Form 8-K - Current report

Signature:

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 and Exchange Act of 1934

Date of Report (Date of earliest event reported): September 11, 2023

TEL-INSTRUMENT ELECTRONICS CORP.

(Exact name of Registrant as specified in its charter)

New Jersey		001-31990		22-1441806
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

One Branca Road

East Rutherford, New Jersey 07073

(Address of principal executive offices, including zip code)

(201) 933-1600

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
N/A		N/A		N/A

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:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry into a Material Definitive Agreement.

Subscription Agreement

On September 15, 2023, Tel-Instrument Electronics Corp. (the “Company”) entered into (i) a definitive subscription agreement with one (1) accredited investor (the “Series B Investor”), pursuant to which the Series B Investor purchased an aggregate of 66,666.67 shares of the Company’s Series B Convertible Preferred Stock (the “Series B Preferred”) for an aggregate of $400,000 (the “Series B Subscription Agreement”); and (ii) definitive subscription agreements with two (2) accredited investors (the “Series C Investors” and, together with the Series B Investors, the ”Investors”), pursuant to which the Series C Investors purchased an aggregate of 53,500 shares of the Company’s Series C Convertible Preferred Stock (the “Series C Preferred”) for an aggregate of $321,000 (the “Series C Subscription Agreements” and, together with the Series B Subscription Agreement, the “Subscription Agreements”).

The Company intends to use such proceeds for payment of a judgment, working capital purposes and for payment of fees and expenses associated with this transaction. The closing will occur following the satisfaction of customary closing conditions.

The above description of the Subscription Agreements does not purport to be complete and is qualified in its entirety by the full text of the Series B Subscription Agreement and the Series C Subscription Agreement, the forms of which are attached as Exhibit 10.1 and Exhibit 10.2, respectively to this Current Report on Form 8-K and incorporated herein by reference.

Item 3.02 Unregistered Sales of Equity Securities.

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.

The securities issued pursuant to the Subscription Agreement were not registered under the Securities Act of 1933, as amended (the “Securities Act”), but qualified for exemption under Section 4(a)(2) of the Securities Act. The securities were exempt from registration under Section 4(a)(2) of the Securities Act because the issuance of such securities by the Company did not involve a “public offering,” as defined in Section 4(a)(2) of the Securities Act, due to the insubstantial number of persons involved in the transaction, size of the offering, manner of the offering and number of securities offered. The Company did not undertake an offering in which it sold a high number of securities to a high number of investors. In addition, these shareholders had the necessary investment intent as required by Section 4(a)(2) of the Securities Act since they agreed to, and received, share certificates bearing a legend stating that such securities are restricted pursuant to Rule 144 of the Securities Act. This restriction ensures that these securities would not be immediately redistributed into the market and therefore not be part of a “public offering.” Based on an analysis of the above factors, the Company has met the requirements to qualify for exemption under Section 4(a)(2) of the Securities Act.

Item 3.03 Material Modification to Rights of Security Holders.

The information set forth in Item 1.01 and Item 3.02 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

On September 13, 2023, the Company submitted to the Secretary of State of the State of New Jersey the Company’s Certificate of Amendment to its Certificate of Incorporation (the “Series B Amendment to Certificate”), which increased the number of shares of the Company’s Series B Convertible Preferred that the Company is authorized to issue to 320,000,

On September 11, 2023, the Secretary of State of the State of New Jersey delivered confirmation of the effective filing of the Company’s Certificate of Amendment to its Certificate of Incorporation (the “Series C Amendment to Certificate”), which established 166,667 shares of the Company’s the Series C Preferred, having such designations, rights and preferences as set forth therein, as determined by the Company’s Board of Directors in its sole discretion, in accordance with the Company’s Certificate of Incorporation and bylaws. On September 14, 2023, the Company submitted for filing a Certificate of Correction to correct certain errors in the Series C Amendment to Certificate, restating the designations, rights and preferences for the Series C Preferred Stock (the “Series C Designations”).

The Series C Designations provide that the shares of Series C Preferred have a stated value of $6.00 per share (the “Series C Stated Value”) and are convertible into Common Stock at a value of $2.00 per share (the “Conversion Price”), subject to adjustments in case of certain specific instances. The holders of shares of the Series C Preferred shall be entitled to receive dividends out of any assets legally available, to the extent permitted by New Jersey law, at an annual rate equal to 8% of the Series C Stated Value of such shares of Series C Preferred, calculated on the basis of a 360 day year, consisting of twelve 30-day months, and shall accrue from the date of issuance of such shares of Series C Preferred, payable quarterly in cash.

The holders of Series C Preferred rank senior to the Company’s Common Stock and pari passu with the Company’s Series A Preferred Stock and Series B Preferred Stock.

The foregoing descriptions of the Series B Amendment to Certificate, the Series C Amendment to Certificate and the Certificate of Correction (and the Series C Designations Set forth therein) do not purport to be complete and are subject to, and qualified in their entirety by, the Series B Amendment to Certificate, the Series C Amendment to Certificate and the Certificate of Correction, copies of which are attached as Exhibit 3.1, Exhibit 3.2 and Exhibit 3.3 to this Current Report on Form 8-K and incorporated herein by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information set forth in Item 1.01, item 3.02 and Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.		Description

3.1		Series B Amendment to Certificate
3.2		Series C Amendment to Certificate
3.3		Certificate of Correction
10.1		Form of Series B Preferred Subscription Agreement
10.2		Form of Series C Preferred Subscription Agreement
104		Cover Page Interactive Data File (formatted as Inline XBRL)

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 thereunto duly authorized.

	TEL-INSTRUMENT ELECTRONICS CORP.


Date: September 18, 2023	By:	/s/ Pauline Romeo
		Name: Pauline Romeo
		Title: Principal Financial Officer

Exhibit 3.1

New Jersey Division of Revenue

Certificate of Amendment to the Certificate of Incorporation

(For Use by Domestic Profit Corporations)

Pursuant to the provisions of Section 14A:9-2 (4) and Section 14A:9-4 (3), Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation:

1. The name of the corporation is:

Tel-Instrument Electronics Corp.

2. The following amendment to the Certificate of Incorporation was approved by the directors and thereafter duly adopted by the shareholders of the corporation on the 12^th day of September 2023

Resolved, that Article I.B. of Article TENTH of the Certificate of Incorporation be amended to read as follows:

B. Number of Shares. The number of shares of Series B Preferred authorized shall be Three Hundred Twenty Thousand (320,000) shares. Each share of Series B Preferred shall have a stated value equal to $6.00 (as may be adjusted for any stock dividends, combinations or splits with respect to such shares) (the “Series B Stated Value”).

3. The number of shares outstanding at the time of the adoption of the amendment was: 3,255,887

The total number of shares entitled to vote thereon was: 0

If the shares of any class or series of shares are entitled to vote thereon as a class, set forth below the designation and number of outstanding shares entitled to vote thereon of each such class or series. (Omit if not applicable).

The amendment was authorized by the Board of Directors pursuant to Article SIXTH E of the Certificate of Incorporation. For purposes hereof only, such approval by the Board is deemed the equivalent of the vote of all issued and outstanding shares. Additionally, all holders of Series B Preferred Stock consented to the amendment.

4. The number of shares voting for and against such amendment is as follows: (If the shares of any class or series are entitled to vote as a class, set forth the number of shares of each such class and series voting for and against the amendment, respectively).

Number of Shares Voting for Amendment Number of Shares Voting Against Amendment

3,255,887 0

5. If the amendment provides for an exchange, reclassification or cancellation of issued shares, set forth a statement of the manner in which the same shall be effected. (Omit if not applicable).

6. Other provisions: (Omit if not applicable).

BY:

(Signature) President/ CEO

Dated this Twelfth day of September, 2023

Exhibit 3.2

New Jersey Division of Revenue

Certificate of Amendment to the Certificate of Incorporation

(For Use by Domestic Profit Corporations)

1. The name of the corporation is:

Tel-Instrument Electronics Corp.

2. The following amendment to the Certificate of Incorporation was approved by the directors and thereafter duly adopted by the shareholders of the corporation on the 31^stth day of August, 2023

Resolved, that Article ELEVENTH of the Certificate of Incorporation be amended to read as follows:

(see attached new Article ELEVENTH)

3. The number of shares outstanding at the time of the adoption of the amendment was: 3,255,887

The total number of shares entitled to vote thereon was: 0

The following amendment was authorized by the Board of Directors pursuant to Article SIXTH E of the Certificate of Incorporation. For purposes hereof only, such approval by the Board is deemed the equivalent of the vote of all issued and outstanding shares.

Number of Shares Voting for Amendment Number of Shares Voting Against Amendment

3,255,887 0

5. If the amendment provides for an exchange, reclassification or cancellation of issued shares, set forth a statement of the manner in which the same shall be effected. (Omit if not applicable).

6. Other provisions: (Omit if not applicable).

BY:

(Signature) President/ CEO

Dated this First day of September, 2023

May be executed by the Chairman of the Board, or the President, or a Vice President of the Corporation.

“ELEVENTH:

Series C Preferred Stock

I. DESIGNATION AND AMOUNT; DIVIDENDS

A. Designation. The designation of said series of preferred stock shall be Series C Preferred Stock, $0.10 par value per share (the “Series C Preferred”).

B. Number of Shares. The number of shares of Series C Preferred authorized shall be One Hundred Sixty-six Thousand Six Hundred Sixty-seven (166,667) shares. Each share of Series C Preferred shall have a stated value equal to $6.00 (as may be adjusted for any stock dividends, combinations or splits with respect to such shares) (the “Series C Stated Value”).

C. Certain Definitions. In addition to terms defined elsewhere in this Certificate of Designations, Preferences and Rights, the following terms have the following meanings:

“Common Stock” means the Company’s common stock, par value $0.10 per share.

“Deemed Liquidation Event” shall mean (i) a merger or consolidation in which (x) the Company is a constituent party or (y) a subsidiary of the Company is a constituent party and the Company issues shares of its capital stock pursuant to such merger or consolidation, except any such merger or consolidation involving the Company or a subsidiary in which the share capital stock of the Company outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (a) the surviving or resulting corporation; or (b) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; or (ii) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all of the assets of the Company and its subsidiaries taken as a whole or the sale or disposition (whether by merger, consolidation or otherwise) of one or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Company.

“Holder” shall mean a holder of record of the Series C Preferred.

“Original Issue Date” shall mean the date of the first issuance of any shares of the Series C Preferred regardless of the number of transfers of any particular shares of Series C Preferred and regardless of the number of certificates which may be issued to evidence such Series C Preferred.

D. Dividends.

(i) Quarterly Dividends. The Holders of shares of the Series C Preferred shall be entitled to receive dividends out of any assets legally available, to the extent permitted by New Jersey law, at an annual rate equal to [2%] of the Series C Stated Value of such shares of Series C Preferred, calculated on the basis of a 360 day year, consisting of twelve 30-day months, and shall accrue from the date of issuance of such shares of Series C Preferred, payable quarterly in cash. Any unpaid dividends shall accrue at the same rate. To the extent not paid on the last day of March, June, September and December of each calendar year, all dividends on any share of Series C Preferred shall accumulate whether or not declared by the Board and shall remain accumulated dividends until paid pursuant hereto. All accrued and unpaid dividends shall be paid upon a Liquidation Event pursuant to Section II, conversion pursuant to Section IIIA. - D or redemption pursuant to Section III.C. The Holders of the Series C Preferred may convert any such unpaid dividends into common stock of the Company, at the Conversion Price (defined below), and otherwise in accordance with the terms and conditions hereof.

(ii) Junior Stock Dividends. All accrued and accumulated dividends on the shares of Series C Preferred shall be prior and in preference to any dividend on any Junior Stock (as defined herein). The Company shall not declare or pay any cash dividends on, or make any other distributions with respect to or redeem, purchase or otherwise acquire for consideration, any shares of Junior Stock unless and until all accrued and unpaid dividends on the Series C Preferred Stock have been paid in full. In all events, Junior Stock dividends shall be subject to the restrictions set forth in Section II.A. below.

(iii) Partial Dividend Payments. Except as otherwise provided herein, if at any time the Company pays less than the total amount of dividends then accrued and accumulated with respect to the Series C Preferred, such payment shall be distributed pro rata among the Holders thereof based upon the aggregate accrued and accumulated but unpaid dividends on the shares of Series C Preferred held by each such Holder.

II. LIQUIDATION PREFERENCE

A. Preferential Payments to Holders of Series C Preferred. In the event of any liquidation, dissolution or winding up of the Company or a Deemed Liquidation Event, either voluntary or involuntary, the Holders of record of shares of Series C Preferred shall be entitled to receive, immediately prior and in preference to any distribution to the holders of the Company’s other equity securities (including the Company’s Common Stock and any Junior Stock), a liquidation preference equal to the Series C State Value per share plus all accrued and accumulated but unpaid dividends, whether or not declared (the amount payable pursuant to this sentence is hereinafter referred to as the “Liquidation Preference Amount”). If upon the occurrence of such event (a “Liquidation Event”) the assets and funds thus distributed among the Holders shall be insufficient to permit the payment to such Holders of the full Liquidation Preference Amounts due to the Holders of the Series C Preferred, then the entire assets and funds of the Company legally available for distribution shall be distributed among the Holders, pro rata, based on the Liquidation Preference Amounts to which such Holders are entitled and the Company shall not make or agree to make any payments to holders of any Junior Stock.

B. Notice of Liquidation Event. In the event of any Liquidation Event, the Company shall, within ten (10) days of the date the Board approves such action, or no later than twenty (20) days of any shareholders’ meeting called to approve such action, or within twenty (20) days of the commencement of any involuntary proceeding, whichever is earlier, give each Holder of shares of Series C Preferred written notice of the proposed action. Such written notice shall describe the material terms and conditions of such proposed action, including a description of the stock, cash and property to be received by the Holders of shares of Series C Preferred upon consummation of the proposed action and the date of delivery thereof. If any material change in the facts set forth in the initial notice shall occur, the Company shall promptly give written notice to each Holder of such material change.

C. Other Distributions. Upon the completion of the distribution required by this Section, if assets remain in this Company, they shall be distributed to holders of parity securities (unless holders of parity securities have received distributions pursuant to this section) and Junior Stock in accordance with the Certificate of Incorporation, as amended.

D. Conversion by Holders of Series C Preferred. Notwithstanding the foregoing, at the option of the Holder of shares of Series C Preferred, such Holder may elect to convert the entire Liquidation Preference Amount into shares of Common Stock pursuant to an optional conversion of the Series C Preferred as set forth in Section III.A., effective immediately prior to a Liquidation Event; provided, however that, for the avoidance of doubt, in the event of any such conversion, the requirement set forth in the last sentence of Section III.C hereof for 61 days’ notice prior to any waiver and the limitation in the final proviso of such sentence shall not apply.

III. CONVERSION; REDEMPTION

A. Optional Conversion. Each Holder shall have the right, at any time commencing after the Original Issue Date, and without payment of additional consideration by the Holder, to convert the aggregate Series C Stated Value of such shares, as well as accrued and accumulated but unpaid declared dividends on the Series C Preferred (collectively the “Conversion Amount”) into fully paid and non-assessable shares of Common Stock of the Company (“Conversion Shares”). The “Conversion Price” of the Series C Preferred shall be $2.30, subject to

adjustment and except as otherwise set forth below. No fractional shares of Common Stock shall be issued upon conversion of Series C Preferred. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall round up to the nearest whole share. In order to convert Series C Preferred into shares of Common Stock, the Holder shall surrender the certificate or certificates therefor, duly endorsed, to the principal office of the Company, and shall give written notice to the Company at such office that the Holder elects to convert the same, the number of shares of Series C Preferred so converted and a calculation of the Conversion Price (with an advance copy of the certificate(s) and the notice by facsimile)(the “Conversion Notice”); provided, however, that the Company shall not be obligated to issue certificates evidencing shares of Common Stock issuable upon such conversion unless such shares of Series C Preferred are delivered to the Company as provided above, or the Holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to the Company and its transfer agent to indemnify the Company from any loss incurred by it in connection with such certificates. Notice of conversion may be given by a Holder at any time during the day up to 5:00 p.m. New York City time and such conversion shall be deemed to have been made immediately prior to the close of business on the date notice of conversion is received by the Company and the shares of Common Stock issuable upon conversion of the specified shares of Series C Preferred shall be deemed to be outstanding of record as of such date. Within three (3) business days after the notice of conversion is delivered in accordance with the procedures set forth above, the Company shall instruct the transfer agent to issue shares of its Common Stock and to forward the same to the Holder, or upon the election of the Holder, the Company shall transmitted the shares of Common Stock to the Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the shares to or resale of the shares by the Holder or (B) the shares are eligible for resale by the Holders without volume or manner-of-sale limitations pursuant to Rule 144, and otherwise by physical delivery to the Holder. All shares of Common Stock issued hereunder by the Company shall be duly and validly issued, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof. The Company shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Series C Preferred pursuant to this Section III.

In case of conversion under this Section III of only a part of the shares of Series C Preferred represented by a certificate surrendered to the Company, the Company shall issue and deliver a new certificate for the number of shares of Series C Preferred which have not been converted, upon receipt of the original certificate or certificates representing shares of Series C Preferred so converted. Until such time as the certificate or certificates representing shares of Series C Preferred which have been converted are surrendered to the Company and a certificate or certificates representing the Common Stock into which such shares of Series C Preferred have been converted have been issued and delivered, the certificate or certificates representing the shares of Series C Preferred Stock which have been converted shall represent the shares of Common Stock into which such shares of Series C Preferred have been converted.

B. Adjustments. The Conversion Price shall be subject to adjustment from time to time as follows:

(i) Consolidation, Merger, Sale, Lease or Conveyance. In case of any consolidation or merger of the Company with or into another Company where the Company is not the surviving entity, or in case of any sale, lease or conveyance to another Company of all or substantially all the assets of the Company, each share of the Series C Preferred shall after the date of such consolidation, merger, sale, lease or conveyance be convertible into, in lieu of the number of shares of Common Stock which the Holders would otherwise have been entitled to receive, the number of shares of stock or other securities or property (including cash) to which the Common Stock issuable (at the time of such consolidation, merger, sale, lease or conveyance) upon conversion of such share of the Series C Preferred would have been entitled upon such consolidation, merger, sale, lease or conveyance; and in any such case, if necessary, the provisions set forth herein with respect to the rights and interests thereafter of the Holder of the shares of the Series C Preferred shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to any shares of stock or other securities or property thereafter deliverable on the conversion of the shares of the Series C Preferred. Notwithstanding the foregoing, if upon the occurrence of a Liquidation Event the Holder of shares of Series C Preferred receives the entire Liquidation Preference Amount either in cash or in shares of Common Stock pursuant to Section II above, the Conversion Price shall not be adjusted as a result of such Liquidation Event; provided that,

the Conversion Price will continue to be subject to adjustment with respect to any subsequent events described in this Section III.B(i).

(ii) Stock Dividends, Subdivisions, Reclassification, or Combinations. If the Company shall (1) declare a dividend or make a distribution on its Common Stock in shares of its Common Stock, (2) subdivide or reclassify the outstanding shares of Common Stock into a greater number of shares, or (3) combine or reclassify the outstanding Common Stock into a smaller number of shares, then in any such case, the Conversion Price in effect at the time of the record date for such dividend or distribution or the effective date of such subdivision, combination, or reclassification shall be proportionately adjusted so that the Holder of any shares of the Series C Preferred surrendered for conversion after such date shall be entitled to receive the number of shares of Common Stock that such Holder would have owned or been entitled to receive had such Series C Preferred been converted immediately prior to such date. Successive adjustments in the Conversion Price shall be made whenever any event specified above shall occur. If the Company shall subdivide (by stock split, by payment of a stock dividend or otherwise) the outstanding shares of Series C Preferred, into a greater number of shares of Series C Preferred, the Conversion Price of the Series C Preferred in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately decreased. In the event the outstanding shares of Series C Preferred shall be combined (by reclassification or otherwise) into a lesser number of shares of Series C Preferred, the Conversion Price of the Series C Preferred in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately increased.

C. Conversion Limitations. In no event shall the Holder, or any future Holder, be entitled to convert any portion of the Series C Preferred in excess of that portion of the Series C Preferred upon conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by the Holder and its affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Series C Preferred or the unexercised or unconverted portion of any other security of the Company subject to a limitation on conversion of exercise analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Series C Preferred with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its affiliates of more than 9.99% of the outstanding shares of Common Stock of the Company. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder. Subject to the foregoing, the Holder shall not be limited to aggregate exercises which would result in the issuance of more than 9.99%. The restriction described in this paragraph may be waived, in whole or in part, upon sixty-one (61) days’ prior notice from the Holder to the Company to increase such percentage; provided, however, that such waiver will not be effective to the extent that it results in such Holder beneficially owning more than 19.99% of the outstanding shares of Common Stock of the Company.

D. Reservation of Shares. The Company shall, and for so long as any shares of Series C Preferred are outstanding, reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Series C Preferred, such number of shares of Common Stock as shall from time to time be sufficient to effect the conversion of all of the Series C Preferred then outstanding taking into account any adjustment to such number of shares so issuable in accordance with this Section III; provided that the number of shares of Common Stock so reserved shall at no time be less than 120% of the number of shares of Common Stock for which the shares of Series C Preferred are at any time convertible (without regard to the limitations on conversion set forth in Section III.C. hereof). The Company shall take all such actions as may be necessary to assure that all such shares of Common Stock may be issued under this Section III without violation of any applicable law or governmental regulation or any requirements of any trading market (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).

E. Redemption of Shares. Effective beginning on the third anniversary of the Original Issue Date, and upon 30 days’ written notice to the Holders of Series C Preferred, the Company may, in its sole discretion, redeem the Series C Preferred at the aggregate Series C Stated Value plus any accrued and accumulated but unpaid dividends (the “Series C Redemption Price”). Following receipt of such redemption notice, the Series C Preferred Holders shall continue to have the right to convert the Series C Preferred shares in accordance with the terms and conditions hereof. In exchange for the surrender to the Company by the Holders of their certificate or certificates

representing their shares of Series C Preferred, the aggregate Series C Redemption Price for all shares held by each such Holder shall be payable in cash in immediately available funds to the respective Holders of the Series C Preferred being redeemed on the applicable redemption date.

IV. RANK

All shares of the Series C Preferred shall rank (i) senior to the Company’s Common Stock, the Company’s Series A Preferred Stock, and any other class or series of capital stock of the Company hereafter created, the terms of which specifically provide that such class or series shall rank junior to the Series C Preferred (each of the securities in clause (i) collectively referred to as “Junior Stock”) and (ii) pari passu with the Company’s Series B Preferred Stock any class or series of capital stock of the Company hereafter created and specifically ranking, by its terms, on par with the Series C Preferred, in each case as to dividend distributions or distributions of assets upon liquidation, dissolution or winding up of the Company or a Deemed Liquidation Event, whether voluntary or involuntary.

V. VOTING RIGHTS

The Holders will vote together with the holders of the Company’s Common Stock on an as-converted basis on each matter submitted to a vote of holders of Common Stock (whether at a meeting of shareholders or by written consent). In any such vote, the number of votes that may be cast by a Holder shall be equal to one (1) vote for each Conversion Share underlying such Holder’s outstanding shares of Series C Preferred, as calculated, for purposes of this Section V.A. only, using Voting Conversion Price, as of the record date for such vote or written consent or, if there is no specified record date, as of the date of such vote or written consent. The “Voting Conversion Price” of the Series C Preferred shall be the greater of (i) $2.30 and (ii) the price of the Company’s Common Stock on the date of closing of the purchase of the Series C Preferred, subject to adjustment and except as otherwise set forth above. Each Holder shall be entitled to notice of all shareholder meetings (or requests for written consent) in accordance with the Company’s bylaws.

VI. MISCELLANEOUS

A. Status of Redeemed Stock. In case any shares of Series C Preferred shall be redeemed or otherwise repurchased or reacquired, the shares so redeemed, repurchased, or reacquired shall resume the status of authorized but unissued shares of preferred stock, and shall no longer be designated as Series C Preferred.

B. Lost or Stolen Certificates. Upon receipt by the Company of (i) evidence of the loss, theft, destruction or mutilation of any Preferred Stock Certificate(s) and (ii) in the case of loss, theft or destruction, indemnity (with a bond or other security) reasonably satisfactory to the Company, or in the case of mutilation, the Preferred Stock Certificate(s) (surrendered for cancellation), the Company shall execute and deliver new Preferred Stock Certificates.

C. Waiver. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein and any right of the Holders granted hereunder may be waived as to all shares of Series C Preferred (and the Holders thereof) upon the unanimous written consent of the Holders.

D. Notices. Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt requested) or delivered personally, by nationally recognized overnight carrier or by confirmed facsimile transmission, and shall be effective five (5) days after being placed in the mail, if mailed, or upon receipt or refusal of receipt, if delivered personally or by nationally recognized overnight carrier or confirmed facsimile transmission, in each case addressed to a party as set forth below, or such other address and telephone and fax number as may be designated in writing hereafter in the same manner as set forth in this Section.

If to the Company:

Tel-Instrument Electronics Corp.

One Branca Road

East Rutherford, NJ 07073

Attention: Jeffrey C. O’Hara

If to the Holders, to the address listed in the Company’s books and records.

E. Amendment and Waiver. Notwithstanding any provision in the Certificate of Designation to the contrary, no provision contained in this Certificate of Designation may be amended, modified or waived except by an instrument in writing executed by the Corporation and all of the Holders of the shares of Series C Preferred then outstanding. Without limiting the generality of the foregoing, no amendment, modification or waiver of the terms or relative priorities of the Series C Preferred may be accomplished by the merger, consolidation or other transaction of the Company with another corporation or entity unless the Company has obtained the prior written consent of the Holders of 75% of the outstanding shares of Series C Preferred at such time, in accordance with Section V.B. hereof.”

Exhibit 3.3

C-152 Rev. 3/96

New Jersey Division of Revenue

Certificate of Correction

(For use by Domestic, Foreign, Profit and Nonprofit Corporations)

Check Appropriate Statute:

☒ Title 14A:1-6 (5)	New Jersey Business Corporation Act	(File in DUPLICATE)

☐ Title 15A:1-7 (e)	New Jersey Nonprofit Corporation Act	(File in TRIPLICATE)

CERTIFICATE OF CORRECTION OF:

Corporation Name: Tel-Instrument Electronics Corp.

Corporation Number: 8808701000

The undersigned hereby submits for filing a Certificate of Correction executed on behalf of the above named Corporation, pursuant to the provisions of the appropriate Statue, checked above, of the New Jersey Statutes.

1. The Certificate to be corrected is:		Certificate of Amendment to the Certificate of Incorporation

Date Filed: September 6, 2023



2. The inaccuracy in the Certificate is (indicate inaccuracy or defect):		Article # Eleventh

conversion price of $2.30; annual dividend rate of 2%; Series C Preferred Stock ranking ahead of Series A Preferred Stock

3. The Certificate hereby reads as follows:

[See attached Article ELEVENTH, restated in its entirety, reflecting corrected conversion price of $2.00; annual dividend rate of 8%; Series C Preferred Stock does not rank ahead of Series A Preferred Stock]

(Must be Chairperson of the Board, President or Vice President)

NJ Division of Revenue, PO Box 308, Trenton, NJ 08646

“ELEVENTH:

Series C Preferred Stock

I. DESIGNATION AND AMOUNT; DIVIDENDS

A. Designation. The designation of said series of preferred stock shall be Series C Preferred Stock, $0.10 par value per share (the “Series C Preferred”).

C. Certain Definitions. In addition to terms defined elsewhere in this Certificate of Designations, Preferences and Rights, the following terms have the following meanings:

“Common Stock” means the Company’s common stock, par value $0.10 per share.

“Holder” shall mean a holder of record of the Series C Preferred.

D. Dividends.

(i) Quarterly Dividends. The Holders of shares of the Series C Preferred shall be entitled to receive dividends out of any assets legally available, to the extent permitted by New Jersey law, at an annual rate equal to 8% of the Series C Stated Value of such shares of Series C Preferred, calculated on the basis of a 360 day year, consisting of twelve 30-day months, and shall accrue from the date of issuance of such shares of Series C Preferred, payable quarterly in cash. Any unpaid dividends shall accrue at the same rate. To the extent not paid on the last day of March, June, September and December of each calendar year, all dividends on any share of Series C Preferred shall accumulate whether or not declared by the Board and shall remain accumulated dividends until paid pursuant hereto. All accrued and unpaid dividends shall be paid upon a Liquidation Event pursuant to Section II, conversion pursuant to Section IIIA. - D or redemption pursuant to Section III.C. The Holders of the Series C

Preferred may convert any such unpaid dividends into common stock of the Company, at the Conversion Price (defined below), and otherwise in accordance with the terms and conditions hereof.

II. LIQUIDATION PREFERENCE

III. CONVERSION; REDEMPTION

Preferred (collectively the “Conversion Amount”) into fully paid and non-assessable shares of Common Stock of the Company (“Conversion Shares”). The “Conversion Price” of the Series C Preferred shall be $2.00, subject to adjustment and except as otherwise set forth below. No fractional shares of Common Stock shall be issued upon conversion of Series C Preferred. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall round up to the nearest whole share. In order to convert Series C Preferred into shares of Common Stock, the Holder shall surrender the certificate or certificates therefor, duly endorsed, to the principal office of the Company, and shall give written notice to the Company at such office that the Holder elects to convert the same, the number of shares of Series C Preferred so converted and a calculation of the Conversion Price (with an advance copy of the certificate(s) and the notice by facsimile)(the “Conversion Notice”); provided, however, that the Company shall not be obligated to issue certificates evidencing shares of Common Stock issuable upon such conversion unless such shares of Series C Preferred are delivered to the Company as provided above, or the Holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to the Company and its transfer agent to indemnify the Company from any loss incurred by it in connection with such certificates. Notice of conversion may be given by a Holder at any time during the day up to 5:00 p.m. New York City time and such conversion shall be deemed to have been made immediately prior to the close of business on the date notice of conversion is received by the Company and the shares of Common Stock issuable upon conversion of the specified shares of Series C Preferred shall be deemed to be outstanding of record as of such date. Within three (3) business days after the notice of conversion is delivered in accordance with the procedures set forth above, the Company shall instruct the transfer agent to issue shares of its Common Stock and to forward the same to the Holder, or upon the election of the Holder, the Company shall transmitted the shares of Common Stock to the Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the shares to or resale of the shares by the Holder or (B) the shares are eligible for resale by the Holders without volume or manner-of-sale limitations pursuant to Rule 144, and otherwise by physical delivery to the Holder. All shares of Common Stock issued hereunder by the Company shall be duly and validly issued, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof. The Company shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Series C Preferred pursuant to this Section III.

B. Adjustments. The Conversion Price shall be subject to adjustment from time to time as follows:

to Section II above, the Conversion Price shall not be adjusted as a result of such Liquidation Event; provided that, the Conversion Price will continue to be subject to adjustment with respect to any subsequent events described in this Section III.B(i).

conditions hereof. In exchange for the surrender to the Company by the Holders of their certificate or certificates representing their shares of Series C Preferred, the aggregate Series C Redemption Price for all shares held by each such Holder shall be payable in cash in immediately available funds to the respective Holders of the Series C Preferred being redeemed on the applicable redemption date.

IV. RANK

All shares of the Series C Preferred shall rank (i) senior to the Company’s Common Stock and any other class or series of capital stock of the Company hereafter created, the terms of which specifically provide that such class or series shall rank junior to the Series C Preferred (each of the securities in clause (i) collectively referred to as “Junior Stock”) and (ii) pari passu with the Company’s Series A Preferred Stock, Series B Preferred Stock and any class or series of capital stock of the Company hereafter created and specifically ranking, by its terms, on par with the Series C Preferred, in each case as to dividend distributions or distributions of assets upon liquidation, dissolution or winding up of the Company or a Deemed Liquidation Event, whether voluntary or involuntary.

V. VOTING RIGHTS

The Holders will vote together with the holders of the Company’s Common Stock on an as-converted basis on each matter submitted to a vote of holders of Common Stock (whether at a meeting of shareholders or by written consent). In any such vote, the number of votes that may be cast by a Holder shall be equal to one (1) vote for each Conversion Share underlying such Holder’s outstanding shares of Series C Preferred, as calculated, for purposes of this Section V.A. only, using Voting Conversion Price, as of the record date for such vote or written consent or, if there is no specified record date, as of the date of such vote or written consent. The “Voting Conversion Price” of the Series C Preferred shall be the greater of (i) $2.00 and (ii) the price of the Company’s Common Stock on the date of closing of the purchase of the Series C Preferred, subject to adjustment and except as otherwise set forth above. Each Holder shall be entitled to notice of all shareholder meetings (or requests for written consent) in accordance with the Company’s bylaws.

VI. MISCELLANEOUS

If to the Company:

Tel-Instrument Electronics Corp.

One Branca Road

East Rutherford, NJ 07073

Attention: Jeffrey C. O’Hara

If to the Holders, to the address listed in the Company’s books and records.

Exhibit 10.1

SUBSCRIPTION AGREEMENT

THIS SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of September ____, 2023 by and between Tel-Instrument Electronics Corp., a New Jersey corporation with its headquarters located at One Branca Road, East Rutherford, NJ 07073 (the “Company”), and the subscriber identified on the signature page hereto (the “Subscriber”).

WHEREAS, the Company and Subscriber are executing and delivering this Agreement in reliance upon an exemption from securities registration afforded by the provisions of Section 4(a)(2) and/or Regulation D (“Regulation D”) promulgated by the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”);

WHEREAS, on or about October 2, 2018, the Company filed with the State of New Jersey a certificate of designations, rights and preferences for its Series B Convertible Preferred Stock (as amended, the “Series B Certificate of Designations”), attached hereto as Exhibit A; and

WHEREAS, the parties hereto desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to Subscriber, and Subscriber shall purchase, in the aggregate, that number of shares of Series B Convertible Preferred Shares, par value $0.10 per share, of the Company (the “Series B Preferred Stock”) as is set forth on the signature page hereto (the “Shares”) at an aggregate purchase price (the “Purchase Price”) as is set forth on the signature page hereto (the “Securities”).

NOW, THEREFORE, in consideration of the mutual covenants and other agreements contained in this Agreement, the Company and Subscriber hereby agree as follows:

1. Purchase and Sale.

(a) Upon the terms and subject to the conditions set forth in this Agreement, the Company hereby agrees to issue, sell, assign, transfer and deliver to Subscriber, and Subscriber hereby agrees to purchase and accept delivery from the Company, the Shares free of all liens, pledges, mortgages, security interests, charges, restrictions, adverse claims, conditions, equitable interests, options, rights of first refusal or other encumbrances of any kind or nature whatsoever, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership (“Encumbrances”), for the consideration specified herein (such consideration, on a per share basis, the “Share Price”). This will be accomplished by, upon execution of this Agreement, the Subscriber delivering to the Company the Purchase Price (the “Consideration”); and upon receipt by the Company of the Consideration, the Company issuing to the Subscriber the shares of Series B Preferred Stock comprising the Securities.

(b) Subject to the terms and conditions of this Agreement, the closing of the purchase and sale of the Shares contemplated hereby (the “Closing”) shall occur simultaneously with the execution of this Agreement. The Closing shall take place by delivery of documents required to be delivered hereby by e-mail, facsimile or other electronic transmission.

(c) At the Closing, the Subscriber shall deliver or cause to be delivered to the Company: (i) the aggregate Share Price set forth in Section 1(a) above, in United States dollars and in immediately available funds, by wire transfer to an account designated in writing by the Company for such purpose; and (ii) such other documents or instruments as the Company reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.

(d) At the Closing, the Company shall deliver or cause to be delivered to the Subscriber the following: (i) one or more stock certificates or book entry statements, free and clear of all restrictive and other legends (except as expressly provided in Section 2(g) hereof), evidencing the number of Shares in Section 1(a) above, registered in the name of the Subscriber or such affiliate thereof as the Subscriber may designate in writing; (ii) a certificate of the secretary (or equivalent officer) of the Company certifying: (A) that attached thereto are true and complete copies of all resolutions and other consents adopted by the board of directors of the Company authorizing and approving the execution, delivery, filing and performance of this Agreement and any other related documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions and consents are in full force and effect as of the Closing, (B) that attached thereto are true and complete copies of the certificate of incorporation and by-laws of the Company, each as amended, and that such organizational documents are in full force and effect as of the Closing, and (C) the names and signatures of the officers of the Company authorized to sign this Agreement, and the other documents to be delivered hereunder; (iii) a good standing certificate (or its equivalent) for the Company from the Secretary of State of New Jersey; and (iv) such other documents or instruments as the Subscriber reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.

(e) The proceeds from the issuance of the Shares shall be used by the Company (i) for working capital purposes, and (ii) for the payment of fees and expenses associated with the transactions contemplated hereby, and shall not be used for any other purpose including, without limitation, the payment of existing indebtedness of the Company.

2. Subscriber Representations and Warranties. Subscriber hereby represents and warrants to and agrees with the Company that:

(a) Standing of Subscriber. If Subscriber is an entity, such Subscriber is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation. If Subscriber is a natural person, such Subscriber is not a minor and has the legal capacity to enter into this Agreement;

(b) Authorization and Power. Subscriber has the requisite power and authority to enter into and perform this Agreement and to purchase the Shares. The execution, delivery and performance of this Agreement by Subscriber and, if Subscriber is an entity, the consummation by Subscriber of the transactions contemplated hereby have been duly authorized by all necessary company action, and no further consent or authorization of Subscriber, its board of directors or similar governing body, or stockholders is required, as applicable. This Agreement has been duly authorized, executed and delivered by Subscriber and constitutes, or shall constitute when executed and delivered, a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with the terms thereof, except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, or principles of equity;

(c) No Conflicts. If Subscriber is an entity, the execution, delivery and performance of this Agreement and the consummation by Subscriber of the transactions contemplated hereby do not and will not result in a violation of Subscriber’s charter documents, bylaws or other organizational documents, as applicable;

(d) Information on Subscriber. Such Subscriber is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D promulgated by the Commission under the Securities Act and affirmed by Subscriber in the completed Purchaser Questionnaire attached hereto as Exhibit B, 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 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. Subscriber is able to bear the risk of such investment for an indefinite period and to afford a partial or complete loss thereof. Subscriber is not required to be registered as a broker-dealer under Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);

(e) Purchase of Shares. Subscriber will purchase the Shares for its own account for investment and not with a view toward, or for resale in connection with, the public sale or any distribution thereof in violation of the Securities Act or any applicable state securities law, and has no direct or indirect arrangement or understandings with any other person or entity to distribute or regarding the distribution of such Shares;

(f) Compliance with Securities Act. Subscriber understands and agrees that the Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities laws by reason of their issuance in a transaction that does not require registration under the Securities Act, and that such Shares must be held indefinitely unless a subsequent disposition is registered under the Securities Act or any applicable state securities laws or is exempt from such registration;

(g) Legend. The Shares shall bear the following or similar legend:

“THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (REASONABLY ACCEPTABLE TO THE COMPANY), IN AN ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.”

(h) Communication of Offer. Subscriber has a preexisting personal or business relationship with the Company or one or more of its directors, officers or control persons, and the offer to sell the Shares was directly communicated to Subscriber by the Company. At no time was 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 otherwise than in connection and concurrently with such communicated offer;

(i) No Governmental Endorsement. 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;

(j) Receipt of Information. Subscriber believes it has received all the information it considers necessary or appropriate for deciding whether to purchase the Shares. Subscriber further represents that through its representatives it has had an opportunity to ask questions and receive answers from the Company; and

(k) No Market Manipulation. Subscriber and Subscriber’s 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.

3. Company Representations and Warranties. The Company represents and warrants to, and agrees with, Subscriber that:

(a) Due Incorporation. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted;

(b) Authority; Enforceability. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated hereby and otherwise to carry out its obligations hereunder and under all other documents contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is the valid and binding agreement of the Company, enforceable in accordance with their terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, or principles of equity. The Company has full corporate power and authority necessary to enter into and deliver this Agreement and to perform its obligations hereunder;

(c) Capitalization and Additional Issuances. The Company has authorized seven million (7,000,000) shares of common stock, par value of $0.10 per share (the “Common Stock”), five hundred thousand (500,000) shares of Series A Convertible Preferred Stock, par value of $0.10 per share (the “Series A Preferred”), three hundred twenty thousand (320,000) shares of Series B Convertible Preferred Stock, par value of $0.10 per share (the “Series B Preferred”), one hundred sixty-six thousand six hundred sixty seven (166,667) shares of Series C Convertible Preferred Stock, par value of $0.10 per share (the “Series C Preferred”) and thirteen thousand three hundred thirty three (13,333) shares of undesignated blank check preferred stock par value of $0.10 per share. As of the date hereof, there are 3,255,887 shares of the Common Stock, 500,000 shares of Series A Preferred, 166,667 Series B Preferred issued and outstanding and 0 shares of Series C Preferred issued and outstanding. All of the outstanding shares of the Common Stock are duly authorized and validly issued, fully paid and non-assessable and are not (and will not be) subject to preemptive or similar rights affecting the Common Stock. The Company has authorized 50,000 warrants to purchase Common Stock, 42,500 options held by employees of the Company and 242,500 options reserved but not issued for the benefit of current and future employees, officers, consultants or non-employee directors. As of the date hereof, except as described on Schedule 3(c) hereto, there are no (i) contracts to which the Company is a party obligating the Company to accelerate the vesting of any Company equity award as a result of the transactions contemplated by this Agreement (whether alone or upon the occurrence of any additional or subsequent events), (ii) outstanding securities of the Company convertible into or exchangeable for shares of Common Stock, (iii) outstanding options, warrants or other agreements or commitments to acquire from the Company, or obligations of the Company to issue, shares of capital stock of (or securities convertible into or exchangeable for shares of capital stock of) the Company or (iv) restricted shares, restricted stock units, stock appreciation rights, performance shares, profit participation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock of the Company, in each case that have been issued by the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Company, being referred to collectively as “Company Securities”). There are no outstanding contracts requiring the Company to repurchase, redeem or otherwise acquire any Company Securities and the Company is not a party to any voting agreement with respect to any Company Securities. There are no stockholder agreements, proxies or other agreements, understandings or obligations in effect with respect to the voting, transfer or sale (including any rights of first refusal, rights of first offer or drag-along rights), issuance (including any pre-emptive or anti-dilution rights), or registration (including any related lock-up or market standoff agreements) of any shares of capital stock or other securities of the Company.

(d) SEC Filings; Financial Statements; Absence of Undisclosed Liabilities.

(i) SEC Filings. The Company has timely filed (or has received a valid extension of such time of filing and has filed any such Company SEC Documents prior to the expiration of any such extension) with the SEC all registration statements, prospectuses, reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference) required to be filed or furnished by it with the SEC (the “Company SEC Documents”) and such Company SEC Documents when filed were true, correct and complete in all material respects. As of their respective filing dates (or, if amended or superseded by a subsequent filing, as of the date of the last such amendment or superseding filing prior to the date hereof), each of the Company SEC Documents complied in all material respects with the applicable requirements of the Sarbanes-Oxley Act of 2002 (including the rules and regulations promulgated thereunder) and the Exchange Act, and the rules and regulations of the SEC thereunder applicable to such Company SEC Documents and did not, at the time it was filed (or, if amended, at the time (and taking into account the content) of such amendment), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading;

(ii) Financial Statements. Each of the consolidated financial statements (including, in each case, any related notes thereto) contained in the Company SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto as of their respective dates; (ii) was prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto and, in the case of unaudited interim financial statements, as may be permitted by the SEC for Quarterly Reports on Form 10-Q); and (iii) fairly presented in all material respects the consolidated financial position of the Company at the respective dates thereof and the consolidated results of the Company’s operations and cash flows for the periods indicated therein, subject, in the case of unaudited interim financial statements, to normal and year-end audit adjustments as permitted by GAAP and the applicable rules and regulations of the SEC. As of the date hereof, Marcum LLP has not resigned or been dismissed as independent public accountants of the Company as a result of or in connection with any disagreements with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure;

(iii) No Undisclosed Liabilities. Neither the Company nor any of its subsidiaries has any liability, indebtedness or obligation of any kind (whether accrued, absolute, contingent, matured, unmatured or otherwise, and whether or not required to be recorded or reflected on a balance sheet under GAAP) (“Liability”) except for Liabilities that (a) are reflected or recorded on the Company’s most recent balance sheet included in the Company SEC Documents (including in the notes thereto but only to the extent it is reasonably apparent that the disclosure in such notes is of a Liability required to be reflected on a balance sheet prepared in accordance with GAAP) contained in the Company SEC Documents or (b) are current Liabilities (within the meaning of GAAP) which were incurred since the date of such balance sheet in the ordinary course of business consistent with past practice;

(iv) Internal Accounting Controls. Except as set forth in the Company SEC Documents, the Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (a) transactions are executed in accordance with management’s general or specific authorizations; (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (c) access to assets is permitted only in accordance with management’s general or specific authorization; and (d) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as set forth in the Company SEC Documents, the Company has disclosure controls and procedures (as defined in Rules 13a-14 and 15d-14 under the Exchange Act) that are effective and designed to ensure that (1) information required to be disclosed in the Company SEC Documents that it files or submits under

the Exchange Act is recorded, processed, summarized and reported, within the time periods specified by the Commission’s rules and regulations, and (2) such information is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding required disclosure. The Company is otherwise in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated thereunder;

(v) Off-Balance Sheet Arrangements. There is no transaction, arrangement or other relationship between the Company or its subsidiaries and an unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in the Company SEC Documents and is not so disclosed. There are no such transactions, arrangements or other relationships with the Company that may create contingencies or liabilities that are not otherwise disclosed by the Company in the Company SEC documents;

(vi) Insolvency. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent. As used herein, “Insolvent” means, with respect to any person or entity, (a) the present fair saleable value of such person or entity’s assets is less than the amount required to pay such person or entity’s debts as they become due, (b) such person or entity is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured or (c) such person or entity has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is currently proposed to be conducted;

(e) Consents. No consent, approval, authorization or order of any federal, state, local, foreign government or political subdivision thereof, or any court, governmental agency, stock exchange or market on which the Common Stock is listed or quoted for trading, or other body having jurisdiction over the Company or any of its subsidiaries (a “Governmental Authority”) is required for the execution by the Company of this Agreement and compliance and performance by the Company of its obligations hereunder, including, without limitation, the valid issuance of the Shares and sale and delivery of the Shares;

(f) No Violation or Conflict. Neither the issuance and sale of the Shares nor the performance of the Company’s obligations under this Agreement will:

(i) violate, conflict with, result in a breach of, or constitute a default (or an event which with the giving of notice or the lapse of time or both would be reasonably likely to constitute a default) under (a) the charter or bylaws of the Company, (b) any law, rule, regulation, decree, judgment, order or determination applicable to the Company of any Governmental Authority having jurisdiction over the Company or over the properties or assets of the Company (including federal and state securities laws and regulations and the rules and regulations of any self-regulatory organization to which the Company or its securities are subject), or (c) any contract, agreement, instrument or undertaking to which the Company or any subsidiary is a party; or

(ii) result in the creation or imposition of any Encumbrance upon the Shares except in favor of Subscriber as described herein;

(g) The Shares. Upon issuance, the Shares:

(i) shall be free and clear of any security interests, liens, claims or other Encumbrances, subject only to restrictions upon transfer under the Securities Act and any applicable state securities laws;

(ii) shall have been duly and validly issued, fully paid and non-assessable;

(iii) will not subject the holders thereof to personal liability by reason of being such holders; and

(iv) will have been issued in compliance with all applicable federal and state securities laws and will not have been issued in violation of any agreement, arrangement or commitment to which the Company or any of its affiliates is a party or is subject to or in violation of any preemptive or similar rights of any person or entity;

(h) Litigation. Other than the Aeroflex Wichita, Inc. litigation matter described in the Company SEC Documents, there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or investigation before or by any Governmental Authority having jurisdiction over the Company or any of its subsidiaries including, without limitation, any such that would affect the execution by the Company, the complete and timely performance by the Company of its obligations under this Agreement or, if determined adversely to the Company or any of its subsidiaries, could have a material adverse effect on the Company. Except as disclosed in Company SEC Documents, the Company has not been a party to any material litigation, arbitration or other proceeding. To the knowledge of the Company, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such action, suit, proceeding or investigation. Neither the Company nor any of its subsidiaries is a party or subject to the provisions of any injunction, judgment, decree or order of any Governmental Authority having jurisdiction over the Company or any of its subsidiaries;

(i) Contracts. Each contract or other agreement or instrument that is required to be described or summarized in the Company SEC Documents or to be filed as an exhibit to the Company SEC Documents under the rules and regulations of the Commission (collectively, the “Material Contracts”) have been duly and validly authorized, executed and delivered by the Company and constitute the legal, valid and binding agreements of the Company or its subsidiaries, as applicable, enforceable by and against the Company or its subsidiaries, as applicable, in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity. Except as set forth in the Company SEC Documents (i) none of the Company or any other party thereto is in breach of or default under, or has provided or received any notice of any intention to terminate, any Material Contract and (ii) no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder;

(j) Compliance with Laws; Permits. The Company and each of its subsidiaries has complied, and is now complying, with all statutes, laws, ordinances, regulations, rules, codes, orders, decrees, other requirements or rules of law of any Governmental Authority having jurisdiction over the Company or any of its subsidiaries or their respective businesses, properties or assets. All permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Authorities required for the Company or any of its subsidiaries to conduct its business have been obtained and are valid and in full force and effect;

(k) No Violations. Neither the Company nor any of its subsidiaries is in violation of any law or order of any Governmental Authority applicable to the Company or any of its subsidiaries, which violation, individually or in the aggregate, would be reasonably likely to have a material adverse effect on the results of operations, assets, prospects, business or condition (financial or otherwise) of the Company, taken as a whole. There has not been, there is not pending or, to the knowledge of the Company, contemplated, any investigation by the Commission or any other Governmental Authority involving the Company or any current or former director or officer of the Company. The Company has not received any comment letter from the Commission relating to any Company SEC Documents which has not been finally resolved. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Exchange Act or the Securities Act;

(l) Title to Assets; Properties. (i) The Company and its subsidiaries have good and marketable title to all the properties and assets (both tangible and intangible) described as owned by them in the consolidated financial statements included in the Company SEC Documents, free and clear of all Encumbrances of any kind except (1) those, if any, reflected in such consolidated financial statements (including the notes thereto), or (2) those that are not material in amount and do not adversely affect the use made and proposed to be made of such property by the Company or its subsidiaries; (ii) the Company and each of its subsidiaries hold their leased properties under valid and binding leases; (iii) the Company and each of its subsidiaries own or lease all such properties as are necessary to its operations as now conducted; and (iv) the use and operation of such properties in the conduct of the Company’s business do not violate in any material respect any law, covenant, condition, restriction, easement, license, permit or agreement.

(m) Intellectual Property. The Company (and/or its subsidiaries) owns or possesses, free and clear of all Encumbrances, all legal rights to all intellectual property (whether registered or unregistered) and rights in confidential information, used or held for use in, or necessary for the conduct of their businesses as now conducted and as proposed to be conducted. Neither the Company nor any of its subsidiaries (i) has received any communications alleging that either the Company or any of its subsidiaries has violated, infringed or misappropriated or, by conducting their businesses as now conducted and as proposed to be conducted, would violate, infringe or misappropriate any of the intellectual property of any other person or entity, (ii) knows of any basis for any claim that the Company or any of its subsidiaries has violated, infringed or misappropriated, or, by conducting their businesses as now conducted and as proposed to be conducted, would violate, infringe or misappropriate any of the intellectual property of any other person or entity, and (iii) knows of any third-party infringement, misappropriation or violation of any Company or any of its subsidiary’s intellectual property.

(n) Tax Matters. The Company and its subsidiaries have filed all tax returns, and such tax returns are true, correct, and complete in all material respects. The Company and each subsidiary (i) have paid all taxes that are due from the Company or such subsidiary for the periods covered by the tax returns or (ii) have duly and fully provided reserves adequate to pay all taxes in accordance with GAAP. Neither the Company nor any of its subsidiaries has any liability for taxes of any person or entity (other than the Company or any of its subsidiaries) as a transferee or successor, by contract or otherwise. Neither the Company nor its subsidiaries has been advised (A) that any of its tax returns have been or are being audited as of the date hereof, or (B) of any deficiency in assessment or proposed judgment to its taxes. Neither the Company nor any of its subsidiaries has knowledge of any tax liability to be imposed upon its properties or assets as of the date of this Agreement that is not adequately provided for. No extensions or waivers of statutes of limitations have been given or requested with respect to any taxes of the Company. The Company has withheld and paid each tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, stockholder or other party, and complied with all information reporting and backup withholding provisions of applicable law.

(o) Transactions with Affiliates and Employees. None of the officers or directors of the Company or its subsidiaries and none of the employees of the Company or its subsidiaries is presently a party to any transaction with the Company or any subsidiary or affiliate thereof (other than for services as employees, officers and directors required to be disclosed under Item 404 of Regulation S-K under the Exchange Act).

(p) No General Solicitation. Neither the Company, nor any of its affiliates, nor any person or entity 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 Securities Act) in connection with the offer or sale of the Shares;

(q) Investment Company. The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended; and

(r) Full Disclosure. No representation or warranty by the Company in this Agreement or any certificate or other document furnished or to be furnished to the Subscriber pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

4. Broker’s Commission/Finder’s Fee. Each party hereto represents to the other that there are no parties entitled to receive fees, commissions, finder’s fees, due diligence fees or similar payments in connection with the consummation of the transactions contemplated hereby. Each party hereto agrees to indemnify the other against and hold the other harmless from any and all liabilities to any persons claiming brokerage commissions or similar fees on account of services purported to have been rendered on behalf of the indemnifying party in connection with this Agreement or the transactions contemplated hereby and arising out of the indemnifying party’s actions.

5. Covenants Regarding Indemnification. Each party hereto agrees to indemnify, hold harmless, reimburse and defend the other party and the other party’s officers, directors, agents, counsel, affiliates, members, managers, control persons, and principal shareholders, as applicable, against any claim, cost, expense, liability, obligation, loss or damage (including reasonable legal fees) of any nature, incurred by or imposed upon the indemnified party or any such person which results, arises out of or is based upon (i) any breach of any representation or warranty by the indemnifying party in this Agreement or (ii) any breach or default in performance by the indemnifying party of any covenant or undertaking to be performed by the indemnifying party.

Any party entitled to indemnification hereunder shall (a) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification and (b) permit the indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any indemnified party entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such indemnified party, or (iii) in the reasonable judgment of any such indemnified party, based upon written advice of its counsel, a conflict of interest exists between such indemnified party and the indemnifying party with respect to such claims; and provided, further, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the indemnifying party in the defense of any such claim or litigation. The indemnifying party shall not, except with the consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into any settlement arising under this Section 5 that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. No indemnified party will, except with the consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into any settlement arising under this Section 5.

6. Rule 144. Pursuant to Rule 144 and subject to Section 7 hereof, each Subscriber acknowledges that before a Subscriber may sell any restricted securities in the marketplace, such Subscriber must hold them for at least six months. The holding period begins when the securities were purchased and fully paid for by such subscriber.

7. Reporting Status. Until the date on which the Subscriber shall have sold all of the Shares, the Company shall use its reasonable best efforts to timely file all reports required to be filed with the SEC pursuant to the Exchange Act, the Company shall not terminate its status as an issuer required to file reports under the Exchange Act, and the Company shall comply with each applicable stock exchange or market rules and regulations. The Company shall promptly take any action required to maintain the listing of all of the Common Stock upon each applicable stock exchange or market and shall maintain such listing of all Common Stock from time to time issuable under the terms hereof. The Company shall make and keep public information available, as those terms are understood and defined in Rule 144, for so long as required in order to permit the resale of the Common Stock underlying the Shares pursuant to Rule 144 and to file periodic reports with the Commission whether or not required to do so. The Company shall not take any action which would be reasonably expected to result in the delisting or suspension of the Common Stock on any applicable stock exchange or market.

8. Other Agreements.

(a) Participation in Future Financing.

(1) Upon any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration, indebtedness or a combination of units thereof (a “Subsequent Financing”), the Subscriber shall have the right to participate in up to an amount of the Subsequent Financing equal to 80% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing; provided, however, as of the date of Subsequent Financing, the Subscriber is the holder of not less than 10% of the Shares.

(2) At least five (5) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Subscriber a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Subscriber if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of a Subscriber, and only upon a request by such Subscriber, for a Subsequent Financing Notice, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Subscriber. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment. “Trading Day” shall mean a day on which any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing).

(3) Any Subscriber desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Subscribers have received the Pre-Notice that such Subscriber is willing to participate in the Subsequent Financing, the amount of such Subscriber’s participation, and representing and warranting that such Subscriber has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice. If the Company receives no such notice from a Subscriber as of such fifth (5th) Trading Day, such Subscriber shall be deemed to have notified the Company that it does not elect to participate.

(4) If by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Subscribers have received the Pre-Notice, notifications by the Subscribers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice.

(5) If by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Subscribers have received the Pre-Notice, the Company receives responses to a Subsequent Financing Notice from Subscribers seeking to purchase more than the aggregate amount of the Participation Maximum, each such Subscriber shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation Maximum. “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on the Closing Date by a Subscriber participating under this Section 8(a) and (y) the sum of the aggregate Subscription Amounts of Securities purchased on the Closing Date by all Subscribers participating under this Section 8(a).

(6) The Company must provide the Subscribers with a second Subsequent Financing Notice, and the Subscribers will again have the right of participation set forth above in this Section 8(a), if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice.

(b) Commission Filings. At all times while the Subscriber (or any affiliate thereof) holds any Shares or shares of Common Stock, the Company will draft and file with the Commission, at the Company’s expense, a Form 3 (or Forms 4 and 5, as applicable), Schedule 13G (or amendments thereto) and any other Commission filings that the Subscriber may be required to make in connection with the transactions contemplated by this Agreement, and upon the Subscriber’s request, any future Exchange Act Section 13 and 16 filings (and amendments thereto) relating to ownership of the Shares (the “Commission Filings”). The Subscriber agrees to provide the Company all information required by any such Commission Filings promptly after the occurrence of the event triggering such filing, and the Company shall use its best efforts to prepare a draft of such filing(s) for the Subscriber’s review, comment, if any, and authorization for filing within the deadline for the applicable filing. In the event the Subscriber elects to prepare and make such Commission Filings, the Company shall promptly cooperate with and provide the Subscriber with such information as it may reasonably request in connection with the preparation of such filings. The Subscriber (and any affiliates thereof) shall, promptly upon consummating any sale or purchase of shares of Common Stock, notify the Company of such transaction. The Company shall determine whether any Commission Filing requirement is triggered by such transaction and, if necessary, shall timely prepare the applicable Commission Filing in accordance with the requirements of this Section 8(b).

9. 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 or facsimile, addressed as set forth on the signature pages hereto 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 on the signature page hereto (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.

(b) Entire Agreement; Assignment. This Agreement constitutes 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 hereto. Neither the Company nor Subscriber has relied on any representations not contained or referred to in this Agreement and the documents delivered herewith. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party.

(c) 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 transmission, PDF, electronic signature or other similar electronic means with the same force and effect as if such signature page were an original thereof.

(d) Law Governing this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to principles of conflicts of laws. Any action brought by either party hereto against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New Jersey or in the federal courts located in the state of New Jersey. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The parties hereto agree to submit to the in personam jurisdiction of such courts and hereby irrevocably waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs.

(e) Severability. 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. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

(f) Captions. The captions of the various sections and paragraphs of this Agreement have been inserted only for the purposes of convenience; such captions are not a part of this Agreement and shall not be deemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.

(g) Survival. All agreements, representations and warranties made in this Agreement or in any document delivered pursuant to this Agreement that, by their nature, would survive the execution of this Agreement and the delivery of any such document shall so survive. (h) Binding Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

[Remainder of Page 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.

TEL-INSTRUMENTS ELECTRONICS CORP.

a New Jersey corporation

By:

Name: Jeffrey O’Hara

Title: President and Chief Executive Officer

Address: One Branca Road

East Rutherford, NJ 07073

Facsimile No.: (201) 933-7340

Dated: , 2023

SUBSCRIBER

By:

Name:

Dated: , 2023

Read and approved by:

Address:

Fax No.:

Taxpayer ID# (if applicable):

Number of Shares of Series B Preferred Stock:

Purchase Price: $

(No. Shares x $6.00 per Share)

[Signature Page to Subscription Agreement]

EXHIBIT A

Series B Certificate of Designations

EXHIBIT B

Accredited Investor Questionnaire

Exhibit 10.2

SUBSCRIPTION AGREEMENT

THIS SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of September , 2023 by and between Tel-Instrument Electronics Corp., a New Jersey corporation with its headquarters located at One Branca Road, East Rutherford, NJ 07073 (the “Company”), and the subscriber identified on the signature page hereto (the “Subscriber”).

WHEREAS, on or about September 1, 2023, the Company filed with the State of New Jersey a certificate of designations, rights and preferences for its Series C Convertible Preferred Stock (the “Series C Certificate of Designations”), attached hereto as Exhibit A; and

WHEREAS, the parties hereto desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to Subscriber, and Subscriber shall purchase, in the aggregate, that number of shares of Series C Convertible Preferred Shares, par value $0.10 per share, of the Company (the “Series C Preferred Stock”) as is set forth on the signature page hereto (the “Shares”) at an aggregate purchase price (the “Purchase Price”) as is set forth on the signature page hereto (the “Securities”).

NOW, THEREFORE, in consideration of the mutual covenants and other agreements contained in this Agreement, the Company and Subscriber hereby agree as follows:

1. Purchase and Sale.

2. Subscriber Representations and Warranties. Subscriber hereby represents and warrants to and agrees with the Company that:

(g) Legend. The Shares shall bear the following or similar legend:

3. Company Representations and Warranties. The Company represents and warrants to, and agrees with, Subscriber that:

(c) Capitalization and Additional Issuances. The Company has authorized seven million (7,000,000) shares of common stock, par value of $0.10 per share (the “Common Stock”), five hundred thousand (500,000) shares of Series A Convertible Preferred Stock, par value of $0.10 per share (the “Series A Preferred”), one hundred and sixty seven thousand six hundred sixty-seven (167,667) shares of Series B Convertible Preferred Stock, par value of $0.10 per share (the “Series B Preferred”), one hundred sixty-six thousand six hundred sixty seven (166,667) shares of Series C Convertible Preferred Stock, par value of $0.10 per share (the “Series C Preferred”) and one hundred sixty-six thousand six hundred sixty seven (166,667) shares of undesignated blank check preferred stock par value of $0.10 per share. As of the date hereof, there are 3,255,887 shares of the Common Stock, 500,000 shares of Series A Preferred, 167,000 Series B Preferred issued and outstanding and 0 shares of Series C Preferred. All of the outstanding shares of the Common Stock are duly authorized and validly issued, fully paid and non-assessable and are not (and will not be) subject to preemptive or similar rights affecting the Common Stock. The Company has authorized 50,000 warrants to purchase Common Stock, 42,500 options held by employees of the Company and 242,500 options reserved but not issued for the benefit of current and future employees, officers, consultants or non-employee directors. As of the date hereof, except as described on Schedule 3(c) hereto, there are no (i) contracts to which the Company is a party obligating the Company to accelerate the vesting of any Company equity award as a result of the transactions contemplated by this Agreement (whether alone or upon the occurrence of any additional or subsequent events), (ii) outstanding securities of the Company convertible into or exchangeable for shares of Common Stock, (iii) outstanding options, warrants or other agreements or commitments to acquire from the Company, or obligations of the Company to issue, shares of capital stock of (or securities convertible into or exchangeable for shares of capital stock of) the Company or (iv) restricted shares, restricted stock units, stock appreciation rights, performance shares, profit participation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock of the Company, in each case that have been issued by the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Company, being referred to collectively as “Company Securities”). There are no outstanding contracts requiring the Company to repurchase, redeem or otherwise acquire any Company Securities and the Company is not a party to any voting agreement with respect to any Company Securities. There are no stockholder agreements, proxies or other agreements, understandings or obligations in effect with respect to the voting, transfer or sale (including any rights of first refusal, rights of first offer or drag-along rights), issuance (including any pre-emptive or anti-dilution rights), or registration (including any related lock-up or market standoff agreements) of any shares of capital stock or other securities of the Company.

(d) SEC Filings; Financial Statements; Absence of Undisclosed Liabilities.

(f) No Violation or Conflict. Neither the issuance and sale of the Shares nor the performance of the Company’s obligations under this Agreement will:

(ii) result in the creation or imposition of any Encumbrance upon the Shares except in favor of Subscriber as described herein;

(g) The Shares. Upon issuance, the Shares:

(ii) shall have been duly and validly issued, fully paid and non-assessable;

(iii) will not subject the holders thereof to personal liability by reason of being such holders; and

(q) Investment Company. The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended; and

8. Other Agreements.

(a) Participation in Future Financing.

9. Miscellaneous.

[Remainder of Page 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.

TEL-INSTRUMENTS ELECTRONICS CORP.

a New Jersey corporation

By:

Name: Jeffrey O’Hara

Title: President and Chief Executive Officer

Address: One Branca Road

East Rutherford, NJ 07073

Facsimile No.: (201) 933-7340

Dated: , 2023

SUBSCRIBER

By:

Name:

Dated: , 2023

Read and approved by:

Address:

Fax No.:

Taxpayer ID# (if applicable):

Number of Shares of Series C Preferred Stock:

Purchase Price: $

(No. Shares x $6.00 per Share)

[Signature Page to Subscription Agreement]

EXHIBIT A

Series C Certificate of Designations

EXHIBIT B

Accredited Investor Questionnaire

Document And Entity Information	Sep. 11, 2023
Document Information Line Items
Entity Registrant Name	TEL-INSTRUMENT ELECTRONICS CORP.
Trading Symbol	N/A
Document Type	8-K
Current Fiscal Year End Date	--03-31
Amendment Flag	false
Entity Central Index Key	0000096885
Document Period End Date	Sep. 11, 2023
Entity Emerging Growth Company	false
Entity Incorporation, State or Country Code	NJ
Entity File Number	001-31990
Entity Tax Identification Number	22-1441806
Entity Address, Address Line One	One Branca Road
Entity Address, City or Town	East Rutherford
Entity Address, State or Province	NJ
Entity Address, Postal Zip Code	07073
City Area Code	(201)
Local Phone Number	933-1600
Title of 12(b) Security	N/A
Security Exchange Name	NONE
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false