-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CBzPhgQQvUGM6PGf7Oy9K4SonM0mfnebbHsqnWFDrv7Y7O/OY7LGnYwaSnKVKv31 a79hyZf8Wqbd/oRR93nPkA== 0000950134-98-004394.txt : 19980518 0000950134-98-004394.hdr.sgml : 19980518 ACCESSION NUMBER: 0000950134-98-004394 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980515 SROS: NASD GROUP MEMBERS: AMPHION PARTNERS L.L.C GROUP MEMBERS: AMPHION VENTRUES LP GROUP MEMBERS: ANTIOPE PARTNERS L.L.C SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AXCESS INC/TX CENTRAL INDEX KEY: 0000710597 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS ELECTRICAL MACHINERY, EQUIPMENT & SUPPLIES [3690] IRS NUMBER: 850294536 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-35675 FILM NUMBER: 98622043 BUSINESS ADDRESS: STREET 1: 3208 COMMANDER DR CITY: CARROLLTON STATE: TX ZIP: 87113 BUSINESS PHONE: 9724076080 MAIL ADDRESS: STREET 1: 3208 COMMANDER DR CITY: CARROLLTON STATE: TX ZIP: 75006 FORMER COMPANY: FORMER CONFORMED NAME: LASERTECHNICS INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AMPHION VENTRUES LP CENTRAL INDEX KEY: 0001055075 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 133962697 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 590 MADISON AVENUE 32ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2128498116 MAIL ADDRESS: STREET 1: 590 MADISON AVENUE 32ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 AMENDMENT NO. 9 TO SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 9)* AXCESS INC. - -------------------------------------------------------------------------------- (NAME OF ISSUER) COMMON STOCK, PAR VALUE $.01 PER SHARE - -------------------------------------------------------------------------------- (TITLE OF CLASS OF SECURITIES) 054546 10 6 ------------------------------------------------ (CUSIP NUMBER) RICHARD C. E. MORGAN AMPHION PARTNERS L.P. 590 MADISON AVENUE NEW YORK, NY 10022 (212) 849-8120 ------------------------------------------------ (NAME, ADDRESS AND TELEPHONE OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS) JANUARY 28, 1998 ---------------- (DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT) IF THE FILING PERSON HAS PREVIOUSLY FILED A STATEMENT ON SCHEDULE 13G TO REPORT THE ACQUISITION WHICH IS THE SUBJECT OF THIS SCHEDULE 13D, AND IS FILING THIS SCHEDULE BECAUSE OF RULE 13D-1(b)(3) OR (4), CHECK THE FOLLOWING BOX [ ]. NOTE: SIX COPIES OF THIS STATEMENT, INCLUDING ALL EXHIBITS, SHOULD BE FILED WITH THE COMMISSION. SEE RULE 13D-1(a) FOR OTHER PARTIES TO WHOM COPIES ARE TO BE SENT. *THE REMAINDER OF THIS COVER PAGE SHALL BE FILLED OUT FOR A REPORTING PERSON'S INITIAL FILING ON THIS FORM WITH RESPECT TO THE SUBJECT CLASS OF SECURITIES, AND FOR ANY SUBSEQUENT AMENDMENT CONTAINING INFORMATION WHICH WOULD ALTER DISCLOSURES PROVIDED IN A PRIOR COVER PAGE. THE INFORMATION REQUIRED ON THE REMAINDER OF THIS COVER PAGE SHALL NOT BE DEEMED TO BE "FILED" FOR THE PURPOSE OF SECTION 18 OF THE SECURITIES EXCHANGE ACT OF 1934 ("ACT") OR OTHERWISE SUBJECT TO THE LIABILITIES OF THAT SECTION OF THE ACT BUT SHALL BE SUBJECT TO ALL OTHER PROVISIONS OF THE ACT (HOWEVER, SEE THE NOTES). 2 SCHEDULE 13D
Cusip No. 054546 10 6 Page 2 of 10 Pages - ---------------------- --- --- - ------------------------------------------------------------------------------------------------------------ 1. Name of Reporting Person SS or I.R.S. Identification No. of Above Person: Amphion Ventures L.P. 13-3962697 - ------------------------------------------------------------------------------------------------------------ 2. Check the appropriate box if a member of a group (a) [ ] (b) [ ] - ------------------------------------------------------------------------------------------------------------ 3. SEC Use Only. - ------------------------------------------------------------------------------------------------------------ 4. Source of Funds BK, AF, OO - ------------------------------------------------------------------------------------------------------------ 5. Check box if disclosure of legal proceedings is required pursuant to Items [ ] 2(d) or 2(e) - ------------------------------------------------------------------------------------------------------------ 6. Citizenship or Place of Organization Delaware - ------------------------------------------------------------------------------------------------------------ Number of 7. Sole Voting Power N/A Shares -------------------------------------------------------------------------------------------- Beneficially 8. Shared Voting Power 1,473,155 (See Item 5) Owned by -------------------------------------------------------------------------------------------- Each 9. Sole Dispositive Power N/A Reporting -------------------------------------------------------------------------------------------- Person 10. Shared Dispositive Power 1,473,155 (See Item 5) With - ------------------------------------------------------------------------------------------------------------ 11. Aggregate amount beneficially owned by each reporting person 1,473,155 (See Item 5) - ------------------------------------------------------------------------------------------------------------ 12. Check box if the aggregate amount in row (11) excludes certain shares [ ] - ------------------------------------------------------------------------------------------------------------ 13. Percent of class represented by amount in row (11) 41.2% (See Item 5) - ------------------------------------------------------------------------------------------------------------ 14. Type of Reporting Person PN - ------------------------------------------------------------------------------------------------------------
3 SCHEDULE 13D
Cusip No. 054546 10 6 Page 3 of 10 Pages - ---------------------- --- --- - ------------------------------------------------------------------------------------------------------------ 1. Name of Reporting Person SS or I.R.S. Identification No. of Above Person: Amphion Partners L.L.C. 13-3962696 - ------------------------------------------------------------------------------------------------------------ 2. Check the appropriate box if a member of a group (a) [ ] (b) [ ] - ------------------------------------------------------------------------------------------------------------ 3. SEC Use Only. - ------------------------------------------------------------------------------------------------------------ 4. Source of Funds AF - ------------------------------------------------------------------------------------------------------------ 5. Check box if disclosure of legal proceedings is required pursuant to Items [ ] 2(d) or 2(e) - ------------------------------------------------------------------------------------------------------------ 6. Citizenship or Place of Organization Delaware - ------------------------------------------------------------------------------------------------------------ Number of 7. Sole Voting Power 28,125 (See Item 5) Shares -------------------------------------------------------------------------------------------- Beneficially 8. Shared Voting Power 1,473,155 (See Item 5) Owned by -------------------------------------------------------------------------------------------- Each 9. Sole Dispositive Power 28,125 (See Item 5) Reporting -------------------------------------------------------------------------------------------- Person 10. Shared Dispositive Power 1,473,155 (See Item 5) With -------------------------------------------------------------------------------------------- 11. Aggregate amount beneficially owned by each reporting person 1,501,280 (See Item 5) - ------------------------------------------------------------------------------------------------------------ 12. Check box if the aggregate amount in row (11) excludes certain shares [ ] - ------------------------------------------------------------------------------------------------------------ 13. Percent of class represented by amount in row (11) 42.0% (See Item 5) - ------------------------------------------------------------------------------------------------------------ 14. Type of Reporting Person OO - ------------------------------------------------------------------------------------------------------------
4 SCHEDULE 13D
Cusip No. 054546 10 6 Page 4 of 10 Pages ---------------------- --- --- - ------------------------------------------------------------------------------------------------------------ 1. Name of Reporting Person SS or I.R.S. Identification No. of Above Person: Antiope Partners L.L.C. 13-3260056 - ------------------------------------------------------------------------------------------------------------ 2. Check the appropriate box if a member of a group (a) [ ] (b) [ ] - ------------------------------------------------------------------------------------------------------------ 3. SEC Use Only. - ------------------------------------------------------------------------------------------------------------ 4. Source of Funds OO - ------------------------------------------------------------------------------------------------------------ 5. Check box if disclosure of legal proceedings is required pursuant to Items [ ] 2(d) or 2(e) - ------------------------------------------------------------------------------------------------------------ 6. Citizenship or Place of Organization Delaware - ------------------------------------------------------------------------------------------------------------ Number of 7. Sole Voting Power 132,534 (See Item 5) Shares -------------------------------------------------------------------------------------------- Beneficially 8. Shared Voting Power N/A Owned by -------------------------------------------------------------------------------------------- Each 9. Sole Dispositive Power 132,534 (See Item 5) Reporting -------------------------------------------------------------------------------------------- Person 10. Shared Dispositive Power N/A With -------------------------------------------------------------------------------------------- 11. Aggregate amount beneficially owned by each reporting person 132,534 (See Item 5) - ------------------------------------------------------------------------------------------------------------ 12. Check box if the aggregate amount in row (11) excludes certain shares [ ] - ------------------------------------------------------------------------------------------------------------ 13. Percent of class represented by amount in row (11) 5.2% (See Item 5) - ------------------------------------------------------------------------------------------------------------ 14. Type of Reporting Person OO - ------------------------------------------------------------------------------------------------------------
5 Page 5 of 10 Pages This Amendment No. 9 to the Statement on Schedule 13D dated October 4, 1985 (the "Schedule 13D") previously filed by Antiope Ventures L.P. f/k/a Wolfensohn Associates L.P. and Antiope Partners L.L.C. f/k/a Wolfensohn Partners L.P. ("Partners I"), is filed by Partners I, Amphion Ventures L.P. ("Ventures II") and Amphion Partners L.L.C. ("Partners II") and concerns the common stock, $0.01 par value per share (the "Common Stock"), of AXCESS Inc., a Delaware corporation, which has its principal executive offices at 3208 Commander Dr., Carrollton, Texas 75006 (the "Company"). This Amendment No. 9 amends Items 3, 4, 5,6 and 7 of Schedule 13D. On April 2, 1998, the Company effected a 1-for-20 reverse stock split of the Common Stock. Accordingly, all shares and per share amounts reported in this Schedule 13D are on a post reverse split basis. ITEM 3. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION On January 31, 1998, Ventures II acquired 122 shares of Series G Convertible Preferred Stock (the "Series G Preferred Stock") at a purchase price of $10,000 per share, totaling $1,220,000. The consideration was in the form of a note payable to the Company for the full amount of the purchase price (the "January Note Payable"). The form of note payable is attached to this Schedule 13D as Exhibit 99.28 and is incorporated herein by reference. As of the date of this Schedule 13D, the January Note Payable has been paid in full by Ventures II. On February 28, 1998, Ventures II acquired 83 shares of Series G Preferred Stock at a purchase price of $10,000 per share, totaling $830,000. The consideration was in the form of a note payable to the Company for the full amount of the purchase price (the "February Note Payable"). The form of note payable is attached to this Schedule 13D as Exhibit 99.28 and is incorporated herein by reference. As of March 31, 1998, the balance of the February Note Payable was $170,000. Pursuant to the terms of the commitment of Ventures II to purchase up to $5,500,000 of the Company's Series G or Series H Preferred Stock, Ventures II acquired 160 shares of Series H Convertible Preferred Stock on March 31, 1998, (the "Series H Preferred Stock") at a purchase price of $10,000 per share, totaling $1,600,000. The consideration was in the form of a note payable to the Company for the full amount of the purchase price (the "March Note Payable"). The form of note payable is attached to this Schedule 13D as Exhibit 99.28 and is incorporated herein by reference. As of the date of this Schedule 13D, the balance of the March Note Payable is $1,600,000. The Series H Preferred Stock is convertible into shares of the Company's non-voting Common Stock. Although the Company's non-voting Common Stock may be converted to Common Stock at any time by a holder thereof, Ventures II has agreed not to convert any shares of non-voting Common Stock to Common Stock until the Company has issued 500,000 shares of Common Stock to XL Vision, Inc. under the terms of the Technology Development Agreement by and between the Company and XL Vision, Inc., unless Ventures II receives the prior written consent of the Company. 6 Page 6 of 10 Pages On April 7, 1998, Partners I acquired 4,500 shares of Common Stock for a per share price of $4.50, totaling $20,250 in cash on the market. On April 24, 1998, under the terms of a two-year loan which bears interest at the rate of 10% per annum, Ventures II loaned the Company $1,470,000 to fund the Company's obligations to Xerox Corporation under the terms of a Settlement Agreement by and between the Company and Xerox Corporation. Ventures II received a loan origination fee of (i) 15,120 restricted shares of Common Stock and (ii) 3-year warrants to purchase 14,700 shares of Common Stock with an exercise price of $5.00 per share. Each share of Series G Preferred Stock has a liquidation preference over all Common Stock of the Company equal to the stated value of all such shares of preferred stock outstanding at the time plus accrued dividends. Shares of Series G Preferred Stock are convertible in whole at any time and in part from time to time into shares of Common Stock equal to the quotient of (i) the aggregate original Series G issue price of the shares of Series G Preferred Stock ($10,000/share) being divided by (ii) the conversion price, which is currently $10.00, subject to adjustment from time to time based on the occurrence of certain events described in the Series G Certificate of Designation which is incorporated herein by reference to Exhibit 24 to Amendment No. 8 to Schedule 13D. Each share of Series H Preferred Stock has a liquidation preference over all Common Stock of the Company equal to the stated value of all such shares of preferred stock outstanding at the time plus accrued dividends. Shares of Series H Preferred Stock are convertible in whole at any time and in part from time to time into shares of Common Stock equal to the quotient of (i) the aggregate original Series H issue price of the shares of Series H Preferred Stock ($10,000/share) being divided by (ii) the conversion price, which is currently at $10.00, subject to adjustment from time to time based on the occurrence of certain events described in the Series H Certificate of Designation which is attached to this Schedule 13D as Exhibit 99.27. Funds used by Ventures II for the transactions described herein were obtained from a bank loan and capital contributions from limited partners. Funds used by Partners I for the transaction described herein were obtained from current income. ITEM 4. PURPOSE OF TRANSACTIONS. The purchases made by Partners I and Ventures II reported in this Amendment No. 9 were all in connection with their respective general investment activities. In addition to the acquisitions described in this Schedule 13D, Partners I and Ventures II each has the right to acquire additional shares of Common Stock (or other capital stock of the Company), and to dispose of some or all of their respective current holdings of Common Stock or other capital stock of the Company or to exercise any warrants or other rights any of them may in the future have in respect thereof, in one or more open-market or privately negotiated transactions or otherwise, on such terms and at such times as each considers desirable. 7 Page 7 of 10 Pages ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) On April 2, 1998, the Company effected a 1-for-20 reverse stock split of the Common Stock. Accordingly, all shares and per share amounts reported in this Schedule 13D are on a post reverse split basis. As of May 1, 1998, Ventures II owned the following interests in the Company:
Common Stock Type of Security Number of Shares Equivalent if Converted ---------------- ---------------- ----------------------- Common Stock 361,409 N/A ---------------------------------------------------------------------------- Series A Convertible Preferred 57,692 57,692 Stock ---------------------------------------------------------------------------- Series B Convertible Preferred 52,816 52,816 Stock ---------------------------------------------------------------------------- Series C Convertible Preferred 25,492 25,492 Stock ---------------------------------------------------------------------------- Series G Convertible Preferred 905 905,000(1) Stock ---------------------------------------------------------------------------- Series H Convertible Preferred 160 160,000(2) Stock ---------------------------------------------------------------------------- Warrants 66,903 66,903 ---------------------------------------------------------------------------- Options 3,843 3,843 ----------------------------------------------------------------------------
(1) This sum assumes a Series G Preferred per share price of $10,000 divided by a conversion price of $10.00, as it has been initially set. (2) This sum assumes a Series H Preferred per share price of $10,000 divided by a conversion price of $10.00, as it has been initially set. The Series H Preferred Stock is convertible to the Company's non-voting Common Stock at the option of the holder. Holders of shares of non-voting Common Stock may convert their shares 1-for-1 to voting Common Stock at any time. Ventures II, however, has agreed with the Company not to convert its non-voting Common Stock to Common Stock on or before the date on which the Company has issued 500,000 shares of Common Stock to XL Vision, Inc. under the terms of the Technology Development Agreement by and between the Company and XL Vision, Inc., unless it receives the Issuer's prior written consent. As of May 1, 1998, Ventures II owned 361,409 shares of Common Stock, which Ventures II estimates is approximately 14.7% of the total issued and outstanding shares of the Common Stock of the Company. Assuming the exercise by Ventures II of all of its rights to convert all of the Series A, Series B, Series C and Series G Preferred Stock, the warrants and the options held by it into Common Stock, Ventures II would be deemed the beneficial holder of 1,473,155 shares of Common Stock, which Ventures II estimates would constitute approximately 41.8% of the issued and outstanding Common Stock (assuming all outstanding options and warrants had been exercised, and all outstanding convertible securities had been converted into Common Stock) as of May 1, 1998. As of May 1, 1998, Partners II owned 28,125 shares of Common Stock, which Partners II estimates is approximately 1.1% of the total issued and outstanding shares of the Common Stock of the Company. Partners II is the general partner of Ventures II and holds 0.2% of the total partnership interests. See the holdings of Ventures II above. 8 Page 8 of 10 Pages As of May 1, 1998, Partners I owned the following interests in the Company:
---------------------------------------------------------------------------- Common Stock Type of Security Number of Shares Equivalent if Converted ---------------------------------------------------------------------------- Common Stock 42,034 N/A ---------------------------------------------------------------------------- Series G Convertible Preferred 50 50,000(1) Stock ---------------------------------------------------------------------------- Warrants 40,500 40,500 ----------------------------------------------------------------------------
(1) This sum assumes a Series G Preferred per share price of $10,000 divided by a conversion price of $10.00, as it has been initially set. As of May 1, 1998, Partners I owned 42,034 shares of Common Stock, which Partners I estimates is approximately 1.7% of the total issued and outstanding shares of the Common Stock of the Company. Assuming the exercise by Partners I of all of its rights to convert all of the Series G Preferred Stock and the warrants held by it into Common Stock, Partners I would be deemed the beneficial holder of 132,534 shares of Common Stock, which Partners I estimates would constitute approximately 5.2% of the issued and outstanding Common Stock (assuming all outstanding warrants had been exercised, and all outstanding convertible securities had been converted into Common Stock) as of May 1, 1998. Richard C.E. Morgan, a managing member of Partners I and Partners II and Chairman of the Board of the Company, owns 41,963 shares of Common Stock and options to purchase 2,500 additional shares, 1,875 of which are currently vested. The 41,963 shares of Common Stock owned by Mr. Morgan is estimated to represent 1.3% of the total outstanding shares of Common Stock of the Company. If Mr. Morgan were to exercise all his options, he would be deemed the beneficial owner of 43,838 shares of Common stock, which is estimated by Mr. Morgan to represent 1.8% of the issued and outstanding shares of the Company (assuming all outstanding warrants had been exercised and all outstanding securities had been converted into Common Stock as of May 8, 1998. (b) Reference is made to Rows (7) through (10) of each Reporting person's cover page. (c) This amendment and filing reports the following events: Except as reported herein, and except that Richard Morgan purchased on the market for cash (i) 2,100 shares of Common Stock at a per share price of $4.875 on April 2, 1998, (ii) 5,000 shares of Common Stock at a per share price of $4.875 on April 6, 1998, (iii) 6,000 shares of Common Stock at an average price per share of $4.65 on April 7, 1998, and was granted 12,500 shares of Common Stock by the Company on April 30, 1998, for the stock portion of his annual compensation for serving as the Company's Chairman of the Board, none of Ventures II, Partners II or Partners I or, to the best knowledge of each of these or any of the managing members of Partners I or Partners II or any of their controlling persons has effected any transactions in the Common Stock (or securities convertible into Common Stock) during the last sixty days. (d) No amendment. (e) Not applicable. 9 Page 9 of 10 Pages ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER On April 15, 1998, the Company submitted a preliminary proxy statement (the "Preliminary Proxy") to the Securities and Exchange Commission concerning the proposed annual meeting of stockholders of the Company to elect directors, ratify accountants, approve an amendment to the Company's stock option plan, adopt a director compensation plan, authorize certain issuances of Common Stock, and to transact other business as may properly come before the meeting. Except as reported herein and in previous reports, none of Ventures II, Partners I or Partners II or, to the best knowledge of each of them or any of the managing members of Partners I or Partners II or any of their controlling persons has entered into any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Company, which are in effect as of the date of this Amendment No. 9. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS The following Exhibits are filed herewith as exhibits to this Schedule 13D: 99.26 Joint Filing Agreement. 99.27 Certificate of Designation of Series H Preferred Stock. 99.28 Form of Note Payable from Ventures II to the Company. 99.29 Series H Preferred Stock Purchase Agreement. The following are incorporated herein by reference to other filings: The Series A, B and C Designations of Preferred Stock which are attached to Amendment No. 7 as Exhibits 17, 18 and 19, respectively; and The Series G Designation of Preferred Stock which is attached to Amendment No. 8 as Exhibit 24. 10 Page 10 of 10 Pages SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: May 14, 1998 ANTIOPE PARTNERS L.L.C. By: /s/ Richard C.E. Morgan ------------------------------------------- Richard C.E. Morgan, a Managing Member AMPHION VENTURES L.P. By: Amphion Partners L.L.C., General Partner By: /s/ Richard C.E. Morgan ------------------------------------------- Richard C.E. Morgan, a Managing Member AMPHION PARTNERS L.L.C. By: /s/ Richard C.E. Morgan ------------------------------------------- Richard C.E. Morgan, a Managing Member 11 EXHIBIT INDEX
Exhibit No. Description - ----------- ----------- 99.26 Joint Filing Agreement 99.27 Designation of Series H Convertible Preferred Stock 99.28 Form of Note payable to the Company 99.29 Series H Preferred Stock Purchase Agreement
EX-99.26 2 JOINT FILING AGREEMENT 1 EXHIBIT 99.26 JOINT FILING AGREEMENT The undersigned hereby agree to the joint filing of the Schedule 13D to which this Agreement is attached. Dated: May 14, 1998 ANTIOPE PARTNERS L.L.C. By: /s/ Richard C.E. Morgan ------------------------------------------- Richard C.E. Morgan, a Managing Member AMPHION VENTURES L.P. By: Amphion Partners L.L.C., General Partner By: /s/ Richard C.E. Morgan ------------------------------------------- Richard C.E. Morgan, a Managing Member AMPHION PARTNERS L.L.C. By: /s/ Richard C.E. Morgan ------------------------------------------- Richard C.E. Morgan, a Managing Member EX-99.27 3 DESIGNATION OF SERIES H CONVERTIBLE PREF. STOCK 1 EXHIBIT 99.27 CERTIFICATE OF DESIGNATION, PREFERENCES, POWERS AND RIGHTS OF SERIES H PREFERRED STOCK OF AXCESS INC. Pursuant to Section 151 of the General Corporation Law of the State of Delaware AXCESS INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Company"), hereby certifies that, pursuant to the authority contained in Article Fourth of its Certificate of Incorporation, as amended, and in accordance with the provisions of Sections 103 and 151 of the General Corporation Law of the State of Delaware, its Board of Directors has adopted the following resolution providing for the issuance of Series H Preferred Stock: RESOLVED, that a series of the class of authorized Preferred Stock of the Company is hereby created and the Board of Directors hereby fixes the designation and amount thereof, and the voting powers, preferences, and relative, participating, optional and other special rights of the shares of such series, and the qualifications, limitations, or restrictions thereon as follows: SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall have a par value of $.01 per share and shall be designated as Series H Preferred Stock (the "Series H Preferred Stock") and the number of shares constituting the Series H Preferred Stock shall be TWO THOUSAND FIVE HUNDRED (2,500). The Series H Preferred Stock shall have a stated value of Ten Thousand Dollars ($10,000) per share (the "Original Series H Issue Price"). SECTION 2. RANK. The Series H Preferred stock shall rank: (i) junior to any other class or series of capital stock of the Company hereafter created specifically ranking by its terms senior to the Series H Preferred Stock (collectively, the "Senior Securities"); (ii) prior to all of the Company's Common Stock, $.01 par value per share ("Common Stock") and Non-Voting Common Stock, $.01 par value per share ("Non-Voting Common Stock"); (iii) prior to any class or series of capital stock of the Company hereafter created not specifically ranking by its terms senior to or on parity with the Series H Preferred Stock (collectively, with the Common Stock and Non-Voting Common Stock, the "Junior Securities"); and (iv) on parity with the Series A Preferred Stock of the Company, par value $.01 per share (the "Series A Preferred Stock"), the Series B Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), the Series C Preferred -1- 2 Stock of the Company, par value $.01 per share (the "Series C Preferred Stock"), the Series G Preferred Stock of the Company, par value $.01 per share (the "Series G Preferred Stock") and any class or series of capital stock of the Company hereafter created specifically ranking by its terms on parity with the Series H Preferred Stock (the "Parity Securities") in each case as to distributions of assets upon liquidation, dissolution or winding up of the Company, whether voluntary or involuntary (all such distributions being referred to collectively as "Distributions"). SECTION 3. DIVIDENDS AND DISTRIBUTIONS. (a) Subject to Section 3(d), the holders of record of shares of Series H Preferred Stock (the "Holders"), in preference to the holders of shares of capital stock ranking junior to the Series H Preferred Stock as to dividends, shall be entitled to receive dividends on each share of Series H Preferred Stock held of record at the annual rate of 8% of the Original Series H Issue Price, payable semi-annually, to the extent of funds legally available therefor. Such dividends shall be cumulative, shall accrue on each share on a daily basis (calculated on the basis of a 360-day year, whether or not earned or declared, from the date of original issue of such shares) and shall be payable in arrears, when, as and if declared by the Board of Directors, on the last day of June and December in each year (each such date, a "Dividend Payment Date"). Each such dividend will be paid to the Holders as they appear on the stock register of the Company on the record date therefor as shall be fixed by the Board of Directors, which record date shall not be more than 25 days or less than 10 days preceding the payment date thereof. (b) The Company may, at its option, make any dividend payment to Holders of Series H Preferred Stock in cash or in additional shares of Series H Preferred Stock or in any combination of cash and such shares. Each such dividend payment (or portion thereof) to be paid in shares of Series H Preferred Stock shall be paid by the issuance and delivery to such Holders of that number of additional shares of Series H Preferred Stock as shall be equal to the quotient obtained by dividing the aggregate dollar amount of such dividend payment (or portion thereof) by the Original Series H Issue Price per share. Dividends to be paid in additional shares of Series H Preferred Stock shall be deemed to have been made when certificates representing such additional shares of Series H Preferred Stock have been delivered to the record holders of the Series H Preferred Stock entitled to receive the same, in accordance with the instructions of such holders designated in writing to the Company at least two business days prior to any Dividend Payment Date. All shares of Series H Preferred Stock paid as such dividends ("Dividend Shares") shall be validly issued, fully paid and non-assessable, shall be free and clear of preemptive rights and liens, claims and encumbrances of any kind. Subject to the other provisions of this Certificate of Designation, holders of shares of Series H Preferred Stock shall not be entitled to any dividend, whether payable in cash, additional shares of Series H Preferred Stock, or other property, in excess of full cumulative dividends as herein provided. No interest, or sum of money in lieu of interest, shall be payable under this Certificate of Designation in respect of any dividend payment or payments on the Series H Preferred Stock which may be in arrears. (c) So long as any Series H Preferred Stock remains outstanding, the Company will not redeem, purchase or otherwise acquire any Junior Securities; nor will the Company declare or pay any dividend or make any distribution (in each case, whether in cash or securities or assets -2- 3 in kind) upon any Junior Securities (other than stock dividends on Junior Securities, payable in shares of, options, warrants or similar rights to acquire shares of, the same class (and series, if applicable) of Junior Securities), or make any sinking fund or other payment in respect of any of the foregoing if the Company shall not have paid in full all accrued dividends on the Series H Preferred Stock in accordance with Section 3(a) hereof. (d) Anything contained herein to the contrary notwithstanding, if at any time that any shares of Series H Preferred Stock are outstanding, the closing bid price per share of the Common Stock on The Nasdaq Stock Market (or, if the Common Stock is not then included in Nasdaq, but is listed on any national securities exchange, on the principal national securities exchange on which the Common Stock is then listed) remains above $20.00 per share (as adjusted for any stock splits, reverse stock splits, stock dividends or similar events after the date of this Certificate of Designation) for 20 consecutive trading days, then, commencing on such 20th trading day, the cumulative dividend will not be payable; provided, however, that if the closing bid price per share of the Common Stock remains below $20.00 for 20 consecutive trading days (as so adjusted), then the dividend will resume as of such 20th day. SECTION 4. LIQUIDATION PREFERENCE. (a) In the event of any liquidation, dissolution or winding up of the Company ("Liquidation Event"), either voluntary or involuntary, the Holders of shares of Series H Preferred Stock shall be entitled to receive, immediately after any distributions to Senior Securities required by the Company's Certificate of Incorporation or any certificate of designation, and prior in preference to any distribution to Junior Securities, and in parity with any distribution to Parity Securities, an amount for each share of Series H Preferred Stock then outstanding equal to the Original Series H Issue Price, plus any and all accrued unpaid dividends. If upon the occurrence of such event, and after payment in full of the preferential amounts with respect to the Senior Securities, the assets and funds available to be distributed among the Holders of the Series H Preferred Stock and Parity Securities shall be insufficient to permit the payment to such Holders of the full preferential amounts due to the Holders of the Series H Preferred Stock and the Parity Securities, respectively, then the entire assets and funds of the Company legally available for distribution shall be distributed among the Holders of the Series H Preferred Stock and the Parity Securities, pro rata, based on the respective liquidation amounts to which each such series of stock is entitled by the Company's Certificate of Incorporation and any certificate(s) of designation relating thereto. (b) Upon the completion of the distribution required by subsection 4(a), if assets remain in this Company, they shall be distributed to holders of Junior Securities in accordance with the Company's Certificate of Incorporation including any duly adopted certificate(s) of designation. (c) At each Holder's option, a sale, conveyance or disposition of all or substantially all of the assets of the Company or the effectuation by the Company of a transaction or series of related transactions in which any person or entity acquires more than fifty percent (50%) -3- 4 of the voting power of the Company (a "Change of Control") shall be deemed to be a Liquidation Event as defined in section 4(a); provided further that (i) a consolidation, merger, acquisition, or other business combination of the Company with or into any other publicly traded company or companies shall not be treated as a Liquidation Event as defined in Section 4(a), but instead shall be treated pursuant to Section 5(d)(ii) hereof, and (ii) a consolidation, merger, acquisition, or other business combination of the Company with or into any other non-publicly traded company or companies (except for a consolidation, merger, acquisition or other business combination with one of its subsidiaries) shall be treated as a Liquidation Event as defined in section 4(a). The Company shall not effect any transaction described in subsection 4(c)(ii) (except for a consolidation, merger, acquisition or other business combination with one of its subsidiaries) unless it first gives thirty (30) business days prior notice of such transaction (during which time the Holder shall be entitled to convert its shares of Series H Preferred Stock into Non-Voting Common Stock). For purposes of this section 4(c), the public offering, sale or distribution of shares of stock (or assets) of the Company's Sandia Imaging Systems Corporation subsidiary or the Lasertechnics Marking Corporation subsidiary (but not both) shall not be deemed to be a Liquidation Event. (d) In the event that, immediately prior to or contemporaneously with the closing of a transaction described in section 4(c) which would constitute a Liquidation Event, the cash distributions required by Section 4(a) have not been made, the Company shall either: (i) cause such closing to be postponed until such cash distributions have been made, or (ii) cancel such transaction, in which event the rights of the Holders of Series H Preferred Stock shall be the same as existing immediately prior to such proposed transaction. SECTION 5. CONVERSION. The record Holders of this Series H Preferred Stock shall have conversion rights as follows (the "Conversion Rights"): (a) Right to Convert. On the terms and subject to the conditions set forth in this Certificate of Designation, each record Holder of Series H Preferred Stock shall be entitled to convert the shares of Series H Preferred Stock held by such Holder, in whole at any time and in part from time to time, into a number of fully-paid and non-assessable shares of Non-Voting Common Stock of the Company equal to the quotient of (i) the aggregate Original Series H Issue Price of the shares of Series H Preferred Stock being converted divided by (ii) the Conversion Price as determined pursuant to this Section 5(the "Conversion Price"). The Conversion Price shall initially be TEN DOLLARS ($10.00) per share of Series H Preferred Stock. The Conversion Price shall be subject to adjustment from time to time as provided in Section 5(d). (b) Mechanics of Conversion. Conversion of shares of Series H Preferred Stock may be effected by written notice to the Company, and shall be effective upon receipt of such notice by the Company, or as otherwise provided in such notice, and delivery to the Company of (i) one or more certificates representing the shares of Series H Preferred Stock being converted, (ii) a certificate of guaranteed delivery of such certificates reasonably satisfactory to the Company, or (iii) evidence of the loss, theft or destruction of such certificates pursuant to Section 10 of this Certificate of Designation, together with any indemnity or security reasonably requested by the Company -4- 5 pursuant to such section 10. Upon any conversion of shares of Series H Preferred Stock pursuant to this Section 5, the Holder shall be deemed to be the record holder of the shares of Non-Voting Common Stock into which shares of Series H Preferred Stock have been converted and shall be entitled to receive duly executed certificates, in proper form, representing such shares of Non-Voting Common Stock as soon as practicable thereafter. Anything contained herein to the contrary notwithstanding, if any conversion of shares of Series H Preferred Stock would create a fractional share of Non-Voting Common Stock or a right to acquire a fractional share of Non-Voting Common Stock, such fractional share shall be disregarded and the number of shares of Non-Voting Common Stock issuable upon such conversion, in the aggregate, shall be rounded to the nearest whole number of shares (with one-half of a share rounded up). (c) Reservation of Stock Issuable Upon Conversion. Other than as set forth below, the Company shall at all times reserve and keep available out of its authorized but unissued shares of Non-Voting Common Stock, solely for the purpose of effecting the conversion of the Series H Preferred Stock, such number of its shares of Non- Voting Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding Series H Preferred Stock. Notwithstanding the foregoing, if at any time the number of authorized but unissued shares of Non- Voting Common Stock (excluding for this purpose any authorized but unissued shares of Non-Voting Common Stock that are properly reserved for some other purpose) shall be insufficient to cause the conversion into Non-Voting Common Stock of all shares of Series H Preferred Stock then outstanding, the Company will, when authorized by the Board of Directors, take such corporate action as may be reasonably necessary to increase its authorized but unissued shares of Non-Voting Common Stock to such number of shares as shall be sufficient for such purpose. (d) Adjustment to Conversion Rate. (i) Adjustment to Conversion Price Due to Stock Split, Stock Dividend ,Etc. If, at any time that any shares of Series H Preferred Stock remaining outstanding, the number of outstanding shares of Non-Voting Common Stock is increased by a stock split, stock dividend, or other similar event, the Conversion Price shall be proportionately reduced, or if the number of outstanding shares of Non-Voting Common Stock is decreased by a reverse stock split, combination or reclassification of shares, or other similar event, the Conversion Price shall be proportionately increased. (ii) Adjustment Due to Merger, Consolidation, Etc. If, at any time that any shares of Series H Preferred Stock remain outstanding, there shall be any merger, consolidation, exchange of shares, recapitalization, reorganization, or other similar event, as a result of which shares of Non-Voting Common Stock of the Company shall be changed into the same or a different number of shares of the same or another class or classes of stock or securities of the Company or another entity, or there is a sale of all or substantially all the Company's assets or there is a Change of Control not deemed to be a Liquidation Event pursuant to section 4(c), then the Holders shall thereafter have the right to receive upon conversion of shares of Series H Preferred Stock, upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Non-Voting -5- 6 Common Stock immediately theretofore issuable upon conversion, such stock, securities and/or other assets which the Holder would have been entitled to receive in such transaction had such shares of Series H Preferred Stock been converted immediately prior to such transaction, and in any such case appropriate provisions shall be made with respect to the rights and interests of the Holders of the Series H Preferred Stock to the end that the provisions hereof (including, without limitation, provisions for the adjustment of the Conversion Price and of the number of shares issuable upon conversion of the Series H Preferred Stock) shall thereafter be applicable, as nearly as may be practicable in relation to any securities thereafter deliverable upon the exercise hereof. The Company shall not effect any transaction described in this subsection 5(d)(ii) unless (A) it first gives thirty (30) business days prior notice of such merger, consolidation, exchange of shares, recapitalization, reorganization, or other similar event (during which time the Holders shall be entitled to convert their shares of Series H Preferred Stock into Non-Voting Common Stock) and (B) the resulting successor or acquiring entity (if not the Company) assumes by written instrument the obligations of the Company under this Certificate of Designation including this subsection 5(d)(ii). SECTION 6. VOTING. The Holders shall not be entitled to vote, either together with the holders of the Company's voting Common Stock or voting Preferred Stock, or as a single class, on any matter submitted to a vote of the stockholders of the Company, or as to which the holders of the voting Common Stock or voting Preferred Stock shall otherwise be entitled to vote. As used in this Section 6, all references to votes and voting shall refer as well to action and actions by written consent. SECTION 7. OPTIONAL REDEMPTION BY COMPANY. The Series H Preferred Stock shall be subject to optional redemption by the Company, in whole at any time or in part from time to time, at a redemption price per share equal to the Original Series H Issue Price, plus any and all accrued unpaid dividends thereon. The Company shall give at least 10 days' prior written notice of any redemption pursuant to this Section 7 to each Holder of shares of Series H Preferred Stock to be redeemed. The Company's optional right of redemption is subject to each Holder's right to convert all or any part of the shares to be redeemed into Non-Voting Common Stock pursuant to Section 5, provided that the Holder gives written notice of such conversion to the Company in accordance with Section 5 within 10 business days after the Company's notice of redemption. The Holders of Series H Preferred Stock shall not be entitled to any mandatory redemption of their Shares without the consent of the Company. SECTION 8. STATUS OF CONVERTED OR REDEEMED STOCK. In the event any shares of Series H Preferred Stock shall be converted pursuant to Section 5 hereof or redeemed pursuant to Section 7 hereof, the shares so converted or redeemed shall be canceled, shall return to the status of authorized but unissued Preferred Stock of no designated series, and shall not thereafter be issuable by the Company as Series H Preferred Stock. SECTION 9. OTHER PREFERRED STOCK. Nothing contained herein shall be construed to prevent the Board of Directors from authorizing the creation of, or to prevent the Company from -6- 7 issuing shares of, one or more series of Preferred Stock senior to, junior to or on parity with the Series H Preferred Stock as to dividend, liquidation rights or otherwise. SECTION 10. LOST OR STOLEN CERTIFICATES. Upon receipt by the Company of evidence of the loss, theft, destruction or mutilation of any certificates representing shares of Series H Preferred Stock, and (in the case of loss, theft or destruction) of indemnity or security reasonably satisfactory to the Company, and upon surrender and cancellation of the certificate(s), if mutilated, the Company shall execute and deliver to the record Holder thereof new certificate(s) of like tenor and date. However, the Company shall not be obligated to re-issue such lost or stolen certificates if the Holder contemporaneously requests the Company to convert such shares of Series H Preferred Stock into shares of Non-Voting Common Stock. SECTION 11. FRACTIONAL SHARES. In the event a Holder of Series H Preferred Stock shall be entitled to receive a fractional interest in a share of Series H Preferred Stock of less than one one-hundredth of one share, except as otherwise provided herein, the Company shall either, in the sole discretion of the Board of Directors, (a) round such fractional interest up to the next one-hundredth of one whole share of Series H Preferred Stock or (b) deliver cash in the amount of the fair market value (as determined by the Board of Directors or in any manner prescribed by the Board of Directors) of such fractional interest. SECTION 12. PREEMPTIVE RIGHTS. The Holders of Series H Preferred Stock are not entitled to any preemptive or subscription rights in respect of any securities of the Company. SECTION 13. COUNTERPARTS. This Certificate of Designation may be executed on separate counterparts and shall be effective as of the date signed. IN WITNESS WHEREOF, AXCESS Inc. has caused this certificate to be signed by its President and attested by its Secretary, as of the 30th day of April, 1998. AXCESS INC. By: /s/ Harry S. Budow ------------------------------------ Harry S. Budow, President Attest: /s/ Danny G. Hair - ------------------------------------ Danny G. Hair, Secretary -7- EX-99.28 4 FORM OF NOTE PAYABLE TO THE COMPANY 1 EXHIBIT 99.28 AMPHION VENTURES L.P. FORM OF PROMISSORY NOTE $ , 1998 ------------- ----------------- AMPHION VENTURES L.P., a New York limited partnership having its principal place of business in New York, New York ("Amphion Ventures"), for value received, hereby promises to pay to the order of AXCESS Inc., its legal successors and permitted assigns (the "Holder"), on ________________ (the "Final Maturity Date"), the unpaid principal amount of ________________________ __________________________________ (U.S. _____________), together with interest thereon from the date hereof, at the rate of ten percent (10.00%) per annum, calculated on the basis of the number of days elapsed over a 360-day year of twelve 30-day months (the "Interest Rate"). Interest shall be payable quarterly in arrears, in cash, on each January 1, April 1, July 1 and October 1 during the term of this Note, commencing _______, 1998. Each payment received by the Holder hereunder shall be applied first to the interest accrued on and then to the unpaid principal amount of this Note. Payment of principal and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. All such payments shall be paid by wire transfer of federal funds in accordance with the written instructions of the Holder or, in the absence of current written instructions, by check mailed to the Holder at the address last given to Amphion Ventures by the Holder in writing for such purpose. This Note may be prepaid in whole or in part at any time at the option of Amphion Ventures, without premium or penalty, upon not less than two business days' prior written notice to the Holder. Except as otherwise expressly provided herein, the Amphion Ventures hereby waives presentment for payment, demand for payment, notice of nonpayment, protest and notice of protest. This Note shall be binding upon Amphion Ventures and its successors and assigns and shall inure to the benefit of the Holder, its legal successors and its permitted assigns. If Amphion Ventures fails to pay any amount of principal or interest when due, and such due but unpaid amount remains unpaid for five business days after the Holder makes written demand therefor, the entire unpaid principal of and accrued interest on this Note shall forthwith become absolutely due and payable without any further notice, demand, protest or presentment whatsoever, all of which are hereby expressly waived. 1 2 This Note shall be governed by and construed in accordance with the laws of the State of New York, without reference to its rules as to conflicts of law. Any judicial proceeding brought against Amphion Ventures to enforce, or otherwise in connection with, this Note shall be brought in any court of competent jurisdiction in the City of New York, and, by acceptance of this Note, the Holder (i) accepts, generally and unconditionally, the exclusive 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 Note 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. IN WITNESS WHEREOF, Amphion Ventures has caused this Note to be signed by its duly authorized officer and has caused its corporate seal to be affixed and attested by its general partner, as of the date first set forth above. [Corporate Seal] Attested: AMPHION PARTNERS L.L.C. By: Amphion Partners L.L.C., General Partner By: - ------------------------------ ---------------------------------------- Richard C.E. Morgan, a Managing Member 2 EX-99.29 5 SERIES H PREFERRED STOCK PURCHASE AGREEMENT 1 EXHIBIT 99.29 AXCESS INC. 3208 Commander Drive Carrollton, Texas 75006 March 27, 1998 Amphion Ventures L.P. c/o Jackson Hole Management Co. 590 Madison Avenue 32nd Floor New York, New York 10022 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 -1- 2 500,000 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 Wolfensohn 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 -2- 3 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 -3- 4 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. 3208 Commander Drive Carrollton, TX 75006 Attention: Chief Financial Officer with a copy to: Sayles & Lidji, P.C. 4400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Attention: Brian M. Lidji, Esq.; and if to the Purchaser, to the Purchaser at its address first set forth above, -4- 5 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/ ---------------------------------- Danny G. 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/ ------------------------- A Managing Member -5- -----END PRIVACY-ENHANCED MESSAGE-----