ASSET PURCHASE AGREEMENT
ASSET
PURCHASE AGREEMENT (the “Agreement”) made as of June 30, 2009 between Elecsys
International Corporation, a Kansas corporation (the “Buyer”), and MBBS, S.A.
(“MBBS” or the “Seller”), a company incorporated under the laws of
Switzerland.
RECITALS
WHEREAS,
MBBS desires to sell, assign, transfer, convey and deliver to Buyer and Buyer
desires to purchase from MBBS the Assets (as defined below) of MBBS, subject to
the terms and conditions of this Agreement;
WHEREAS,
MBBS desires to assign, transfer, convey and deliver to Buyer and Buyer desires
to assume (i) the MBBS Assets (as defined below) and (ii) all of MBBS’s rights
and obligations related to the Assumed Liabilities (as defined below), subject
to the terms and conditions of this Agreement;
WHEREAS,
BSN Systems, Inc. (“BSN”), a Delaware corporation, owns the majority of the
outstanding shares of MBBS;
WHEREAS,
Buyer is a wholly-owned subsidiary of Elecsys Corporation (“Elecsys”), a Kansas
corporation;
WHEREAS,
BSN and Elecsys had previously entered into a Stock Purchase Agreement, dated
March 19, 2009, whereby BSN had agreed to transfer to Elecsys, and Elecsys had
agreed to acquire from BSN, 100% of the outstanding MBBS shares in exchange for
Elecsys Common Stock; and
WHEREAS,
the Closing of the transaction contemplated by the aforementioned Stock Purchase
Agreement was not completed prior to the termination of that agreement which was
automatically triggered 90 days after its execution.
NOW
THEREFORE, the parties, intending to be legally bound, and in reliance upon the
representations, warranties and other terms set forth herein, hereby agree as
follows:
1. Definitions. Unless
the context otherwise requires, the terms defined in this Section will have the
meanings herein specified for all purposes of this Agreement:
(a) “Accredited
Investor” has the meaning set forth in Regulation D under the Securities Act and
set forth in Exhibit
1(a).
(b) “Agreement”
means this Asset Purchase Agreement, including all Schedules and Exhibits
hereto, as this Agreement may be from time to time amended, modified or
supplemented.
(c) “SEC”
means the U.S. Securities and Exchange Commission or any other U.S. federal
agency then administering the Securities Act.
(d) “Exchange
Act” means the U.S. Securities Exchange Act of 1934 or any similar U.S. federal
statute, and the rules and regulations of the SEC thereunder, all as the same
will then be in effect.
(e) “Governmental
Authority” means any federal or national, state or provincial, municipal or
local government, governmental authority, regulatory or administrative agency,
governmental commission, department, board, bureau, agency or instrumentality,
political subdivision, commission, court, tribunal, official, arbitrator or
arbitral body, in each case whether U.S. or non-U.S.
(f) “Indebtedness”
means any obligation, contingent or otherwise. Any obligation secured
by a Lien on, or payable out of the proceeds of, property of the relevant party
will be deemed to be Indebtedness.
(g) “Lien”
means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind, including, without limitation, any conditional sale or other title
retention agreement, any lease in the nature thereof and the filing of or
agreement to give any financing statement under the controlling law of any
jurisdiction in which any of the Assets are located and including any lien or
charge arising by Law.
(h) “Elecsys
Common Stock” means Elecsys common shares, US $0.01 par value per
share.
(i) “Person”
means all natural persons, corporations, business trusts, associations,
companies, partnerships, limited liability companies, joint ventures and other
entities, governments, agencies and political subdivisions.
(j) “Securities
Act” means the U.S. Securities Act of 1933, as amended, or any similar U.S.
federal statute, and the rules and regulations of the SEC thereunder, all as the
same will be in effect at the time.
(k) “Transaction”
means the transaction contemplated by this Agreement.
(l) “Transaction
Documents” means, collectively, all agreements, instruments and other documents
to be executed and delivered in connection with the transactions contemplated by
this Agreement, including any document deemed necessary or appropriate by Buyer
to complete the Transaction and implement the objectives stated
herein.
(m) “U.S.
Dollars” or “US $” means the currency of the United States of
America.
(n) “U.S.”
means the United States of America.
2. Assets Purchased and
Sold. Subject to the terms and conditions contained in this
Agreement, Seller shall sell, assign, transfer, convey and deliver to Buyer all
of Seller’s right, title and interest in and to the following assets
(collectively, the “Assets”) on the Closing Date (as defined in Section 9
below):
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(a) All
inventories of raw material, work-in-progress and finished goods of MBBS
existing on the Closing Date;
(b) All
fixed assets that are either: (i) reflected or included on MBBS’
financial statements or general ledger as “Property and Equipment”, or (ii) any
equipment, tools, fixtures, or furniture necessary to the operation of MBBS’
business;
(c) All
intellectual property of MBBS, including, but not limited to, all patents,
patent applications, designs, process knowledge, trade names, trademarks,
service names, service marks, software, business processes, engineering
drawings, art work, customer lists, vendor lists, the MBBS Internet URL, names,
and phone number, all marketing and collateral material, and any other
intellectual property of MBBS;
(d) All
purchase orders from, or contracts with, existing customers;
(e) All
deposits paid by MBBS;
(f) All
accounts receivable of MBBS;
(g) All
records and files necessary or appropriate to own or operate the Assets or
perform the obligations explicitly assumed by Buyer; and
(h) Any
other assets of MBBS used in the operation of the MBBS business.
3. Assignment and Assumption of the
Liabilities. Subject to the terms and conditions contained in
this Agreement, on the Closing Date, Seller shall assign, transfer, convey and
deliver to Buyer, and Buyer shall assume and pay, all of Seller’s right, title
and interest in and to (i) all of MBBS’ accounts payable existing on
the Closing Date, provided that such payables are listed on (and only to the
extent of the amount reflected on) Schedule 3 attached hereto, and (ii) all
of MBBS’ purchase orders (except those that are not related to operating the
business) with vendors, customers and distributors existing on the Closing Date
and set forth on Schedule 3. The items referred to in clauses
(i) and (ii) above are collectively referred to as the “Assumed
Liabilities”. On the Closing Date, Buyer shall assume sole
responsibility to perform, satisfy and discharge all duties, obligations, terms,
conditions and covenants arising after the Closing Date that the Seller is
otherwise bound to perform, discharge or otherwise satisfy, to the extent, and
only to the extent, such responsibilities, duties, obligations, terms,
conditions and covenants are explicitly included in the Assumed
Liabilities. Except as set forth above, Buyer shall not assume, or be
liable or responsible for, any liabilities, accounts payable, debts, loans,
orders, contracts, agreements, leases, or other obligations of the
Seller.
4. Lease of
Premises. Buyer shall not assume any obligations pursuant to
the lease for the premises currently occupied by MBBS (the “Premises”) but shall
be granted the right by Seller upon Closing to occupy the Premises on the
temporary basis described below. Buyer will pay Seller a fee each
month, equal to the prevailing monthly lease payment for the Premises at the
Closing Date, for the right to occupy the Premises for each respective monthly
period. Buyer or Seller may terminate this temporary occupancy
arrangement for the Premises at any time upon 30 days’ notice to the other
Party. Buyer shall have no other obligation related to the Premises,
and Seller agrees to indemnify and hold Buyer harmless against any and all
claims by any third
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party
related to the Premises; provided, however, Buyer shall not be held harmless
from any claims caused by acts or negligence of Buyer or its employees or
agents.
5. Employees of
MBBS. Buyer agrees to offer employment, either as a direct
employee or as an independent contractor, to all persons who are full-time
employees of MBBS at the time of Closing at a comparable rate of compensation as
was being received from MBBS. This obligation specifically excludes
any MBBS employees given notice of termination by MBBS prior to the Closing
Date. If Buyer subsequently terminates any hired MBBS employee,
whether they are a direct Buyer employee or an independent contractor, that
person shall receive the same notice and severance benefits from Buyer that they
would have received had they been terminated by MBBS prior to the Closing
Date.
6. Purchase Price. In
consideration of Seller’s sale of the Assets to Buyer, Buyer unconditionally
agrees, in addition to assumption of the Assumed Liabilities, to pay to MBBS at
Closing a total of 175,000 Shares of Elecsys Common Stock (hereinafter called
the “Purchase Price”).
7. Contingent
Payments. In addition to the Purchase Price to be paid at
Closing, upon satisfaction of the conditions set forth in this Section 7, Buyer
may make payments (“Contingent Payments”) to MBBS, or entities designated by
MBBS, provided those entities are Accredited Investors, in the form of
additional issued shares of Elecsys Common Stock (or U.S. Dollars of equivalent
value, as discussed below) upon completion of each of the five (5) Elecsys
fiscal years following Closing, as follows:
(a) At
the conclusion of each of Elecsys’ subsequent 5 fiscal years (the Elecsys fiscal
year in which this Transaction closes shall be the first such year), the
percentage of gross revenue contributed to Elecsys by MBBS RFID technology
(“MBBS Related Revenue”) relative to Elecsys’ overall gross revenue (the
“Revenue Ratio”) shall be calculated. The calculation of MBBS Related
Revenue shall be as follows:
(i) MBBS
Related Revenue is defined as fifty-percent (50%) of the gross revenue from any
order for products or services shipped or provided by Elecsys that contains or
uses RFID technology that was developed, or was in development, by MBBS at the
time of this Agreement (the “MBBS RFID Technology”). This excludes
any RFID technology acquired by Buyer independently of this Transaction, and any
RFID technology wholly developed by Buyer after the date of this
Agreement. The parties agree that all MBBS RFID Technology is
accurately described on Exhibit
7(a)(i) of this Agreement. No technology will be deemed to be
MBBS RFID Technology if it is not listed on Exhibit 7(a)(i).
(ii) New
RFID technology resulting from a material modification of MBBS RFID Technology
will be deemed to be wholly developed after the date of this
Agreement.
(b) At
the end of each of Elecsys’ subsequent 5 fiscal years, if the Revenue Ratio,
calculated under Section 7(a), is greater than the percentage of the total
cumulative
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outstanding
Elecsys Common Stock issued to MBBS, or its designated entities, Buyer shall
issue additional Elecsys Common Stock to MBBS, or its designated entities, in an
amount that causes the Revenue Ratio and the percentage of the outstanding
Elecsys Common Stock cumulatively issued to MBBS, or its designated entities, to
be equal. Provided however, that in no event shall the total number
of shares of Elecsys Common Stock issued by Buyer under this Agreement exceed
800,000 shares (including the 175,000 shares issued at Closing and including any
number of shares as to which cash is issued as a substitute pursuant to Section
8).
(c) At
the end of each of Elecsys’ subsequent 5 fiscal years, if the Revenue Ratio is
less than or equal to the percentage of Elecsys Common Stock cumulatively issued
to MBBS, or its designated entities, then no additional Elecsys Common Stock
shall then be issued.
8. Option to Provide Consideration in
U.S. Dollars. If the total number of shares of Elecsys Common
Stock issued pursuant to this Agreement exceeds 659,000, notwithstanding the
provisions of Section 7 above, Buyer may, at its sole discretion, elect to pay
the additional consideration in U.S. Dollars instead of Elecsys Common
Stock. If Buyer so elects, the amount to be paid will be calculated
by multiplying the number of shares of Elecsys Common Stock that would otherwise
be issued under Section 7 above by the trailing 365-day average closing price
for the preceding Elecsys fiscal year.
9. Closing. The
closing (“Closing”) shall take place at the offices of MBBS, S.A. in Cortaillod,
Neuchatel, Switzerland on June 30, 2009 (the “Closing Date”). The
Closing shall be effective as of 11:59 p.m. (23h59) local time on the Closing
Date.
10. Representations and Warranties of
MBBS. MBBS hereby represents and warrants to Buyer as to each
of the following:
(a) Authority. Seller
has the right, power, authority and capacity to execute and deliver this
Agreement and to perform its obligations under this Agreement.
(b) No
Conflict. Neither the execution nor delivery by the Seller of
this Agreement nor the performance by the Seller of the transactions
contemplated hereby will, directly or indirectly, (a) contravene, conflict with,
or result in a violation of any provision of the bylaws, articles of
incorporation, or similar charter document of MBBS; (b) contravene, conflict
with, constitute a default (or an event or condition that, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
or acceleration of, or result in the imposition or creation of any Lien under,
any agreement or instrument to which the Seller is a party or by which the
Assets are bound; or (c) contravene, conflict with, or result in a violation of,
any laws to which the Seller, or the Assets may be subject.
(c) Ownership. Seller
is the sole owner of all Assets and all Assets will be assigned, transferred,
conveyed and delivered to Buyer free and clear of any and all
Liens.
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(d) Enforceability. MBBS
is a corporation duly organized, validly existing and in good standing under the
laws of Switzerland. MBBS has the full power and authority to perform
hereunder, and to consummate the transactions contemplated hereby, without the
necessity of any act, approval, or consent of any other person, entity, or
governmental authority. This Agreement, when executed, will
constitute the valid and binding obligation of MBBS, enforceable against it
according to its terms.
(e) Compliance. MBBS is
not, and performance of its obligations hereunder will not cause it to be, in
violation of any law, rule, regulation or court order, local state or federal,
pertaining to the operation or conduct of its business. There are no
judgments, suits, actions, investigations or proceedings pending or threatened
in any court or by any governmental authority or private arbitration tribunal
against MBBS or the completion of the transaction contemplated herein, nor is
there any basis for any of the foregoing.
(f) Taxes. MBBS has
filed in true and correct form all federal, state, provincial, and local tax
returns and other reports required to be filed, and has paid all taxes and
assessments which have become due and payable, whether or not so shown on any
such return or report. MBBS has received no notice of, nor does MBBS
have any knowledge of, any notice of deficiency or assessment or proposed
deficiency or assessment from any taxing governmental authority. There are no
audits pending with respect to MBBS and there are no outstanding agreements or
waivers by or with respect to MBBS that extend the statutory period of
limitations applicable to any federal, state, provincial, local or foreign tax
returns or taxes for any period. There are no determined tax
deficiencies or proposed tax assessments against MBBS.
(g) Creditors. MBBS has
paid all bills, invoices and other obligations due to all creditors of MBBS as
of the Closing Date, and will promptly pay all bills, invoices and other
obligations to all creditors of MBBS that may arise after the Closing
Date.
(h) Consents. MBBS has
obtained in writing all consents of third persons and governmental agencies
necessary to permit the valid and effective sale, assignment, transfer and
conveyance of the Assets to the Buyer.
(i) Adverse
Action. There is no litigation, action, claim, proceeding or
governmental investigation pending or threatened against MBBS which may have an
adverse effect upon the Assets, the business conducted by MBBS, the transactions
contemplated by this Agreement or the ability of the parties hereto to perform
their respective obligations hereunder or under the agreements or instruments
contemplated by this Agreement, nor is there any basis known for any such
litigation, action, claim proceeding or governmental investigation, nor has MBBS
been a party to any litigation, action, claim, proceeding or governmental
investigation during the two (2) years prior to the Closing Date.
(j) Asset
Condition. All of the tangible Assets are in good order,
repair and operating condition subject, however, to the effect of ordinary wear
and tear and depreciation arising from lapse of time or use with appropriate
maintenance.
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(k) Investment
Representations.
(i) Acknowledgment. MBBS
understands and agrees that the Elecsys Common Stock to be issued pursuant to
this Agreement has not been registered under the Securities Act or the
securities laws of any state of the U.S. or any foreign jurisdiction and that
the issuance of Elecsys Common Stock is being effected in reliance upon an
exemption from registration afforded under Regulation D of the Securities Act
for transactions by an issuer not involving a public offering.
(ii) Status. By its
execution of this Agreement, MBBS represents and warrants to Buyer that it is an
Accredited Investor.
(iii) Reliance. MBBS
understands that the shares of Elecsys Common Stock are being offered and sold
in reliance upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of MBBS set forth in this
Agreement, in order that Buyer and Elecsys may determine the applicability and
availability of the exemptions from registration of Elecsys Common Stock on
which Elecsys is relying.
(iv) Additional Representations and
Warranties of Accredited Investors. MBBS makes the
representations and warranties to Buyer and Elecsys set forth on Exhibit
10(c)(iv).
11. Representations and Warranties of
Buyer. Buyer hereby represents and warrants to Seller as
follows:
(a) Organization and
Qualification. Buyer is duly organized, validly existing and
in good standing under the laws of the State of Kansas, has all requisite
authority to carry on its business as presently conducted, and to own, hold, and
operate its properties and assets as now owned.
(b) Authorization. Buyer
has all requisite authority and power to enter into this
Agreement. The execution, delivery and performance by Buyer of this
Agreement have been duly authorized by all necessary corporate action and do not
require from the Buyer Board or the stockholders of Buyer any consent or
approval that has not been validly and lawfully obtained.
(c) No
Violation. Neither the execution by Buyer of this Agreement
nor the performance by Buyer of the transactions contemplated hereby will
directly or indirectly, (a) contravene, conflict with, or result in a violation
of any provision of the Articles of Incorporation or Bylaws of Buyer; (b)
contravene, conflict with, constitute a default (or an event or condition that,
with notice or lapse of time or both, would constitute a default) under, or
result in the termination or acceleration of, or result in the imposition or
creation of any Lien under, any agreement or instrument to which Buyer is a
party or by which the properties or assets of Buyer are bound; (c) contravene,
conflict with, or result in a violation of, any law or order to which Buyer, or
any of the properties or assets
7
owned or
used by Buyer, may be subject; or (d) contravene, conflict with, or result in a
violation of, the terms or requirements of, or give any governmental authority
the right to revoke, withdraw, suspend, cancel, terminate or modify, any
licenses, permits, authorizations, approvals, franchises or other rights held by
Buyer or that otherwise relate to the business of, or any of the properties or
assets owned or used by, Buyer, except for any such contraventions, conflicts,
violations, or other occurrences as would not have a material adverse effect on
Buyer.
12. Conditions to Obligation to
Close. Each and every obligation of Buyer and Seller to be
performed in connection with the Closing on the Closing Date shall be subject to
the satisfaction of the following conditions:
(a) A
Xxxx of Sale executed by Seller in the form attached hereto as Exhibit 12(a) selling,
assigning and transferring to Buyer all right, title and interest in and to any
and all property comprising Assets;
(b) Seller
shall provide written consents of any third parties necessary to permit the
valid and effective sale, assignment, transfer and conveyance of the Assets in a
form acceptable to Buyer;
(c) The
appropriate assignments necessary to transfer record ownership to Buyer of all
of the intellectual property of MBBS, in a form acceptable to
Buyer.
13. Post Closing Agreements and
Obligations.
(a) At
any time and from time to time after the Closing, at the Buyer’s request and
without further consideration, the Seller promptly shall execute and deliver
such instruments of sale, transfer, conveyance, assignment and confirmation, and
take such other action, as the Buyer may reasonably request to more effectively
transfer, convey and assign to the Buyer, and to confirm the Buyer’s title to,
the Assets, to put the Buyer in actual possession and operating control of the
Assets, to assist the Buyer in exercising all rights with respect thereto and to
carry out the purpose and intent of this Agreement.
(b) MBBS
hereby agrees with Buyer that the certificates evidencing Elecsys Common Stock
to be issued hereunder to MBBS and any certificate issued in transfer thereof,
will bear the following legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN
WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN
OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY
TO
8
THE
COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR
OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS.
(c) MBBS
will not transfer any Elecsys Common Stock absent an effective registration
statement under the Securities Act and applicable securities laws of any other
jurisdiction applicable covering the disposition of such Elecsys Common Stock
without first providing Elecsys with an opinion of counsel (which counsel and
opinion are reasonably satisfactory to Elecsys) to the effect that such transfer
will be exempt from the registration and prospectus delivery requirements of the
Securities Act and the registration or qualification requirements of any
applicable securities laws of any other jurisdiction.
(d) MBBS
understands and acknowledges that Elecsys may decline to permit the transfer of
Elecsys Common Stock, unless MBBS complies with Section 13(c) and any other
restrictions on transferability under applicable law. MBBS consents
to Elecsys making a notation on its records or giving instructions to any
transfer agent of Elecsys’ Common Stock in order to implement the restrictions
on transfer of Elecsys Common Stock.
14. Indemnification and Resolution of
Disputes.
(a) Seller’s
Indemnification. MBBS agrees to defend, indemnify and hold
harmless Buyer against, and in respect of, any and all loss, liability and
expense resulting from: (i) the inaccuracy of any representation or breach of
warranty or non-fulfillment of any obligation by MBBS under this Agreement; (ii)
any liabilities, accounts payable or other obligations relating to its use of
the Assets or its conduct of the ongoing business other than the Assumed
Liabilities; and (iii) any and all actions, suits, proceedings, claims, demands,
assessments, tax deficiencies, judgments, costs and expenses (including
attorneys’ fees) incident to any of the foregoing provisions.
(b) Buyer’s
Indemnification. Buyer agrees to defend, indemnify and hold
harmless MBBS against, and in respect of, any and all loss, liability and
expense resulting from (i) the inaccuracy of any representation or breach of
warranty or non-fulfillment of any obligation by Buyer under this Agreement, and
(ii) any act or negligence of Buyer, its officers, employees, and agents
occurring subsequent to the Closing and directly related to its use of the
Assets or its conduct of the ongoing business.
(c) Claims
Procedure. Promptly after receipt by a party of written notice
of a claim or the assertion or commencement of any litigation with respect to
any matter referred to in paragraphs (a) or (b) above, that party shall give
written notice of such claim to the other party and thereafter shall keep the
other party reasonably informed with respect to that claim; provided, however,
that failure of a party to give notice as provided in this section shall not
relieve the other party of its obligations hereunder unless such failure
prejudices or adversely effects the other party’s obligations
hereunder. If any
9
litigation
is brought against a party, the other party shall be entitled to participate in
such litigation, at its own expense. If a party assumes the defense
of any litigation, it shall not settle the litigation unless the settlement
shall include, as an unconditional term thereof, the giving by the claimant or
plaintiff of a release of the other party, satisfactory to the other party, from
all liability with respect to such litigation.
15. Expenses and
Fees. Each party to this Agreement shall pay its own expenses
incidental to the negotiation, preparation, execution and performance of this
Agreement and the transaction contemplated hereby, including, but not limited
to, the fees and expenses of their respective legal counsel, brokers and
accountants. MBBS shall pay any sales, use or transfer taxes or fees
in connection with the transaction contemplated hereby. In any action
brought by a party hereto to enforce the obligations of any other party hereto,
the prevailing party shall be entitled to collect from the opposing party to
such action such party’s reasonable litigation costs and attorneys fees and
expenses (including court costs, reasonable fees of accountants and experts, and
other expenses incidental to the litigation).
16. Voting Elecsys
Stock. MBBS agrees that, for so long as it is a stockholder of
Elecsys Common Stock acquired pursuant to this Agreement, at every meeting at
which a vote of the holders of Elecsys Common Stock occurs, to vote the Elecsys
Common Stock to be issued under this Agreement in the same percentage as the
overall vote cast by other Elecsys stockholders. MBBS hereby grants
to Elecsys an irrevocable proxy, deemed to be coupled with an interest, that
authorizes the Board of Directors of Elecsys to appoint a proxy to vote the
Elecsys Common Shares issued hereunder in accordance with this
provision.
17. Public
Announcements. Prior to the Closing Date, MBBS and Buyer shall
consult with each other in issuing any other press releases or otherwise making
public statements or filings and other communications with the SEC or any
regulatory agency or stock market or trading facility with respect to the
transactions contemplated hereby.
18. Entire
Agreement. This Agreement constitutes the entire agreement
among the parties and supersedes any and all other agreements, either oral or
written, among the parties with respect to the subject matter
hereof.
19. Counterparts. This
Agreement may be executed in multiple counterparts. Each shall be
deemed an original and together the counterparts shall constitute but a single
agreement.
20. Governing Law. This
Agreement shall be considered in accordance with and be governed by the laws of
the State of Kansas.
21. Choice of
Forum. The Parties to this Agreement agree that any dispute
arising among them under the terms of this Agreement, or out of the duties to be
performed by the Parties to this Agreement, shall be resolved in the courts of
the State of Kansas. Those courts shall apply the whole law of the
State of Kansas, without regard to conflicts of laws principles.
22. Survival. The
provisions of this Agreement shall survive the Closing Date in accordance with
the following provisions:
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(a) The
warranties and representations made by each party in this Agreement shall
survive for a period of thirty-six (36) months.
(b) All
agreements, covenants, and obligations on the part of each party to be performed
or observed hereunder shall survive for a period specified by the applicable
statute or period of limitations.
[Signature
Page to Follow]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written, intending to be legally bound.
MBBS, S.A. |
Elecsys
International Corporation
|
|||
/s/
Xxxxxxx Xxxxxxxxxx
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
Xxxxxxx Xxxxxxxxxx
|
Name:
Xxxx X. Xxxxxxxx
|
|||
Title:
Director
|
Title:
President & Chief Executive Officer
|
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Exhibit
1(a)
Definition
of “Accredited Investor”
The term
“accredited investor” means:
(1) A
bank as defined in Section 3(a)(2) of the Securities Act, or a savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the
Securities Act, whether acting in its individual or fiduciary capacity; a broker
or dealer registered pursuant to Section 15 of the Securities Exchange Act of
1934; an insurance company as defined in Section 2(13) of the Securities Act; an
investment company registered under the Investment Company Act of 1940 (the
“Investment Company Act”) or a business development company as defined in
Section 2(a)(48) of the Investment Company Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958; a plan established and
maintained by a state, its political subdivisions or any agency or
instrumentality of a state or its political subdivisions for the benefit of its
employees, if such plan has total assets in excess of US $5,000,000; an employee
benefit plan within the meaning of the Employee Retirement Income Security Act
of 1974 (“ERISA”), if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of ERISA, which is either a bank, savings and loan
association, insurance company, or registered investment advisor, or if the
employee benefit plan has total assets in excess of US $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons that are
accredited investors.
(2) A
private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
(3) An
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts or similar business trust, or partnership, not formed
for the specific purpose of acquiring the securities offered, with total assets
in excess of US $5,000,000.
(4) A
director or executive officer of Elecsys.
(5) A
natural person whose individual net worth, or joint net worth with that person’s
spouse, at the time of his or her purchase exceeds US $1,000,000.
(6) A
natural person who had an individual income in excess of US $200,000 in each of
the two most recent years or joint income with that person’s spouse in excess of
US $300,000 in each of those years and has a reasonable expectation of reaching
the same income level in the current year.
(7) A
trust, with total assets in excess of US $5,000,000, not formed for the specific
purpose of acquiring the securities offered, whose purchase is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) (i.e., a person who has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the prospective
investment).
13
(8) An
entity in which all of the equity owners are accredited investors.
14
Exhibit
7(a)(i)
Schedule
of “MBBS RFID Technology”
Patent
Title
|
Patent
or Application or Publication #
|
Priority
|
Status
|
Protection
|
Low
power passive transponder
|
US
6891475
EP
1301898
|
07/2000
|
Granted
in EU, USA
|
Chip
P4057
|
High
sensitivity reader
|
US
7014111
EP
1132032
|
07/2000
|
Granted
in EU, USA
|
Reader
|
Transponder
and reader system
|
US
7240838
|
12/2005
|
Granted
in USA
|
System
|
Transponder
and tool for reading and or writing data in said transponder
|
EP
1552471
US
10/531599
|
10/2002
|
Granted
in EU, Applied in USA
|
Detachable
Antenna
|
Compact
Passive Transponder
|
EP
06763635.7
WO
2006/134082
|
06/2005
|
Applied
in EU
|
Medical
TAG process
|
Medical
instrument and its identification Process
|
EP
05109502.4
EP
1774 917
|
10/2005
|
Applied
in EU
|
Medical
Instr. process
|
Watch
case base and method for making same
|
EP
1470453
US
10/527817
|
12/2001
|
Granted
in EU, Applied in USA
|
Application for
watches
|
Stock
management method and adapted devices
|
CH
694873
|
09/2000
|
Granted
in Switzerland
|
Application
for watches
|
Part
of clothing containing an RFID element
|
CH
695637
|
06/2002
|
Granted
in Switzerland
|
Application
for clothing
|
Electronic
label for identification of containers, and container and nozzle top
comprising one such label
|
EP
1604330
US
7423531
|
03/2003
|
Applied
in EU, Granted in USA
|
Application
for perfumes
|
15
TAGs
MediTAG™
plastic 5.6 105 0051
MediTAG™
metal 7.4 103 0037
MediTAG™
1/2 metal 6.6 103 0054
MediTAG™
container 50x39 (for Xxxxxx containers) 103 0056
MediTAG™
container 88x42 (for Xxxxxx containers) 103 0059
MediTAG™
container 50x18 (for Aesculap type containers) 103 0055
MediTAG™
container 50x39 (for Xxxxxx containers) 105 0050
MediTAG™
clip 40x35 (for trays) 103 0057
MediTAG™
tray 70x40 (for trays) 105 0059
Sticker
TAG 34 RO 100 0001
Sticker
TAG 34 RW2k 100 0004
Half
metal TAG 7.4 RW2k 103 0038
Half
metal TAG 42 RW512 103 0044
Half
metal TAG 42 RW2k 103 0025
Plastic
tie-wrap TAG RW512 105 0064
Plastic
tie-wrap TAG RW2k 105 0077
Plastic
TAG 5.6 RW512 105 0063
Plastic
TAG 5.6 RW2k 105 0055
Plastic
TAG 14 RW512 105 0075
Plastic
TAG 14 RW2k 105 0076
Plastic
TAG 9 RW512 105 0078
Plastic
TAG 9 RW2k 105 0079
Aesculap
Active MW Tag
Readers
Set
L10-Zigbee-Wireless Reader 205 0031
L5-CF-WAP
reader 205 0023
L5-CF-PDA
reader 205 0017
L10-USB-Pen
reader 205 0014
L10-USB-Tray
reader 200 0016
L10-100PIN-WAP
reader 205 0026
L10-100PIN-Pen-WAP
reader 205 0028
L10-USB-ID-Pen-WAP
reader 205 0037
Demo
kits
Medical
demo kit (consisting of # 109.0005, 109.0006, 105.0059, 103.0037, 205.0014,
reconstitution kit demo software).
16
Exhibit
10(c)(iv)
ACCREDITED
INVESTOR REPRESENTATIONS
MBBS
further represents and warrants to Elecsys, as to itself and to all persons who
own any of the equity of MBBS, as follows:
1. Such
Person qualifies as an Accredited Investor.
2. Such
Person has sufficient knowledge and experience in finance, securities,
investments and other business matters to be able to protect such Person’s
interests in connection with the transactions contemplated by this
Agreement.
3. Such
Person has consulted, to the extent that it has deemed necessary, with its tax,
legal, accounting and financial advisors concerning its investment in Elecsys
Common Stock.
4. Such
Person understands the various risks of an investment in Elecsys Common Stock
and can afford to bear such risks for an indefinite period of time, including,
without limitation, the risk of losing its entire investment in Elecsys Common
Stock.
5. Such
Person has had access to Elecsys’s publicly filed reports with the
SEC.
6. Such
Person has been furnished during the course of the transactions contemplated by
this Agreement with all information regarding Elecsys that such Person has
requested and all such information is considered by such Person to be sufficient
for such Person to evaluate the risks of investing in Elecsys Common
Stock.
7. Such
Person has been afforded the opportunity to ask questions of and receive answers
concerning Elecsys and the terms and conditions of the issuance of Elecsys
Common Stock.
8. Such
Person is not relying on any representations and warranties concerning Elecsys
made by Elecsys or any officer, employee or agent of Elecsys, other than those
contained in this Agreement.
9. Such
Person is acquiring Elecsys Common Stock for such Person’s own account, for
investment and not for distribution or resale to others.
10. Such
Person will not sell or otherwise transfer Elecsys Common Stock, unless either
(a) the transfer of such securities is registered under the Securities Act or
(b) an exemption from registration of such securities is available.
11. Such
Person understands and acknowledges that Elecsys is under no obligation to
register Elecsys Common Stock for sale under the Securities Act.
12. Such
Person consents to the placement of a legend on any certificate or other
document evidencing Elecsys Common Stock substantially in the form set forth in
Section 4.2.5.
17
13. Such
Person represents that the address furnished by such Person in Exhibit A is such
Person’s principal residence if he is an individual or its principal business
address if it is a corporation or other entity.
14. Such
Person understands and acknowledges that the purchase of shares of Elecsys
Common Stock has not been recommended by any federal or state securities
commission or regulatory authority, that the foregoing authorities have not
confirmed the accuracy or determined the adequacy of any information concerning
Elecsys that has been supplied to such Person and that any representation to the
contrary is a criminal offense.
15. Such
Person acknowledges that the representations, warranties and agreements made by
such Person herein shall survive the execution and delivery of this Agreement
and the purchase of Elecsys Common Stock.
18
Exhibit
12(a)
Xxxx of Sale, Assignment,
and Assumption Agreement
This
Agreement is made as of June 30, 2009, between Elecsys International
Corporation, a Kansas corporation (the “Buyer”), and MBBS, S.A. (“MBBS”), a
company incorporated under the laws of Switzerland (collectively the
“Seller”). Unless otherwise indicated, capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the Asset
Purchase Agreement (as defined below).
WHEREAS,
MBBS and Buyer have entered into that certain Asset Purchase Agreement, dated
June 30, 2009 (the “Asset Purchase
Agreement”), pursuant to which, among other things, MBBS agreed to sell
to Buyer and Buyer agreed to purchase from MBBS the Assets, and Buyer agreed to
assume the sole responsibility to perform, satisfy and discharge all duties,
obligations, terms, conditions and covenants regarding or in connection with the
Assumed Liabilities.
NOW,
THEREFORE, pursuant and subject to terms of the Asset Purchase Agreement and in
consideration of the mutual covenants set forth below and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. MBBS
hereby sells, assigns, conveys, transfers, and delivers to Buyer all of MBBS’
right, title, and interest in, to, and under the Assets and any goodwill
associated with those Assets, and Buyer hereby purchases and accepts from MBBS,
as of the date hereof, all right, title, and interest of MBBS in, to, and under
the Assets and any goodwill associated with those Assets.
2. Buyer
hereby assumes responsibility to perform, satisfy and discharge all duties,
obligations, terms, conditions and covenants arising after the Closing Date that
MBBS is otherwise bound to perform, discharge or otherwise satisfy, to the
extent and only to the extent such responsibilities, duties, obligations, terms,
conditions and covenants are explicitly included in the Assumed
Liabilities.
3. From
time to time, at the request of Buyer, MBBS will do, execute, acknowledge, and
deliver, or will cause to be done, executed, acknowledged, and delivered, all
such further acts, documents, and instruments that may reasonably be requested
by Buyer to give full effect to the intent of this Agreement.
4. This
Agreement is being delivered pursuant to the Asset Purchase Agreement and will
be construed consistently therewith. This Agreement is not intended
to, and does not, in any manner enhance, diminish, or otherwise modify the
rights and obligations of the parties under the Asset Purchase
Agreement. To the extent that any provision of this Agreement
conflicts or is inconsistent with the terms of the Asset Purchase Agreement, the
terms of the Asset Purchase Agreement will govern.
5. This
Agreement may be executed in multiple counterparts (each of which will be deemed
an original, but all of which together will constitute one and the same
instrument), and may be delivered by electronic mail or facsimile transmission,
with originals to follow.
19
6. This
Agreement and all of the provisions hereof will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
7. Notwithstanding
anything in this Agreement or the Asset Purchase Agreement to the contrary, any
and all obligations and liabilities of MBBS arising prior to June 30, 2009,
whether accrued or contingent or due or not due, that are not specifically
assumed herein and therein, shall be and remain the sole obligations and
liabilities of MBBS, to pay and discharge, and Buyer shall not be obligated in
any respect therefor.
22. 8. This
Agreement in all respects shall be interpreted, construed and governed by and in
accordance with the laws of the State of Kansas.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by
their respective duly authorized officers as of the date first above
written.
MBBS, S.A. |
Elecsys
International Corporation
|
|||
/s/Xxxxxxx
Xxxxxxxxxx
|
/s/
Xxxx X. Xxxxxxxx
|
|||
Name:
Xxxxxxx Xxxxxxxxxx
|
Name:
Xxxx X. Xxxxxxxx
|
|||
Title:
Director
|
Title:
President & Chief Executive Officer
|
20