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EXHIBIT 99.29
AXCESS INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
March 27, 1998
Amphion Ventures L.P.
c/o Jackson Hole Management Co.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 Xxxxxxxxxx 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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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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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.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx & Lidji, P.C.
4400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.; and
if to the Purchaser, to the Purchaser at its address
first set forth above,
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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/
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Xxxxx X. 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/
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A Managing Member
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