EXHIBIT 10.30
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[Amphion Ventures L.P. Letterhead]
AXCESS Inc. December 29, 2000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Series A, B and C Preferred Stock Dividends
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Ladies and Gentlemen:
Amphion Ventures L.P., a Delaware limited partnership ("Amphion"),
hereby notifies and directs AXCESS Inc. (the "Company") to pay all accrued, but
unpaid dividends which are outstanding as of December 31, 2000 (approximately
$295,355) on the shares of Series A, B and C Convertible Preferred Stock of the
Company held by Amphion as of December 31, 2000 (collectively the "Accrued
Dividends") in kind by issuing to Amphion additional shares of Series A, B or C
Preferred Stock, respectively, of the Company.
1. Payment of Accrued Dividends; Issuance of Shares. Amphion hereby
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directs the Company to issue 4,520 shares of Series A Convertible Preferred
Stock, 4,138 shares of Series B Convertible Preferred Stock and 1,997 shares of
Series C Convertible Preferred Stock in exchange as payment in full for the
Accrued Dividends (the "Shares"). On and as of the date of this letter, the
Accrued Dividends shall automatically be converted and discharged in full and
Amphion shall be the due and valid holder of record of the Shares.
2. Securities Act Legend; Registration Rights.
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2.1 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 VOTING OR NON-VOTING COMMON
STOCK OF THE COMPANY, AS THE CASE MAY BE, ARE SET FORTH IN
AXCESS Inc.
December 29, 2000
Page 2
THAT CERTAIN NOTE PAYABLE CONVERSION AGREEMENT EFFECTIVE AS OF DECEMBER
31, 1998.
3. Representations and Warranties by the Company. The
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Company hereby represents and warrants to Amphion as follows:
3.1 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.
3.2 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 (a)
violate any provision of law, statute, rule or regulation or any order
of any court or other agency of government, (b) conflict with or
violate the Certificate of Incorporation or By-Laws of the Company, in
each case as amended, or (c) 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.
3.3 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.
3.4 Based in part upon the representations and
warranties of Amphion 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 in accordance with the rules and regulations thereof under
the Securities Act.
3.5 The Shares are duly authorized, validly issued,
fully paid and non-assessable shares of Series A, B or C Convertible
Preferred Stock and are not subject to any preemptive rights.
Axcess Inc.
December 29, 2000
Page 3
3.6 The Company shall cause to be delivered to Amphion
a true copy of the Series A, B or C Convertible Preferred Certificate
of Designation, which was approved and adopted by the Board of
Directors of the Company.
4. Representations and Warranties of Amphion. Amphion hereby
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represents and warrants to the Company as follows:
4.1 Amphion 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.
4.2 Amphion 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 Amphion
indefinitely unless a subsequent disposition thereof is registered
under the Securities Act or is exempt from such registration.
4.3 Amphion 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.
4.4 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
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.
4.5 Amphion 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.
5. Miscellaneous.
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5.1 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 Amphion.
AXCESS Inc.
December 29, 2000
Page 4
5.2 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 Amphion hereunder shall be assignable to any holder of
the Shares. Except as provided in the immediately preceding sentence, this
agreement and the rights of ▇▇▇▇▇▇▇ hereunder shall not be assignable, and any
purported assignment hereof or thereof shall be void.
5.3 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 Amphion.
5.4 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 the Company at its address
first set forth above,:
with a copy to:
▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.; and
if to Amphion, to Amphion 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 (a) in the case of personal delivery, on the
date of delivery, (b) if sent by facsimile, on the date sender receives a
confirmation confirming receipt, (c) 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.
5.5 All representations, warranties and agreements contained
herein shall survive the execution and delivery of this Agreement and the sale
of the Shares hereunder.
5.6 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
AXCESS Inc.
December 29, 2000
Page 5
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,
AMPHION VENTURES L.P.
By: Amphion Partners L.L.C., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
The undersigned agrees with and
accepts the foregoing terms and provisions
as of the date first above written
AXCESS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer and Secretary