<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 9)*
AXCESS INC.
- --------------------------------------------------------------------------------
(NAME OF ISSUER)
COMMON STOCK, PAR VALUE $.01 PER SHARE
- --------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
054546 10 6
------------------------------------------------
(CUSIP NUMBER)
RICHARD C. E. MORGAN
AMPHION PARTNERS L.P.
590 MADISON AVENUE
NEW YORK, NY 10022
(212) 849-8120
------------------------------------------------
(NAME, ADDRESS AND TELEPHONE OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS)
JANUARY 28, 1998
----------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
IF THE FILING PERSON HAS PREVIOUSLY FILED A STATEMENT ON SCHEDULE 13G TO REPORT
THE ACQUISITION WHICH IS THE SUBJECT OF THIS SCHEDULE 13D, AND IS FILING THIS
SCHEDULE BECAUSE OF RULE 13D-1(b)(3) OR (4), CHECK THE FOLLOWING BOX [ ].
NOTE: SIX COPIES OF THIS STATEMENT, INCLUDING ALL EXHIBITS, SHOULD BE FILED
WITH THE COMMISSION. SEE RULE 13D-1(a) FOR OTHER PARTIES TO WHOM COPIES ARE TO
BE SENT.
*THE REMAINDER OF THIS COVER PAGE SHALL BE FILLED OUT FOR A REPORTING PERSON'S
INITIAL FILING ON THIS FORM WITH RESPECT TO THE SUBJECT CLASS OF SECURITIES,
AND FOR ANY SUBSEQUENT AMENDMENT CONTAINING INFORMATION WHICH WOULD ALTER
DISCLOSURES PROVIDED IN A PRIOR COVER PAGE.
THE INFORMATION REQUIRED ON THE REMAINDER OF THIS COVER PAGE SHALL NOT BE
DEEMED TO BE "FILED" FOR THE PURPOSE OF SECTION 18 OF THE SECURITIES EXCHANGE
ACT OF 1934 ("ACT") OR OTHERWISE SUBJECT TO THE LIABILITIES OF THAT SECTION OF
THE ACT BUT SHALL BE SUBJECT TO ALL OTHER PROVISIONS OF THE ACT (HOWEVER, SEE
THE NOTES).
<PAGE> 2
SCHEDULE 13D
<TABLE>
<CAPTION>
Cusip No. 054546 10 6 Page 2 of 10 Pages
- ---------------------- --- ---
<S> <C>
- ------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
SS or I.R.S. Identification No. of Above Person:
Amphion Ventures L.P.
13-3962697
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2. Check the appropriate box if a member of a group (a) [ ]
(b) [ ]
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3. SEC Use Only.
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4. Source of Funds BK, AF, OO
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5. Check box if disclosure of legal proceedings is required pursuant to Items [ ]
2(d) or 2(e)
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6. Citizenship or Place of Organization Delaware
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Number of 7. Sole Voting Power N/A
Shares
--------------------------------------------------------------------------------------------
Beneficially 8. Shared Voting Power 1,473,155 (See Item 5)
Owned by
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Each 9. Sole Dispositive Power N/A
Reporting
--------------------------------------------------------------------------------------------
Person 10. Shared Dispositive Power 1,473,155 (See Item 5)
With
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11. Aggregate amount beneficially owned by each reporting person 1,473,155 (See Item 5)
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12. Check box if the aggregate amount in row (11) excludes certain shares [ ]
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13. Percent of class represented by amount in row (11) 41.2% (See Item 5)
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14. Type of Reporting Person PN
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</TABLE>
<PAGE> 3
SCHEDULE 13D
<TABLE>
<CAPTION>
Cusip No. 054546 10 6 Page 3 of 10 Pages
- ---------------------- --- ---
<S> <C>
- ------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
SS or I.R.S. Identification No. of Above Person:
Amphion Partners L.L.C.
13-3962696
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2. Check the appropriate box if a member of a group (a) [ ]
(b) [ ]
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3. SEC Use Only.
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4. Source of Funds AF
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5. Check box if disclosure of legal proceedings is required pursuant to Items [ ]
2(d) or 2(e)
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6. Citizenship or Place of Organization Delaware
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Number of 7. Sole Voting Power 28,125 (See Item 5)
Shares
--------------------------------------------------------------------------------------------
Beneficially 8. Shared Voting Power 1,473,155 (See Item 5)
Owned by
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Each 9. Sole Dispositive Power 28,125 (See Item 5)
Reporting
--------------------------------------------------------------------------------------------
Person 10. Shared Dispositive Power 1,473,155 (See Item 5)
With
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11. Aggregate amount beneficially owned by each reporting person 1,501,280 (See Item 5)
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12. Check box if the aggregate amount in row (11) excludes certain shares [ ]
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13. Percent of class represented by amount in row (11) 42.0% (See Item 5)
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14. Type of Reporting Person OO
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</TABLE>
<PAGE> 4
SCHEDULE 13D
<TABLE>
<CAPTION>
Cusip No. 054546 10 6 Page 4 of 10 Pages
---------------------- --- ---
<S> <C>
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1. Name of Reporting Person
SS or I.R.S. Identification No. of Above Person:
Antiope Partners L.L.C.
13-3260056
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2. Check the appropriate box if a member of a group (a) [ ]
(b) [ ]
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3. SEC Use Only.
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4. Source of Funds OO
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5. Check box if disclosure of legal proceedings is required pursuant to Items [ ]
2(d) or 2(e)
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6. Citizenship or Place of Organization Delaware
- ------------------------------------------------------------------------------------------------------------
Number of 7. Sole Voting Power 132,534 (See Item 5)
Shares
--------------------------------------------------------------------------------------------
Beneficially 8. Shared Voting Power N/A
Owned by
--------------------------------------------------------------------------------------------
Each 9. Sole Dispositive Power 132,534 (See Item 5)
Reporting
--------------------------------------------------------------------------------------------
Person 10. Shared Dispositive Power N/A
With
--------------------------------------------------------------------------------------------
11. Aggregate amount beneficially owned by each reporting person 132,534 (See Item 5)
- ------------------------------------------------------------------------------------------------------------
12. Check box if the aggregate amount in row (11) excludes certain shares [ ]
- ------------------------------------------------------------------------------------------------------------
13. Percent of class represented by amount in row (11) 5.2% (See Item 5)
- ------------------------------------------------------------------------------------------------------------
14. Type of Reporting Person OO
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 5
Page 5 of 10 Pages
This Amendment No. 9 to the Statement on Schedule 13D dated October 4, 1985 (the
"Schedule 13D") previously filed by Antiope Ventures L.P. f/k/a Wolfensohn
Associates L.P. and Antiope Partners L.L.C. f/k/a Wolfensohn Partners L.P.
("Partners I"), is filed by Partners I, Amphion Ventures L.P. ("Ventures II")
and Amphion Partners L.L.C. ("Partners II") and concerns the common stock, $0.01
par value per share (the "Common Stock"), of AXCESS Inc., a Delaware
corporation, which has its principal executive offices at 3208 Commander Dr.,
Carrollton, Texas 75006 (the "Company"). This Amendment No. 9 amends Items 3,
4, 5,6 and 7 of Schedule 13D. On April 2, 1998, the Company effected a 1-for-20
reverse stock split of the Common Stock. Accordingly, all shares and per share
amounts reported in this Schedule 13D are on a post reverse split basis.
ITEM 3. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION
On January 31, 1998, Ventures II acquired 122 shares of Series G Convertible
Preferred Stock (the "Series G Preferred Stock") at a purchase price of $10,000
per share, totaling $1,220,000. The consideration was in the form of a note
payable to the Company for the full amount of the purchase price (the "January
Note Payable"). The form of note payable is attached to this Schedule 13D as
Exhibit 99.28 and is incorporated herein by reference. As of the date of this
Schedule 13D, the January Note Payable has been paid in full by Ventures II.
On February 28, 1998, Ventures II acquired 83 shares of Series G Preferred Stock
at a purchase price of $10,000 per share, totaling $830,000. The consideration
was in the form of a note payable to the Company for the full amount of the
purchase price (the "February Note Payable"). The form of note payable is
attached to this Schedule 13D as Exhibit 99.28 and is incorporated herein by
reference. As of March 31, 1998, the balance of the February Note Payable was
$170,000.
Pursuant to the terms of the commitment of Ventures II to purchase up to
$5,500,000 of the Company's Series G or Series H Preferred Stock, Ventures II
acquired 160 shares of Series H Convertible Preferred Stock on March 31, 1998,
(the "Series H Preferred Stock") at a purchase price of $10,000 per share,
totaling $1,600,000. The consideration was in the form of a note payable to the
Company for the full amount of the purchase price (the "March Note Payable").
The form of note payable is attached to this Schedule 13D as Exhibit 99.28 and
is incorporated herein by reference. As of the date of this Schedule 13D, the
balance of the March Note Payable is $1,600,000. The Series H Preferred Stock
is convertible into shares of the Company's non-voting Common Stock. Although
the Company's non-voting Common Stock may be converted to Common Stock at any
time by a holder thereof, Ventures II has agreed not to convert any shares of
non-voting Common Stock to Common Stock until the Company has issued 500,000
shares of Common Stock to XL Vision, Inc. under the terms of the Technology
Development Agreement by and between the Company and XL Vision, Inc., unless
Ventures II receives the prior written consent of the Company.
<PAGE> 6
Page 6 of 10 Pages
On April 7, 1998, Partners I acquired 4,500 shares of Common Stock for a per
share price of $4.50, totaling $20,250 in cash on the market.
On April 24, 1998, under the terms of a two-year loan which bears interest at
the rate of 10% per annum, Ventures II loaned the Company $1,470,000 to fund
the Company's obligations to Xerox Corporation under the terms of a Settlement
Agreement by and between the Company and Xerox Corporation. Ventures II
received a loan origination fee of (i) 15,120 restricted shares of Common Stock
and (ii) 3-year warrants to purchase 14,700 shares of Common Stock with an
exercise price of $5.00 per share.
Each share of Series G Preferred Stock has a liquidation preference over all
Common Stock of the Company equal to the stated value of all such shares of
preferred stock outstanding at the time plus accrued dividends. Shares of
Series G Preferred Stock are convertible in whole at any time and in part from
time to time into shares of Common Stock equal to the quotient of (i) the
aggregate original Series G issue price of the shares of Series G Preferred
Stock ($10,000/share) being divided by (ii) the conversion price, which is
currently $10.00, subject to adjustment from time to time based on the
occurrence of certain events described in the Series G Certificate of
Designation which is incorporated herein by reference to Exhibit 24 to
Amendment No. 8 to Schedule 13D.
Each share of Series H Preferred Stock has a liquidation preference over all
Common Stock of the Company equal to the stated value of all such shares of
preferred stock outstanding at the time plus accrued dividends. Shares of
Series H Preferred Stock are convertible in whole at any time and in part from
time to time into shares of Common Stock equal to the quotient of (i) the
aggregate original Series H issue price of the shares of Series H Preferred
Stock ($10,000/share) being divided by (ii) the conversion price, which is
currently at $10.00, subject to adjustment from time to time based on the
occurrence of certain events described in the Series H Certificate of
Designation which is attached to this Schedule 13D as Exhibit 99.27.
Funds used by Ventures II for the transactions described herein were obtained
from a bank loan and capital contributions from limited partners. Funds used
by Partners I for the transaction described herein were obtained from current
income.
ITEM 4. PURPOSE OF TRANSACTIONS.
The purchases made by Partners I and Ventures II reported in this Amendment No.
9 were all in connection with their respective general investment activities.
In addition to the acquisitions described in this Schedule 13D, Partners I and
Ventures II each has the right to acquire additional shares of Common Stock (or
other capital stock of the Company), and to dispose of some or all of their
respective current holdings of Common Stock or other capital stock of the
Company or to exercise any warrants or other rights any of them may in the
future have in respect thereof, in one or more open-market or privately
negotiated transactions or otherwise, on such terms and at such times as each
considers desirable.
<PAGE> 7
Page 7 of 10 Pages
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) On April 2, 1998, the Company effected a 1-for-20 reverse
stock split of the Common Stock. Accordingly, all shares and per share amounts
reported in this Schedule 13D are on a post reverse split basis. As of May 1,
1998, Ventures II owned the following interests in the Company:
<TABLE>
<CAPTION>
Common Stock
Type of Security Number of Shares Equivalent if Converted
---------------- ---------------- -----------------------
<S> <C> <C>
Common Stock 361,409 N/A
----------------------------------------------------------------------------
Series A Convertible Preferred 57,692 57,692
Stock
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Series B Convertible Preferred 52,816 52,816
Stock
----------------------------------------------------------------------------
Series C Convertible Preferred 25,492 25,492
Stock
----------------------------------------------------------------------------
Series G Convertible Preferred 905 905,000(1)
Stock
----------------------------------------------------------------------------
Series H Convertible Preferred 160 160,000(2)
Stock
----------------------------------------------------------------------------
Warrants 66,903 66,903
----------------------------------------------------------------------------
Options 3,843 3,843
----------------------------------------------------------------------------
</TABLE>
(1) This sum assumes a Series G Preferred per share price of $10,000 divided by
a conversion price of $10.00, as it has been initially set.
(2) This sum assumes a Series H Preferred per share price of $10,000 divided by
a conversion price of $10.00, as it has been initially set. The Series H
Preferred Stock is convertible to the Company's non-voting Common Stock at
the option of the holder. Holders of shares of non-voting Common Stock may
convert their shares 1-for-1 to voting Common Stock at any time. Ventures
II, however, has agreed with the Company not to convert its non-voting
Common Stock to Common Stock on or before the date on which the Company has
issued 500,000 shares of Common Stock to XL Vision, Inc. under the terms
of the Technology Development Agreement by and between the Company and XL
Vision, Inc., unless it receives the Issuer's prior written consent.
As of May 1, 1998, Ventures II owned 361,409 shares of Common Stock, which
Ventures II estimates is approximately 14.7% of the total issued and
outstanding shares of the Common Stock of the Company. Assuming the exercise
by Ventures II of all of its rights to convert all of the Series A, Series B,
Series C and Series G Preferred Stock, the warrants and the options held by it
into Common Stock, Ventures II would be deemed the beneficial holder of
1,473,155 shares of Common Stock, which Ventures II estimates would constitute
approximately 41.8% of the issued and outstanding Common Stock (assuming all
outstanding options and warrants had been exercised, and all outstanding
convertible securities had been converted into Common Stock) as of May 1, 1998.
As of May 1, 1998, Partners II owned 28,125 shares of Common Stock, which
Partners II estimates is approximately 1.1% of the total issued and outstanding
shares of the Common Stock of the Company. Partners II is the general partner
of Ventures II and holds 0.2% of the total partnership interests. See the
holdings of Ventures II above.
<PAGE> 8
Page 8 of 10 Pages
As of May 1, 1998, Partners I owned the following interests in the Company:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------
Common Stock
Type of Security Number of Shares Equivalent if Converted
----------------------------------------------------------------------------
<S> <C> <C>
Common Stock 42,034 N/A
----------------------------------------------------------------------------
Series G Convertible Preferred 50 50,000(1)
Stock
----------------------------------------------------------------------------
Warrants 40,500 40,500
----------------------------------------------------------------------------
</TABLE>
(1) This sum assumes a Series G Preferred per share price of $10,000 divided by
a conversion price of $10.00, as it has been initially set.
As of May 1, 1998, Partners I owned 42,034 shares of Common Stock, which
Partners I estimates is approximately 1.7% of the total issued and outstanding
shares of the Common Stock of the Company. Assuming the exercise by Partners I
of all of its rights to convert all of the Series G Preferred Stock and the
warrants held by it into Common Stock, Partners I would be deemed the
beneficial holder of 132,534 shares of Common Stock, which Partners I estimates
would constitute approximately 5.2% of the issued and outstanding Common Stock
(assuming all outstanding warrants had been exercised, and all outstanding
convertible securities had been converted into Common Stock) as of May 1, 1998.
Richard C.E. Morgan, a managing member of Partners I and Partners II and
Chairman of the Board of the Company, owns 41,963 shares of Common Stock and
options to purchase 2,500 additional shares, 1,875 of which are currently
vested. The 41,963 shares of Common Stock owned by Mr. Morgan is estimated to
represent 1.3% of the total outstanding shares of Common Stock of the Company.
If Mr. Morgan were to exercise all his options, he would be deemed the
beneficial owner of 43,838 shares of Common stock, which is estimated by Mr.
Morgan to represent 1.8% of the issued and outstanding shares of the Company
(assuming all outstanding warrants had been exercised and all outstanding
securities had been converted into Common Stock as of May 8, 1998.
(b) Reference is made to Rows (7) through (10) of each Reporting
person's cover page.
(c) This amendment and filing reports the following events:
Except as reported herein, and except that Richard Morgan purchased on the
market for cash (i) 2,100 shares of Common Stock at a per share price of $4.875
on April 2, 1998, (ii) 5,000 shares of Common Stock at a per share price of
$4.875 on April 6, 1998, (iii) 6,000 shares of Common Stock at an average price
per share of $4.65 on April 7, 1998, and was granted 12,500 shares of Common
Stock by the Company on April 30, 1998, for the stock portion of his annual
compensation for serving as the Company's Chairman of the Board, none of
Ventures II, Partners II or Partners I or, to the best knowledge of each of
these or any of the managing members of Partners I or Partners II or any of
their controlling persons has effected any transactions in the Common Stock (or
securities convertible into Common Stock) during the last sixty days.
(d) No amendment.
(e) Not applicable.
<PAGE> 9
Page 9 of 10 Pages
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
On April 15, 1998, the Company submitted a preliminary proxy statement (the
"Preliminary Proxy") to the Securities and Exchange Commission concerning the
proposed annual meeting of stockholders of the Company to elect directors,
ratify accountants, approve an amendment to the Company's stock option plan,
adopt a director compensation plan, authorize certain issuances of Common
Stock, and to transact other business as may properly come before the meeting.
Except as reported herein and in previous reports, none of Ventures II,
Partners I or Partners II or, to the best knowledge of each of them or any of
the managing members of Partners I or Partners II or any of their controlling
persons has entered into any contracts, arrangements, understandings or
relationships (legal or otherwise) with any person with respect to any
securities of the Company, which are in effect as of the date of this Amendment
No. 9.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The following Exhibits are filed herewith as exhibits to this Schedule 13D:
99.26 Joint Filing Agreement.
99.27 Certificate of Designation of Series H Preferred Stock.
99.28 Form of Note Payable from Ventures II to the Company.
99.29 Series H Preferred Stock Purchase Agreement.
The following are incorporated herein by reference to other filings:
The Series A, B and C Designations of Preferred Stock which are attached to
Amendment No. 7 as Exhibits 17, 18 and 19, respectively; and
The Series G Designation of Preferred Stock which is attached to Amendment
No. 8 as Exhibit 24.
<PAGE> 10
Page 10 of 10 Pages
SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 14, 1998
ANTIOPE PARTNERS L.L.C.
By: /s/ Richard C.E. Morgan
-------------------------------------------
Richard C.E. Morgan, a Managing Member
AMPHION VENTURES L.P.
By: Amphion Partners L.L.C., General Partner
By: /s/ Richard C.E. Morgan
-------------------------------------------
Richard C.E. Morgan, a Managing Member
AMPHION PARTNERS L.L.C.
By: /s/ Richard C.E. Morgan
-------------------------------------------
Richard C.E. Morgan, a Managing Member
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
99.26 Joint Filing Agreement
99.27 Designation of Series H Convertible Preferred Stock
99.28 Form of Note payable to the Company
99.29 Series H Preferred Stock Purchase Agreement
</TABLE>
<PAGE> 1
EXHIBIT 99.26
JOINT FILING AGREEMENT
The undersigned hereby agree to the joint filing of the Schedule 13D to
which this Agreement is attached.
Dated: May 14, 1998
ANTIOPE PARTNERS L.L.C.
By: /s/ Richard C.E. Morgan
-------------------------------------------
Richard C.E. Morgan, a Managing Member
AMPHION VENTURES L.P.
By: Amphion Partners L.L.C., General Partner
By: /s/ Richard C.E. Morgan
-------------------------------------------
Richard C.E. Morgan, a Managing Member
AMPHION PARTNERS L.L.C.
By: /s/ Richard C.E. Morgan
-------------------------------------------
Richard C.E. Morgan, a Managing Member
<PAGE> 1
EXHIBIT 99.27
CERTIFICATE OF DESIGNATION,
PREFERENCES, POWERS AND RIGHTS
OF
SERIES H PREFERRED STOCK
OF
AXCESS INC.
Pursuant to Section 151 of the
General Corporation Law
of the State of Delaware
AXCESS INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Company"), hereby certifies
that, pursuant to the authority contained in Article Fourth of its Certificate
of Incorporation, as amended, and in accordance with the provisions of Sections
103 and 151 of the General Corporation Law of the State of Delaware, its Board
of Directors has adopted the following resolution providing for the issuance of
Series H Preferred Stock:
RESOLVED, that a series of the class of authorized Preferred Stock of the
Company is hereby created and the Board of Directors hereby fixes the
designation and amount thereof, and the voting powers, preferences, and
relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations, or restrictions thereon as
follows:
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series
shall have a par value of $.01 per share and shall be designated as Series H
Preferred Stock (the "Series H Preferred Stock") and the number of shares
constituting the Series H Preferred Stock shall be TWO THOUSAND FIVE HUNDRED
(2,500). The Series H Preferred Stock shall have a stated value of Ten
Thousand Dollars ($10,000) per share (the "Original Series H Issue Price").
SECTION 2. RANK. The Series H Preferred stock shall rank: (i)
junior to any other class or series of capital stock of the Company hereafter
created specifically ranking by its terms senior to the Series H Preferred
Stock (collectively, the "Senior Securities"); (ii) prior to all of the
Company's Common Stock, $.01 par value per share ("Common Stock") and
Non-Voting Common Stock, $.01 par value per share ("Non-Voting Common Stock");
(iii) prior to any class or series of capital stock of the Company hereafter
created not specifically ranking by its terms senior to or on parity with the
Series H Preferred Stock (collectively, with the Common Stock and Non-Voting
Common Stock, the "Junior Securities"); and (iv) on parity with the Series A
Preferred Stock of the Company, par value $.01 per share (the "Series A
Preferred Stock"), the Series B Preferred Stock of the Company, par value $.01
per share (the "Series B Preferred Stock"), the Series C Preferred
-1-
<PAGE> 2
Stock of the Company, par value $.01 per share (the "Series C Preferred
Stock"), the Series G Preferred Stock of the Company, par value $.01 per share
(the "Series G Preferred Stock") and any class or series of capital stock of
the Company hereafter created specifically ranking by its terms on parity with
the Series H Preferred Stock (the "Parity Securities") in each case as to
distributions of assets upon liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary (all such distributions being
referred to collectively as "Distributions").
SECTION 3. DIVIDENDS AND DISTRIBUTIONS. (a) Subject to Section
3(d), the holders of record of shares of Series H Preferred Stock (the
"Holders"), in preference to the holders of shares of capital stock ranking
junior to the Series H Preferred Stock as to dividends, shall be entitled to
receive dividends on each share of Series H Preferred Stock held of record at
the annual rate of 8% of the Original Series H Issue Price, payable
semi-annually, to the extent of funds legally available therefor. Such
dividends shall be cumulative, shall accrue on each share on a daily basis
(calculated on the basis of a 360-day year, whether or not earned or declared,
from the date of original issue of such shares) and shall be payable in
arrears, when, as and if declared by the Board of Directors, on the last day of
June and December in each year (each such date, a "Dividend Payment Date").
Each such dividend will be paid to the Holders as they appear on the stock
register of the Company on the record date therefor as shall be fixed by the
Board of Directors, which record date shall not be more than 25 days or less
than 10 days preceding the payment date thereof.
(b) The Company may, at its option, make any dividend
payment to Holders of Series H Preferred Stock in cash or in additional shares
of Series H Preferred Stock or in any combination of cash and such shares.
Each such dividend payment (or portion thereof) to be paid in shares of Series
H Preferred Stock shall be paid by the issuance and delivery to such Holders of
that number of additional shares of Series H Preferred Stock as shall be equal
to the quotient obtained by dividing the aggregate dollar amount of such
dividend payment (or portion thereof) by the Original Series H Issue Price per
share. Dividends to be paid in additional shares of Series H Preferred Stock
shall be deemed to have been made when certificates representing such
additional shares of Series H Preferred Stock have been delivered to the record
holders of the Series H Preferred Stock entitled to receive the same, in
accordance with the instructions of such holders designated in writing to the
Company at least two business days prior to any Dividend Payment Date. All
shares of Series H Preferred Stock paid as such dividends ("Dividend Shares")
shall be validly issued, fully paid and non-assessable, shall be free and clear
of preemptive rights and liens, claims and encumbrances of any kind. Subject
to the other provisions of this Certificate of Designation, holders of shares
of Series H Preferred Stock shall not be entitled to any dividend, whether
payable in cash, additional shares of Series H Preferred Stock, or other
property, in excess of full cumulative dividends as herein provided. No
interest, or sum of money in lieu of interest, shall be payable under this
Certificate of Designation in respect of any dividend payment or payments on
the Series H Preferred Stock which may be in arrears.
(c) So long as any Series H Preferred Stock remains
outstanding, the Company will not redeem, purchase or otherwise acquire any
Junior Securities; nor will the Company declare or pay any dividend or make any
distribution (in each case, whether in cash or securities or assets
-2-
<PAGE> 3
in kind) upon any Junior Securities (other than stock dividends on Junior
Securities, payable in shares of, options, warrants or similar rights to
acquire shares of, the same class (and series, if applicable) of Junior
Securities), or make any sinking fund or other payment in respect of any of the
foregoing if the Company shall not have paid in full all accrued dividends on
the Series H Preferred Stock in accordance with Section 3(a) hereof.
(d) Anything contained herein to the contrary
notwithstanding, if at any time that any shares of Series H Preferred Stock are
outstanding, the closing bid price per share of the Common Stock on The Nasdaq
Stock Market (or, if the Common Stock is not then included in Nasdaq, but is
listed on any national securities exchange, on the principal national
securities exchange on which the Common Stock is then listed) remains above
$20.00 per share (as adjusted for any stock splits, reverse stock splits, stock
dividends or similar events after the date of this Certificate of Designation)
for 20 consecutive trading days, then, commencing on such 20th trading day, the
cumulative dividend will not be payable; provided, however, that if the closing
bid price per share of the Common Stock remains below $20.00 for 20 consecutive
trading days (as so adjusted), then the dividend will resume as of such 20th
day.
SECTION 4. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or
winding up of the Company ("Liquidation Event"), either voluntary or
involuntary, the Holders of shares of Series H Preferred Stock shall be
entitled to receive, immediately after any distributions to Senior Securities
required by the Company's Certificate of Incorporation or any certificate of
designation, and prior in preference to any distribution to Junior Securities,
and in parity with any distribution to Parity Securities, an amount for each
share of Series H Preferred Stock then outstanding equal to the Original Series
H Issue Price, plus any and all accrued unpaid dividends. If upon the
occurrence of such event, and after payment in full of the preferential amounts
with respect to the Senior Securities, the assets and funds available to be
distributed among the Holders of the Series H Preferred Stock and Parity
Securities shall be insufficient to permit the payment to such Holders of the
full preferential amounts due to the Holders of the Series H Preferred Stock
and the Parity Securities, respectively, then the entire assets and funds of
the Company legally available for distribution shall be distributed among the
Holders of the Series H Preferred Stock and the Parity Securities, pro rata,
based on the respective liquidation amounts to which each such series of stock
is entitled by the Company's Certificate of Incorporation and any
certificate(s) of designation relating thereto.
(b) Upon the completion of the distribution required by
subsection 4(a), if assets remain in this Company, they shall be distributed to
holders of Junior Securities in accordance with the Company's Certificate of
Incorporation including any duly adopted certificate(s) of designation.
(c) At each Holder's option, a sale, conveyance or
disposition of all or substantially all of the assets of the Company or the
effectuation by the Company of a transaction or series of related transactions
in which any person or entity acquires more than fifty percent (50%)
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<PAGE> 4
of the voting power of the Company (a "Change of Control") shall be deemed to
be a Liquidation Event as defined in section 4(a); provided further that (i) a
consolidation, merger, acquisition, or other business combination of the
Company with or into any other publicly traded company or companies shall not
be treated as a Liquidation Event as defined in Section 4(a), but instead shall
be treated pursuant to Section 5(d)(ii) hereof, and (ii) a consolidation,
merger, acquisition, or other business combination of the Company with or into
any other non-publicly traded company or companies (except for a consolidation,
merger, acquisition or other business combination with one of its subsidiaries)
shall be treated as a Liquidation Event as defined in section 4(a). The
Company shall not effect any transaction described in subsection 4(c)(ii)
(except for a consolidation, merger, acquisition or other business combination
with one of its subsidiaries) unless it first gives thirty (30) business days
prior notice of such transaction (during which time the Holder shall be
entitled to convert its shares of Series H Preferred Stock into Non-Voting
Common Stock). For purposes of this section 4(c), the public offering, sale or
distribution of shares of stock (or assets) of the Company's Sandia Imaging
Systems Corporation subsidiary or the Lasertechnics Marking Corporation
subsidiary (but not both) shall not be deemed to be a Liquidation Event.
(d) In the event that, immediately prior to or
contemporaneously with the closing of a transaction described in section 4(c)
which would constitute a Liquidation Event, the cash distributions required by
Section 4(a) have not been made, the Company shall either: (i) cause such
closing to be postponed until such cash distributions have been made, or (ii)
cancel such transaction, in which event the rights of the Holders of Series H
Preferred Stock shall be the same as existing immediately prior to such
proposed transaction.
SECTION 5. CONVERSION. The record Holders of this Series H
Preferred Stock shall have conversion rights as follows (the "Conversion
Rights"):
(a) Right to Convert. On the terms and subject to the
conditions set forth in this Certificate of Designation, each record Holder of
Series H Preferred Stock shall be entitled to convert the shares of Series H
Preferred Stock held by such Holder, in whole at any time and in part from time
to time, into a number of fully-paid and non-assessable shares of Non-Voting
Common Stock of the Company equal to the quotient of (i) the aggregate Original
Series H Issue Price of the shares of Series H Preferred Stock being converted
divided by (ii) the Conversion Price as determined pursuant to this Section
5(the "Conversion Price"). The Conversion Price shall initially be TEN DOLLARS
($10.00) per share of Series H Preferred Stock. The Conversion Price shall be
subject to adjustment from time to time as provided in Section 5(d).
(b) Mechanics of Conversion. Conversion of shares of
Series H Preferred Stock may be effected by written notice to the Company, and
shall be effective upon receipt of such notice by the Company, or as otherwise
provided in such notice, and delivery to the Company of (i) one or more
certificates representing the shares of Series H Preferred Stock being
converted, (ii) a certificate of guaranteed delivery of such certificates
reasonably satisfactory to the Company, or (iii) evidence of the loss, theft or
destruction of such certificates pursuant to Section 10 of this Certificate of
Designation, together with any indemnity or security reasonably requested by
the Company
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<PAGE> 5
pursuant to such section 10. Upon any conversion of shares of Series H
Preferred Stock pursuant to this Section 5, the Holder shall be deemed to be
the record holder of the shares of Non-Voting Common Stock into which shares of
Series H Preferred Stock have been converted and shall be entitled to receive
duly executed certificates, in proper form, representing such shares of
Non-Voting Common Stock as soon as practicable thereafter. Anything contained
herein to the contrary notwithstanding, if any conversion of shares of Series H
Preferred Stock would create a fractional share of Non-Voting Common Stock or a
right to acquire a fractional share of Non-Voting Common Stock, such fractional
share shall be disregarded and the number of shares of Non-Voting Common Stock
issuable upon such conversion, in the aggregate, shall be rounded to the
nearest whole number of shares (with one-half of a share rounded up).
(c) Reservation of Stock Issuable Upon Conversion. Other
than as set forth below, the Company shall at all times reserve and keep
available out of its authorized but unissued shares of Non-Voting Common Stock,
solely for the purpose of effecting the conversion of the Series H Preferred
Stock, such number of its shares of Non- Voting Common Stock as shall from time
to time be sufficient to effect the conversion of all then outstanding Series H
Preferred Stock. Notwithstanding the foregoing, if at any time the number of
authorized but unissued shares of Non- Voting Common Stock (excluding for this
purpose any authorized but unissued shares of Non-Voting Common Stock that are
properly reserved for some other purpose) shall be insufficient to cause the
conversion into Non-Voting Common Stock of all shares of Series H Preferred
Stock then outstanding, the Company will, when authorized by the Board of
Directors, take such corporate action as may be reasonably necessary to
increase its authorized but unissued shares of Non-Voting Common Stock to such
number of shares as shall be sufficient for such purpose.
(d) Adjustment to Conversion Rate.
(i) Adjustment to Conversion Price Due to Stock
Split, Stock Dividend ,Etc. If, at any time that any shares of Series H
Preferred Stock remaining outstanding, the number of outstanding shares of
Non-Voting Common Stock is increased by a stock split, stock dividend, or other
similar event, the Conversion Price shall be proportionately reduced, or if the
number of outstanding shares of Non-Voting Common Stock is decreased by a
reverse stock split, combination or reclassification of shares, or other
similar event, the Conversion Price shall be proportionately increased.
(ii) Adjustment Due to Merger, Consolidation, Etc.
If, at any time that any shares of Series H Preferred Stock remain outstanding,
there shall be any merger, consolidation, exchange of shares, recapitalization,
reorganization, or other similar event, as a result of which shares of
Non-Voting Common Stock of the Company shall be changed into the same or a
different number of shares of the same or another class or classes of stock or
securities of the Company or another entity, or there is a sale of all or
substantially all the Company's assets or there is a Change of Control not
deemed to be a Liquidation Event pursuant to section 4(c), then the Holders
shall thereafter have the right to receive upon conversion of shares of Series
H Preferred Stock, upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Non-Voting
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<PAGE> 6
Common Stock immediately theretofore issuable upon conversion, such stock,
securities and/or other assets which the Holder would have been entitled to
receive in such transaction had such shares of Series H Preferred Stock been
converted immediately prior to such transaction, and in any such case
appropriate provisions shall be made with respect to the rights and interests
of the Holders of the Series H Preferred Stock to the end that the provisions
hereof (including, without limitation, provisions for the adjustment of the
Conversion Price and of the number of shares issuable upon conversion of the
Series H Preferred Stock) shall thereafter be applicable, as nearly as may be
practicable in relation to any securities thereafter deliverable upon the
exercise hereof. The Company shall not effect any transaction described in
this subsection 5(d)(ii) unless (A) it first gives thirty (30) business days
prior notice of such merger, consolidation, exchange of shares,
recapitalization, reorganization, or other similar event (during which time the
Holders shall be entitled to convert their shares of Series H Preferred Stock
into Non-Voting Common Stock) and (B) the resulting successor or acquiring
entity (if not the Company) assumes by written instrument the obligations of
the Company under this Certificate of Designation including this subsection
5(d)(ii).
SECTION 6. VOTING. The Holders shall not be entitled to vote,
either together with the holders of the Company's voting Common Stock or voting
Preferred Stock, or as a single class, on any matter submitted to a vote of the
stockholders of the Company, or as to which the holders of the voting Common
Stock or voting Preferred Stock shall otherwise be entitled to vote. As used
in this Section 6, all references to votes and voting shall refer as well to
action and actions by written consent.
SECTION 7. OPTIONAL REDEMPTION BY COMPANY. The Series H
Preferred Stock shall be subject to optional redemption by the Company, in
whole at any time or in part from time to time, at a redemption price per share
equal to the Original Series H Issue Price, plus any and all accrued unpaid
dividends thereon. The Company shall give at least 10 days' prior written
notice of any redemption pursuant to this Section 7 to each Holder of shares of
Series H Preferred Stock to be redeemed. The Company's optional right of
redemption is subject to each Holder's right to convert all or any part of the
shares to be redeemed into Non-Voting Common Stock pursuant to Section 5,
provided that the Holder gives written notice of such conversion to the Company
in accordance with Section 5 within 10 business days after the Company's notice
of redemption. The Holders of Series H Preferred Stock shall not be entitled
to any mandatory redemption of their Shares without the consent of the Company.
SECTION 8. STATUS OF CONVERTED OR REDEEMED STOCK. In the event
any shares of Series H Preferred Stock shall be converted pursuant to Section 5
hereof or redeemed pursuant to Section 7 hereof, the shares so converted or
redeemed shall be canceled, shall return to the status of authorized but
unissued Preferred Stock of no designated series, and shall not thereafter be
issuable by the Company as Series H Preferred Stock.
SECTION 9. OTHER PREFERRED STOCK. Nothing contained herein
shall be construed to prevent the Board of Directors from authorizing the
creation of, or to prevent the Company from
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<PAGE> 7
issuing shares of, one or more series of Preferred Stock senior to, junior to
or on parity with the Series H Preferred Stock as to dividend, liquidation
rights or otherwise.
SECTION 10. LOST OR STOLEN CERTIFICATES. Upon receipt by the
Company of evidence of the loss, theft, destruction or mutilation of any
certificates representing shares of Series H Preferred Stock, and (in the case
of loss, theft or destruction) of indemnity or security reasonably satisfactory
to the Company, and upon surrender and cancellation of the certificate(s), if
mutilated, the Company shall execute and deliver to the record Holder thereof
new certificate(s) of like tenor and date. However, the Company shall not be
obligated to re-issue such lost or stolen certificates if the Holder
contemporaneously requests the Company to convert such shares of Series H
Preferred Stock into shares of Non-Voting Common Stock.
SECTION 11. FRACTIONAL SHARES. In the event a Holder of Series H
Preferred Stock shall be entitled to receive a fractional interest in a share
of Series H Preferred Stock of less than one one-hundredth of one share, except
as otherwise provided herein, the Company shall either, in the sole discretion
of the Board of Directors, (a) round such fractional interest up to the next
one-hundredth of one whole share of Series H Preferred Stock or (b) deliver
cash in the amount of the fair market value (as determined by the Board of
Directors or in any manner prescribed by the Board of Directors) of such
fractional interest.
SECTION 12. PREEMPTIVE RIGHTS. The Holders of Series H Preferred
Stock are not entitled to any preemptive or subscription rights in respect of
any securities of the Company.
SECTION 13. COUNTERPARTS. This Certificate of Designation may be
executed on separate counterparts and shall be effective as of the date signed.
IN WITNESS WHEREOF, AXCESS Inc. has caused this certificate to be signed by
its President and attested by its Secretary, as of the 30th day of April, 1998.
AXCESS INC.
By: /s/ Harry S. Budow
------------------------------------
Harry S. Budow, President
Attest:
/s/ Danny G. Hair
- ------------------------------------
Danny G. Hair, Secretary
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<PAGE> 1
EXHIBIT 99.28
AMPHION VENTURES L.P.
FORM OF PROMISSORY NOTE
$ , 1998
------------- -----------------
AMPHION VENTURES L.P., a New York limited partnership having its principal
place of business in New York, New York ("Amphion Ventures"), for value
received, hereby promises to pay to the order of AXCESS Inc., its legal
successors and permitted assigns (the "Holder"), on ________________ (the
"Final Maturity Date"), the unpaid principal amount of ________________________
__________________________________ (U.S. _____________), together with interest
thereon from the date hereof, at the rate of ten percent (10.00%) per annum,
calculated on the basis of the number of days elapsed over a 360-day year of
twelve 30-day months (the "Interest Rate"). Interest shall be payable
quarterly in arrears, in cash, on each January 1, April 1, July 1 and October 1
during the term of this Note, commencing _______, 1998. Each payment received
by the Holder hereunder shall be applied first to the interest accrued on and
then to the unpaid principal amount of this Note.
Payment of principal and interest hereunder shall be made in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts. All such payments
shall be paid by wire transfer of federal funds in accordance with the written
instructions of the Holder or, in the absence of current written instructions,
by check mailed to the Holder at the address last given to Amphion Ventures by
the Holder in writing for such purpose.
This Note may be prepaid in whole or in part at any time at the option of
Amphion Ventures, without premium or penalty, upon not less than two business
days' prior written notice to the Holder.
Except as otherwise expressly provided herein, the Amphion Ventures hereby
waives presentment for payment, demand for payment, notice of nonpayment,
protest and notice of protest.
This Note shall be binding upon Amphion Ventures and its successors and
assigns and shall inure to the benefit of the Holder, its legal successors and
its permitted assigns.
If Amphion Ventures fails to pay any amount of principal or interest when
due, and such due but unpaid amount remains unpaid for five business days after
the Holder makes written demand therefor, the entire unpaid principal of and
accrued interest on this Note shall forthwith become absolutely due and payable
without any further notice, demand, protest or presentment whatsoever, all of
which are hereby expressly waived.
1
<PAGE> 2
This Note shall be governed by and construed in accordance with the laws of
the State of New York, without reference to its rules as to conflicts of law.
Any judicial proceeding brought against Amphion Ventures to enforce, or
otherwise in connection with, this Note shall be brought in any court of
competent jurisdiction in the City of New York, and, by acceptance of this Note,
the Holder (i) accepts, generally and unconditionally, the exclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any final judgment rendered thereby in connection with
this Note and (ii) irrevocably waives any objection it may now or hereafter have
as to the venue of any such proceeding brought in such a court or that such a
court is an inconvenient forum.
IN WITNESS WHEREOF, Amphion Ventures has caused this Note to be signed by
its duly authorized officer and has caused its corporate seal to be affixed and
attested by its general partner, as of the date first set forth above.
[Corporate Seal] Attested: AMPHION PARTNERS L.L.C.
By: Amphion Partners L.L.C., General Partner
By:
- ------------------------------ ----------------------------------------
Richard C.E. Morgan, a Managing Member
2
<PAGE> 1
EXHIBIT 99.29
AXCESS INC.
3208 Commander Drive
Carrollton, Texas 75006
March 27, 1998
Amphion Ventures L.P.
c/o Jackson Hole Management Co.
590 Madison Avenue
32nd Floor
New York, New York 10022
Re: Series H Preferred Stock Purchase Agreement
Ladies and Gentlemen:
By letter dated March 27, 1998, and amended on April 21, 1998, Amphion
Ventures L.P., a Delaware limited partnership (the "Purchaser"), committed to
provide up to $5,500,000 of equity financing to AXCESS Inc., a Delaware
corporation (the "Company"), in connection with the Company's 1998 plan of
operations and to maintain the Company's compliance with the net tangible asset
requirement of the new Nasdaq listing requirements (the "Commitment"). This
letter sets forth the terms and conditions on which the Company will issue and
sell to Purchaser shares of Series H Non-Voting Preferred Stock of the Company,
par value $.01 per share ("Series H Preferred Stock"), for an aggregate purchase
price of up to $5,500,000, payable as provided herein.
1. Advances; Purchase Price; Effectiveness. The Purchaser hereby
agrees to subscibe for and purchase from the Company, and the Company hereby
agrees to issue and sell to the Purchaser, up to $5,500,000 of shares (the
"Shares") of Series H Preferred Stock. The purchase price for each Share shall
be $10,000, payable in cash. The purchase and sale of Shares hereunder shall be
effective as of the date the Company receives the purchase price for each share
from Purchaser (the "Effective Date") (subject to the filing of the Certificate
of Designation of the Series H Preferred Stock in the office of the Secretary of
State of the State of Delaware (the "Series H Certificate of Designation"),
which filing may occur subsequently to the Effective Date without effecting the
rights and obligations of the parties hereto).
2. Upon its receipt of the purchase price for each Share,
the Company shall issue and sell to Purchaser the number of shares of Series H
Preferred Stock (the "Shares"), the stated value of which shall be $10,000 per
share (the "Original Series H Issue Price"), equal to the amount set forth in
the Advance Request divided by the Original Series H Issue Price. On and as of
the Effective Date, the Company shall execute and deliver to the Purchaser a
stock certificate in proper form representing the Shares.
3. Conversion of Non-Voting Common Stock to Voting Common Stock.
Purchaser hereby agrees that until it receives written notice from the Company
confirming that the Company has issued
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500,000 shares of Common Stock to XL Vision, Inc. pursuant to the terms of that
certain Technology Acquisition Agreement dated January 8, 1998, it shall not,
without the prior written consent of the Company, convert any shares of the
Non-Voting Common Stock issuable to Purchaser upon its conversion of any Shares
to voting Common Stock of the Company.
4. Securities Act Legend; Registration Rights.
4.1 The Shares will not be registered under the Securities
Act of 1933, as amended (the "Securities Act"). Certificates representing the
Shares shall bear a restrictive legend substantially to the effect of the
following:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAWS, OR THE
SECURITIES LAWS OF ANY OTHER JURISDICTION. THEY MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THOSE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION THEREFROM. ADDITIONAL
RESTRICTIONS REGARDING THE TERMS UNDER WHICH THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY BE CONVERTED INTO NON-VOTING COMMON STOCK OF THE
COMPANY ARE SET FORTH IN THAT CERTAIN SERIES H PREFERRED STOCK PURCHASE
AGREEMENT DATED AS OF MARCH 27, 1998.
4.2 The Purchaser shall have the same registration rights
with regard to any shares of Non-Voting Common Stock issuable upon conversion of
the Shares as Antiope Ventures L.P. (formerly Wolfensohn Associates L.P. was
entitled to pursuant to the Stock Purchase Agreement dated as of January 20,
1994 (the "Prior Agreement")), between the Company and Antiope Ventures L.P. The
Company shall have the same expense, indemnification and other obligations to
the Purchaser with respect to such registration rights as the Company owed to
Antiope Ventures L.P. under the Prior Agreement. The Company and the Purchaser
shall enter into a registration rights agreement in customary form to confirm
the registration rights provided for in this paragraph, as soon as practicable
after the date hereof.
5. Representations and Warranties by the Company. The Company
hereby represents and warrants to the Purchaser as follows:
5.1 The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the corporate power and authority to execute and deliver this agreement, to
issue the Shares on the basis described herein and otherwise to perform its
obligations under this agreement.
5.2 The execution and delivery by the Company of this
Agreement, the issuance of the Shares, and the performance by the Company of its
obligations hereunder, have been duly authorized by all requisite corporate
action on the part of the Company (other than the filing of the Series H
Certificate of Designation and will not (i) violate any provision of law,
statute, rule or regulation or any order of any court or other agency of
government, (ii) conflict with or violate the Certificate of Incorporation or
By-Laws of the Company, in each case as amended, or (iii) violate, conflict with
or constitute (with due notice or lapse of time or both) a default under any
indenture, mortgage, lease, license, agreement or other contract or instrument
or result in the creation or imposition of any lien, charge or encumbrance of
any nature upon the
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<PAGE> 3
properties or assets of the Company or any of its subsidiaries, in each case if
such violation, conflict, default, lien, charge or encumbrance would have a
material adverse effect on the Company.
5.3 This agreement has been duly executed and delivered by
the Company and constitutes the valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except to the extent the
enforceability hereof may be limited by applicable bankruptcy, moratorium or
similar laws affecting the rights of creditors generally.
5.4 Based in part upon the representations and warranties
of the Purchaser contained in this agreement, no registration or filing with, or
consent or approval of, or other action by, any federal, state or other
governmental department, commission, board, bureau, agency or instrumentality or
any third party is or will be necessary for the execution and delivery of this
agreement by the Company and the issuance of the Shares hereunder, other than
(x) the filing of the Series H Certificate of Designation and (y) the filing of
a notice of sale on Form D with the Securities and Exchange Commission in
accordance with the rules and regulations thereof under the Securities Act.
5.5 Subject only to the filing of the Series H Certificate
of Designation, the Shares are duly authorized, validly issued, fully paid and
non-assessable shares of Series H Preferred Stock, and are not subject to any
preemptive rights.
5.6 Attached hereto as Exhibit A is a true copy of the
Series H Certificate of Designation. On the Effective Date, the Board of
Directors of the Company approved and adopted resolutions, in the form of the
resolutions set forth in Exhibit A, creating the Series H Preferred Stock and
directing the proper officers of the Company to file the same with the office of
the Secretary of State of the State of Delaware, in accordance with the
applicable provisions of the Delaware General Corporation Law. The Company
hereby covenants and agrees, for the benefit of the Purchaser, that the Company
will cause the Series H Certificate of Designation to be filed with the office
of the Secretary of State of the State of Delaware, in accordance with the
applicable provisions of the Delaware General Corporation Law, within 10 days
after the date hereof.
6. Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Company as follows:
6.1 The Purchaser is acquiring the Shares for its own
account, for investment and not with a view to the distribution thereof within
the meaning of the Securities Act.
6.2 The Purchaser understands that the Shares have not been
registered under the Securities Act, by reason of their issuance by the Company
in transactions exempt from the registration requirements of the Securities Act,
and that the Shares must be held by the Purchaser indefinitely unless a
subsequent disposition thereof is registered under the Securities Act or is
exempt from such registration.
6.3 The Purchaser further understands that the exemption
from registration afforded by Rule 144 (the provisions of which are known to it)
promulgated under the Act depends on the satisfaction of various conditions, and
that, if applicable, Rule 144 may afford the basis for sales only in limited
amounts, after compliance with the holding periods and other provisions thereof.
6.4 The Purchaser understands that its investment hereunder
involves substantial risks and represents and warrants that it has made such
independent examinations and investigations of the Company as it has deemed
necessary in making its investment decision, and the Purchaser further
represents
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<PAGE> 4
and warrants that it has had sufficient access to the officers, directors, books
and records of the Company as it has deemed necessary to conduct such
examination and investigation and make such investment decision.
6.5 The Purchaser is able to bear the economic risk of the
investment contemplated by this agreement and has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the investment contemplated by this agreement.
7. Reaffirmation of Representations and Warranties. The date
shares are purchased shall constitute a reaffirmation of each and every one of
the representations and warranties of the Company set forth in Section 5 of this
agreement and those of the Purchaser set forth in Section 6 of this agreement as
if made as of each Effective Date, unless otherwise restated or corrected by
either the Purchaser or the Company, as the case may be.
8. Miscellaneous.
8.1 This agreement constitutes our entire agreement with
respect to the subject matter hereof. This agreement may not be modified or
amended or any provision hereof waived except by an instrument in writing signed
by the Company and the Purchaser.
8.2 This agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. The rights of the Purchaser hereunder shall be assignable to any holder
of the Shares. Except as provided in the immediately preceding sentence, this
agreement and the rights of the Purchaser hereunder shall not be assignable, and
any purported assignment hereof or thereof shall be void.
8.3 This Agreement may be executed in any number of
counterparts and on separate counterparts, each of which shall be an original
instrument, but all of which together shall constitute a single agreement. One
or more signature pages from any counterpart of this Agreement may be attached
to any other counterpart of this Agreement without in any way changing the
effect thereof. This Agreement shall be effective when executed and delivered by
the Company and the Purchaser.
8.4 All notices, requests, demands, consents, waivers, or
other communications made hereunder to any party or holder of Shares shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by nationally-recognized overnight courier, facsimile or by first class
registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below:
if to the Company, to:
AXCESS Inc.
3208 Commander Drive
Carrollton, TX 75006
Attention: Chief Financial Officer
with a copy to:
Sayles & Lidji, P.C.
4400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attention: Brian M. Lidji, Esq.; and
if to the Purchaser, to the Purchaser at its address
first set forth above,
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<PAGE> 5
or to such other address as the party to whom such communication is to be given
may have furnished to the other party in writing in accordance herewith. All
such notices, requests, demands, consents, waivers or other communications shall
be deemed to have been delivered (i) in the case of personal delivery, on the
date of delivery, (ii) if sent by facsimile, on the date sender receives a
confirmation confirming receipt, (iii) if sent by overnight courier, on the next
business day following the date sent and (iv) in the case of mailing, on the
third business day following such mailing.
8.5 All representations, warranties and agreements
contained herein shall survive the execution and delivery of this Agreement and
the sale of the Shares hereunder.
8.6 This agreement, and all rights, obligations and
liabilities hereunder, shall be construed according to the laws of the State of
New York applicable to contracts made and to be performed wholly therein. Any
judicial proceeding brought against the Company to enforce, or otherwise in
connection with, this agreement may be brought in any court of competent
jurisdiction in the City of New York, and, by execution and delivery of this
agreement, the Company (i) accepts, generally and unconditionally, the
nonexclusive jurisdiction of such courts and any related appellate court and
irrevocably agrees to be bound by any final judgment rendered thereby in
connection with this agreement and (ii) irrevocably waives any objection it may
now or hereafter have as to the venue of any such proceeding brought in such a
court or that such a court is an inconvenient forum.
If the foregoing correctly sets forth your understanding of our
agreement, please so indicate by signing and returning to the Company the
enclosed counterpart of this Agreement.
Very truly yours,
AXCESS INC.
By:/s/
----------------------------------
Danny G. Hair, Executive Vice
President, Chief Financial Officer
and Secretary
The undersigned agrees with
and accepts the foregoing terms and provisions
as of the date first above written.
AMPHION VENTURES L.P.
By: Amphion Partners L.L.C., its general partner
By:/s/
-------------------------
A Managing Member
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