ex10_64.htm


    Exhibit 10.64


     

    NOTE
AND SHARE EXCHANGE AGREEMENT

     

    BY
AND AMONG

     

    MAG
CAPITAL, LLC

     

    MERCATOR
MOMENTUM FUND

     

    MERCATOR
MOMENTUM FUND III,

     

    MONARCH
POINTE FUND, LTD.

     

     ASSET
MANAGERS INTERNATIONAL

     

    AND

     

    INVISA, INC.

     

    DATED
AS OF

     

     

      
        

      

    

            

           
THIS NOTE AND SHARE EXCHANGE AGREEMENT(the "Agreement") is entered into,
by and among Invisa, Inc., a Nevada corporation (the "Company"), MAG Capital, LLC,
Mercator Momentum Fund, Mercator Momentum Fund III, Monarch Pointe Fund, Ltd.,
and Asset Managers International (collectively, the "Stockholders").

     

    RECITALS

     

            WHEREAS, as of the date
hereof, the Stockholders own of record and beneficially an aggregate of (i)
14,500 shares of the Series A Convertible Preferred Stock, par value $ 100 per
share,  of the Company (the "Series A Shares "), (ii) 10,000
shares of Series B Convertible Preferred Stock, par value $ 100 per
share,  of the Company (“Series B Shares”) and (iii)
$128,337.00 principal amount of Notes of the Company (the “Notes”; the Series A Shares,
Series B Shares and the Notes being collectively referred to as the “MAG
Holdings”); and

     

            WHEREAS, the Company and the
Stockholders believe it is in the best interest of the Company and each
Stockholder to affect an exchange of the MAG Holdings for shares of
Series C Convertible Preferred Stock, $100 par value, of the Company (the
"Series C Preferred
Stock").

     

            NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual promises hereinafter set
forth, and intending to be legally bound thereby, the parties hereto agree as
follows:

     

    1.     Definitions.

     

            The
following terms used in this Agreement shall have the following meanings (unless
otherwise expressly provided herein):

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

             

    
              "Entity" shall mean any
corporation (including any non-profit corporation), general partnership, limited
partnership, limited liability partnership, joint venture, estate, trust,
cooperative, foundation, society, political party, union, company (including any
limited liability company or joint stock company), firm or other enterprise,
association, organization or entity.

       

              "Governmental Body" shall mean
any: (a) nation, principality, state, commonwealth, province, territory,
county, municipality, district or other jurisdiction; (b) federal, state,
local, municipal or foreign government (including any agency, department,
bureau, division, or other administrative body thereof); or
(c) governmental or quasi-governmental authority of any
nature.

       

              "Person" shall mean any
individual, Entity or Governmental Body.

       

              "Proceeding" shall mean any
action, suit, litigation, arbitration, or investigation (including any civil,
criminal or administrative) commenced, brought, conducted or heard by or before,
or otherwise involving, any Governmental Body or any arbitrator or arbitration
panel.           

       

    

      2.     Exchange.

     

            2.1    Authorization
of Shares.    On or prior to the Closing (as defined
below), the Company shall have authorized the issuance of the Series C
Preferred Stock in the amounts and to the Stockholders identified on Exhibit A attached hereto
(the "Allocation"). The
Series C Preferred Stock shall have the rights, preferences, privileges and
restrictions set forth in the Certificate of Designation attached hereto as
Exhibit B (the
Certificate of
Designation").

     

            2.2    Exchange.    Subject
to the terms and conditions set forth in this Agreement, effective at the
Closing, each Stockholder will transfer and convey to the Company the MAG
Holdings held by such Shareholder. In consideration of the transfer and
conveyance of MAG Holdings referred to in the immediately preceding sentence, at
the Closing (i) the Company shall issue and deliver to each Stockholder and
each Stockholder shall accept and receive from the Company, the whole number of
fully paid and non-assessable shares of Series C Preferred Stock set forth
opposite such Stockholders name in Exhibit A hereto.       

     

    3.     Closing
and Delivery.

     

            3.1    Closing.    The
closing of the Exchange (the "Closing") shall take place,
at the offices of the Company on such date and at such time as the parties
hereto shall agree (the "Closing Date").

     

            3.2    Delivery.    Subject
to the terms and conditions hereof, the Company will deliver the shares of
Series C Preferred Stock at the Closing, in each case in the amounts and to the
Stockholders as set forth on Exhibit A hereto, by delivery of a certificate
or certificates evidencing the shares of the Series C Preferred Stock, free and
clear of all liens, claims, and encumbrances (collectively, an "Encumbrance"), and each
Stockholder will deliver the MAG Holdings to be delivered by such Stockholder at
the Closing, in each case in the amounts and by the Stockholders as set forth on
Exhibit A hereto, by delivery of the certificate or certificates
representing the shares of Series A Stock or Series B Stock, as the case may be,
and/or the original
executed Notes to be exchanged for the shares of Series C Preferred Stock at the
Closing, free and clear of all Encumbrances.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    4.     Representations
and Warranties of the Stockholders.

     

            Each
Stockholder hereby, severally and not jointly, represents and warrants to the
Company as follows:

     

            4.1    Requisite
Power; Authorization; Binding Obligations.    Such
Stockholder has all requisite power and authority to execute and deliver this
Agreement and to carry out the provisions of this Agreement. All action on such
Stockholder's part necessary for the authorization, execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby, and
the performance of all obligations of such Stockholder hereunder has been or
will be taken prior to the Closing. This Agreement, when executed and delivered,
will be valid and binding obligations of such Stockholder enforceable against it
in accordance with their terms, except as limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights, and (b) general
principles of equity that restrict the availability of equitable
remedies.

     

            4.2    Investment
Representations.    Such Stockholder understands that
neither the shares of the Series C Preferred Stock, nor the Common Stock to
which it is convertible into, have been registered under the Securities Act of
1933, as amended (the "Securities Act"). Such Stockholder also understands that
the shares of Series C Preferred Stock are being offered pursuant to an
exemption from registration contained in the Securities Act based in part upon
such Stockholder's following representations and warranties:

     

            (a)    Stockholder
Bears Economic Risk.    Such Stockholder has
substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to the Company so that it is
capable of evaluating the merits and risks of its investment in the Company and
has the capacity to protect its own interests. Such Stockholder understands that
it must bear the economic risk of this investment indefinitely unless the shares
of Series C Preferred Stock are registered pursuant to the Securities Act, or an
exemption from registration is available. Such Stockholder understands that the
Company has no present intention of registering the shares of Series C Preferred
Stock or any shares of its Common Stock to which it converts. Such Stockholder
also understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow such Stockholder to transfer all or any portion of the
shares of Series C Preferred Stock under the circumstances, in the amounts or at
the times such Stockholder might propose.

     

            (b)    Acquisition
for Own Account.    Such Stockholder is acquiring the
shares of Series C Preferred Stock for its own account for investment only, and
not with a view towards their distribution.

     

            (c)    Each
Stockholder Can Protect Its Interest.    Such
Stockholder represents that by reason of its, or of its management's, business
or financial experience, such Stockholder has the capacity to protect its own
interests in connection with the transactions contemplated in this Agreement.
Further, such Stockholder is aware of no publication
of any advertisement in connection with the transactions contemplated in this
Agreement.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

            (d)    Accredited or
Regulation S Eligible Investor.    Such
Stockholder is an "accredited investor" within the meaning of Regulation D
under the Securities Act, or is not a "U.S. Person" within the meaning of
Regulation S under the Securities Act.

     

            (e)    Company
Information.    Such Stockholder has had an
opportunity to discuss the Company's business, management and financial affairs
with directors, officers and management of the Company and has had the
opportunity to review the Company's operations and facilities and public
filings. Such Stockholder has also had the opportunity to ask questions of and
receive answers from the Company and its management regarding the terms and
conditions of this investment.

     

            4.3    Ownership of
Shares of Common Stock.    Such Stockholder
represents that the MAG Holdings held by such Stockholder as set forth on
Exhibit A hereto are owned of record and beneficially by such Stockholder,
free and clear of any Encumbrances, and such Stockholder has the full and
unrestricted right, power and authority to transfer such holdings to the
Company.

     

    5.     Representations
and Warranties of the Company.

     

            The
Company hereby represents and warrants to each Stockholder as of the date of
this Agreement and the Closing Date as follows:

     

            5.1    Requisite
Power; Authorization; Binding Obligations.    The
Company has all requisite power and authority to execute and deliver this
Agreement and to carry out the provisions of this Agreement. All corporate
action on the part of the Company, its officers, directors and shareholders
necessary for the authorization, execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the performance of all
obligations of the Company hereunder has been or will be taken prior to the
Closing. This Agreement, when executed and delivered, will be valid and binding
obligations of the Company enforceable against it in accordance with their
terms, except as limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights, and (b) general principles of equity that
restrict the availability of equitable remedies.

     

            5.2    Valid
Issuance.    When issued at the Closing in accordance
with the provisions of this Agreement and the Certificate of Designation, the
shares of Series C Preferred Stock will be duly authorized, validly issued,
fully paid and non-assessable, will be delivered free and clear of any
Encumbrances, and will have the rights, preferences, privileges and restrictions
set forth in the Certificate of Designation; provided, however, that such shares
of Series C Preferred Stock may be subject to restrictions on transfer under
state or federal securities laws or as otherwise required by such laws at the
time a transfer is proposed.

     

    6.     Conditions
to Closing.

     

            6.1    Conditions
to Obligation of Each Stockholder.    Each
Stockholder's obligation to accept the issuance of the shares of Series C
Preferred Stock and to deliver the MAG Holdings at the
Closing is subject to the satisfaction, at or prior to the Closing Date, of the
following conditions:

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

            (a)    Performance
of Obligations.    The Company shall have performed
all obligations and conditions herein required to be performed or observed by it
on or prior to the Closing Date.

     

            (b)    Representations
and Warranties True.    The representations and
warranties made by the Company in Section 5 hereof shall be true and
correct in all material respects as of the Closing Date with the same force and
effect as if they had been made on and as of the Closing Date.
        

     

            6.2    Conditions
to Obligations of the Company.    The Company's
obligation to issue and deliver the shares of Series C Preferred Stock for the
MAG Holdings at the Closing is subject to the satisfaction, at or prior to the
Closing Date, of the following conditions:

     

            (a)    Performance
of Obligations.    Each Stockholder shall have
performed all obligations and conditions herein required to be performed or
complied with by it on or prior to the Closing Date.

     

            (b)    Representations
and Warranties True.    The representations and
warranties made by each Stockholder in Section 4 hereof shall be true and
correct in all material respects as of the Closing Date with the same force and
effect as if they had been made on and as of the Closing Date.

     

     

         

    7.     Miscellaneous.

     

            7.1    Governing
Law.    This Agreement shall be construed in
accordance with, and governed in all respects by, the internal laws of the State
of Nevada (without giving effect to principles of conflicts of
laws).

     

            7.2    Survival.    The
representations, warranties, covenants and agreements made herein shall survive
any investigation made by any Stockholder and the closing of the transactions
contemplated hereby. All statements as to factual matters contained in any
certificate or other instrument delivered by or on behalf of the Company
pursuant hereto in connection with the transactions contemplated hereby shall be
deemed to be representations and warranties by the Company hereunder solely as
of the date of such certificate or instrument.

     

            7.3    Successors
and Assigns; Assignment.    Each and all of the
covenants, terms, provisions, and agreements contained in this Agreement shall
be binding upon and inure to the benefit of the parties hereto and, to the
extent permitted by this Agreement, their respective successors and assigns.
Neither the Company nor any Stockholder may assign their respective rights or
obligations under this Agreement (by operation of law or otherwise) to any
Person without the prior written consent of the parties.

     

            7.4    Entire
Agreement.    This Agreement and the exhibits hereto,
and the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between
the parties with regard to the subjects hereof, and no party shall be liable or
bound to any other in any manner by any representations, warranties, covenants
and agreements except as specifically set forth herein and therein.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

            7.5    Severability.    In
the event that any provision of this Agreement, or the application of any such
provision to any Person or set of circumstances, shall be determined to be
invalid, unlawful, void or unenforceable to any extent, the remainder of this
Agreement, and the application of such provision to entities or circumstances
other than those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be impaired or otherwise affected and shall continue to
be valid and enforceable to the fullest extent permitted by law.

     

            7.6    Amendment.    This
Agreement may not be amended, modified, altered or supplemented without the
written consent of the Company and each Stockholder.

     

            7.7    Waiver.    

     

            (a)   No
failure on the part of any Person to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of any Person in
exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy.

     

            (b)   No
Person shall be deemed to have waived any claim arising out of this Agreement,
or any power, right, privilege or remedy under this Agreement, unless the waiver
of such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of such Person; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.

     

            7.8    Notices.    All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified;
(b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day;
(c) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (d) one business day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent
to the addresses set forth below:

     

     

            If
to the Company:

     

     

     

                           
If to Stockholders:

     

     

         

            7.9    Remedies
Cumulative; Specific Performance.    The rights and
remedies of the parties hereto shall be cumulative (and not alternative). The
parties hereto agree that: (a) in the event of any breach or threatened
breach by any party of any covenant, obligation or other provision
set forth in this Agreement, the other parties shall be entitled (in addition to
any other remedy that may be available to it) to (i) a decree or order of
specific performance or mandamus to enforce the observance and performance of
such covenant, obligation or other provision, and (ii) an injunction
restraining such breach or threatened breach; and (b) such other parties
shall not be required to provide any bond or other security in connection with
any such decree, order or injunction or in connection with any related action or
Proceeding.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

            7.10    Further
Assurances.    

     

            Each
party hereto shall execute and/or cause to be delivered to each other party
hereto such instruments and other documents, and shall take such other actions,
as such other party may reasonably request (prior to, at or after the Closing)
for the purpose of carrying out or evidencing any of the transactions
contemplated hereby.

     

            7.11    Construction;
Interpretation.    For purposes of this Agreement,
whenever the context requires: the singular number shall include the plural, and
vice versa; the masculine gender shall include the feminine and neuter genders;
the feminine gender shall include the masculine and neuter genders; and the
neuter gender shall include the masculine and feminine genders.

     

            (b)   The
parties hereto agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Agreement.

     

            (c)   All
monetary amounts referenced herein are denominated in United States
Dollars.

     

            (d)   As
used in this Agreement, the words "include" and "including," and variations
thereof, shall not be deemed to be terms of limitation, but rather shall be
deemed to be followed by the words "without limitation."

     

            (e)   Except
as otherwise indicated, all references in this Agreement to "Sections" and "Exhibits" are intended to
refer to Sections of this Agreement and Exhibits to this Agreement.

     

            7.12    Counterparts.    This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.

     

     

     

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

           

    IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date set forth in the
first paragraph hereof.

     

    
    

     

    
      	MAG Capital,
      LLC    	 	Mercator Momentum
      Fund	 
	 	 	 	 
	/s/ David
      Firestone	 	/s/ David
      Firestone	 
	Name:  David
      Firestone 	 	Name:  David Firestone	 
	Title:     Managing
      Partner  	 	Title:    Managing
      Partner	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	Mercator Momentum
      Fund III	 	Monarch Pointe Fund,
      LTD	 
	 	 	 	 
	/s/ David
      Firestone	 	(Not
      Executed)	 
	Name:  David Firestone	 	Name:	 
	Title:     Managing
Partner 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	Asset Managers
      International 	 	Invisa,
    Inc.	 
	 	 	 	 
	(Not
      Executed)	 	/s/Edmund
      C.
      King	 
	Name:  	 	Name:  Edmund C. King	 
	Title:  	 	Title:   Acting
      President	 


    

     

                                                                                     

     

     

     

     

     

     

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    EXHIBIT A

     

    RECAPITALIZATION
ALLOCATION

     

     

    
      	
              STOCKHOLDER

               

            	 
      	
              HOLDINGS
      TO BE 

              EXCHANGED

               

            	 
      	
              SERIES
      C PREFERRED 

              STOCK
      TO

              BE
      ISSUED AT CLOSING

               

            
	
              MAG
      CAPITAL LLC

            	 
      	
              $ 34,895.00
      NOTES

               

              $
      5,971 Accrued and Unpaid  

              Interest*

            	 
      	
              409
      SERIES C PREFERRED 

              STOCK

            
	
              MERCATOR
      MOMENTUM

               FUND

               

            	 
      	
               4,785 SERIES A
      PREFERRED

               STOCK

               

            	 
      	
              4,785
      SERIES C PREFERRED 

              STOCK

            
	
              MERCATOR
      MOMENTUM

               FUND
      III

            	 
      	
              1,000
      SERIES B PREFERRED 

              STOCK

               

              $25,125
      Accrued and Unpaid 

              Dividends+

               

              $
      8,868 NOTES

               

              $
      1,548 Accrued and Unpaid 

              Interest*

            	 
      	
              1,355
      SERIES C PREFERRED 

              STOCK

            
	
              MONARCH
      POINTE FUND,

               LTD.

            	 
      	
              9,715
      SERIES A PREFERRED 

              STOCK

               

              2,000
      SERIES B PREFERRED

               STOCK

               

              $50,250
      Accrued and Unpaid

               Dividends+

               

              $85,074
      NOTES

               

              $14,596Accrued
      and Unpaid

               Interest*

            	 
      	
              13,214.
      SERIES C 

              PREFERRED
      STOCK

            
	
              ASSET
      MANAGERS 

              INTERNATIONAL

            	 
      	
              7000
      SERIES B PREFERRED 

              STOCK

               

              $175,875
      and Unpaid Dividend+

               

            	 
      	
              8,759
      SERIES C PREFERRED 

              STOCK

            
	
              TOTAL

               

            	 
      	
              14,500
      Series A Preferred Stock

               

              10,000
      Series B Preferred Stock

               

              $251,250
      Accrued unpaid 

              dividends+

               

              $128,837
      Notes

               

              $22,115.
      Accrued and Unpaid

               Interest*

            	 
      	
              Aggregate
      of 28,522 Shares of 

              Series
      C Preferred Stock

            


    

    * As of
June 30,
2008                                                                                                                                                                                                 
   + As of July 31, 2008

     

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

    


    EXHIBIT B

     

    FORM
OF

     

    CERTIFICATE
OF DESIGNATION

    OF

     

    SERIES
C CONVERTIBLE PREFERRED STOCK

     

     

     

     

     

     

     

    10