AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 13, 1999
REGISTRATION NO. 333-39775
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
AMENDMENT NO. 7 ON FORM S-2
TO
REGISTRATION STATEMENT
ON
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
INTEGRATED SPATIAL INFORMATION SOLUTIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
COLORADO 84-0868815
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
1597 COLE BOULEVARD
GOLDEN, COLORADO 80401
(303) 274-8708
(Address and Telephone Number of
Registrant's Principal Executive Office)
--------------------------
FREDERICK G. BEISSER, SECRETARY
1597 COLE BOULEVARD
GOLDEN, COLORADO 80401
(303) 274-8708
(Name, Address and Telephone Number of Agent for Service)
With Copies To:
LESTER R. WOODWARD, ESQ.
DAVIS, GRAHAM & STUBBS LLP
370 SEVENTEENTH STREET, SUITE 4700
DENVER, COLORADO 80202
(303) 892-9400
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |X| 333-39775
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
--------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed Proposed
Shares maximum maximum
Title of each class of to be offering price aggregate Amount of
securities to be registered (1) registered(2) per share(3) offering price registration fee(3)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value per share 200,000 shares $ .235 $47,000.00 $13.06
============================================================================================================
</TABLE>
(1) Issued pursuant to a Settlement Agreement by and between Xcel Associates,
Inc. and Integrated Spatial Information Solutions, Inc. dated as of
September 22, 1999.
(2) Pursuant to Rule 416 of the Securities Act of 1933, this registration
statement also covers such indeterminate number of shares of Integrated
Spatial Information Solutions, Inc. common stock as may be issued as a
result of stock dividends, stock splits or similar transactions prior to
the termination of this registration statement.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based upon the average of the high and low
sales prices of the common stock as reported on the OTC Bulletin Board on
October 12, 1999.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
-2-
<PAGE>
EXPLANATORY NOTE
This registration statement is being filed being filed pursuant to Rule
462(b) under the Securities Act of 1933 ("Rule 462(b)") and includes the
registration statement facing page, this page, the signature pages, an exhibit
index, an accountants' consent and an opinion of counsel. Pursuant to Rule
462(b), the contents of the registration statement on Form S-3 (File No.
333-39775) of the registrant, including the exhibits thereto (the "Initial
Registration Statement"), are incorporated by reference into this registration
statement. This registration statement covers the registration of an additional
sale by the registrant of an aggregate of $47,000 gross proceeds of common stock
for sale by certain stockholders of the registrant in the offering referred to
in the Initial Registration Statement.
INCORPORATION OF INFORMATION BY REFERENCE
We incorporate by reference the following documents that we have filed
with the Securities and Exchange Commission under the Exchange Act:
o Our Annual Report on Form 10-KSB for the fiscal year ended September
30, 1999.
o Our Quarterly Report on Form 10-QSB for the period ended June 30,
1999.
o Our Quarterly Report on Form 10-QSB for the period ended March 31,
1999.
o Our Quarterly Report on Form 10-QSB for the period ended December 31,
1998.
o Our report on Form 8-K filed on July 13, 1999.
o Our Definitive Proxy Statement filed on August 4, 1999.
You should consider all documents that we file pursuant to sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this document
and prior to the consummation of sales of our common stock pursuant to this
registration statement to be incorporated by reference in this document.
You should consider any statement contained in this document or
incorporated or considered to be incorporated by reference in this document to
be modified or superseded for purposes of this document to the extent that a
statement contained in a subsequently filed document that also is or is
considered to be incorporated by reference in this document modifies or
supersedes this statement. You should not consider any statement modified or
superseded in this manner except as so modified or superseded, to constitute a
part of this document.
We will provide without charge to each person whom this document is
delivered, upon written or oral request of that person, a copy of any and all
information that has been incorporated by reference in this document (excluding
exhibits unless exhibits are specifically incorporated by reference in the
requested documents). Please direct such requests to Frederick G. Beisser,
Integrated Spatial Information Solutions, Inc., 1597 Cole Boulevard, Golden, CO
80401, (303) 638 4291.
-3-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Golden, Colorado on the 13 day of October, 1999.
INTEGRATED SPATIAL INFORMATION SOLUTIONS, INC.
By: /S/ FREDERICK G. BEISSER
----------------------------------------------
Frederick G. Beisser
Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
*
- -------------------------------- President, Chief Executive Officer and October 13, 1999
John C. Antenucci Director (Principal Executive Officer)
/S/ FREDERICK G. BEISSER
- -------------------------------- Vice President Finance and October 13, 1999
Frederick G. Beisser Administration, Secretary and Treasurer,
Director (Principal Financial and
Accounting Officer)
*
- -------------------------------- Director October 13, 1999
Jeanne M. Andersen
*
- -------------------------------- Director October 13, 1999
Raymund O'Mara
*
- -------------------------------- Director October 13, 1999
J. Gary Reed
</TABLE>
/S/ FREDERICK G. BEISSER
- --------------------------------
*Frederick G. Beisser,
Attorney-In-Fact
-4-
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
4.1* Form of Warrant Certificate to Edward T. Whelan to acquire 30,000 shares
with an exercise price of $1.00 per share
4.2* Form of Warrant Certificate to Edward T. Whelan to acquire 20,000 shares
with an exercise price of $1.50 per share
5.1* Opinion of Davis, Graham & Stubbs LLP (including consent)
10.1* Settlement Agreement by and between Xcel Associates, Inc. and Integrated
Spatial Information Solutions, Inc., dated as of September 22, 1999.
23.1* Consent of BDO Seidman, LLP
- ------------------
* Filed herewith
-5-
EXHIBIT 4.1
WARRANT CERTIFICATE
1. A warrant (the "Warrant") to acquire 30,000 shares (hereinafter referred to
as "Shares") of the no par value Common Stock of Integrated Spatial Information
Solutions, Inc. (the "Company") is hereby granted to;
EDWARD T. WHELAN (hereinafter referred to as the "Holder"),
--------------------------
(Name of warrant holder)
C/O Xcel Associates, Inc.
224 Middle Road, 2nd Floor
HAZLET, NJ 07730
--------------------------
(Street, city, state and zip code)
subject in all respects to the terms and conditions as are set forth herein,
and in the Settlement Agreement by and between Xcel Associates, Inc. and the
Company dated as of September 22, 1999.
2. Certificates for the shares of Common Stock acquired upon exercise of
this Warrant Certificate (the "Warrant Certificate") will be delivered to the
Holder by the Company at the Company's expense within a reasonable time after
this Warrant Certificate has been so exercised. Each stock certificate so
delivered will be in such denominations of Common Stock as may be requested by
the Holder and will be registered in the name of the Holder.
3. All shares of Common Stock issued upon exercise of this warrant will,
upon issuance, be duly authorized, validly issued, fully-paid and nonassessable
and free from all preemptive rights of any shareholder and free of all taxes,
liens and charges with respect to the issue thereof. The Company will at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock, solely for the purpose of effecting the exercise of this Warrant
Certificate, such number of its shares of Common Stock as from time to time are
sufficient to effect the full exercise of this Warrant Certificate. The Company
will take all such action as may be necessary to assure that such securities may
be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of any domestic securities exchange upon
which the Common Stock may be listed.
4. The Warrant exercise price as determined by the Board of Directors of
the Company (the "Board") is $1.00 per share (the "Exercise Price").
5. This Warrant Certificate is nonassignable and nontransferable.
6. This Warrant Certificate may not be exercised after October 3, 2004 and
may be exercised in whole or in part at any time during such term, in accordance
with the terms and conditions set forth herein.
<PAGE>
7. The Warrant Certificate may be exercised, in whole or in part, by
delivering to the Treasurer of the Company:
7.1. An exercise notice, substantially in the form attached,
specifying the number of Shares to be purchased; and
7.2. Full payment of the Exercise Price for the underlying shares to
be purchased, in the form of a written cancellation by Holder of accounts
payable by the Company to Holder.
8. The Holder, by acceptance hereof, agrees that this Warrant Certificate
and the Shares to be issued upon exercise hereof are being acquired for
investment and that it will not offer, sell or otherwise dispose of this Warrant
Certificate or any Shares to be issued upon exercise hereof unless pursuant to
the registration of such resale or an exemption therefrom under the Securities
Act of 1933, as amended (the "Act"). Upon exercise of this Warrant Certificate,
the Holder shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the Shares so purchased are being acquired for
investment and not with a view toward distribution or resale unless pursuant to
the registration of such resale or an exemption therefrom under the Act. This
Warrant Certificate and all Shares issued upon exercise of this Warrant
Certificate (unless registered under the Act) shall be stamped or imprinted with
a legend substantially in the following form:
THE WARRANTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT.
THE WARRANTS MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY
OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
9. Subject to the provisions of Section 7, this Warrant Certificate is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company, for other warrants of different
denominations, entitling the Holder or Holders thereof to purchase in the
aggregate the same number of Shares purchasable hereunder at the same exercise
price set forth hereunder. Upon surrender of this Warrant Certificate to the
Company with funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant Certificate in the name of the
assignee designated in writing to the Company by Holder and this Warrant
Certificate shall promptly be canceled.
10. Governing Law. This Agreement will be construed and enforced in
accordance with, and the rights of the parties will be governed by, the laws of
the State of Colorado without regard to conflict of laws principals.
<PAGE>
11. Submission of Warrant. This Warrant Certificate may be submitted to the
Company's administrative office at 1597 Cole Boulevard, Suite 300B, Golden, CO
80401.
Issue Date: October 4, 1999
Integrated Spatial Information Solutions, Inc.
---------------------------------------------
By: Frederick G. Beisser
Vice President Finance &
Administration and Secretary
<PAGE>
WARRANT EXERCISE NOTICE
The undersigned hereby notifies Integrated Spatial Information Solutions,
Inc. (the "Company") of its election to exercise its warrant to purchase
__________ shares of Company Common Stock.
The undersigned agrees with all the provisions of the Warrant Certificate dated
______________.
-----------------------------------
Edward T. Whelan
<PAGE>
ACKNOWLEDGEMENT
The undersigned Holder acknowledges the receipt of the Warrant Certificate for
purchase of 20,000 shares of common stock of Integrated Spatial Information
Solutions, Inc. dated October 4, 1999, and represents to Integrated Spatial
Information Solutions, Inc. that the Holder understands the terms and conditions
set forth therein and accepts the same.
Edward T. Whelan
By:----------------------------------
(Signature of Holder)
C/O Xcel Associates, Inc.
224 Middle Road, 2nd Floor
HAZLET, NJ 07730
-----------------------------
(city, state and zip code)
EXHIBIT 4.2
WARRANT CERTIFICATE
1. A warrant (the "Warrant") to acquire 20,000 shares (hereinafter
referred to as "Shares") of the no par value Common Stock of Integrated Spatial
Information Solutions, Inc. (the "Company") is hereby granted to;
EDWARD T. WHELAN (hereinafter referred to as the "Holder"),
--------------------------
(Name of warrant holder)
C/O Xcel Associates, Inc.
224 Middle Road, 2nd Floor
HAZLET, NJ 07730
--------------------------
(Street, city, state and zip code)
subject in all respects to the terms and conditions as are set forth herein,
and in the Settlement Agreement by and between Xcel Associates, Inc. and the
Company dated as of September 22, 1999.
2. Certificates for the shares of Common Stock acquired upon exercise of
this Warrant Certificate (the "Warrant Certificate") will be delivered to the
Holder by the Company at the Company's expense within a reasonable time after
this Warrant Certificate has been so exercised. Each stock certificate so
delivered will be in such denominations of Common Stock as may be requested by
the Holder and will be registered in the name of the Holder.
3. All shares of Common Stock issued upon exercise of this warrant will,
upon issuance, be duly authorized, validly issued, fully-paid and nonassessable
and free from all preemptive rights of any shareholder and free of all taxes,
liens and charges with respect to the issue thereof. The Company will at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock, solely for the purpose of effecting the exercise of this Warrant
Certificate, such number of its shares of Common Stock as from time to time are
sufficient to effect the full exercise of this Warrant Certificate. The Company
will take all such action as may be necessary to assure that such securities may
be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of any domestic securities exchange upon
which the Common Stock may be listed.
4. The Warrant exercise price as determined by the Board of Directors of
the Company (the "Board") is $1.50 per share (the "Exercise Price").
5. This Warrant Certificate is nonassignable and nontransferable.
6. This Warrant Certificate may not be exercised after October 3, 2004 and
may be exercised in whole or in part at any time during such term, in accordance
with the terms and conditions set forth herein.
<PAGE>
7. The Warrant Certificate may be exercised, in whole or in part, by
delivering to the Treasurer of the Company:
7.1. An exercise notice, substantially in the form attached,
specifying the number of Shares to be purchased; and
7.2. Full payment of the Exercise Price for the underlying shares to
be purchased, in the form of a written cancellation by Holder of accounts
payable by the Company to Holder.
8. The Holder, by acceptance hereof, agrees that this Warrant Certificate
and the Shares to be issued upon exercise hereof are being acquired for
investment and that it will not offer, sell or otherwise dispose of this Warrant
Certificate or any Shares to be issued upon exercise hereof unless pursuant to
the registration of such resale or an exemption therefrom under the Securities
Act of 1933, as amended (the "Act"). Upon exercise of this Warrant Certificate,
the Holder shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the Shares so purchased are being acquired for
investment and not with a view toward distribution or resale unless pursuant to
the registration of such resale or an exemption therefrom under the Act. This
Warrant Certificate and all Shares issued upon exercise of this Warrant
Certificate (unless registered under the Act) shall be stamped or imprinted with
a legend substantially in the following form:
THE WARRANTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT.
THE WARRANTS MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY
OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
9. Subject to the provisions of Section 7, this Warrant Certificate is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company, for other warrants of different
denominations, entitling the Holder or Holders thereof to purchase in the
aggregate the same number of Shares purchasable hereunder at the same exercise
price set forth hereunder. Upon surrender of this Warrant Certificate to the
Company with funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant Certificate in the name of the
assignee designated in writing to the Company by Holder and this Warrant
Certificate shall promptly be canceled.
10. Governing Law. This Agreement will be construed and enforced in
accordance with, and the rights of the parties will be governed by, the laws of
the State of Colorado without regard to conflict of laws principals.
<PAGE>
11. Submission of Warrant. This Warrant Certificate may be submitted to the
Company's administrative office at 1597 Cole Boulevard, Suite 300B, Golden, CO
80401.
Issue Date: October 4, 1999
Integrated Spatial Information Solutions, Inc.
---------------------------------------------
By: Frederick G. Beisser
Vice President Finance &
Administration and Secretary
<PAGE>
WARRANT EXERCISE NOTICE
The undersigned hereby notifies Integrated Spatial Information Solutions,
Inc. (the "Company") of its election to exercise its warrant to purchase
__________ shares of Company Common Stock.
The undersigned agrees with all the provisions of the Warrant Certificate dated
______________.
-----------------------------------
Edward T. Whelan
<PAGE>
ACKNOWLEDGEMENT
The undersigned Holder acknowledges the receipt of the Warrant Certificate for
purchase of 20,000 shares of common stock of Integrated Spatial Information
Solutions, Inc. dated October 4, 1999, and represents to Integrated Spatial
Information Solutions, Inc. that the Holder understands the terms and conditions
set forth therein and accepts the same.
Edward T. Whelan
By:----------------------------------
(Signature of Holder)
C/O Xcel Associates, Inc.
224 Middle Road, 2nd Floor
HAZLET, NJ 07730
-----------------------------
(city, state and zip code)
EXHIBIT 5.1
[Davis, Graham & Stubbs LLP Letterhead]
October 13, 1999
Integrated Spatial Information Solutions, Inc.
1597 Cole Boulevard
Golden, CO 80401
Re: Form S-2 Relating to Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel for Integrated Spatial Information Solutions,
Inc., a Delaware corporation (the "Company") in connection with the preparation
of a Registration Statement on Form S-2 (the "Registration Statement"), amending
a Registration Statement on Form S-3, filed by the Company with the Securities
and Exchange Commission. The Registration Statement relates to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of 200,000 shares
of the Company's common stock, par value $.01 per share (the "Shares") offered
for the account of certain stockholders of the Company.
This opinion is delivered pursuant to the requirements of Item 601(b)(5)
of Regulation S-K under the 1933 Act.
We have examined certain documents, corporate records and other
instruments and relied on originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records and other instruments,
have made such inquiries as to questions of fact of officers and representatives
of the Company, and have made such examinations of law as we have deemed
necessary or appropriate for purposes of giving the opinion expressed below. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
The following opinions are limited solely to the applicable federal law of
the United States of America and the General Corporation Law of the State of
Delaware. While we are not licensed to practice in the State of Delaware, we
have reviewed applicable provisions of the General Corporation Law of Delaware
as we have deemed appropriate in connection with the opinions expressed herein.
Except as described, we have neither examined nor do we express any opinion with
respect to Delaware law.
Based upon and subject to the foregoing, we are of the opinion that:
1. The issuance and sale of the Shares, as provided in the Registration
Statement, have been duly and validly authorized by all necessary corporate
action of the Company.
2. The Shares that have been issued as of the date hereof have been
validly issued, fully paid and are non-assessable shares of capital stock of the
Company.
3. The Shares that have not been issued as of the date hereof will be,
when and if issued, and upon payment therefore, validly issued, fully paid, and
non-assessable shares of capital stock of the Company.
<PAGE>
Integrated Spatial Information Solutions, Inc.
October 13, 1999
Page 2
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. We also consent to the reference to
this firm under the heading "Validity of Securities" in the Prospectus included
in the Registration Statement as the counsel who will pass upon the validity of
the securities. In giving this consent, we do not thereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Davis, Graham & Stubbs LLP
DAVIS, GRAHAM & STUBBS LLP
EXHIBIT 10.1
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is entered into as of
September 22, 1999, by and between XCEL ASSOCIATES, INC. ("Xcel") and INTEGRATED
SPATIAL INFORMATION SOLUTIONS, INC. f/k/a DCX, INC. ("ISIS"). Each of the
foregoing parties are sometimes referred to as a "Party" and collectively as the
"Parties."
RECITALS
A. On or about February 23, 1999, Xcel initiated an arbitration proceeding
against ISIS under the auspices of the American Arbitration Association and
captioned: XCEL ASSOCIATES, INC. V. INTEGRATED SPATIAL INFORMATION SOLUTIONS,
INC. F/N/A DCX, INC., AAA No. 13-181-00175-99 (New York)(the "Arbitration
Proceeding").
B. In the Arbitration Proceeding, Xcel sought recovery of approximately
$250,000 from ISIS. The Statement of Claim asserted by Xcel alleges claims for:
breach of contract; fraudulent inducement; quantum meruit; common law fraud; and
damage to business reputation. ISIS answered the Statement of Claim and denied
liability. The Arbitration Proceeding is scheduled for hearing on October 4,
1999.
C. The Parties wish to enter into this Agreement to resolve all claims,
allegations and defenses which they had against each other in the Arbitration
Proceeding and arising out of other transactions, communications and other
dealings between the Parties to the date of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
promises, covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. SETTLEMENT STOCK AND WARRANTS. ISIS shall promptly:
(a) Issue or cause to be issued 150,000 shares of ISIS common stock
in the name of Edward T. Whelan (the "Stock"). The Stock will not be registered
for issuance under the Securities Act of 1933 (the "1933 Act") and would
therefore be "restricted securities" as defined in Rule 144 of the 1933 Act.
Within twenty-one (21) days after execution of this Agreement, ISIS shall file
an S-3 Registration Statement with the United States Securities and Exchange
Commission (the "SEC") registering the Stock for resale by Edward T. Whelan.
ISIS shall use its best efforts and good faith to cause the S-3 Registration
Statement to become effective and to remain current and effective for a period
of at least nine (9) months. The issuance of the Stock shall be in satisfaction
of services rendered by Xcel to ISIS and relates to Xcel's contract claims
against ISIS.
<PAGE>
(b) ISIS shall issue or cause to be issued stock purchase warrants
in the name of Edward T. Whelan entitling Edward T. Whelan to purchase up to
30,000 shares of ISIS common stock from ISIS for the price of $1.00 per share
(together, the "$1.00 Warrants"). The $1.00 Warrants shall expire if not
exercised within five (5) years of issuance. Neither the $1.00 Warrants nor the
shares of common stock issuable upon exercise of the $1.00 Warrants (the "$1.00
Warrant Shares") will be registered under the 1933 Act. Within twenty-one (21)
days after execution of this Agreement, ISIS shall file an S-3 Registration
Statement with the SEC registering the $1.00 Warrant Shares for resale by Edward
T. Whelan as a selling shareholder. ISIS shall use its best efforts and good
faith to cause the S-3 Registration Statement to become effective and to remain
current and effective for a period of at least nine (9) months. The issuance of
the $1.00 Warrants shall be in further satisfaction of services rendered by Xcel
to ISIS and relates to Xcel's contract claims against ISIS.
(c) ISIS shall issue or cause to be issued stock warrants in the
name of Edward T. Whelan entitling Edward T. Whelan to purchase up to 20,000
shares of ISIS common stock from ISIS for the price of $1.50 per share
(together, the "$1.50 Warrants"). The $1.50 Warrants shall expire if not
exercised within five (5) years of issuance. Neither the $1.50 Warrants nor the
shares of common stock issuable upon exercise of the $1.50 Warrants (the "$1.50
Warrant Shares") will be registered under the 1933 Act. Within twenty-one (21)
days after execution of this Agreement, ISIS shall file an S-3 Registration
Statement with the SEC registering the $1.50 Warrant Shares for resale by Edward
T. Whelan as a selling shareholder. ISIS shall use its best efforts and good
faith to cause the S-3 Registration Statement to become effective and to remain
current and effective for a period of at least nine (9) months. The issuance of
the $1.50 Warrants shall be in further satisfaction of services rendered by Xcel
to ISIS and relates to Xcel's contract claims against ISIS.
With respect to the issuance of the Stock, the $1.00 Warrants, $1.50 Warrants,
$1.00 Warrant Shares and $1.50 Warrant Shares, all stock certificates and
warrant certificates representing any such shares of stock or warrants shall
bear the following legend:
The [shares][warrants] represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and
are "Restricted Securities" as that term is defined in Rule 144 under the
Act. The [shares][warrants] may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under
the Act or pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Company.
The issuance of the Stock, $1.00 Warrants and $1.50 Warrants in the name of
Edward T. Whelan has been requested by Xcel. Edward Meyer, Jr. consents to all
settlement compensation being issued in the name of Edward T. Whelan.
2. ADDITIONAL STOCK IF REGISTRATION STATEMENT NOT EFFECTIVE. In the event
that the S-3 Registration Statement with respect to the Stock, $1.00 Warrants,
$1.50 Warrants, $1.00 Warrant Shares and $1.50 Warrant Shares (described in
Paragraph 1 above) does not become effective
-2-
<PAGE>
within ninety (90) days of the full execution of this Agreement, then ISIS shall
issue or cause to be issued an additional 15,000 shares of ISIS common stock in
the name of Edward T. Whelan (the "Additional Stock"). If issued, the Additional
Stock will not be registered for issuance under the 1933 Act and would therefore
be "restricted securities" as defined in Rule 144 of the 1933 Act. The S-3
Registration Statement (described in Paragraph 1) will include the Additional
Stock. The issuance of the Additional Stock shall be in satisfaction of services
rendered by Xcel to ISIS and relates to Xcel's contract claims against ISIS. If
issued, the stock certificates for the Additional Stock shall bear the
restrictive legend set forth in Paragraph 1 above. The issuance of the
Additional Stock in the name of Edward T. Whelan has been requested by Xcel.
Edward Meyer, Jr. consents to all settlement compensation being issued in the
name of Edward T.
Whelan.
3. GENERAL RELEASE BY XCEL. Xcel, Edward Meyer, Jr., Edward T. Whelan and
their affiliates, including without limitation, Shannon Investments, Inc. and
Hazlet Investors, Inc., for themselves and for their successors, heirs, assigns,
agents, representatives, officers, directors, shareholders and employees
(together, the "Xcel Parties"), hereby completely, unconditionally and forever
release, acquit and discharge ISIS and its successors, heirs, assigns,
representatives, agents, affiliated entities, employees, attorneys, officers,
directors, members, partners and shareholders (the "ISIS Parties"), of and from
any and all actions, causes of action, claims, contracts, debts, demands,
liabilities, losses and damages of every kind and nature whatsoever, whether
known or unknown, including, but not limited to, those which were made, may have
been made or could have been made in the Arbitration Proceeding, or which in any
manner relate to any and all transactions, communications and other dealings
between the Parties prior to the date of this Agreement. ISIS and the ISIS
Parties hereby completely, unconditionally and forever release, acquit and
discharge Xcel and the Xcel Parties of and from any and all actions, causes of
action, claims, contracts, debts, demands, liabilities, losses and damages of
every kind and nature whatsoever, whether known or unknown, including, but not
limited to, those which were made, may have been made or could have been made in
the Arbitration Proceeding, or which in any manner relate to any and all
transactions, communications and other dealings between the Parties prior to the
date of this Agreement. These releases shall be full general releases.
Notwithstanding the foregoing, nothing contained in this Paragraph No. 2 shall
constitute a release of the Parties from complying with the terms and conditions
of this Agreement.
4. DISMISSAL OF ARBITRATION PROCEEDING. Xcel and ISIS shall promptly
dismiss the Arbitration Proceeding, with prejudice.
5. COVENANT NOT TO SUE. Xcel and the Xcel Parties covenant that they will
not initiate any lawsuit or proceeding or otherwise assert against ISIS or the
ISIS Parties any claim which they have released under this Agreement. ISIS and
the ISIS Parties covenant that they will not initiate any lawsuit or proceeding
or otherwise assert against Xcel or the Xcel Parties any claim which they have
released under this Agreement.
6. DISCHARGE AND SURRENDER. Each Party acknowledges that this Agreement
evidences the sole surviving contractual relationship between and among them;
and each Party agrees that,
-3-
<PAGE>
except as provided in this Agreement, all existing contracts or agreements, oral
or written, known or otherwise existing between or among the Parties are
discharged and surrendered.
7. ATTORNEYS' FEES. Each Party shall be responsible for its own attorneys'
fees, costs and expenses incurred in connection with the Arbitration Proceeding
and the preparation of this Agreement.
8. NO ADMISSION OF LIABILITY. The Parties' agreement to the terms of this
Agreement shall in no manner be deemed an admission, express or implied, of: (a)
liability by any Party to any other person or entity; (b) any fact, other than
the facts set forth in the Recitals to this Agreement; or (c) the merits of the
position taken by any Party with respect to any matter.
9. EFFECTUATION OF AGREEMENT. Each Party shall execute any and all
documents and to do and perform any and all acts and things necessary or proper
to effectuate or further evidence the terms and provisions of this Agreement.
10. NO ASSIGNMENT OF CLAIMS. Each Party represents and warrants to the
other that it has not heretofore assigned or transferred, or purported to assign
or transfer to any person or entity any claims that it might have against the
other.
11. NO THIRD-PARTY BENEFICIARIES. Except as specifically provided in this
Agreement, nothing in this Agreement is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
Parties, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third person to any Party, nor shall any
provision of this Agreement give any third person any right of subrogation or
action over or against any Party.
12. NO ONGOING BUSINESS RELATIONSHIP. Each Party acknowledges that there is
no ongoing business relationship between Xcel and ISIS (except as set forth in
this Agreement).
13. NON-DISPARAGEMENT. Xcel shall not disparage ISIS to any other person or
entity. ISIS shall not disparage Xcel to any other person or entity. Except to
the extent required by applicable law (including the securities laws of the
United States), neither Party shall discuss or disclose the terms of this
Agreement to any other third party.
14. COMPLETE AGREEMENT; MODIFICATION; AND WAIVER. This Agreement
constitutes the entire agreement between the Parties and supersedes all prior
and contemporaneous agreements, representations, warranties and understandings
of the Parties. No supplement, modification or amendment of this Agreement shall
be binding unless executed in a writing by both Parties. No waiver of any of the
provisions of this Agreement shall be deemed or constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the Party
making the waiver.
15. REVIEW; REPRESENTATION BY COUNSEL; ETC. Each Party acknowledges and
represents that:
-4-
<PAGE>
(a) It has fully and carefully read and considered this Agreement
prior to its execution;
(b) It has consulted with or has had the opportunity to consult with
its attorneys regarding the legal effect and meaning of this Agreement and all
terms and conditions hereof, and that it is fully aware of the contents of this
Agreement and its legal effect;
(c) It has had the opportunity to make whatever investigation or
inquiry it deems necessary or appropriate in connection with the subject matter
of this Agreement;
(d) It is executing this Agreement voluntarily and free from any undue
influence, coercion, duress or fraud of any kind; and
(e) It is knowingly and voluntarily waiving and releasing all claims
against the other Party, except as provided in this Agreement.
16. MISCELLANEOUS PROVISIONS.
(a) This Agreement shall be binding upon and shall inure to the benefit
of the Parties and the Parties' respective heirs, legal representatives,
successors and assigns;
(b) If either Party is required to take any action to enforce this
Agreement, the prevailing Party shall be entitled to recover all reasonable
attorneys' fees and costs from the nonprevailing Party;
(c) The paragraph headings used in this Agreement are for purposes of
identification only and shall not be considered in construing this Agreement.
Furthermore, this Agreement shall be deemed to have been prepared with the full
and equal participation of Xcel and ISIS and their respective counsel and shall
not be construed by one Party against the other;
(d) This Agreement shall be construed and enforced in accordance with
the laws of the State of Colorado. In the event of a dispute concerning this
Agreement, such dispute shall be submitted to arbitration through the American
Arbitration Association in Denver, Colorado;
(e) By executing this Agreement, each of the undersigned represents and
warrants to the other that each of the undersigned has the full power and
authority to enter into and perform this Agreement in accordance with its terms;
and
(f) This Agreement may be executed in two counterparts, each of which
shall constitute an original, and both of which together shall constitute one
and the same document. The parties shall accept facsimile signatures as original
signatures.
IN WITNESS WHEREOF, Xcel and ISIS have executed this Agreement as of the
day and year first above written.
-5-
<PAGE>
XCEL ASSOCIATES, INC.
-------------------------------------------
By:
Its:
-------------------------------------------
EDWARD T. WHELAN, individually
------------------------------------------
EDWARD MEYERS, JR., individually
INTEGRATED SPATIAL INFORMATION
SOLUTIONS, INC. f/k/a DCX, Inc.
-------------------------------------------
By:
Its:
-6-
EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Integrated Spatial Information Solutions, Inc.
Golden, Colorado
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated December
20, 1998, relating to the financial statements of Integrated Spatial Information
Solutions, Inc. appearing in the Company's Annual Report on Form 10-KSB for the
year ended September 30, 1998.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
Denver, Colorado
October 13, 1999
