**Exhibit 10.1**

 

**AXCESS INC.**

**3208 Commander Drive**

**Carrollton, Texas 75006**

 

April         , 2004

 

**Re:****                            StockPurchase Agreement**

 

Ladies and Gentlemen:

 

This Agreementsets forth the terms and conditions on which Axcess International Inc., aDelaware Corporation, of 3208 Commander Drive, Carrollton, Texas, 75006 (the“Company”) will issue and sell to                                                  ,of                                                                        (the “Purchaser”) shares of Series 2004 Preferred Stock of the Company, parvalue $0.01 per share (*the “Preferred”)*and Series 2004 Warrants (*the “Warrants”)*which provide the right to purchase shares of the Company’s Common Stock.

 

1.             Type of Security and PurchasePrice.  The Purchaser hereby agreesto subscribe for and purchase from the Company, and the Company hereby agreesto issue and sell to the Purchaser 625,000 Preferred Shares and 357,142Warrants.  The purchase price shall beOne Million and Five Hundred Thousand US Dollars ($1,500,000) payable incash.  Preferred shares shall bear dividends at 7%annually paid in arrears, payable in cash or in kind at the option of thecompany. The Warrants shall have an exercise life of two years following theirsuccessful registration and the exercise price of the warrants is $3.20. Thepurchase and sale shall be effective as of the date the Company receives thepurchase price from the Purchaser (the “*Effective Date*”).

 

2.             Purchase Dates and Delivery ofShares.  The Company wishes to closeon the sale during April of 2004. Upon its receipt of the purchase price, the Company shall issueand sell to the Purchaser the number of Preferred and Warrants based onparagraph 1 above. On and as of the Effective Date, the Company shall executeand deliver to the Purchaser stock and warrant certificates in proper formrepresenting the Shares.

 

3.             Conversion and Lock-up of Series2004 Preferred Stock to Common Stock. When the Company achieves a full quarter ofprofitability (EBIDTA) or when the share price surpasses $4.00 based on theaverage closing price for the 20 trading days preceding, the preferred sharesshall be converted on a one to one basis into common stock, $0.01 parvalue per share.  Purchaser shall not to sell more than 1/6 ofthe common shares issued to them in connection with this offering in anycalendar month.

 

4.             Securities Act Legend;Registration Rights.

 

4.1           The Shares will not be registeredunder the Securities Act of 1933, as amended (the “*Securities Act*”).  Prior to registration, certificates representing the Shares shallbear a restrictive legend substantially to the effect of the following:

 

THE SECURITIESREPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,OR APPLICABLE STATE SECURITIES LAWS, OR THE SECURITIES LAWS OF ANY OTHERJURISDICTION.  THEY MAY NOT BE SOLD ORTRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THOSESECURITIES LAWS OR PURSUANT TO AN EXEMPTION THEREFROM.  ADDITIONAL RESTRICTIONS REGARDING THE TERMSUNDER WHICH THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE CONVERTED INTONON-VOTING COMMON STOCK OF THE COMPANY ARE SET FORTH IN THE CERTIFICATE OFDESIGNATIONS, PREFERENCES, POWERS AND RIGHTS OF THE SERIES 2003 PREFERREDSTOCK.

 

5.             Representations and Warrantiesby the Company.  The Company herebyrepresents and warrants to the Purchaser as follows:

 

5.1           The Company is a corporation dulyorganized, validly existing and in good standing under the laws of the State ofDelaware, and has the corporate power and authority to execute and deliver thisAgreement, to issue the Shares on the basis described herein and otherwise toperform its obligations under this Agreement.

 

5.2           The execution and delivery by theCompany of this Agreement, the issuance of the Shares, and the performance bythe Company of its obligations hereunder, have been duly authorized by allrequisite corporate action on the part of the Company and will not (i) violateany provision of law, statute, rule or regulation or any order of any court orother agency of government, (ii) conflict with or violate the Certificate ofIncorporation (after amendment to authorize the additional shares of

 

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non-voting common stock) or By-Laws of the Company, in each case asamended, or (iii) violate, conflict with or constitute (with due notice orlapse of time or both) a default under any indenture, mortgage, lease, license,agreement or other contract or instrument or result in the creation orimposition of any lien, charge or encumbrance of any nature upon the propertiesor assets of the Company or any of its subsidiaries, in each case if suchviolation, conflict, default, lien, charge or encumbrance would have a materialadverse effect on the Company.

 

5.3              This Agreement has been dulyexecuted and delivered by the Company and constitutes the valid and legallybinding obligation of the Company, enforceable in accordance with its terms,except to the extent the enforceability hereof may be limited by applicablebankruptcy, moratorium or similar laws affecting the rights of creditorsgenerally.

 

5.4              Based in part upon therepresentations and warranties of the Purchaser contained in this Agreement, noregistration or filing with, or consent or approval of, or other action by, anyfederal, state or other governmental department, commission, board, bureau,agency or instrumentality or any third party is or will be necessary for theexecution and delivery of this Agreement by the Company and the issuance of theShares hereunder, other than the filing of a notice of sale on Form D with theSecurities and Exchange Commission and any other required jurisdictions inaccordance with the rules and regulations thereof under the Securities Act andapplicable state law.

 

5.5              The PreferredShares are duly authorized, validly issued, fully paid and non-assessableshares of Series 2003 Preferred Stock, and are not subject to any preemptiverights.

 

5.6              Attached heretoas Exhibit A is a true copy of the Certificate of Designations,Preferences, Powers and Rights of Series 2004 Preferred Stock, to be filed withthe Secretary of State of the State of Delaware (the *“Series 2004 Certificate ofDesignations”*).  The Board ofDirectors of the Company has approved and adopted resolutions creating thePreferred Shares, Common Shares, and Warrants and directing the proper officersof the Company to file the same with the office of the Secretary of State ofthe State of Delaware, in accordance with the applicable provisions of theDelaware General Corporation Law.

 

6.                Representationsand Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company as follows:

 

6.1              The Purchaser isacquiring the Shares for its own account, for investment and not with a view tothe distribution thereof within the meaning of the Securities Act.

 

6.2              The Purchaserunderstands that the Shares have not been registered under the Securities Act,by reason of their issuance by the Company in transactions exempt from theregistration requirements of the Securities Act, and that the Common sharesmust be held by the Purchaser until registered under the Securities Act.

 

6.3              The Purchaserfurther understands that the exemption from registration afforded by Rule 144(the provisions of which are known to it) promulgated under the Securities Actdepends on the satisfaction of various conditions, and that, if applicable,Rule 144 may afford the basis for sales only in limited amounts, aftercompliance with the holding periods and other provisions thereof.

 

6.4              The Purchaserunderstands that its investment hereunder involves substantial risks andrepresents and warrants that it has made such independent examinations andinvestigations of the Company as it has deemed necessary in making itsinvestment decision, and the Purchaser further represents and warrants that ithas had sufficient access to the officers, directors, books and records of theCompany as it has deemed necessary to conduct such examination andinvestigation and make such investment decision.  Purchaser agrees to keep confidential the confidentialinformation provided for the purpose of evaluating the purchase herein.

 

6.5              The Purchaser isa qualified investor able to bear the economic risk of the investmentcontemplated by this Agreement and has such knowledge and experience infinancial and business matters that it is capable of evaluating the merits andrisks of the investment contemplated by this Agreement.

 

7.                Reaffirmationof Representations and Warranties. The date Units are purchased shall constitute a reaffirmation of eachand every one of the representations and warranties of the Company set forth inSection 5 of this Agreement and those of the Purchaser set forth in Section 6of this Agreement as if made as of each Effective Date, unless otherwiserestated or corrected by either the Purchaser or the Company, as the case maybe.

 

8.                                               Miscellaneous.

 

8.1              ThisAgreement constitutes our entire agreement with respect to the subject matterhereof.   This Agreement may not bemodified or amended or any provision hereof waived except by an instrument inwriting signed by the Company and the Purchaser.

 

8.2              ThisAgreement shall be binding upon and inure to the benefit of the parties heretoand their respective successors and permitted assigns.  The rights of the Purchaser hereunder shallbe assignable to any holder of the Shares. Except as provided in the immediately preceding sentence, this Agreementand the rights of the Purchaser hereunder shall not be assignable, and anypurported assignment hereof or thereof shall be void.

 

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8.3              This Agreementmay be executed in any number of counterparts and on separate counterparts,each of which shall be an original instrument, but all of which together shallconstitute a single agreement.  One ormore signature pages from any counterpart of this Agreement may be attached toany other counterpart of this Agreement without in any way changing the effectthereof.  This Agreement shall beeffective when executed and delivered by the Company and the Purchaser.

 

8.4              All notices,requests, demands, consents, waivers, or other communications made hereunder toany party or holder of Shares shall be in writing and shall be deemed to havebeen duly given if delivered personally or sent by nationally-recognizedovernight courier, facsimile or by first class registered or certified mail,return receipt requested, postage prepaid, addressed to such party at theaddress set forth below:

 

if to theCompany, to:

 

AXCESS Inc.

3208 CommanderDrive

Carrollton,TX  75006

Attention:Chief Financial Officer

 

with a copyto:

 

Vial,Hamilton, Koch, and Knox

1700 Pacific,Suite 2800

Dallas,TX  75201

Attention:Craig Ongley; and

 

if to thePurchaser, to the Purchaser at its address

first setforth above,

 

or to such other address as theparty to whom such communication is to be given may have furnished to the otherparty in writing in accordance herewith. All such notices, requests, demands, consents, waivers or othercommunications shall be deemed to have been delivered (i) in the case ofpersonal delivery, on the date of delivery, (ii) if sent by facsimile, on thedate sender receives a confirmation confirming receipt, (iii) if sent byovernight courier, on the next business day following the date sent and (iv) inthe case of mailing, on the third business day following such mailing.

 

8.5           All representations,warranties and agreements contained herein shall survive the execution anddelivery of this Agreement and the sale of the Shares hereunder.

 

8.6           This Agreement, andall rights, obligations and liabilities hereunder, shall be construed accordingto the laws of the State of Texas applicable to contracts made and to beperformed wholly therein.  Any judicialproceeding brought against the Company to enforce, or otherwise in connectionwith, this Agreement may be brought in any court of competent jurisdiction inthe City of New York, and, by execution and delivery of this Agreement, theCompany (i) accepts, generally and unconditionally, the nonexclusivejurisdiction of such courts and any related appellate court and irrevocablyagrees to be bound by any final judgment rendered thereby in connection withthis Agreement and (ii) irrevocably waives any objection it may now orhereafter have as to the venue of any such proceeding brought in such a courtor that such a court is an inconvenient forum.

 

If theforegoing correctly sets forth your understanding of our agreement, please soindicate by signing and returning to the Company the enclosed counterpart ofthis Agreement.

 
|                                        | Very truly  yours,         |
|---------------------------------------------|----------------------------|
|                                        |                       |
|                                        | AXCESS  INTERNATIONAL INC. |
|                                        |                       |
|                                        | By:                        | /s/ ALLAN  GRIEBENOW |   |
|                                        |                       |  Allan Griebenow, Chief Executive Officer |
|                                        |
| The  undersigned agrees with and            |
| accepts the  foregoing terms and provisions |
| as of the  date first above written.        |
|                                        |
| By:                                         |                       | , |
|                                        |
| Printed  Name:                              |                       | , |
|                                             |                            |  |  |  |  |  |  |

 

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