DIGITAL POWER CORP (Form: 8-K, Received: 02/17/2017 06:07:06)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): February 16, 2017

DIGITAL POWER CORPORATION

(Exact name of registrant as specified in its charter)

California	001-12711	94-1721931
(State or other jurisdiction of incorporation or organization)	(Commission File Number)	(I.R.S. Employer Identification No.)

48430 Lakeview Blvd, Fremont, CA 94538-3158

(Address of principal executive offices) (Zip Code)

(510) 657-2635

(Registrant's telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

[ ]	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))

Item 1.01 Entry into a Material Definitive Agreement.

On February 16, 2017, Digital Power Corporation (the “Company”) entered into a subscription agreement with one investor (the “Direct Offering”) for the sale of 166,667 shares of common stock at $0.60 per share for the cancellation of debt in the amount of $100,000. The Company expects to close the Direct Offering on or about February 22, 2017.

The Direct Offering is being made pursuant to a prospectus filed with the Company’s existing shelf registration statement on Form S-3 (File No. 333-215834), which was filed with the Securities and Exchange Commission (the “Commission”) on January 31, 2017 and declared effective by the Commission on February 8, 2017, and the prospectus supplement dated February 16, 2017.

The Subscription Agreement contains customary representations, warranties and agreements by the Company and the investor signatories thereto, including closing conditions and termination provisions.

A copy of the opinion of Weintraub Tobin relating to the legality of the issuance and sale of the shares in the Offering is attached as Exhibit 5.1 hereto. A copy of the form of Subscription Agreement is filed herewith as Exhibit 10.1 is incorporated herein by reference. The foregoing descriptions of the Offering by the Company and the documentation related thereto, including the form of the Subscription Agreement do not purport to be complete and are qualified in its entirety by reference to such Exhibits.

The Shares will be issued pursuant to the Company's previously filed and effective Registration Statement on Form S-3 (File No. 333-215834), the base prospectus dated February 8, 2017 filed as part of such Registration Statement, and the prospectus supplement dated February 16, 2017, filed by the Company with the SEC. This Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy Shares, nor shall there be any sale of the Shares, in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

The information contained in this Report is hereby incorporated by reference into the Company’s Registration Statement on Form S-3, File No. 333-215834.

Forward-Looking Statements

This report contains forward-looking statements that involve risks and uncertainties, such as statements related to the anticipated closing of the Offering and the amount of proceeds expected from the Offering. The risks and uncertainties involved include the Company’s ability to satisfy certain conditions to closing on a timely basis or at all, as well as other risks detailed from time to time in the Company’s filings with the SEC. You are cautioned not to place undue reliance on forward-looking statements, which are based on the Company’s current expectations and assumptions and speak only as of the date of this report. The Company does not intend to revise or update any forward-looking statement in this report to reflect events or circumstances arising after the date hereof, except as may be required by law.

Item 9.01 Fi nancial Statements and Exhibits.

(d) Exhibits.

5.1	Opinion of Weintraub Tobin Chediak Coleman Grodin

10.1	Form of Subscription Agreement

23.1	Consent of Weintraub Tobin Chediak Coleman Grodin (included in Exhibit 5.1)

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

		Digital Power Corporation
		a California corporation

Dated: February 16, 2017		/s/ Amos Kohn
		Amos Kohn
		President and Chief Executive Officer

Exhibit 5.1

February 16, 2017

Board of Directors

Digital Power Corporation

48430 Lakeview Blvd.

Fremont, CA 94538

Ladies and Gentlemen:

We act as counsel to Digital Power Corporation, a California corporation (the "Company"), in connection with: (i) preparing and filing with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), of a Registration Statement on Form S-3 (File No. 333-333-215834) (such registration statement as amended or supplemented from time to time, the “Registration Statement”), as declared effective on February 8, 2017, and the prospectus of the Company included in the Registration Statement (the “Base Prospectus”); and (ii) preparing and filing a prospectus supplement to the Base Prospectus dated February 16, 2017 (the “Prospectus Supplement”), pertaining to the issuance and sale by the Company of up to 166,667 shares of common stock, no par value per share (“Common Stock”).

For the purpose of rendering this opinion, we examined originals or copies of such documents as deemed to be relevant. In conducting our examination, we assumed, without investigation, the genuineness of all signatures, the correctness of all certificates, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted as certified or photostatic copies, and the authenticity of the originals of such copies, and the accuracy and completeness of all records made available to us by the Company. In addition, in rendering this opinion, we assumed that the Common Stock, will be offered in the manner and on the terms identified or referred to in the Registration Statement, the Base Prospectus and the Prospectus Supplement, including all supplements and amendments thereto.

Our opinion is limited solely to matters set forth herein. The law covered by the opinions expressed herein is limited to the federal law of the United States, and laws of the State of California.

Based upon and subject to the foregoing, after giving due regard to such issues of law as we deemed relevant, and assuming that the Registration Statement remains effective, and the Base Prospectus and Prospectus Supplement delivery requirements with respect thereto, fulfill all of the requirements of the Securities Act throughout all periods relevant to the opinion, we are of the opinion that the Common Stock has been duly authorized for issuance and, when issued, delivered and paid for in accordance with in accordance with and in the manner described in the Registration Statement, the Base Prospectus and Prospectus Supplement, the Common Stock will be validly issued, fully paid and nonassessable.

We hereby consent in writing to the use of our opinion as an exhibit to the Registration Statement, Base Prospectus and Prospectus Supplement, and any amendment thereto. By giving such consent, we do not thereby admit that we come within the category of persons where consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

Sincerely,

/s/ weintraub|tobin

Weintraub Tobin Chediak Coleman Grodin

Exhibit 10.1

SUBSCRIPTION AGREEMENT

Digital Power Corporation

48430 Lakeview Blvd.

Fremont, CA 94538

Ladies and Gentlemen:

The undersigned (the “ Investor ”) hereby confirms its agreement with Digital Power Corporation, a California corporation (the “ Company ”), as follows:

1. This Subscription Agreement, including the Terms and Conditions for Purchase of common stock of the Company, no par value (the “ Common S tock ”) attached hereto as Annex I which are incorporated herein by this reference as if fully set forth herein (the “ Terms and Conditions ” and, together with this Subscription Agreement, this “ Agreement ”) is made as of the date set forth below between the Company and the Investor.

2. The Company has authorized the sale and issuance to the investor of up to _____ shares of Common Stock for an aggregate purchase price of USD$____ (the “ Purchase Price ”). The Investor will pay the Purchase Price by cancellation of one or more promissory notes previously issued by the Company to the Investor.

3. The offering and sale of the Common Stock (the “ Offering ”) is being made pursuant to (a) an effective Registration Statement on Form S-3, No. 333-215834 (the “ Registration Statement ”) filed by the Company with the Securities and Exchange Commission (the “ Commission ”), including the Prospectus contained therein (the “ Base Prospectus ”), (b) if applicable, certain “free writing prospectuses” (as that term is defined in Rule 405 under the Securities Act of 1933, as amended (the “ Act ”)), that have been or will be filed, if required, with the Commission and delivered to the Investor on or prior to the date hereof (the “ Issuer Free Writing Prospectus ”), containing only certain supplemental information regarding the Common Stock, the terms of the Offering and/or the Company, and (c) a Prospectus Supplement (the “ Prospectus Supplement ” and, together with the Base Prospectus, the “ Prospectus ”) containing certain supplemental information regarding the Common Stock and terms of the Offering and the Company that has been or will be filed with the Commission and has been delivered to the Investor prior to the Closing.

4. The Company and the Investor agree that the Investor will purchase from the Company and the Company will issue and sell to the Investor _____ shares of Common Stock for the Purchase Price. The Common Stock shall be purchased pursuant to the Terms and Conditions.

5. The manner of settlement of the shares of Common Stock purchased by the Investor (the “ Investor Shares ”) shall be as follows:

Delivery by crediting the account of the Investor’s prime broker (as specified by such Investor on Exhibit A annexed hereto) with the Depository Trust Company (“ DTC ”) through its Deposit/Withdrawal At Custodian (“ DWAC ”) system, whereby Investor’s prime broker shall initiate a DWAC transaction on the Closing Date using its DTC participant identification number, and released by Computershare Trust Company, the Company’s transfer agent (the “ Transfer Agent ”), at the Company’s direction. NO LATER THAN 8:00 A.M. (EASTERN TIME) ON THE SECOND BUSINESS DAY IMMEDIATELY AFTER THE DATE OF EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:

(I)

Deliver to the Company, this duly completed and executed Agreement and the Purchase Price; and

(II)

DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE INVESTOR SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE INVESTOR SHARES.

6. The Investor represents that it has received (or otherwise had made available to it by the filing by the Company of an electronic version thereof with the Commission) the Base Prospectus, declared effective by the Commission on February 8, 2017, which is a part of the Company’s Registration Statement and the documents incorporated by reference therein, any Issuer Free Writing Prospectus and the Prospectus Supplement (collectively, the “ Disclosure Package ”), prior to or in connection with the receipt of this Agreement. The Investor acknowledges that, prior to the delivery of this Agreement to the Company, the Investor may receive certain additional information regarding the Offering and the Company (the “ Offering Information ”). Such information may be provided to the Investor by any means permitted under the Act, including the Prospectus Supplement, a free writing prospectus and oral communications.

7. No offer by the Investor to buy Common Stock will be accepted and no part of the Investor Purchase Price will be delivered to the Company until the Investor has received or has public access to the Disclosure Package and the Offering Information and the Company has accepted such offer by countersigning a copy of this Agreement, and any such offer may be withdrawn or revoked, without obligation or commitment of any kind, at any time prior to the Company sending (orally, in writing or by electronic mail) notice of its acceptance of such offer. An indication of interest will involve no obligation or commitment of any kind until the Investor has been delivered the Disclosure Package and Offering Information and this Agreement is accepted and countersigned by or on behalf of the Company.

Number of Shares of Common Stock: ____

Aggregate Investor Purchase Price: $

Please confirm that the foregoing correctly sets forth the agreement between us by signing in the space provided below for that purpose.

	Dated as of: February 10, 2017

	[ ]


	INVESTOR (print exact legal name)

	By:
		Print Authorized Signatory Name:

	Title:

	Address:

[Signature Page I to Digital Power Corporation Subscription Agreement]

Agreed and Accepted
this 10 ^th day of February 2017:

Digital Power Corporation


By:
	Name: Amos Kohn
	Title: President and CEO

[ Signature Page II to Digital Power Corporation Subscription Agreement ]

ANNEX I

TERMS AND CONDITIONS FOR PURCHASE OF COMMON STOCK

1. Authorization and Sale of the Common Stock. Subject to the terms and conditions of this Agreement, the Company has authorized the sale of the Common Stock.

2. Agreement to Sell and Purchase the Common Stock; Agent.

2.1 At the Closing (as defined in Section 3.1 ), the Company will sell to the Investor, and the Investor will purchase from the Company, upon the terms and conditions set forth herein, the number of shares of Common Stock set forth on the last page of the Agreement to which these Terms and Conditions for Purchase of Common Stock are attached as Annex I (the “ Signature Page ”) for the aggregate purchase price therefor set forth on the Signature Page.

3. Closing and Delivery of the Common Stock and Purchase Price.

3.1 Closing . The completion of the purchase and sale of the Common Stock (the “ Closing ”) shall occur at a place and time (the “ Closing Date ”) to be specified by the Company and the Investor. At the Closing, (a) the Company shall cause the Transfer Agent to deliver to the Investor the number of shares of Common Stock set forth on the Signature Page registered in the name of the Investor or, if so indicated on the Investor Questionnaire attached hereto as Exhibit A , in the name of a nominee designated by the Investor, and (b) the aggregate purchase price for the Common Stock being purchased by the Investor will be delivered by or on behalf of the Investor to the Company.

3.2 Conditions to the Obligations of the Parties .

(a) Conditions to the Company’s Obligations . The Company’s obligation to issue and sell the Common Stock to the Investor shall be subject to: (i) the receipt by the Company of the purchase price for the Common Stock being purchased hereunder as set forth on the Signature Page, (ii) the accuracy of the representations and warranties made by the Investor and the fulfillment of those undertakings of the Investor to be fulfilled prior to the Closing Date, and (iii) the conditional acceptance of the Offering by the NYSE MKT.

4. Representations, Warranties and Covenants of the Investor.

The Investor acknowledges, represents and warrants to, and agrees with, the Company that:

4.1 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may violate the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).

Annex-1

4.2 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase of Common Stock constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Common Stock.

5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary. Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and warranties made by the Investor herein will survive the execution of this Agreement, the delivery to the Investor of the shares of Common Stock being purchased and the payment therefor.

6. Changes. This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and the Investor.

7. Headings. The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not be deemed to be part of this Agreement.

8. Severability. In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.

9. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of California, without giving effect to the principles of conflicts of law that would require the application of the laws of any other jurisdiction.

10. Counterparts. This Agreement may be executed in two or more counterparts, each of which will constitute an original, but all of which, when taken together, will constitute but one instrument, and will become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that the Company shall deliver its counterpart to the Investor along with the Prospectus Supplement (or the filing by the Company of an electronic version thereof with the Commission).

11. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt of the Company’s signed counterpart to this Agreement, together with the Prospectus Supplement (or the filing by the Company of an electronic version thereof with the Commission), shall constitute written confirmation of the Company’s sale of shares of Common Stock to such Investor.

Annex-2

EXHIBIT A TO SUBSCRIPTION AGREEMENT

DIGITAL POWER CORPORATION

INVESTOR QUESTIONNAIRE

Pursuant to Section 3 of Annex I to the Agreement, please provide us with the following information:

1.	The exact name that your shares of Common Stock are to be registered in. You may use a nominee name if appropriate:

2.	The relationship between the Investor and the registered holder listed in response to item 1 above:

3.	The mailing address of the registered holder listed in response to item 1 above:

4.	The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above:

5.	Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the shares of Common Stock are maintained):

6.	DTC Participant Number:

7.	Name of Account at DTC Participant being credited with the shares of Common Stock:

8.	Account Number at DTC Participant being credited with the shares of Common Stock.

Exhibit A-1