EXHIBIT 99.3
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DEFINITIVE ASSET PURCHASE AGREEMENT
This DEFINITIVE ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the _26th__ day of April, 2007, by and between AUTOMOTION SYSTEMS,
INC., a Florida corporation ("Seller") and TRANSBOTICS CORPORATION, a Delaware
Corporation ("Buyer"),
RECITALS
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WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from
Seller, on the terms and subject to the conditions hereinafter set forth,
certain of the assets and properties of Seller; and
WHEREAS, in connection with the purchase of assets hereunder, Seller
desires to assign, and Buyer has agreed to assume, on the terms and subject to
the conditions hereafter set forth, certain of the contracts, agreements and
obligations of Seller.
NOW, THEREFORE, in consideration of these premises and the mutual
agreements set forth below and for other good and valuable considerations, the
receipt and sufficiency of which are herby expressly acknowledged, the parties
agree as follows:
ARTICLE 1
DEFINITIONS
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The terms defined in this Article shall have the following respective
meanings:
"Assigned Contracts" means all contracts, leases and agreements entered
into by Seller that are identified on Schedule 1.1, attached.
"Assumed Liabilities" means the liabilities and obligations of Seller
arising under the equipment leases, maintenance contracts and other agreements
incurred by Seller in the ordinary course of the Business which are identified
on Schedule 1.2, attached.
"Books and Records" means all books, records and data in whatever form and
however stored, pertaining to or created in the ordinary course of the Business
including but not limited to financial and account books and reports, customer,
prospect and supplier lists, employee files, job status reports and
correspondence.
"Business" means the currently conducted business of selling automated
vehicles and carts and installing and servicing the same conducted by Seller.
"Closing" means the consummation and effectuation of the transactions
contemplated by this Agreement pursuant to its terms.
"Closing Date" means the date on which the Closing actually occurs.
"Equipment" means the equipment and computer and software of Seller
identified on Schedule 1.3, attached.
"Goodwill" means the goodwill associated with the Intellectual Property and
the Business.
"Intellectual Property" means the trade names, trademarks, patents,
inventions, trade secrets, works of authorship, copyrights, designs,
specifications, drawings, concepts, mask works and all other intellectual
property used by Seller in the Business.
"Inventory" means the parts, components, supplies, work in progress,
finished goods and all other items purchased by Seller and held by Seller for
resale or for incorporation into its products for sale in the ordinary course of
business. Inventory is listed individually on Schedule D2 to Exhibit D,
attached.
"Other Assets" means those material items of nominal value used in the
Business not otherwise listed such as furniture, office supplies and minor
equipment, marketing brochures and materials, and software licenses for routine
programs and tools not otherwise accounted for.
"Person" means an individual, partnership, corporation, limited liability
company or any other legal person or entity.
"Purchased Assets" means the Books and Records, Equipment, Goodwill,
Intellectual Property, Inventory, Other Assets, Seller's prepaid expenses for
the Business (if any) as of the Closing Date, and Seller's rights and interest
under the Assigned Contracts.
ARTICLE II
PURCHASE AND SALE OF THE PURCHASED ASSETS
On the terms and subject to the conditions of this Agreement, at the
Closing, Seller shall sell and assign to Buyer and Buyer shall purchase and
accept from Seller, all of Seller's right, title and interest in and to the
Purchased Assets for the considerations set forth in this Agreement. Seller
shall retain and Buyer shall not acquire any assets other than the Purchased
Assets.
ARTICLE III
ASSIGNMENT OF RIGHTS AND ASSUMPTION OF LIABILITIES
On the terms and subject to the conditions hereof, at the Closing Seller
shall assign to Buyer and Buyer shall accept all rights of Seller in the
Goodwill and the Intellectual Property. At the Closing Seller shall likewise
assign to Buyer and Buyer shall assume and agree to perform and otherwise
discharge the Assigned Contracts, and each of the Assumed Liabilities and
Seller's obligations under the same when and as the same become due. Seller
shall retain and discharge and Buyer shall not assume nor be liable for any
obligations or liabilities of the Business other than the Assigned Contracts,
and the Assumed Liabilities. Seller shall defend, indemnify and hold Buyer
harmless from and against any and all attempts to hold Buyer liable for any
obligations or liabilities of the Business not expressly assumed hereby.
ARTICLE IV
PURCHASE PRICE
Section 4.1. Payment of Purchase Price. Buyer shall pay to Seller on the
Closing Date by bank check or wire transfer of immediately available funds the
Purchase Price.
Section 4.2. Purchase Price. The Purchase Price shall be $239,502.43
Section 4.3. Allocation of the Purchase Price. The Purchase Price shall be
allocated against the Purchased Assets as set forth on Exhibit A attached
(excluding transaction costs incurred by each party). Buyer and Seller shall
timely complete all required or appropriate IRS forms consistent with Exhibit A
and shall file a copy of all required forms with its federal income tax return
for the period that includes the Closing Date. Neither Buyer nor Seller shall
take any position inconsistent with the allocation set forth on Exhibit A for
any tax purpose.
Section 4.4. Obsolete Inventory. Buyer, at its sole discretion, may require
Seller to repurchase any, some or all of Inventory identified on Schedule D2 to
Exhibit D, rows 299-355, at any time after May 1, 2009 by giving Buyer written
notice that it is putting the items identified in the notice to Seller for
repurchase. Such items shall be deemed automatically sold to Seller effective as
of the receipt of the notice, and Seller shall pay to Buyer in cash the price
shown as the item cost on Schedule D2 within 30 days after the effective date of
sale. Any such sale shall be free and clear of liens, claims and encumbrances.
Seller shall not dissolve prior to May 1, 2010, unless Buyer notifies Seller in
writing that it will not exercise the "put" provided by this Section 4.4. This
Section shall survive the Closing.
ARTICLE V
REPRESENATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
Section 5.1. Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with all
requisite power and authority to own, lease and operate all of its properties
and assets and to carry out its business as it is presently conducted.
Section 5.2. Authority; Consents and Approvals. Seller has all requisite
power and authority to execute, deliver and perform this Agreement. The
execution, delivery and performance of this Agreement by Seller have been duly
and validly authorized and approved by all necessary corporate action. This
Agreement constitutes the legal, valid and binding obligation of Seller
enforceable against it in accordance with its terms. The execution delivery and
performance of this Agreement by Seller will not (with or without the giving of
notice or the passage of time, or both) (i) violate any provision of law or any
rule or regulation of any federal, state, or local administrative agency or
governmental authority applicable to Seller, or any order, writ, injunction,
judgment or decree of any court, administrative agency or governmental authority
applicable to Seller; (ii) violate Seller's Articles of Incorporation, as
amended to the date hereof; (iii) require any consent under or constitute a
default under any agreement, indenture, mortgage, deed of trust, lease, license
or other instrument to which Seller is a party or by which it is bound
(including, without limitation, under any of the Assigned Contracts), or any
license, permit or certificate held by it, or (iv) require any consent of,
approval by notice to or registration with any governmental authority.
Section 5.3. Except as set out on Exhibit B, attached, Seller has good and
marketable title to or the right to assign the Purchased Assets, free and clear
of all liens, claims, security interests and encumbrances and has the full right
and power to transfer to Buyer and shall transfer to Buyer at the Closing good
and marketable title to the Purchased Assets other than the Assigned Contracts,
as to which Seller has the full right and power to and shall assign to Buyer at
the Closing all of its rights and interests.
Section 5.4. Through the Closing, Seller shall have operated the Business
only in the ordinary course, consistent with past practice and shall not have
made or entered into any agreement or transaction inconsistent with the sale of
the Purchased Assets as contemplated by this Agreement. The Purchased Assets
constitute all of the material assets used in the conduct of the Business and,
together with the Intellectual Property, are sufficient to continue the conduct
of the Business by Buyer consistent with Seller's past practice after the
Closing.
Section 5.5. Seller's books and records accurately and completely reflect
all of the material financial transactions of the Business for the periods
identified therein and have been consistently reported from period to period.
Section 5.6. Except as set forth in Schedule 5.6, there are no pending
claims for warranty service with respect to any goods or services provided by
Seller prior to Closing, and Seller knows of no basis for any such claim being
made after Closing with respect to goods or services provided by Seller prior to
Closing.
Section 5.6. Seller has not committed any default under any of the Assigned
Contracts which, if not cured, with or without the giving of notice or the
passage of time or both, would lead to termination of the contract or the
assessment of damages, liquidated damages or penalties or any of the foregoing,
and no Person has made any claim or made Seller aware of the probably assertion
of any claim of such default under any of the Assigned Contracts.
ARTICLE VI
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REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer herby represents and warrants to Seller as follows:
Section 6.1. Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the full corporate right, power and authority to acquire the Purchased Assets
pursuant to the terms and conditions of this Agreement.
Section 6.2. Authority. Buyer has all requisite corporate right power and
authority to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement by Buyer have been duly and validly
authorized and approved by all necessary corporate action. This Agreement
constitutes the legal, valid and binding obligation of Buyer enforceable against
it in accordant with its terms. The execution, delivery and performance of this
Agreement by Buyer have been duly and validly authorized and approved by all
necessary corporate action. This Agreement constitutes the legal, valid and
binding obligation of Buyer enforceable against it in accordance with its terms.
The execution delivery an performance of this Agreement by Buyer will not (with
or without the giving of notice or the passage of time, or both) (i) violate any
provision of law or any rule or regulation of any federal, state, or local
administrative agency or governmental authority applicable to Buyer, or any
order, writ, injunction, judgment or decree of any court, administrative agency
or governmental authority applicable to Seller; (ii) violate Buyer's Articles of
Incorporation, as amended to the date hereof; (iii) require any consent under or
constitute a default under any agreement, indenture, mortgage, deed of trust,
lease, license or other instrument to which Buyer is a party or by which it is
bound, or any license, permit or certificate held by it, or (iv) require any
consent of, approval by notice to or registration with any governmental
authority.
ARTICLE VII
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FURTHER AGREEMENTS
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Section 7.1. Effective Time of Closing. The Closing shall be effective for
all purposes as of the delivery of the Purchase Price on the Closing Date. Title
to and risk of loss of the Purchased Assets shall pass to the Buyer at the
Closing.
Section 7.2. Time, Place and Date of Closing. The Closing Date shall be the
date that is twenty business days after the Effective Date of this Agreement,
unless otherwise agreed. The Closing shall take place at the offices of the
Buyer at 10:00 a.m., unless otherwise agreed.
Section 7.3. Announcements. The parties will agree to the time, form and
content before issuing any press releases or otherwise making any public
statement or statements to third parties with respect to the existence or
content of this Agreement or the transactions contemplated hereby. Provided,
that Buyer may make any press release or filing that it believes to be required
by any applicable law or regulation relating to its status as a public company.
If it makes any such filing or press release, Buyer shall notify Seller in
advance in writing as to the time, form and content of such filing or pres
release.
Section 7.4. Costs and Transfer Taxes. Each party shall pay its own costs
nd expenses incurred in connection with due diligence review, the preparation,
negotiation and execution of this Agreement and all other agreements,
certificates, instruments and documents to be delivered in connection with the
Closing. Buyer shall pay all sales and other transfer taxes in connection with
the sale and delivery of the Purchased Assets. Seller shall pay all capital
gains and income taxes levied or assessed on the sale and delivery of the
Purchased Assets.
Section 7.5. Hiring of Seller's Employees. Seller shall terminate its
employees relating to the Business as of the Closing Date. Buyer agrees to hire
those terminated employees of Seller identified on Schedule 7.5 on terms and
conditions comparable to the terms of employment by Seller as of the Closing
Date but consistent with Buyer's general employment policies and practices. At
the Closing Buyer shall enter into an Employment Agreement with Seller's
principal owner, ▇▇▇▇▇▇▇ ▇▇▇▇▇, in form and substance consistent with Exhibit C,
attached.
Section 7.6. Additional Actions. On and after the Closing Date, each party
shall execute, deliver and perform according to their terms such other documents
and instruments and take such further actions and provide such further
cooperation as may reasonably be required to fully consummate and effectuate the
transactions contemplated hereby.
ARTICLE VIII
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CONDITIONS PRECENDENT TO BUYER'S OBLIGATIONS
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Buyer's obligation to consummate the transactions described in this
Agreement and any liability of Buyer to Seller hereunder shall be subject to the
fulfillment, on or before the Closing, of the following conditions precedent:
Section 8.1. Seller's Closing Deliveries. Seller shall have delivered each
of the following:
(i) instruments of transfer legally sufficient to deliver title to the
Purchased Assets, including, without limitation, a ▇▇▇▇ of Sale executed by
Seller in substantially the for attached hereto as Exhibit D;
(ii) an Assignment and Assumption Agreement with respect to the Assigned
Contracts executed by Seller in substantially the form attached hereto as
Exhibit E; and
(iii) a certificate of good standing as to the Seller, issued by the
Secretary of State of the State of Florida, current as of a date no later than
ten days prior to the Closing Date.
Section 8.2. Opinion of Counsel. Seller's legal counsel (who shall be
reasonably acceptable to Buyer) shall have delivered to Buyer its opinion dated
the closing Date and in substantially the form attached hereto as Exhibit F.
ARTICLE IX
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CONDITIONS PRECENENT TO SELLER'S OBLIGATIONS
Seller's obligation to consummate the transactions described in this
Agreement and any liability of Seller to Buyer hereunder shall be subject to the
fulfillment, on or before the Closing, of the following conditions precedent:
Section 9.1. Payment of the Purchase Price. Buyer shall have paid the
Purchase Price at Closing.
Section 9.2. Buyer's Closing Deliveries. Buyer shall have delivered, or
caused to be delivered to Seller at the Closing each of the following:
(i) an Assignment and Assumption Agreement executed by Buyer in
substantially the form attached as Exhibit E;
(ii) valid and binding consents of all Persons, if any, whose consent or
approval is required for the valid assignment of any of the Assigned Contracts.
ARTICLE X
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NON-COMPETE
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Section 10.1. Non-compete. From and after the Closing, Seller shall not compete
with Buyer for a period of five (5) years in the Territory. For the purposes of
this Agreement, to "compete" with Buyer shall mean to engage any business
activity, alone or in cooperation with others, that provides or directly assists
in the provision of engineering services related to the integration of automatic
material handling or transportation systems in a factory or warehouse or the
design, manufacture or sale of components or equipment for the provision of
automated material handling or transportation systems in a factory or warehouse.
The Territory shall mean the largest geographic territory among the following
that a court of competent jurisdiction will enforce, it being recognized and
agree by the parties that competition within the meaning of this Agreement is
global and that Buyer seeks and will continue to seek business and business
opportunities around the world.
(a) The world
(b) North America
(c) the United States of America and Canada
(d) the United States of America
(e) all States in which Buyer has an active project or has installed a
project within five years before or after the Closing.
ARTICLE XI
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INDEMNIFICATION
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Section 11.1. Seller's Indemnification. Seller shall indemnify and save
Buyer harmless from, against, for and in respect of any and all damages, losses
and reasonable expenses, and shall defend against any and all claims,
proceedings, judgments, awards and amounts paid in settlement incurred or
required to be paid by Buyer because of (i) the untruth, inaccuracy or breach of
any representation or warranty of Seller contained in Article V of this
Agreement; (ii) the breach of any covenant of Seller contained in or made in
connection with this Agreement; (iii) the failure of Seller to perform or
observe any material term, provision, covenant or agreement hereunder; or any
liabilities or obligations (other than under the Assigned Contracts) arising
from or relating to the conduct of the Business prior to the Closing.
Section 11.2. Buyer's Indemnification. Buyer shall indemnify and save
Seller harmless from, against, for and in respect of any and all damages, losses
and reasonable expenses, judgments, awards and amounts paid in settlement
incurred or required to be paid by Seller because of (i) the untruth, inaccuracy
or breach of any representation or warranty of Buyer contained in Article VI of
this Agreement; (ii) the breach of any covenant of Seller contained in or made
in connection with this Agreement; (iii) the failure of Seller to perform or
observe any material term, provision, covenant or agreement hereunder; (iv) any
liabilities or obligations arising from or relating to the conduct of the
Business after the Closing; or the failure of Buyer to pay and discharge any
liability or perform its obligation arising under the Assigned Contracts.
Section 10.3. Process and Conditions. The obligations and liabilities of e
ach indemnifying party with respect to claims resulting from the assertion of
liability by another party shall be subject to the following terms an
conditions:
(a) The indemnified party shall give timely and adequate written notice to
the indemnifying party of any claim that might give rise to a claim by the
indemnified party against the indemnifying party based on the provisions of
Sections 10.1 or 10.2 above, and thereafter, at the expense of the indemnifying
party, shall cooperate with and assist the indemnifying party in its lawful
response, providing witnesses and documents reasonably necessary as requested by
the indemnifying party.
(b) In the event any action, suit or proceeding is brought against an
indemnified party, with respect of which the indemnifying party may have
liability under Sections 10.1 or 10.2, the indemnifying party shall notify the
indemnified party that it will provide indemnity hereunder and shall thereafter
assume full responsibility for the defense of such claim. The indemnified party
may engage its own counsel, but any costs or expenses of such counsel after
receipt of the foregoing notice shall be for the indemnified party's account and
shall not be subject to indemnification.
(c) Seller's obligations under this Section shall not extend to any claim
first made more than one year after Closing.
(d) Buyer's obligations under this Article shall survive Closing.
ARTICLE XI
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MISCELLANEOUS
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Section 11.1. Entire Understanding. This Agreement (including all schedules
and exhibits attached to or referenced in this Agreement, all of which are
incorporated herein by this reference) sets forth the entire understanding of
the parties and supersedes any and all prior or contemporaneous agreements,
arrangements and understandings relating to the subject matter hereof, and the
provisions of this Agreement and not be changed, modified, waived or altered
except by an agreement in writing signed by the parties hereto. Each party
represents and warrants to the other that there are no agreements,
representations or warranties not expressly set out herein on which it relies in
entering into or carrying out this Agreement.
Section 11.2. Severability. If any provision of this Agreement I held to be
invalid or unenforceable, the remaining provisions of this Agreement shall
remain in full force and effect, unless to do so would violate the essential
purpose of the Agreement.
Section 11.3. Notice. Any notice required or contemplated to be given under
this Agreement shall be in writing and delivered by means appropriate and
effective under the circumstances to a party at its respective address given
below:
If to Seller: Automotion Systems, Inc.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇
▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Buyer: Transbotics Corporation
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 11.4. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective and permitted
successors and assigns. This Agreement may not be assigned without the prior
written consent of the parties, which consent shall not be unreasonably
withheld, delayed or conditioned. There are no third party beneficiaries to this
Agreement.
Section 11.5. Governing Law. This Agreement shall be controlled, construed
and enforced in accordance with the laws of the State of Florida applicable to
agreements made and to be performed in that State.
Section 11.6. Consent to Jurisdiction. In the event of any dispute arising
out of or related to this Agreement, each party hereby consents to the
jurisdiction of the respective federal District Court and state trial court
having jurisdiction over parties residing within its respective district and
consents to venue therein.
IN WITNES WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives, effective as of the date first
above given.
TRANSBOTICS CORPORATION AUTOMOTION SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President Title: President