broker-dealer (or broker, dealer) as defined under any applicable state securities
laws.
(d) The Company shall use the proceeds related to the sale of the Preferred Stock to
Investor to retire certain debt obligations of the Company and for general corporate
purposes.
| 4. | Limitation on Representations and Warranties. The representations and warranties made pursuant to Section 3 hereof are the sole representations and warranties of the Company. |
| 5. | Survival of Representations and Warranties. The representations and warranties of the Company made pursuant to Section 3 hereof shall survive for a period of twenty-four (24) months from the date hereof when they shall terminate, unless notice in writing of breach thereof was given prior to termination, except that the representations and warranties in Sections 3(a) hereof shall survive indefinitely. |
| 6. | Indemnification by Company. The Company agrees to indemnify, defend and hold the Investor harmless from and against any and all claims, demands, losses, expenses, costs, obligations, damages, liabilities and expense (including all costs, interest, penalties and reasonable attorneys fees) (collectively, “Losses”) which Investor may incur, suffer or sustain, which arise, result from or relate to any breach of or failure by Sellers to perform any of their representations, warranties, covenants or agreements under this Agreement (including such representations and warranties incorporated herein) or in any exhibit to this Agreement, as if any and all materiality and knowledge qualification provisions were not contained therein. |
| 7. | Legend. Investor acknowledges and agrees that the certificate(s) evidencing the Preferred Stock will bear the a legend substantially similar to the following, until otherwise registered for re-sale: |
THE SHARES OF PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
LAWS (THE “ACTS”) AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACTS OR AN OPINION
OF COUNSEL SATISFACTORY TO THE MAKER THAT THE TRANSFER OF THESE SHARES ARE
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACTS.
| 8. | Amendment Investor and the Company acknowledge that the Company currently may not have sufficient shares of authorized Common Stock if the Preferred Stock were to be immediately converted. The Company covenants to take all reasonable efforts to amend its articles of incorporation to provide for adequate shares of Common Stock issuable upon conversion of the Preferred Stock. Investor agreed to vote for or consent to such amendment with respect to all shares of Common Stock and Preferred Stock owned by it. |
| 9. | Registration Rights Investor is as of the date hereof entering into an amendment and joinder to that certain Shareholder and Registration Rights Agreement dated as of May 11, 2005. |
| 10. | Investor acknowledges that neither the Company nor any person acting on its behalf has offered or sold the Preferred Stock to Investor by any form of general solicitation, general or public media advertising or mass mailing. |
| 11. | This Subscription Agreement shall be deemed to be a contract under the Laws of the State of Ohio and shall for all purposes be governed by and construed and enforced in accordance with the laws of the State of Ohio. |
| 12. | Neither this Subscription Agreement nor any provisions hereof shall be modified, 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. | This Subscription Agreement is not transferable or assignable by Investor or the Company. |
| 14. | This Subscription Agreement, and the Preferred Stock constitute the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all prior understandings and agreements, whether written or oral, with respect to such subject matter. |
| 15. | This Subscription Agreement and the Preferred Stock shall only be binding upon a party (that is a signatory thereto) when executed by the parties thereto. |
| 16. | This Subscription Agreement may be executed in counterparts, all of which shall constitute the same instrument. |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, do hereby execute this
Subscription Agreement as of this 24th day of March 2008.
| DPAC Technologies Corp. | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | President & CEO | |||
| INVESTOR | ||||
| Signature: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
Exhibit A
Certificate of Incorporation
Exhibit B
Bylaws
