UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported): June 18, 2009
3DIcon
Corporation
(Exact
name of registrant as specified in charter)
Oklahoma
(State
or other jurisdiction of
incorporation)
|
333-
(Commission
File
Number)
|
73-1479206
(IRS
Employer
Identification
No.)
|
6804 South Canton Avenue, Suite
150
Tulsa, OK
(Address
of principal executive offices)
|
74136
(Zip
Code)
|
Registrant’s
telephone number, including area code: (918) 492-5082
Copies
to:
Gregory
Sichenzia, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway, 32nd
Floor
New York,
New York 10006
Phone:
(212) 930-9700
Fax:
(212) 930-9725
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
ITEM 1.01
ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On June
18, 2009 (the “Agreement”), the “Company entered into a Subscription Agreement
with one of its directors, Victor Keen, pursuant to which Mr. Keen purchased
14,705,882 shares of the Company’s common stock at a per share price equal to
50% of the average of the average closing Price during the five (5) days prior
to June 15, 2009 ($0.0068 per share) for aggregate proceeds of
$100,000.
We claim
an exemption from the registration requirements of the Securities Act of 1933,
as amended, for the private placement of the above-referenced
securities pursuant to Section 4(2) of the Act and/or Regulation D promulgated
thereunder since, among other things, the transaction did not involve a public
offering, the investors were accredited investors, the investors had access to
information about us and their investment, the investors took the securities for
investment and not resale, and we took appropriate measures to restrict the
transfer of the securities.
ITEM 3.02
UNREGISTERED SALES OF EQUITY SECURITIES
See Item
1.01 above. The information included in Item 1.01 of this current report on Form
8-K is incorporated by reference into this Item 3.02.
ITEM
7.01 REGULATION FD DISCLOSURE
On June
25, 2009, the Company issued a press release concerning the matters discussed
above. A copy of such press release is being furnished as Exhibit 99.1 to this
current report on Form 8-K.
The
information in this Item 7.01 of this current report on Form 8-K, together with
the information in Exhibit 99.1, is being furnished and shall not be deemed
“filed” for the purposes of Section 18 of the Securities Exchange Act of 1934,
as amended, or otherwise subject to the liabilities of that Section. Such
information shall not be deemed incorporated by reference into any registration
statement or other document filed with the SEC.
ITEM 9.01
|
FINANCIAL
STATEMENTS AND EXHIBITS
|
(a)
Financial Statements of Business Acquired
Not
Applicable
(b) Pro
Forma Financial Information
Not
Applicable
(c) Shell
Company Transactions
Not
Applicable
(d)
Exhibits
|
10.15
|
-
|
Form
of Subscription Agreement dated June 18, 2009
|
|
99.1
|
|
Press
release dated June 25, 2009
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date:
June 24, 2009
|
3DIcon
Corporation
|
|
(Registrant)
|
|
|
|
By:
|
/s/
Martin
Keating
|
|
Name:
|
Martin
Keating
|
|
Position:
|
Chief
Executive Officer
|
|
EXHIBIT
INDEX
10.15
|
Form
of Subscription Agreement dated June 18, 2009
|
|
|
99.1
|
Press
release dated June 25,
2009
|
SUBSCRIPTION
AGREEMENT
THIS SUBSCRIPTION AGREEMENT
(this “Agreement”),
dated as of June __, 2009, by and among 3DIcon Corporation, an Oklahoma
corporation (the “Company”), and the subscribers
identified on the signature page hereto (each a “Subscriber” and collectively
“Subscribers”).
WHEREAS, the Company and the
Subscribers are executing and delivering this Agreement in reliance upon an
exemption from securities registration afforded by the provisions of Section
4(2), Section 4(6) and/or Regulation D (“Regulation D”) as promulgated
by the United States Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “1933 Act”).
WHEREAS, the parties desire
that, upon the terms and subject to the conditions contained herein, the Company
shall issue and sell to the Subscribers, as provided herein, and the
Subscribers, in the aggregate, shall purchase for a minimum of $_______ (the
"Purchase Price") of
shares (the “Shares”) of
the Company's common stock, $.0002 par value (the "Common Stock") at a per share
price equal to 50% of the average of the average closing prices during the five
(5) days prior to June 15, 2009 as reported by Bloomberg, L.P, which is
$0.0068.
NOW, THEREFORE, in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and the Subscribers hereby agree as follows:
1. Conditions To
Closing. Subject to the satisfaction or waiver of the
terms and conditions of this Agreement, on the Closing Date, each Subscriber
shall purchase and the Company shall sell to each Subscriber the Shares
designated on the signature page hereto for the portion of the Purchase Price
set forth on the signature page hereto. Each purchaser hereby
acknowledges that he or she may be the sole Subscriber. On or before
the Closing Date, each Subscriber shall deliver to the Company such Subscriber’s
portion of the Purchase Price, an executed copy of this Agreement and a
completed Investor Questionnaire. The payment will be delivered
pursuant to the following wire transfer instructions:
2. Closing. The
consummation of the transactions contemplated herein shall take place upon the
satisfaction of all conditions to Closing set forth in this Agreement (“Closing Date”), provided,
however, that such Closing will occur on or before June __, 2009.
3. Reserved.
4. Subscriber's Representations
and Warranties. Each Subscriber hereby represents and warrants
to and agrees with the Company only as to such Subscriber that:
(a) Organization and Standing of
the Subscribers. If the
Subscriber is an entity, such Subscriber is a corporation, partnership or other
entity duly incorporated or organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization and has
the requisite corporate power to own its assets and to carry on its
business.
(b) Authorization and
Power. Each Subscriber has the
requisite power and authority to enter into and perform this Agreement and to
purchase the Shares being sold to it hereunder. The execution,
delivery and performance of this Agreement by such Subscriber and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate or partnership action, and no further
consent or authorization of such Subscriber or its Board of Directors,
stockholders, partners, members, as the case may be, is
required. This Agreement has been duly authorized, executed and
delivered by such Subscriber and constitutes, or shall constitute when executed
and delivered, a valid and binding obligation of the Subscriber enforceable
against the Subscriber in accordance with the terms thereof.
(c) No Conflicts. The execution, delivery and performance of
this Agreement and the consummation by such Subscriber of the transactions
contemplated hereby or relating hereto do not and will not (i) result in a
violation of such Subscriber’s charter documents or bylaws or other
organizational documents or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of any agreement, indenture or instrument or obligation to which
such Subscriber is a party or by which its properties or assets are bound, or
result in a violation of any law, rule, or regulation, or any order, judgment or
decree of any court or governmental agency applicable to such Subscriber or its
properties (except for such conflicts, defaults and violations as would not,
individually or in the aggregate, have a material adverse effect on such
Subscriber). Such Subscriber is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or to purchase the Shares in accordance with
the terms hereof, provided that for purposes of the representation made in this
sentence, such Subscriber is assuming and relying upon the accuracy of the
relevant representations and agreements of the Company
herein.
(d) Information on
Company. The Subscriber has been furnished with or has
had access at the EDGAR Website of the Commission to the Company's Form 10-K for
the year ended December 31, 2008 as filed with the SEC on April 15, 2009, the
Company’s Form 10-Q for the period ended March 31, 2009 as filed with the SEC on
May 20, 2009 and all periodic reports with the Commission thereafter, but not
later than five business days before the Closing Date (hereinafter referred to
as the "Reports"). In
addition, the Subscriber has received in writing from the Company such other
information concerning its operations, financial condition and other matters as
the Subscriber has requested in writing (such other information is collectively,
the "Other Written
Information"), and considered all factors the Subscriber deems material
in deciding on the advisability of investing in the Shares.
(e) Information on
Subscriber. The Subscriber will be, on the Closing Date an
"accredited investor",
as such term is defined in Regulation D promulgated by the Commission under the
1933 Act, is experienced in investments and business matters, has made
investments of a speculative nature and has purchased securities of United
States publicly-owned companies in private placements in the past and, with its
representatives, has such knowledge and experience in financial, tax and other
business matters as to enable the Subscriber to utilize the information made
available by the Company to evaluate the merits and risks of and to make an
informed investment decision with respect to the proposed purchase, which
represents a speculative investment. The Subscriber has the authority
and is duly and legally qualified to purchase and own the Shares. The
Subscriber is able to bear the risk of such investment for an indefinite period
and to afford a complete loss thereof. The information set forth on
the signature page hereto regarding the Subscriber is accurate. The
Subscriber is not required to be registered as a broker-dealer under Section 15
of the Securities Exchange Act of 1934, as amended (the "1934 Act") and the
Subscriber is not a broker-dealer.
(f) Investment
Purpose. As of the date hereof, the Subscriber is purchasing
the Shares for its own account and not with a present view towards the public
sale or distribution thereof, except pursuant to sales registered or exempted
from registration under the 1933 Act; provided, however, that by
making the representations herein, the Subscriber does not agree to hold any of
the Shares for any minimum or other specific term and reserves the right to
dispose of the Shares at any time in accordance with or pursuant to a
registration statement or an exemption under the 1933 Act.
(g) Reliance on
Exemptions. The Subscriber understands that the Shares are
being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Subscriber’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Subscriber set forth herein in order to determine the
availability of such exemptions and the eligibility of the Subscriber to acquire
the Shares.
(h) Purchase of
Shares. On the Closing Date, the Subscriber will purchase the
Shares as principal for its own account for investment only and not with a view
toward, or for resale in connection with, the public sale or any distribution
thereof.
(i) Compliance with Securities
Act. The Subscriber understands and agrees that the
Shares have not been registered under the 1933 Act or any applicable state
securities laws, by reason of their issuance in a transaction that does not
require registration under the 1933 Act (based in part on the accuracy of the
representations and warranties of Subscriber contained herein), and that such
Shares must be held indefinitely unless a subsequent disposition is registered
under the 1933 Act or any applicable state securities laws or is exempt from
such registration. In any event, and subject to compliance with
applicable securities laws, the Subscriber may enter into lawful hedging
transactions with third parties, which may in turn engage in short sales of the
Shares in the course of hedging the position they assume and the Subscriber may
also enter into short positions or other derivative transactions relating to the
Shares, or interests in the Shares, and deliver the Shares, or interests in the
Shares, to close out their short or other positions or otherwise settle short
sales or other transactions, or loan or pledge the Shares, or interests in the
Shares, to third parties that in turn may dispose of these Shares.
(j) Shares
Legend. The Shares shall bear the following or similar
legend:
"THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO 3DICON
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED."
(l) Communication of
Offer. The offer to sell the Shares was directly communicated
to the Subscriber by the Company. At no time was the Subscriber
presented with or solicited by any leaflet, newspaper or magazine article, radio
or television advertisement, or any other form of general advertising or
solicited or invited to attend a promotional meeting.
(m) Authority;
Enforceability. This Agreement and other agreements delivered
together with this Agreement or in connection herewith have been duly
authorized, executed and delivered by the Subscriber and are valid and binding
agreements enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights generally and
to general principles of equity; and Subscriber has full corporate power and
authority necessary to enter into this Agreement and such other agreements and
to perform its obligations hereunder and under all other agreements entered into
by the Subscriber relating hereto.
(n) Restricted
Shares. Subscriber understands that the Shares have not
been registered under the 1933 Act and such Subscriber will not sell, offer to
sell, assign, pledge, hypothecate or otherwise transfer any of the Shares unless
pursuant to an effective registration statement under the 1933
Act. Notwithstanding anything to the contrary contained in this
Agreement, such Subscriber may transfer (without restriction and without the
need for an opinion of counsel) the Shares to its Affiliates (as defined below)
provided that each such Affiliate is an “accredited investor” under Regulation D
and such Affiliate agrees to be bound by the terms and conditions of this
Agreement. For the purposes of this Agreement, an “Affiliate” of any person or
entity means any other person or entity directly or indirectly controlling,
controlled by or under direct or indirect common control with such person or
entity. For purposes of this definition, “control” means the power to
direct the management and policies of such person or firm, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
(o) No Governmental
Review. Each Subscriber understands that no United States
federal or state agency or any other governmental or state agency has passed on
or made recommendations or endorsement of the Shares or the suitability of the
investment in the Shares nor have such authorities passed upon or endorsed the
merits of the offering of the Shares.
(p) Correctness of
Representations. Each Subscriber represents as to such
Subscriber that the foregoing representations and warranties are true and
correct as of the date hereof and, unless a Subscriber otherwise notifies the
Company prior to the Closing Date shall be true and correct as of the Closing
Date.
(q) Survival. The
foregoing representations and warranties shall survive the Closing Date for a
period of three years.
5. Company Representations and
Warranties. The Company represents and warrants to and agrees
with each Subscriber that:
(a) Due
Incorporation. The Company is a corporation or other entity
duly incorporated or organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization and has the
requisite corporate power to own its properties and to carry on its business as
presently conducted. The Company is duly qualified as a foreign
corporation to do business and is in good standing in each jurisdiction where
the nature of the business conducted or property owned by it makes such
qualification necessary, other than those jurisdictions in which the failure to
so qualify would not have a Material Adverse Effect. For purposes of
this Agreement, a “Material
Adverse Effect” shall mean a material adverse effect on the financial
condition, results of operations, properties or business of the Company and its
Subsidiaries taken as a whole.
(b) Outstanding
Stock. All issued and outstanding shares of capital stock of
the Company has been duly authorized and validly issued and are fully paid and
nonassessable.
(c) Authority;
Enforceability. This Agreement, the Shares, and any
other agreements delivered together with this Agreement or in connection
herewith (collectively “Transaction Documents”) have
been duly authorized, executed and delivered by the Company and are valid and
binding agreements enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and to general principles of equity. The Company has full
corporate power and authority necessary to enter into and deliver the
Transaction Documents and to perform its obligations thereunder.
(d) Consents. No
consent, approval, authorization or order of any court, governmental agency or
body or arbitrator having jurisdiction over the Company, or any of its
Affiliates, the OTC Bulletin Board nor the Company's shareholders is required
for the execution by the Company of the Transaction Documents and compliance and
performance by the Company of its obligations under the Transaction Documents,
including, without limitation, the issuance and sale of the Shares.
(e) The
Shares. The Shares upon issuance:
(i) are,
or will be, free and clear of any security interests, liens, claims or other
encumbrances, subject to restrictions upon transfer under the 1933 Act and any
applicable state securities laws;
(ii) have
been, or will be, duly and validly authorized and on the date of issuance of the
Shares will be duly and validly issued, fully paid and nonassessable or if
registered pursuant to the 1933 Act, and resold pursuant to an effective
registration statement will be free trading and unrestricted;
(iii) will
not have been issued or sold in violation of any preemptive or other similar
rights of the holders of any securities of the Company;
(iv) will
not subject the holders thereof to personal liability by reason of being such
holders; and
(v) will
not result in a violation of Section 5 under the Act.
(f) Litigation. There
is no pending or, to the best knowledge of the Company, threatened action, suit,
proceeding or investigation before any court, governmental agency or body, or
arbitrator having jurisdiction over the Company, or any of its Affiliates that
would affect the execution by the Company or the performance by the Company of
its obligations under the Transaction Documents. Except as disclosed
in the Reports, there is no pending or, to the best knowledge of the Company,
basis for or threatened action, suit, proceeding or investigation before any
court, governmental agency or body, or arbitrator having jurisdiction over the
Company, or any of its Affiliates which litigation if adversely determined would
have a Material Adverse Effect.
(g) No Market
Manipulation. The Company and its Affiliates have not taken,
and will not take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares or
affect the price at which the Shares may be issued or resold.
(h) Information Concerning
Company. Since the date of the financial
statements included in the Reports (“Latest Financial Date”), and
except as modified in the Other Written Information, there has been no Material
Adverse Event relating to the Company's business, financial condition or affairs
not disclosed in the Reports. The Reports, including the financial statements
contained therein, do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances when
made.
(i) Stop
Transfer. The Company will not issue any stop transfer order
or other order impeding the sale, resale or delivery of any of the Shares,
except as may be required by any applicable federal or state securities laws and
unless contemporaneous notice of such instruction is given to the
Subscriber.
(j) Defaults. The
Company is not in violation of its articles of incorporation or
bylaws. The Company is (i) not in default with respect to any order
of any court, arbitrator or governmental body or subject to or party to any
order of any court or governmental authority arising out of any action, suit or
proceeding under any statute or other law respecting antitrust, monopoly,
restraint of trade, unfair competition or similar matters, or (ii) to the
Company’s knowledge not in violation of any statute, rule or regulation of any
governmental authority which violation would have a Material Adverse
Effect.
(k) Not Integrated
Offering. Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf, has directly or indirectly made any offers
or sales of any security or solicited any offers to buy any security under
circumstances that would cause the offer of the Shares pursuant to this
Agreement to be integrated with prior offerings by the Company for purposes of
the 1933 Act or any applicable stockholder approval provisions, including,
without limitation, under the rules and regulations of the OTC Bulletin Board
(“Bulletin Board”) or
any Principal Market [as defined in Section 9(b)] which would impair the
exemptions relied upon in this Offering or the Company’s ability to timely
comply with its obligations hereunder. Nor will the Company or any of
its Affiliates take any action or steps that would cause the offer or issuance
of the Shares to be integrated with other offerings which would impair the
exemptions relied upon in this Offering or the Company’s ability to timely
comply with its obligations hereunder. The Company will not conduct
any offering other than the transactions contemplated hereby that will be
integrated with the offer or issuance of the Shares, which would impair the
exemptions relied upon in this Offering or the Company’s ability to timely
comply with its obligations hereunder.
(l) No General
Solicitation. Neither the Company, nor any of its Affiliates,
nor to its knowledge, any person acting on its or their behalf, has engaged in
any form of general solicitation or general advertising (within the meaning of
Regulation D under the 1933 Act) in connection with the offer or sale of the
Shares.
(m) Listing. The
Common Stock is quoted on the Bulletin Board under the symbol: TDCP.OB. The
Company has not received any oral or written notice that the Common Stock is not
eligible nor will become ineligible for quotation on the Bulletin Board nor that
the Common Stock does not meet all requirements for the continuation of such
quotation and the Company satisfies all the requirements for the continued
quotation of the Common Stock on the Bulletin Board.
(n) No Undisclosed
Liabilities. The Company has no liabilities or obligations
which are material, individually or in the aggregate, which are not disclosed in
the Reports and Other Written Information, other than those incurred in the
ordinary course of the Company’s businesses since the Latest Financial Date and
which, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(o) No Undisclosed Events or
Circumstances. Since the Latest Financial Date, no event or
circumstance has occurred or exists with respect to the Company or its
businesses, properties, operations or financial condition, that, under
applicable law, rule or regulation, requires public disclosure or announcement
prior to the date hereof by the Company but which has not been so publicly
announced or disclosed in the Reports.
(p) Capitalization. The
authorized and outstanding capital stock of the Company as of the date of this
Agreement and the Closing Date (not including the Shares) are set forth on Schedule
5(d). Except as set forth on Schedule 5(d), there are no
options, warrants, or rights to subscribe to, securities, rights or obligations
convertible into or exchangeable for or giving any right to subscribe for any
shares of capital stock of the Company or any of its
Subsidiaries. All of the outstanding shares of Common Stock of the
Company have been duly and validly authorized and issued and are fully paid and
nonassessable.
(q) Dilution. The
Company's executive officers and directors understand the nature of the Shares
being sold hereby and recognize that the issuance of the Shares will have a
potential dilutive effect on the equity holdings of other holders of the
Company’s equity or rights to receive equity of the Company. The
board of directors of the Company has concluded, in its good faith business
judgment that the issuance of the Shares is in the best interests of the
Company. (r)No Disagreements with
Accountants and Lawyers. There are no disagreements of any
kind presently existing, or reasonably anticipated by the Company to arise,
between the Company and the accountants and lawyers formerly or presently
employed by the Company, including but not limited to disputes or conflicts over
payment owed to such accountants and lawyers, nor have there been any such
agreements during the two years prior to the Closing Date.
(s) DTC
Status. The Company’s transfer agent is a participant in
and the Common Stock is eligible for transfer pursuant to the Depository Trust
Company Automated Securities Transfer Program. The name, address,
telephone number, fax number, contact person and email address of the Company
transfer agent is set forth on Schedule 5(s) hereto.
(t) Investment
Company. Neither the Company nor any Affiliate is an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.
(u) Reserved.
(v) Company
Predecessor. All representations made by or relating to
the Company of a historical or prospective nature and all undertaking described
in Section 5 shall relate and refer to the Company and its
predecessors.
(w) Correctness of
Representations. The Company represents that the foregoing
representations and warranties are true and correct as of the date hereof in all
material respects, and, unless the Company otherwise notifies the Subscribers
prior to the Closing Date, shall be true and correct in all material respects as
of the Closing Date.
(x) Survival. The
foregoing representations and warranties shall survive the Closing Date for a
period of three years.
6. Regulation D
Offering. The offer and issuance of the Shares to the
Subscribers is being made pursuant to the exemption from the registration
provisions of the 1933 Act afforded by Section 4(2) or Section 4(6) of the 1933
Act and/or Rule 506 of Regulation D promulgated thereunder The
Company will provide, at the Company's expense, such other legal opinions in the
future as are reasonably necessary for the issuance and/or resale of the Shares
pursuant to an effective registration statement, Rule 144 under the 1933 Act, or
an exemption from registration.
7. Reserved.
8. Reserved
9. Covenants of the
Company. The Company covenants and agrees with the Subscribers
as follows:
(a) Stop
Orders. The Company will advise the Subscribers within two
hours after it receives notice of issuance by the SEC, any state securities
commission or any other regulatory authority of any stop order or of any order
preventing or suspending any offering of any securities of the Company, or of
the suspension of the qualification of the Common Stock of the Company for
offering or sale in any jurisdiction, or the initiation of any proceeding for
any such purpose.
(b) Principal
Market. The Company will maintain the quotation of its Common
Stock on the Bulletin Board (the “Principal Market”)), and will
comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of the Principal Market, as applicable.
The Company will provide the Subscribers copies of all notices it receives
notifying the Company of the threatened and actual delisting of the Common Stock
from any Principal Market. As of the date of this Agreement and the
Closing Date, the Bulletin Board is and will be the Principal
Market.
(c) Market
Regulations. The Company shall notify the SEC, the Principal
Market and applicable state authorities, in accordance with their requirements,
of the transactions contemplated by this Agreement, and shall take all other
necessary action and proceedings as may be required and permitted by applicable
law, rule and regulation, for the legal and valid issuance of the Securities to
the Subscribers and promptly provide copies thereof to Subscriber.
(d) Filing
Requirements. From the date of this Agreement and until the
sooner of (i) three (3) years after the Closing Date, or (ii) until all the
Shares have been resold or transferred by all the Subscribers pursuant to the
Registration Statement or pursuant to Rule 144, the Company will (A) cause its
Common Stock to continue to be subject to the reporting obligations of Section
15(d), 12(b) or 12(g) of the 1934 Act, (B) comply in all respects with its
reporting and filing obligations under the 1934 Act, (C) comply with all
reporting requirements that are applicable to an issuer subject to Section 15(d)
of the 1934 Act, or, if a class of its securities is registered under Section
12(b) or 12(g) of the 1934 Act, to all reporting requirements that are
applicable to an issuer with a class of shares registered pursuant to Section
12(b) or 12(g) of the 1934 Act, as applicable, and (D) comply with all
requirements related to any registration statement filed pursuant to this
Agreement. The Company will use its best efforts not to take any
action or file any document (whether or not permitted by the 1933 Act or the
1934 Act or the rules thereunder) to terminate or suspend such registration or
to terminate or suspend its reporting and filing obligations under said acts or
until three (3) years after the Closing Date. Until the he resale of
the Shares by each Subscriber, the Company will use its best efforts to continue
the listing or quotation of the Common Stock on the Principal Market and will
comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of the Principal Market. The
Company agrees to timely file a Form D with respect to the Securities if
required under Regulation D and to provide a copy thereof to each Subscriber
promptly after such filing.
(e) Use of
Proceeds. The proceeds of the Offering will be employed by the
Company for general working capital purposes.
(f) Reserved.
(g) Non-Public
Information. The Company covenants and agrees that neither it
nor any other person acting on its behalf will provide any Subscriber or its
agents or counsel with any information that the Company believes constitutes
material non-public information, unless prior thereto such Subscriber shall have
agreed in writing to receive such information. The Company
understands and confirms that each Subscriber shall be relying on the foregoing
representations in effecting transactions in securities of the Company. 10.
Covenants of the
Company and Subscriber Regarding Indemnification.
(a) The
Company agrees to indemnify, hold harmless, reimburse and defend the
Subscribers, the Subscribers' officers, directors, agents, Affiliates, control
persons, and principal shareholders, against any claim, cost, expense,
liability, obligation, loss or damage (including reasonable legal fees) of any
nature, incurred by or imposed upon the Subscriber or any such person which
results, arises out of or is based upon (i) any material misrepresentation by
Company or breach of any warranty by Company in this Agreement or in any
Exhibits or Schedules attached hereto, or other agreement delivered pursuant
hereto; or (ii) after any applicable notice and/or cure periods, any breach or
default in performance by the Company of any material covenant or undertaking to
be performed by the Company hereunder, or any other agreement entered into by
the Company and Subscriber relating hereto. Any or all of the foregoing are
deemed Events of Default.
(b) Each
Subscriber agrees to indemnify, hold harmless, reimburse and defend the Company
and each of the Company’s officers, directors, agents, Affiliates, control
persons against any claim, cost, expense, liability, obligation, loss or damage
(including reasonable legal fees) of any nature, incurred by or imposed upon the
Company or any such person which results, arises out of or is based upon (i) any
material misrepresentation by such Subscriber in this Agreement or in any
Exhibits or Schedules attached hereto, or other agreement delivered pursuant
hereto; or (ii) after any applicable notice and/or cure periods, any breach or
default in performance by such Subscriber of any covenant or undertaking to be
performed by such Subscriber hereunder, or any other agreement entered into by
the Company and Subscribers, relating hereto.
(c) In
no event shall the liability of any Subscriber or permitted successor hereunder
or under any Transaction Document or other agreement delivered in connection
herewith be greater in amount than the dollar amount of the net proceeds
actually received by such Subscriber upon the sale of Registrable Securities (as
defined herein).
11. Reserved.
12. Reserved.
13. Miscellaneous.
(a) Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be: (i) if to the Company, to: 3DIcon
Corporation, 6804 South Canton Avenue, Suite 150, Tulsa, OK, 74136, Attn: Martin
Keating, Chief Executive Officer, telecopier: (918) 492-5367, with a copy by
telecopier only to: Sichenzia Ross Friedman Ference LLP, 61 Broadway, New York,
NY 10006, Attn: Sean F. Reid, Esq., telecopier: (212) 930-9725, (ii) if to the
Subscribers, to: the one or more addresses and telecopier numbers indicated on
the signature pages hereto.
(b) Nothing
contained herein or in any document referred to herein or delivered in
connection herewith shall be deemed to establish or require the payment of a
rate of interest or other charges in excess of the maximum permitted by
applicable law. In the event that the rate of interest or dividends
required to be paid or other charges hereunder exceed the maximum permitted by
such law, any payments in excess of such maximum shall be credited against
amounts owed by the Company to the Subscriber and thus refunded to the
Company.
(c) Entire Agreement;
Assignment. This Agreement and other documents delivered in
connection herewith represent the entire agreement between the parties hereto
with respect to the subject matter hereof and may be amended only by a writing
executed by both parties. Neither the Company nor the Subscribers
have relied on any representations not contained or referred to in this
Agreement and the documents delivered herewith. No right or
obligation of the Company shall be assigned without prior notice to and the
written consent of the Subscribers.
(d)
Counterparts/Execution. This Agreement may be executed in any
number of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same
instrument. This Agreement may be executed by facsimile signature and
delivered by facsimile transmission.
(e) Law Governing this
Agreement. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to conflicts
of laws principles that would result
in the application of the substantive laws of another
jurisdiction. Any action brought by either party against the other
concerning the transactions contemplated by this Agreement shall be brought only
in the state courts of New York or in the federal courts located in the state of
New York. The
parties and the individuals executing this Agreement and other agreements
referred to herein or delivered in connection herewith on behalf of the Company
agree to submit to the jurisdiction of such courts and waive trial by
jury. The prevailing party shall be entitled to recover from
the other party its reasonable attorney's fees and costs. In the
event that any provision of this Agreement or any other agreement delivered in
connection herewith is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any such provision which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision of any agreement.
(f) Specific Enforcement,
Consent to Jurisdiction. The Company and Subscriber
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to one or more preliminary and final
injunctions to prevent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which any of them may be entitled by law or
equity. Subject to Section 13(e) hereof, each of the Company,
Subscriber and any signator hereto in his personal capacity hereby waives, and
agrees not to assert in any such suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction in New York of such court, that
the suit, action or proceeding is brought in an inconvenient forum or that the
venue of the suit, action or proceeding is improper. Nothing in this
Section shall affect or limit any right to serve process in any other manner
permitted by law.
(g) Independent Nature of
Subscribers. The Company acknowledges that the
obligations of each Subscriber under the Transaction Documents are several and
not joint with the obligations of any other Subscriber, and no Subscriber shall
be responsible in any way for the performance of the obligations of any other
Subscriber under the Transaction Documents. The Company acknowledges that each
Subscriber has represented that the decision of each Subscriber to purchase
Securities has been made by such Subscriber independently of any other
Subscriber and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or otherwise) or
prospects of the Company which may have been made or given by any other
Subscriber or by any agent or employee of any other Subscriber, and no
Subscriber or any of its agents or employees shall have any liability to any
Subscriber (or any other person) relating to or arising from any such
information, materials, statements or opinions. The Company acknowledges
that nothing contained in any Transaction Document, and no action taken by any
Subscriber pursuant hereto or thereto shall be deemed to constitute the
Subscribers as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Subscribers are in any way acting in
concert or as a group with respect to such obligations or the transactions
contemplated by the Transaction Documents. The Company acknowledges that
each Subscriber shall be entitled to independently protect and enforce its
rights, including without limitation, the rights arising out
of the Transaction Documents, and it shall not be necessary for any
other Subscriber to be joined as an additional party in any proceeding for such
purpose. The Company acknowledges that it has elected to provide all
Subscribers with the same terms and Transaction Documents for the convenience of
the Company and not because Company was required or requested to do so by the
Subscribers. The Company acknowledges that such procedure with respect to
the Transaction Documents in no way creates a presumption that the Subscribers
are in any way acting in concert or as a group with respect to the Transaction
Documents or the transactions contemplated thereby.
(f) Damages. In
the event the Subscriber is entitled to receive any liquidated damages pursuant
to the Transactions, the Subscriber may elect to receive the greater of actual
damages or such liquidated damages.
(g) Consent. As
used in the Agreement and except as otherwise specifically stated, “consent of
the Subscribers” or similar language means the consent of holders of not less
than 50.1% of the total of the Shares issued owned by Subscribers on the date
consent is requested.
(h) Equal
Treatment. No consideration shall be offered or paid to
any person to amend or consent to a waiver or modification of any provision of
the Transaction Documents unless the same consideration is also offered and paid
to all the Subscribers and their permitted successors and assigns.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT
Please
acknowledge your acceptance of the foregoing Subscription Agreement by signing
and returning a copy to the undersigned whereupon it shall become a binding
agreement between us.
3DIcon
Corporation
|
an
Oklahoma corporation
|
|
By:
|
|
Name:
|
Martin
Keating
|
Title:
|
CEO
|
|
Dated:
June ___, 2009
|
SUBSCRIBER
|
|
PURCHASE
PRICE
|
|
SHARES OF
COMMON
STOCK
|
Name
of Subscriber:
________________________________
Tax
ID / SS#:
_______________________________
Address:
________________________________
________________________________
Fax
No.:
________________________________
________________________________
(Signature)
By:
|
|
|
|
|
LIST OF
SCHEDULES
Schedule
5(d) Additional
Issuances / Capitalization
Schedule
5(s) Transfer
Agent
3DIcon
Director Purchases Company’s Stock
TULSA,
Okla.—(BUSINESS WIRE)—3DIcon Corporation (OTCBB: TDCP), the developer
of groundbreaking three-dimension projection and display technologies, today
announced that Victor Keen, one of its directors, has purchased from the Company
restricted stock for an investment of $100,000.
Board
member Victor Keen commented, “Over the two years of service on the Board of
3DIcon I have come to understand and appreciate the commercial potential of the
Company in the display field, most notably its volumetric display
technology known as “CSpace.” I believe that the strong management and technical
team in place bodes well for the success of CSpace in a number of promising
applications, including, in particular, medical display and airport security
scanning. In addition, I am excited about the prospects for the Company’s other
proprietary display technologies, namely, Pixel Precision and the recently
announced OLED flexible flat panel display and for its joint venture with Aria
International Incorporated. At a current market capitalization of the Company of
under $3 million, an additional investment in the Company at this time was, for
me, most compelling.”
About
3DIcon Corporation
3DIcon
Corporation is a developer of groundbreaking 3D projection and display
technologies that are being designed to produce full color, 360° volumetric
images. 3DIcon has completed a working prototype of its flagship technology,
CSpace®, a breakthrough in 3D imaging. 3DIcon has also launched its first
software product, Pixel Precision®, which targets the R&D market for
developers using Texas Instruments' DLP® line of products.
SAFE
HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION ACT OF
1995
With the
exception of historical information, the matters discussed in this news release
are forward-looking statements that involve a number of risks and uncertainties.
The actual future results of 3DIcon could differ significantly from those
statements. Factors that could cause actual results to differ materially include
risks and uncertainties such as the inability to finance the company's
operations, inability to hire and retain qualified personnel, and changes in the
general economic climate. In some cases, you can identify forward-looking
statements by terminology such as "may," "will," "should," "expect," "plan,"
"anticipate," "believe," "estimate," "predict," "potential" or "continue," the
negative of such terms, or other comparable terminology. These statements are
only predictions. Although we believe that the expectations reflected in the
forward-looking statements are reasonable, such statements should not be
regarded as a representation by 3DIcon, or any other person, that such
forward-looking statements will be achieved. We undertake no duty to update any
of the forward-looking statements, whether as a result of new information,
future events or otherwise. In light of the foregoing, readers are cautioned not
to place undue reliance on such forward-looking statements.
Contact:
Deborah
Conner
3DIcon
Corporation
Investor
and Media Relations
918-494-0505