Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - ELECSYS CORP | form8k_010510.htm |
| EX-99.1 - EXHIBIT 99.1 - ELECSYS CORP | form8kexh991_010510.htm |
EXHIBIT
1.1
ASSET
PURCHASE AGREEMENT
This
Asset Purchase Agreement (the “Agreement”) is dated January 4, 2010, by and
among Elecsys Corporation, a Kansas corporation (“Elecsys”), Elecsys
International Corporation, a Kansas corporation and subsidiary of Elecsys
(“Buyer”), SensorCast, LLC, formerly known as WF Technologies, LLC, a Kansas
limited liability company (“Seller”); and the following members of the Seller:
Michael Scott Tampke, Henry CF101 LLC, a Missouri limited liability company and
Thomas J. Walsh Revocable Trust, UTA dated January 3, 2007 (the members,
collectively, are referred to as the “Members”).
RECITALS
WHEREAS,
Members own 100 percent (100%) of the issued and outstanding membership
interests of Seller; and
WHEREAS,
Seller desires to sell, and Buyer desires to purchase, the Assets of Seller for
the consideration and on the terms set forth in this Agreement;
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 a natural person, corporation, business trust, association, company,
partnership, limited liability company, joint venture or other entity,
government, agency or political subdivision.
(j) “Restriction”
means those restrictions from time to time in effect pursuant to Rule 144 of the
General Rules under the Securities Act and that are applicable to the Elecsys
Common Stock conveyed pursuant to Sections 4 or 5 below.
(k) “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.
(l) “Transaction”
means the transaction contemplated by this Agreement.
(m) “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.
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 8
below):
(a) All
inventories of raw material, work-in-progress and finished goods of Seller
existing on the Closing Date;
(b) All
fixed assets that are either: (i) reflected or included on Seller’s
financial statements or general ledger as “Property and Equipment,” or (ii) any
equipment, tools, fixtures, or furniture necessary to the operation of Seller’s
business;
(c) All
intellectual property of Seller, including, but not limited to trade secrets,
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 Seller’s
Internet URL, names, and phone number, all marketing and collateral material,
and any other intellectual property of Seller;
(d) All
open purchase orders from, or pending contracts with, existing
customers;
(e) All
deposits paid by Seller;
(f) All
accounts receivable of Seller;
(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 Seller used in the operation of the Seller’s
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 the following liabilities of
Seller (collectively, the “Assumed Liabilities”):
(a) all
of Seller’s accounts payable related to regular business operations
existing on the Closing Date, provided that such payables are listed on (and
only to the extent of the amount reflected on) Exhibit 3 attached
hereto;
(b) all
of Seller’s open purchase orders and supply contracts with vendors and
distributors, including: telecommunication services, data center services, and
related items (except those that are not related to operating the business)
existing on the Closing Date, provided that such purchase orders and supply
contracts are listed on (and only to the extent of the amount reflected on)
Exhibit 3 attached
hereto;
(c) any
liability associated with the remaining term of the lease for the premises
currently occupied by Seller, but only to the extent that Seller has obtained
the lessor's consent to the assignment and assumption of that
lease;
(d) any
liability associated with the two vehicles acquired pursuant to this Agreement,
including associated Liens;
(e) the
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;
and
(f) Except
as set forth in this Section, 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. Purchase Price. The
consideration for the Assets (the “Purchase Price”) will be (i) $35,000 in cash,
plus (ii) 266,325 Restricted shares of Elecsys Common Stock, plus (iii) the
assumption of the Assumed Liabilities. The parties agree that the value assigned
to each share of
such
stock shall be deemed to be the lower of (1) the 30 day trailing average of
Elecsys stock on the open market, or, (2) the closing price the day prior to the
Closing Date, as hereafter defined.
5. Contingent
Payments. If during the thirty-six (36) months subsequent to
the Closing of this Agreement, Elecsys or Buyer enters into a Letter of Intent,
or similar agreement, that would result in a sale of all of the stock or
substantially all of the assets of Elecsys or Buyer to a publicly traded company
with revenue exceeding $10 billion (as of the effective date of this Agreement)
with which Seller had previously executed a Confidentiality Agreement, or any of
its subsidiaries or affiliates, an additional 275,000 Restricted shares of
Elecsys Common Stock shall be paid to SensorCast at the closing of any such
transaction. In the event that all outstanding shares of Elecsys
Common Stock are the subject of a stock split, reorganization, or
recapitalization, the number of shares set forth in the preceding sentence shall
be adjusted so that the number of shares received by Seller is equal to the same
percentage of total outstanding shares of Elecsys that 275,000 shares
constitutes on the effective date of this Agreement.
6. Employees of
Seller. Seller’s employees hired by Elecsys shall be directed
towards the long term business success of Elecsys as directed by
management.
(a) As
a condition precedent to the effectiveness of this Agreement, Buyer and Mr.
Tampke shall enter into an employment and noncompetition agreement (the
“Employment Agreement”) on terms which are mutually satisfactory to Buyer and
Mr. Tampke.
7. Buyer
shall offer full-time, at will, employment to the current employees of Seller in
appropriate roles under substantially similar terms as they are currently
employed, provided those terms are reasonable relative to other Elecsys
employees.
8. Closing. The
closing (“Closing”) shall take place at the offices of Elecsys Corporation in
Olathe, Kansas on January 4, 2010 (the “Closing Date”). The Closing
shall be effective as of 11:59 p.m. on the Closing Date.
9. Representations and Warranties of
Seller. Seller and Members hereby represent and warrant 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, (i) contravene, conflict with,
or result in a violation of any provision of the bylaws, articles of
organization, operating agreement, or similar charter document of Seller; (ii)
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 (iii) 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, other than
those resulting from the Assumed Liabilities.
(d) Enforceability. Seller
is a limited liability company duly organized, validly existing and in good
standing under the laws of Kansas. Seller 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 Seller,
enforceable against it according to its terms.
(e) Compliance. Seller
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 Seller or the completion of the transaction contemplated herein, nor is
there any basis for any of the foregoing.
(f) Taxes. Seller has
filed in true and correct form all federal, state, 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. Seller has received no notice of, nor does Seller 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 Seller and there are no outstanding agreements or waivers by or
with respect to Seller that extend the statutory period of limitations
applicable to any federal, state, local or foreign tax returns or taxes for any
period. There are no determined tax deficiencies or proposed tax
assessments against Seller.
(g) Creditors. Except
for the Assumed Liabilities, Seller has paid all bills, invoices and other
obligations due to all creditors of Seller as of the Closing Date, and will
promptly pay all bills, invoices and other obligations to all creditors of
Seller that may arise after the Closing Date.
(h) Consents. Except
for the landlord’s consent to assignment of the Seller’s lease document, Seller
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 Seller which may have
an adverse effect upon the Assets, the business conducted by Seller, 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
Seller 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.
(k) Intellectual
Property.
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(i)
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None
of Seller’s assumed fictional business names, trade names, registered and
unregistered trademarks, service marks and applications (collectively,
“Marks”) is now involved in any opposition, invalidation or cancellation
proceeding and no such action is threatened with respect to any of the
Marks. To Seller’s knowledge, no such Mark is infringed or has
been challenged or threatened in any way. To Seller’s
knowledge, none of the Marks used by Seller infringes or is alleged to
infringe any trade name, trademark or service mark of any other
Person.
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(ii)
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Seller
has taken all reasonable precautions to protect the secrecy,
confidentiality and value of all know-how, ideas, formulas, trade secrets,
business methods and information, research and development, customer
lists, Software, technical information, data, process technology, plans,
drawings, engineering designs, blue prints, architectural plans, and
models (collectively, “Trade Secrets”). Seller has good title
to and an absolute right to use the Trade Secrets. To Seller’s
knowledge, no Trade Secret is subject to any adverse claim or has been
challenged or threatened in any way or infringes any intellectual property
right of any other Person.
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(iii)
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All
rights in internet web sites and internet domain names presently used by
Seller (collectively “Net Names”) have been registered in the name of
Seller and are in compliance with all formal legal requirements, are valid
and enforceable, and are not subject to any maintenance fees, taxes,
renewal fees, or other actions falling due within one hundred eighty (180)
days after the Closing Date. To Seller’s knowledge, no such Net
Name has been or is now involved in any dispute, opposition, invalidation
or cancellation proceeding (including any UPRP proceeding) and no such
action is threatened with respect to any Net Name. To Seller’s
knowledge, no Net Name is infringed or has been challenged, interfered
with or threatened in any way. To Seller’s knowledge, no Net
Name infringes, interferes with or is alleged to interfere with or
infringe the trademark, copyright or domain name of any other
Person.
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(iv)
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Seller
is the exclusive owner or licensee of all right, title and interest in and
to each Mark, Trade Secret and Net Name used in or necessary for the
conduct of the Seller’s business, free and clear of all encumbrances, and
has the right to use without payment to a third party all of the Marks,
Trade Secrets and Net Names.
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(l) Product
Liability. Seller has not received any written notice within
the past two years relating to, nor are there, any facts or circumstances that
would reasonably be expected to give rise to, any actual or potential claim
involving any service provided or any product designed, manufactured, serviced,
produced, modified, distributed or sold by or on behalf of the Seller’s business
or Seller prior to the Closing relating to an alleged defect in design,
manufacture, materials, workmanship, or performance or any alleged
failure to warn, or any alleged breach of implied warranties or representations,
other than notices or claims that have been settled or resolved prior to the
date of this Agreement.
(m) Employee
Benefits. Seller does not maintain any employee benefit plan
other than fully-insured medical and dental plans and a 401(k) plan.
All premiums and all contributions to the 401(k) have been timely
paid. To the extent applicable, Seller has complied with any
obligations under Section 4980B of the Code and Sections 601-606 of ERISA and
similar provisions of state law.
(n) Investment
Representations.
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(i)
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Acknowledgment. Seller
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.
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(ii)
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Status. By
its execution of this Agreement, Seller represents and warrants to Buyer
that it is an Accredited Investor.
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(iii)
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Reliance. Seller
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 Seller 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.
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(iv)
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Additional Representations and
Warranties of Accredited Investors. Seller makes the
representations and warranties to Buyer and Elecsys set forth on Exhibit
9(n)(iv).
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10.
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Representations and Warranties
of Buyer and Elecsys. Buyer and Elecsys each hereby
represents and warrants to Seller as
follows:
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(a) Organization and
Qualification. Each of Buyer and Elecsys 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. Each
of Buyer and Elecsys 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
procedures.
(c) No
Conflict. Neither the execution by Buyer or Elecsys of this
Agreement nor the performance by Buyer or Elecsys of the transactions
contemplated hereby will directly or indirectly, (i) contravene, conflict with,
or result in a violation of any provision of the Articles of Incorporation or
Bylaws of Buyer or Elecsys; (ii) 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 or Elecsys is a party or by which the properties or
assets of Buyer or Elecsys are bound; (iii) contravene, conflict with, or result
in a violation of, any law or order to which Buyer or Elecsys, or any of the
properties or assets owned or used by Buyer or Elecsys, may be subject; or (iv)
contravene, conflict with, or result in a violation of, any laws to which the
Buyer or Elecsys is subject.
(d) Issuance of Elecsys Common
Stock. Upon issuance and delivery of the Elecsys Common Stock
to Seller as contemplated by this Agreement, Elecsys represents that such stock:
(i) shall be fully paid and non-assessable; and (ii) shall be subject to no
outstanding or authorized options, subscriptions, agreements, warrants,
contracts, calls, commitments, demands or rights of any character.
11. Documents Delivered at
Closing. In addition to any other documents to be delivered
under other provisions of this Agreement, at the closing the Seller and Members,
as the case may be, shall deliver to Buyer:
(a) A
Bill of Sale executed by Seller in the form attached hereto as Exhibit 11(a) selling,
assigning and transferring to Buyer all right, title and interest in and to any
and all property comprising Assets;
(b) All
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 Seller, in a form acceptable to
Buyer.
(d) Such
other assignments, certificates of title and other instruments of transfer and
conveyance necessary to transfer vehicles to Buyer.
(e) The
assigned lease agreement for the premises currently occupied by Seller, the
effectiveness of which will be contingent upon obtaining the lessor’s
consent.
(f) Elecsys
shall pay the Purchase Price to Seller, including, issuance of the Elecsys
Common Stock in the name of Seller, which shall be fully paid and non-assessable; and
subject to no outstanding or authorized options, subscriptions, agreements,
warrants, contracts, calls, commitments, demands or rights of any character
relating to the Elecsys Common Stock.
12. 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) Seller
hereby agrees with Buyer that the certificates evidencing Elecsys Common Stock
to be issued hereunder to Seller 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 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) Except
for transfers to its Members in a manner and under circumstances that comply
with Rule 144 under the Securities Act, Seller 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) Except
for transfers to its Members in a manner and under circumstances that comply
with Rule 144 under the Securities Act, Seller understands and acknowledges that
Elecsys may decline to permit the transfer of Elecsys Common Stock, unless
Seller complies with Section 12(c) and any Restriction on transferability
under applicable law. Seller 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 Restriction on transfer of Elecsys Common
Stock
(e) If
Seller complies with all of the provisions of Rule 144 under the Securities Act
in making a request to transfer the Elecsys Common Stock, Elecsys shall cause
its counsel to deliver an appropriate legal opinion to its transfer agent to
facilitate such a transfer.
13. Indemnification and Resolution of
Disputes.
(a) Seller’s and Member's
Indemnification. Seller 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 Seller 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 and Elecsys jointly and severally agree
to defend, indemnify and hold harmless Seller 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 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.
14. 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. Buyer shall pay any sales, use or transfer taxes or fees
arising as a result of the transaction contemplated
hereby. Notwithstanding the foregoing, each party shall remain liable
for its own income taxes. 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).
15. Public
Announcements. Prior to the Closing Date, Seller 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.
16. 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.
17. 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.
18. Governing Law. This
Agreement shall be considered in accordance with and be governed by the laws of
the State of Kansas without regard to conflicts of laws principles that would
require the application of any other law.
19. 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.
20. Survival. The
provisions of this Agreement shall survive the Closing Date in accordance with
the following provisions:
(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
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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.
| ELECSYS INTERNATIONAL CORPORATION | SENSORCAST, LLC | |
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By:_________________________________
Name: Karl B. Gemperli
Title: President & Chief Executive Officer
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By:_________________________________
Name:_______________________________
Title:________________________________
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| ELECSYS CORPORATION | HENRY CF101 LLC | |
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By:_________________________________
Name: Karl B. Gemperli
Title: President & Chief Executive Officer
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By:_________________________________
Name:_______________________________
Title:________________________________
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THOMAS J. WALSH REVOCABLE
TRUST, UTA
dated January 3,
2007
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MICHAEL SCOTT
TAMPKE
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By:_________________________________
Name: Thomas J. Walsh
Title: Trustee
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____________________________________
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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).
(8) An
entity in which all of the equity owners are accredited investors.
Exhibit
3
Assumed
Liabilities
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3.(a)
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Accounts
Payable:
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1.
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Accounts
Payable from the SensorCast, LLC Aged Payables Report dated 12/29/2009
totaling $17,654.99.
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2.
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SensorCast
credit card balances totaling
$19,712.43.
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3.(b)
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Purchase orders and
Supply Contracts
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1.
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Service
contract with Surewest Communications for telephone and internet access –
expiring in June 2011.
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2.
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Service
contract with GoDaddy.com for server hosting and internet domain names –
prepaid through June 25, 2010.
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3.
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Three
cellular telephone service contracts with Verizon Wireless – all expiring
prior to 12/3/2010.
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4.
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Two
mobile internet access accounts with ATT Mobility – both expiring prior to
7/23/2010.
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Exhibit
9(n)(iv)
ACCREDITED
INVESTOR REPRESENTATIONS
Seller
further represents and warrants to Elecsys, as to itself and to all persons who
own any of the equity of Seller, 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 12(b).
13. Such
Person represents that the address furnished by such Person 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.
1.
Exhibit
11(a)
Bill of Sale, Assignment,
and Assumption Agreement
This
Agreement is made as of January 4, 2010, by and between Elecsys International
Corporation, a Kansas corporation and subsidiary of Elecsys Corporation
(“Buyer”) and SensorCast, LLC, formerly known as WF Technologies, LLC, a Kansas
limited liability company (“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,
Seller and Buyer have entered into that certain Asset Purchase Agreement, dated
January 4, 2010 (the “Asset Purchase
Agreement”), pursuant to which, among other things, Seller agreed to sell
to Buyer and Buyer agreed to purchase from Seller 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. Seller
hereby sells, assigns, conveys, transfers, and delivers to Buyer all of Seller’s
right, title, and interest in, to, and under the Assets and any goodwill
associated with those Assets, and Buyer hereby purchases and accepts from
Seller, as of the date hereof, all right, title, and interest of Seller 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
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.
3. From
time to time, at the request of either party, the other party 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 the requesting party 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.
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 Seller arising prior to January 4, 2010,
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 Seller, to pay and discharge, and Buyer shall not be obligated in
any respect therefor.
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.
| ELECSYS INTERNATIONAL CORPORATION | SENSORCAST, LLC | |
|
By:_________________________________
Name:_______________________________
Title:________________________________
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By:_________________________________
Name:_______________________________
Title:________________________________
|