Exhibit 10.1


 


AXCESS INC.


3208 Commander Drive


Carrollton, Texas 75006


 


April         , 2004


 


Re:                            Stock
Purchase Agreement


 


Ladies and Gentlemen:


 


This Agreement
sets forth the terms and conditions on which Axcess International Inc., a
Delaware 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, par
value $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 Purchase
Price.  The Purchaser hereby agrees
to subscribe for and purchase from the Company, and the Company hereby agrees
to issue and sell to the Purchaser 625,000 Preferred Shares and 357,142
Warrants.  The purchase price shall be
One Million and Five Hundred Thousand US Dollars ($1,500,000) payable in
cash.  Preferred shares shall bear dividends at 7%
annually paid in arrears, payable in cash or in kind at the option of the
company. The Warrants shall have an exercise life of two years following their
successful registration and the exercise price of the warrants is $3.20. The
purchase and sale shall be effective as of the date the Company receives the
purchase price from the Purchaser (the “Effective Date”).


 


2.             Purchase Dates and Delivery of
Shares.  The Company wishes to close
on the sale during April of 2004. Upon its receipt of the purchase price, the Company shall issue
and sell to the Purchaser the number of Preferred and Warrants based on
paragraph 1 above. On and as of the Effective Date, the Company shall execute
and deliver to the Purchaser stock and warrant certificates in proper form
representing the Shares.


 


3.             Conversion and Lock-up of Series
2004 Preferred Stock to Common Stock. When the Company achieves a full quarter of
profitability (EBIDTA) or when the share price surpasses $4.00 based on the
average closing price for the 20 trading days preceding, the preferred shares
shall be converted on a one to one basis into common stock, $0.01 par
value per share.  Purchaser shall not to sell more than 1/6 of
the common shares issued to them in connection with this offering in any
calendar month.


 


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”).  Prior to registration, 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 THE CERTIFICATE OF
DESIGNATIONS, PREFERENCES, POWERS AND RIGHTS OF THE SERIES 2003 PREFERRED
STOCK.


 


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 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 (after amendment to authorize the additional shares of


 

















 


non-voting common stock) 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 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 the filing of a notice of sale on Form D with the
Securities and Exchange Commission and any other required jurisdictions in
accordance with the rules and regulations thereof under the Securities Act and
applicable state law.


 


5.5              The Preferred
Shares are duly authorized, validly issued, fully paid and non-assessable
shares of Series 2003 Preferred Stock, and are not subject to any preemptive
rights.


 


5.6              Attached hereto
as Exhibit A is a true copy of the Certificate of Designations,
Preferences, Powers and Rights of Series 2004 Preferred Stock, to be filed with
the Secretary of State of the State of Delaware (the “Series 2004 Certificate of
Designations”).  The Board of
Directors of the Company has approved and adopted resolutions creating the
Preferred Shares, Common Shares, and Warrants 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.


 


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 Common shares
must be held by the Purchaser until registered under the Securities Act.


 


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 Securities 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 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.  Purchaser agrees to keep confidential the confidential
information provided for the purpose of evaluating the purchase herein.


 


6.5              The Purchaser is
a qualified investor 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 Units are purchased shall constitute a reaffirmation of each
and every one of the representations and warranties of the Company set forth in
Section 5 of this Agreement and those of the Purchaser set forth in Section 6
of this Agreement as if made as of each Effective Date, unless otherwise
restated or corrected by either the Purchaser or the Company, as the case may
be.


 


8.                                               Miscellaneous.


 


8.1              This
Agreement constitutes our entire agreement with respect to the subject matter
hereof.   This Agreement may not be
modified or amended or any provision hereof waived except by an instrument in
writing signed by the Company and the Purchaser.


 


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


 

















 


8.3              This Agreement
may be executed in any number of counterparts and on separate counterparts,
each of which shall be an original instrument, but all of which together shall
constitute a single agreement.  One or
more signature pages from any counterpart of this Agreement may be attached to
any other counterpart of this Agreement without in any way changing the effect
thereof.  This Agreement shall be
effective when executed and delivered by the Company and the Purchaser.


 


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


 


if to the
Company, to:


 


AXCESS Inc.


3208 Commander
Drive


Carrollton,
TX  75006


Attention:
Chief Financial Officer


 


with a copy
to:


 


Vial,
Hamilton, Koch, and Knox


1700 Pacific,
Suite 2800


Dallas,
TX  75201


Attention:
Craig Ongley; and


 


if to the
Purchaser, to the Purchaser at its address


first set
forth above,


 


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 Texas 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
  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:

  	
   

  	
  ,