Exhibit 10.2


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), AND SUCH NOTE MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER THE ACT AND THE RULES AND REGULATIONS
THEREUNDER AND SUCH APPLICABLE STATE SECURITIES LAWS.


 


THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED
HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT
CERTAIN SUBORDINATION AGREEMENT (THE “SUBORDINATION AGREEMENT”) BY AND AMONG
XPLORE TECHNOLOGIES CORP. (THE “PARENT”) AND XPLORE TECHNOLOGIES CORPORATION OF
AMERICA (THE “SUBSIDIARY, COLLECTIVELY WITH THE PARENT, THE “BORROWERS”), THE
HOLDER, AND SILICON VALLEY BANK (THE “SENIOR LENDER”), TO THE INDEBTEDNESS
(INCLUDING INTEREST) OWED BY THE BORROWERS PURSUANT TO THAT CERTAIN LOAN AND
SECURITY AGREEMENT DATED AS OF SEPTEMBER 15, 2005 (THE “LOAN AGREEMENT”), BY
AND AMONG THE SUBSIDIARY AND THE SENIOR LENDER, AS SUCH LOAN AGREEMENT HAS BEEN
AND HEREAFTER MAY BE AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED
FROM TIME TO TIME.


 


SECURED SUBORDINATED
PROMISSORY NOTE


 


	
  $[                ]

  	
   

  	
  February 27,
  2009

  



 


FOR VALUE RECEIVED, the undersigned, Xplore
Technologies Corp., a Delaware corporation, (the “Parent”) and Xplore
Technologies Corporation of America, a Delaware corporation and a wholly-owned
subsidiary of the Parent (the “Subsidiary” and collectively with the
Parent, the “Borrowers”), promises to pay to [INSERT NAME OF HOLDER] (the
“Holder”), the principal sum of [                      ]
DOLLARS ($[                ])
with interest on the unpaid balance from the date hereof, at the rate of 10%
per annum on the unpaid principal amount, in lawful money of the United States
of America or as otherwise provided in Section 3 hereof, at [INSERT
ADDRESS OF HOLDER], or at such other place as the Holder may designate in
writing. This Note is one of the secured subordinated promissory notes (collectively,
the “Notes”) referred to in, and purchased pursuant to, the Note Purchase
Agreement dated February 27, 2009, as amended from time to time, among the
Borrowers and the Purchasers named therein (the “Note Purchase Agreement”)
and evidences a borrowing from the Holder by the Borrowers under the Note
Purchase Agreement.  The obligations of
the Borrowers under this Note are secured as provided in the Note Purchase
Agreement and the Loan Documents.


 


1.                                    Maturity
Date.  The principal of this Note,
together will all unpaid interest and any other fees or expenses otherwise due
and owed to the Holder under the Note Purchase Agreement, shall be due and
payable on December 31, 2010 (the 


 

















 


“Maturity Date”). The Borrowers may prepay the Note in whole
or in part, at any time prior to the Maturity Date, without penalty.


 


2.                                    Pro-Rata
Payment.                         If the
Borrowers are not able to pay to the holders of the Notes the full amounts due
at any time when payments under the Notes become due and payable by the
Borrowers, either on the Maturity Date or upon the occurrence of an Event of
Default, or upon prepayment at the option of the Borrowers, the holders of the
Notes shall share ratably in any distribution of the Borrowers pro rata in
proportion to the respective principal amounts of each such holder’s Notes and pari passu with the holders of the Fall 2008 Notes.


 


3.                                    Payment
of Interest.


 


(a)                                  Interest
on the unpaid principal amount of this Note shall be due and payable quarterly
on March 31, June 30, September 30 and December 31 of each
calendar year the Note is outstanding commencing on March 31, 2009 and
ending with a final quarterly interest payment on the Maturity Date in cash or,
at the option of the Parent, in shares of the Parent’s Common Stock at 75% of
the then current market price of such Common Stock on the interest payment
date. For purposes hereof, the term then current market price means the volume
weighted average trading price, as traded on the OTC Bulletin Board, for the
five (5) trading days prior to the applicable interest payment date.


 


(b)                                 All
computations of interest payable hereunder shall be made on the basis of the
actual number of days in the period for which such interest is payable and a
year of 365 or 366 days, as applicable.


 


(c)                                  Notwithstanding
any other provision of this Note, to the extent permitted by applicable law,
interest shall be due and payable on any overdue installment of principal or
interest on this Note (including amounts due and unpaid upon any acceleration
of this Note) at a rate equal to the lesser of (i) fourteen percent (14%)
and (ii) the maximum rate permitted by applicable law (the “Maximum
Rate”).


 


4.                                    Event
of Default; Remedies.  Upon the
occurrence and during the continuance of an Event of Default, this Note may be
accelerated in the manner described in the Note Purchase Agreement and the Holder
and the Agent shall have all of the rights and remedies provided in the Note
Purchase Agreement and the Loan Documents.


 


5.                                    Waiver
of Certain Rights.  Subject to any
applicable notice periods, all parties to this Note, including Borrowers and
any sureties, endorsers, or guarantors, hereby waive protest, presentment,
notice of dishonor, and notice of acceleration of maturity and agree to
continue to remain bound for the payment of principal, interest and all other
sums due under this Note notwithstanding any change or changes by way of
release, surrender, exchange, modification or substitution of any security for
this Note or by way of any extension or extensions of time for the payment of
principal and interest; and all such parties waive all and every kind of notice
of such change or changes and agree that the same may be without notice or
consent of any of them.


 


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6.                                    Enforcement.  The Holder may enforce this Note as described
in the Note Purchase Agreement.


 


7.                                    Subordination.
 Repayment of this Note shall be
subordinated to the extent and in the manner set forth in the Subordination Agreement.


 


8.                                    Security.  This Note is entitled to the benefits,
granted to the Agent on behalf of the Purchasers, set forth in the Security
Agreement.


 


9.                                    Priority.  The right of repayment of principal and
interest on this Note shall rank pari passu with
the right of repayment of principal and interest on the Fall 2008 Notes.


 


10.                              Definitions.  Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Note
Purchase Agreement.


 


11.                              Miscellaneous.  The following general provisions apply:


 


(a)                                  This
Note, and the obligations and rights of the Borrowers and the Holder hereunder,
shall be binding upon and inure to the benefit of the Borrowers, the Holder,
and their respective heirs, personal representatives, successors and assigns.


 


(b)                                 All
notices, requests, consents and demands hereunder shall be made in writing in the
manner described in the Note Purchase Agreement.


 


(c)                                  Whenever
possible, each provision of this Note will be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Note
is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Note will be reformed, construed and enforced in such jurisdiction to
the greatest extent possible to carry out the intentions of the parties hereto.


 


(d)                                 This
Note shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of New York.  Each of the parties hereto hereby irrevocably
consents to the (non-exclusive) jurisdiction of the courts of the State of New
York and of any Federal court located therein in connection with any suit,
action or other proceeding arising out of or relating to this Note and waives
any objection to venue in the State of New York.


 


(e)                                  Subject
to the Subordination Agreement, recourse under this Note shall be solely as
provided in the Note Purchase Agreement and the Loan Documents and in no event
to the officers, directors or shareholders of the Borrowers.


 


(f)                                    No
provision in this Note, or in any instrument or any other document evidencing
the obligations hereunder, executed by the Borrowers or any guarantor, endorser
or other party now or hereafter becoming liable for payment of this Note, shall
require the payment or permit the collection of interest in excess of the


 


3

















 


Maximum Rate.  If any excess of
interest in such respect is provided for herein or in any such instrument, or other
document, the provisions of this paragraph shall govern, and neither of the
Borrowers nor any guarantor, endorser or other party shall be obligated to pay
the amount of such interest to the extent that it is in excess of the Maximum
Rate.  The intention of the Borrowers and
the Holder being to conform strictly to any applicable federal or state usury
laws now in force, all promissory notes, instruments and other documents
executed by the Borrowers or any guarantor, endorser or other party evidencing
the obligations under this Note shall be held subject to reduction to the
amount allowed under said usury laws as now or hereafter construed by the
courts having jurisdiction.


 


(g)                                 Reference
is hereby made to Section 11.18(b) of the Note Purchase Agreement that
authorizes the holders of the Notes holding at least 51% of the aggregate
principal amount of the Notes then outstanding to take action on behalf of all
the holders of the Notes.


 


Signature on the following page


 


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IN WITNESS
WHEREOF, each Borrower has caused this instrument to be executed in its
corporate name by a duly authorized officer, by order of its Board of Directors
as of the day and year first above written.


 


 


	
   

  	
  XPLORE TECHNOLOGIES CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  XPLORE TECHNOLOGIES

  CORPORATION OF AMERICA

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: