EXHIBIT 10.72


ZAP AND SAMYANG OPTICS LTD.


NOTE PURCHASE AGREEMENT




This Note Purchase Agreement, dated as of December 31, 2009 (this "Agreement"), is entered into by and among ZAP, a California corporation (the "Company"), and the persons and entities listed on the schedule of investors attached hereto as ScheduleI (each an "Investor" and, collectively, the "Investors"),as such Schedule I may be amended in accordance with Section7 hereof.




RECITALS




A.On the terms and subject to the conditions set forth herein, each Investor is willing to purchase from the Company, and the Company is willing to sell to such Investor, a subordinated convertible promissory note in the principal amount set forth opposite such Investor's name on Schedule I hereto.




B.Capitalized terms not otherwise defined herein shall have the meaning set forth in the form of Note (as defined below) attached hereto as Exhibit A.




AGREEMENT




NOW THEREFORE, in consideration of the foregoing, and the representations, warranties, and conditions set forth below, the parties hereto, intending to be legally bound, hereby agree as follows:




1.The Notes.




(a)  Issuance of Notes.Subject to all of the terms and conditions hereof, the Company agrees to issue and sell to each of the Investors, and each of the Investors severally agrees to purchase, a subordinated convertible promissory note in the form of ExhibitA hereto (each, a "Note" and, collectively, the "Notes") in the principal amount set forth opposite the respective Investor's name on ScheduleI hereto. The obligations of the Investors to purchase Notes are several and not joint. The aggregate principal amount for allNotes issued hereunder shall not exceed $10,000,000.




(b)  Delivery.The sale and purchase of the Notes shall take place at a closing (the "Closing") to be heldat such place and time as the Company and the Investors may determine (the "Closing Date"). At the Closing, the Company will deliverto each of the Investors the Note to be purchased by such Investor, against receipt by the Company of the corresponding purchase price set forth on Schedule I hereto(the "Purchase Price").The Company may conduct one or more additional closings within ninety (90) calendar days of the Closing (each, an "Additional Closing")to be held at such place and time as the Company and the Investors participating in such Additional Closing may determine (each, an "AdditionalClosing Date").At each Additional Closing, the Company will deliver to each of the Investors participating in such Additional Closing the Note to be purchased by such Investor, against receipt by the Company of the corresponding Purchase Price. Each of the Notes will be registered in such Investor's name in the Company's records.




(c)Use of Proceeds.The proceeds of the sale and issuance of the Notes shall be used for general corporate purposes.




(d)  Payments.The Company will make all cash payments due under the Notes in immediately available funds by 1:00 p.m. pacific time on the date such payment is due at the address for such purpose specified below each Investor's name onScheduleI hereto, or at such other address, or in such other manner, as an Investor or other registered holder of a Note may from time to time direct in writing.







2.Representations and Warranties of the Company.The Company represents and warrants to


each Investor that:




(a)  Due Incorporation, Qualification, etc.The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of California; (ii) has the power and authority to own, lease and operate its properties and carry on its business as now conducted; and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a material adverse effect on the Company.




(b)  Authority.The execution, delivery and performance by the Company of each Transaction Document to be executed by the Company and the consummation of the transactions contemplated thereby (i) are within the power of the Company and (ii) have been duly authorized by all necessary actions on the part of the Company.




(c)  Enforceability.Each Transaction Document executed, or to be executed, by the Company has been, or will be, duly executed and delivered by the Company and constitutes, or will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity.




(d)  Non-Contravention.The execution and delivery by the Company of the Transaction Documents executed by the Company and the performance and consummation of the transactions contemplated thereby do not and will not (i) violate the Company's Articles of Incorporation or Bylaws (as amended, the "Charter Documents")or any material judgment, order, writ, decree, statute, rule or regulation applicable to the Company (ii) vii-any prn vision of, or result in the breach or the acceleration of, or entitle any other Person to acceleratz-,-...'_01 ,•'r after the giving of notice or lapse of time or both), any material mortgage, indenture, agreement, instrument or contract to which the Companyis a party or by which it is bound; or (iii) result in the creation or imposition of any Lien upon any property, asset or revenue of the Company (other than any Lien arising under the Transaction Documents) or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties.




(e)  Approvals.No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person (including, without limitation, the shareholders of any Person) is required in connection with the execution and delivery of the Transaction Documents executed by the Company and the performance and consummation of the transactions contemplated thereby, other than such as have been obtained and remain in full force and effect and other thansuch qualifications or filings under applicable securities laws as may be required in connection with the transactions contemplated by this Agreement.




(1)No Violation or Default.Except as set forth in the SEC Documents, the Company is


not in violation of or in default with respect to (i) its Charter Documents or any material judgment, order, writ, decree, statute, rule or regulation applicable to such Person; or (ii) any material mortgage, indenture, agreement, instrument or contract to which such Person is a party or by which it is bound (nor is there any waiver in effect which, if not in effect, would result in such a violation or default).




(g)Litigation.Except as set forth in the SEC Documents, no actions (including, without


limitation, derivative actions), suits, proceedings or investigations are pending or, to the knowledge of the Company, threatened in writing against the Company at law or in equity in any court or before any other





governmental authority that if adversely determined (i) would (alone or in the aggregate) result in a material liability or (ii) seeks to enjoin, either directly or indirectly, the execution, delivery orperformance by the Company of the Transaction Documents or the transactions contemplated thereby.




(h)Title.The Company owns and has valid title in fee simple absolute to, or a valid leasehold interest in, all real properties and valid title to its other assets and properties as reflected in the most recent financial statements filed with the SEC Documents (except those assets and properties disposed of in the ordinary course of business since the date of such financial statements) and all assets and properties acquired by the Company since such date (except those disposed of in the ordinary course of business). Such assets and properties are subject to no Lien other than (i) Liens for current taxes not yet due and payable, (ii)  Liens imposed by law and incurred in the ordinary course of business for obligations not past due, (iii)  Liens in respect of pledges or deposits under workers' compensation laws or similar legislation, and (iv)  Liens, encumbrances and defects in title which do not in any case materially detract from the value of the property subject thereto or have a Material Adverse Effect, and which have not arisen otherwise than in the ordinary course of business or any Lien arising or permitted under the Transaction Documents.




(i)Intellectual Property.To the best of their knowledge, the Company owns or


possesses or can obtain oncommercially reasonable terms sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, processes and other intellectual property rights necessary for its business as now conducted and as proposed to be conducted, the lack of which could reasonably be expected to have a Material Adverse Effect.




(j)SEC Documents; Financial Statements.During the two (2) years prior to the date


hereof, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act except to the extent that the failure to do so would not have a MaL,erse Effect (all of the foregoing filed prior to the date hereof


and all exhibits included therein and n cm' statements, notes and schedules thereto and documents


incorporated by reference therein being hereinafter referred to as the "SEC Documents").As of their respective dates, theSEC Documents complied in all material respects with therequirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact which would have a Material Adverse Effect or omitted to state a material fact which would have a Material Adverse Effect that was required to be stated therein or necessary in order to make thestatements therein, in thelight of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respectsthe financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the caseof unaudited statements, to normal year-end audit adjustments).




3.Representations and Warranties of investors.Each Investor, for that Investor alone,


represents and warrants to the Company upon the acquisition of a Note as follows:




(a)Binding Obligation.Such Investor has full legal capacity, power and authority to


execute and deliver this Agreement and to perform its obligations hereunder. This Agreement and the Transaction Documents constitute valid and binding obligations of such Investor, enforceable in accordance





with their terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity.




(b)  Securities Law Compliance.Such Investor has been advised that the Notes and the underlying securities have not been registered under the Securities Act, or any state securities laws and, therefore, cannot be resold unless they are registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Such Investor is aware that the Company is under no obligation to effect any such registration with respect to the Notes or the underlying securities or to file for or comply with any exemption from registration. Such Investor has not been formed solely for the purpose of making this investment and is purchasing the Notes to be acquired by such Investor hereunder for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Such Investor has such knowledge and experience infinancial and businessmatters that such Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment without impairing such Investor's financial condition and is able to bear the economic risk of such investment for an indefinite period of time. Such Investor is an accredited investor as such term is defined in Rule 501 of Regulation D under the Securities Actand shall submit tothe Company such further assurances of such status as may be reasonably requested by the Company. The residency of the Investor (or, in the case of a partnership or corporation, such entity's principal place of business) is correctly set forth beneath such Investor's name on Schedule Ihereto.




(c)  Access to Information.Such Investor acknowledges that the Company has given such Investor access to the corporate records and accounts of the Company and to all information in its possession relating to the Company, has made its officers and representatives available for interview by such Investor, and has furnished such Investor with all documents and other information required for such Investor to make an informed decision with respecturc ase of the Notes.




4.Conditions to Closing of the Investors.Each Investor's obligations at the Closing are subject to the fulfillment, on or prior to the Closing Date, of all of the following conditions, any of which may be waived in whole or in part by all of the Investors:




(a)  Representations and Warranties.The representations and warranties made by the Company in Section 2hereof shall have been true and correct when made, and shall be true and correct on the Closing Date.




(b)  Governmental Approvals and Filings.Except for any notices required or permitted to be filed after the Closing Date with certain federal and state securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Notes.




(c)  Legal Requirements.At the Closing, the sale and issuance by the Company, and the purchase by the Investors, of the Notes shall be legally permitted by all laws and regulations to which the Investors or the Company are subject.




(d)  Proceedings and Documents.All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Investors.




(e)  Transaction Documents.The Company shall haveduly executed and delivered to the Investors the following documents:







(i)  This Agreement; and




(ii)  Each Note issued hereunder.




5.Conditions to Additional Closings of the Investors.The obligations of any Investor participating in an Additional Closing are subject to the fulfillment, on or prior to the applicable Additional Closing Date, of all of the following conditions, any of which may be waived in whole or in part by all of the Investors participating in such Additional Closing:




(a)  Representations and Warranties.The representations and warranties made by the Company in Section 2 hereof shall be true and correct in all material respects on the applicable Additional Closing Date.




(b)  Governmental Approvals and Filings.Except for any notices required or permitted to be filed after the Additional Closing Date with certain federal and state securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Notes at such Additional Closing.




(c)  Legal Requirements.At the Additional Closing, the sale and issuance by the Company, and the purchase by the Investors participating in such Additional Closing, of the Notes shall be legally permitted by all laws and regulations to which such Investors or the Company are subject.




(d)  Transaction Documents.The Company shall have duly executed and delivered to theInvestors participating in such Additional Closing each Note to be issued at such Additional Closing and shallhave delivered to such Investors fullYexecuted copies, if applicable, of all documents delivered to theInvestors participating in the initialo‘siLi-ig.




6.Conditions to Obligations of the Company.The Company's obligation to issue and sell the Notes at the Closing and at each AdditionalClosing is subject to the fulfillment, on or prior to theClosing Date or the applicable Additional Closing Date, of the following conditions, any of which may be waived in whole or in part by the Company:




(a)  Representationsand Warranties.The representations and warranties made by the applicable Investors in Section 3hereof shall be true and correct when made, and shall be true and correct on the Closing Date and the applicable Additional Closing Date.




(b)  Governmental Approvals and Filings.Except for any notices required or permitted to be filed after the Closing Date or the applicable Additional Closing Date with certain federal and state securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Notes.




(c)  Legal Requirements.At the Closing and at each Additional Closing, the sale and issuance by the Company, and the purchase by the applicable Investors, of the Notes shall be legally permitted by all laws and regulations to which such Investors or the Company are subject.




(d)  Purchase Price.Each Investor shall have delivered to the Company the PurchasePrice in respectof the Notebeing purchased by such Investor referenced inSection 1(b)hereof.




7.Miscellaneous.







(a)  Waivers and Amendments.Any provision of this Agreement and the Notes may be amended,waived or modified only upon the written consent of the Company and a Majority in Interest of Investors; provided however, that no such amendment, waiver or consent shall: (i) reduce the principal amount of any Note without the affected Investor's written consent, or (ii) reduce the rate of interest of any Note without the affected Investor's written consent. Any amendment or waiver effected in accordance with this paragraph shall be binding upon all of the parties hereto. Notwithstanding the foregoing, this Agreement may be amended to add a party as an Investor hereunder in connection with Additional Closings without the consent of any other Investor, by delivery to the Company of a counterparty signature page to this Agreement, together with a supplement to Schedule Iand Schedule IIhereto. Such amendment shall take effect at the Additional Closing and such party shall thereafter be deemed an -investor" for all purposes hereunder and Schedule Iand Schedule IIhereto shall be updated to reflect the addition of such Investor.




(b)  Governing Law.This Agreement and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions of the State of California or of any other state.




(c)  Survival.The representations, warranties, covenants and agreements made herein shall survive for one year following the execution and delivery of this Agreement.




(d)  Successors and Assigns.Subject to the restrictions on transfer described in Sections 7(e)and 7(f) below, the rights and obligations of the Company and the Investors shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.




(e)  Registration, Transfer and Replacement of the Notes.The Notes issuable under this Agreement shall be registered notes. The Company will keep, at its principal executive office, books for the registration and registration of transer.of the otes. Prior to presentation of any Note for registration of transfer, the Company shall treatwhose name such Note is registered as the owner and holder of


such Note for all purposes whatsoever,                                                                ther or not such Note shall be overdue, and the Company shall not


be affected by notice to the contrary. Subject to any restrictions on or conditions to transfer set forth in any Note, the holder of any Note, at its option, may in person or by duly authorized attorney surrender the same for exchange at the Company's chief executive office, and promptly thereafter and at the Company's expense, except as provided below, receive in exchange therefor one or more new Note(s), each in the principal requested by such holder, dated the date to which interest shall have been paid on the Note so surrendered or, if no interest shall have yet been so paid, dated the date of the Note so surrendered and registered in the name of such Person or Persons as shall have been designated in writing by such holder or its attorney for the same principal amount as the then unpaid principal amount of the Note so surrendered. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it; or (b) in the case of mutilation, upon surrender thereof, the Company, at its expense, will execute and deliver in lieu thereof a new Note executed in the same manner as the Note being replaced, in the same principal amount as the unpaid principal amount of such Note and dated the date to which interest shall have been paid on such Note or, if no interest shall have yet been so paid, dated the date of such Note.




(1)Assignment by the Company.The rights, interests or obligations hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of a Majority in Interest of Investors.




(g)Entire Agreement.This Agreement together with the other Transaction Documents constitute and contain the entire agreement among the Company and Investors and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof.







(h)Notices.All notices, requests, demands, consents, instructions or other


communications required or permitted hereunder shall in writing and faxed, mailed or delivered to each party as follows: (i) if to a Investor, at such Investor's address or facsimile number set forth in the Schedule of Investors attacZhed as Schedule I, or at such other address as such Investor shall have furnished the Company in writing, or (ii) if to the Company, at 501 4th Street, Santa Rosa, CA, (707) 525-8658, or at such other address or facsimile number asthe Company shallhave furnished to the Investors in writing. All such notices and communications will be deemed effectively given the earlier of (1) when received, (ii) when delivered personally, (iii) one business day after being delivered by facsimile (with receipt of appropriate confirmation),


(iv)  one business day after being deposited with an overnight courier service of recognized standing or


(v)  four days after being deposited in the U.S. mail, first class with postage prepaid.




(i)Separability of Agreements,-Severability of this Agreement,The Company's


agreement with each of the Investors is a separate agreement and the sale of the Notes to each of the Investors is a separate sale. Unless otherwise expressly provided herein, the rights of each Investor hereunder are several rights, not rights jointly held with any of the other Investors. Any invalidity, illegality or limitation on the enforceability of the Agreement or any part thereof, by any Investor whether arising by reason of the law of the respective Investor's domicile or otherwise, shall in no way affect or impair the validity, legality or enforceability of this Agreement with respect to other Investors. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.




Counterparts.This Agreement may be executed in one or more counterparts, each of which will be deemed an °rig+ kbut all of which together will constitute one and the same agreement. Facsimile copies of signed sigesa4es will be deemed binding originals.




(Signature Page Follows)







The parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date and year first written above.




COMPANY:








/s/ Steven Schneider










INVESTOR:




Name of Investing Entity:




/s/ Christopher Kang


CEO








SAMYANG OPTICS CO.,LTD











SCHEDULE I


SCHEDULE OF INVESTORS




Name and Address                                    Note Amount




[SAMYANG OPTICS CO.,LTD]                                $2,000,000




Address for all notices:


12F,SEOYOUNG B/D,158-24


SAMSEONG-DONG, GAMNAM­


GU, SEOUL, KOREA POSTAL


CODE 135-090




Attn: Taeyoung, Yang


Tel.: (02)6005- 8706


Fax: (02)6005 - 8788