ex10_64.htm

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").

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").

"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.

2.1 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.

3.2 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.

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.

(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.

(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.

5.1 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.

6.1 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:

(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:

(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.

7.2 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.

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.

(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:

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.

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.

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

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