UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
(Amendment No. 2)
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 4, 2015
POSITIVEID CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 001-33297 | 06-1637809 | ||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) |
1690 South Congress Avenue, Suite 201
Delray Beach, Florida 33445
(Address of principal executive offices) (zip code)
(561) 805-8000
(Registrant’s telephone number, including area code)
_____________
(Former Name or Former Address if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Cautionary Note on Forward-Looking Statements
This Current Report on Form 8-K/A (this “Report”) and any related statements of representatives and partners of the Company contain, or may contain, among other things, certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Such forward-looking statements involve significant risks and uncertainties. Such statements may include, without limitation, statements with respect to the Company’s plans, objectives, projections, expectations and intentions and other statements identified by words such as “projects,” “may,” “will,” “could,” “would,” “should,” “believes,” “expects,” “anticipates,” “estimates,” “intends,” “plans,” or similar expressions. These statements are based upon the current beliefs and expectations of the Company’s management and are subject to significant risks and uncertainties, including those detailed in the Company’s filings with the Securities and Exchange Commission (the “SEC”). Actual results may differ significantly from those set forth in the forward-looking statements. These forward-looking statements involve certain risks and uncertainties that are subject to change based on various factors (many of which are beyond the Company’s control). The Company undertakes no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law.
Explanatory Note
On October 21, 2015, PositiveID Corporation, a Delaware corporation (“PositiveID” or “Company”), entered into an agreement to acquire all of the outstanding capital stock of Thermomedics, Inc., a Nevada corporation (“Thermomedics”), pursuant to a Stock Purchase Agreement (the “Purchase Agreement”) by and between PositiveID and Sanomedics Inc., a Delaware corporation (“Seller”), the shareholder of Thermomedics (collectively the “Acquisition”). The terms of the Purchase Agreement were disclosed in that certain Current Report on Form 8-K filed by the Company on October 21, 2015.
On December 4, 2015, PositiveID entered into a First Amendment to the Stock Purchase Agreement (the “SPA Amendment”) with the Seller. PositiveID, the Seller and Thermomedics also entered into a Management Services and Control Agreement, dated December 4, 2015 (the “Control Agreement”), whereby PositiveID was appointed the manager of Thermomedics. The terms of the SPA Amendment and the Control Agreement were disclosed in that certain Current Report on Form 8-K/A filed by the Company on December 7, 2015 (the “Initial Report”).
As a result of the Company assuming control of Thermomedics on December 4, 2015, it determined, pursuant to ASC 805-10-25-6, that December 4, 2015 was the acquisition date of Thermomedics for accounting purposes. In compliance with parts (a) and (b) of Item 9.01 of the Initial Report, the Company filed the required financial information by amendment in a Current Report on Form 8-K/A on February 19, 2016.
The Company is filing this Current Report on Form 8-K/A to disclose certain updates to the agreement of the parties with respect to the Purchase Agreement, SPA Amendment, and the Control Agreement.
Item 1.01 Entry into a Material Definitive Agreement.
On August 25, 2016, PositiveID completed the Acquisition and entered into an agreement with the Seller and Thermomedics (the “August Agreement”), which amends certain terms of the Purchase Agreement and terminates the Control Agreement.
The amendments to the Purchase Agreement include: (a) that any legal expense or losses incurred by PositiveID after June 30, 2016 related to the Exergen litigation shall have the effect of reducing any future earnouts that may be owed to the Seller, dollar for dollar; (b) PositiveID and the Seller also agreed to settle the final closing net working capital adjustment through a reduction of the Series J Preferred Stock shares to be released from escrow. As a result, the 125 shares of Preferred Series J stock originally issued shall be released from escrow as follows: 71 shares to the Seller and 54 shares returned to the Company’s treasury.
In connection with the Acquisition, the Company issued a Convertible Promissory Note to Keith Houlihan, the former CEO of the Seller and President of Thermomedics (the “Holder”), dated August 25, 2016 in the aggregate principal amount of $75,000 (the “Note”). The Note bears an interest rate of 5%, and is due and payable before or on August 25, 2017. The Note may be converted by the Holder at any time after February 28, 2017 into shares of Company’s common stock at a price equal to a 10% discount to the average of the three lowest daily VWAPs (volume weighted average price) of the Company’s common stock as reported on the OTCQB for the 10 trading days prior to the day the Holder requests conversion. Any conversion will be limited by: (i) Holder may not make more than one conversion every ten trading days, and (ii) the amount of conversion shares at any conversion may not be more than the total number of shares of Common Stock traded over the ten trading days preceding the conversion notice multiplied by 5%.
The Note is a long-term debt obligation that is material to the Company. The Note may be prepaid in accordance with the terms set forth in the Note. The Note also contains certain representations, warranties, and events of default including if the Company fails to pay when due any amount owed on the Note, and increases in the amount of the principal and interest rates under the Note in the event of such defaults. In the event of default, at the option of the Holder and in the Holder’s sole discretion, the Holder may consider the Note immediately due and payable.
In consideration for the Note, the Company entered into a Consent and Release by and between the Company, Thermomedics, the Holder and Vitacura LLC, a Florida limited liability corporation (“Vitacura”), which is wholly owned by the Holder (the “Release”), pursuant to which the Holder and Vitacura agreed to release the Company and Thermomedics from any and all causes of action.
The foregoing description of the terms of the August Agreement and Note does not purport to be complete and is qualified in its entirety by reference to the provisions of such agreements, which are filed as Exhibit 10.4 and 4.1 to this Current Report on Form 8-K.
On August 26, 2016, PositiveID issued a press release announcing the completion of the Acquisition described herein, which press release is furnished as Exhibit 99.1 attached hereto.
Item 2.03 Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information provided in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
On August 25, 2016, Company issued to the Seller (via a release from escrow) 71 shares of Series J Convertible Preferred Stock (the “Securities”), and issued to the Holder the Note as part of the consideration for the Acquisition. The issuance of the Note and Securities set forth herein was made in reliance on the exemption provided by Section 4(2) of the Securities Act for the offer and sale of securities not involving a public offering. The Company’s reliance upon Section 4(2) of the Securities Act in issuing the Note and Securities was based upon the following factors: (a) the issuance of the Note and Securities was an isolated private transaction by us which did not involve a public offering; (b) there was only one recipient for each; (c) there were no subsequent or contemporaneous public offerings of the Note or Securities by the Company; (d) the Note and Securities were not broken down into smaller denominations; (e) the negotiations for the issuance of the Note and Securities took place directly between the parties and the Company; and (f) the recipients of the Note and Securities were accredited investors.
Item 9.01 Financial Statements and Exhibits
|
Exhibit
Number |
Description | |
| 4.1 | Form of 5% Convertible Promissory Note, dated August 25, 2016, with Keith Houlihan | |
| 10.1 | Stock Purchase Agreement, dated October 21, 2015, by and between PositiveID Corporation and Sanomedics Inc., filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on October 21, 2015 | |
| 10.2 | First Amendment to Stock Purchase Agreement, dated December 4, 2015, by and between PositiveID Corporation and Sanomedics Inc., filed as exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 7, 2015 | |
| 10.3 | Management Services and Control Agreement, dated December 4, 2015, by and between PositiveID Corporation and Sanomedics Inc., filed as Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on December 7, 2015 | |
| 10.4 | Agreement by and among PositiveID Corporation, Sanomedics, Inc. and Thermomedics, Inc. dated August 25, 2016 | |
| 99.1 | Press release issued by PositiveID Corporation on August 26, 2016 |
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| POSITIVEID CORPORATION | ||
| Date: August 26, 2016 | By: | /s/ William J. Caragol |
| Name: | William J. Caragol | |
| Title: | Chief Executive Officer | |
POSITIVEID CORPORATION
CONVERTIBLE PROMISSORY NOTE
| $75,000 | Dated: August 25, 2016 |
FOR VALUE RECEIVED, the undersigned, POSITIVEID CORPORATION, a Delaware corporation (the “Company”), promises to pay to Keith Houlihan (the “Holder”), in lawful money of the United States of America, the principal amount of seventy-five thousand dollars ($75,000.00) (the “Principal Amount”), with interest calculated in accordance herewith, on August 25, 2017 (the “Maturity Date”).
| 1. | Payments . |
(a) Interest . The Principal Amount shall bear interest at a per annum rate of five percent (5%) from this date until paid.
(b) Maturity. The principal amount of this Note, together with all accrued but unpaid interest, shall be paid in cash to the Holder on the Maturity Date.
(c) Manner of Payment . Unless otherwise agreed to in writing by Holder, all payments on this Note shall be made by wire transfer of immediately available funds to an account designated by Holder in writing. If any payment on this Note is due on a day which is not a Business Day (defined below), such payment shall be due on the next succeeding Business Day. “ Business Day ” means any day other than a Saturday, Sunday or legal holiday in the State of New York.
(d) Prepayments at the Option of the Company . This Note may, at the option of the Company and upon at least three (3) Business Days’ written notice to Holder, be prepaid in whole or in part, at any time and from time to time, with a ten percent (10%) premium. Any prepayments made under this Section 1(d) or any other subsection of this Section 1 shall be applied first to any accrued interest hereon and then to reduce the then outstanding Principal Amount by the amount of such prepayment.
(d) Conversion Feature. At any time after February 28, 2017, the Holder shall have the right from time to time to convert all or any part of the outstanding and unpaid principal and interest amount of this Note into fully paid and non-assessable shares of common stock of the Company (“Common Stock”), at the conversion price (as defined below).
| (i) | The number of shares of Common Stock issuable upon conversion of any Conversion Amount shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price. “Conversion Amount” means the sum of (x) portion of the principal to be converted, redeemed or otherwise with respect to which this determination is being made and (y) all accrued and unpaid interest with respect to such portion of the principal amount. “Conversion Price” means, as of any Conversion Date or other date of determination, ninety percent (90%) of the average of the three (3) lowest daily VWAPs (volume weighted average price) of each of the ten (10) Trading Days prior to the day that the Holder requests conversion. |
| (ii) | The Company shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up or down to the nearest whole share. |
| (iii) | To convert any Conversion Amount into shares of Common Stock on any date (a “Conversion Date”), the Holder shall deliver, for receipt on or prior to 11:59 p.m., New York time, on such date, a copy of a written notice of conversion stipulating the amount or principal (in dollars) desired to be converted (the “Conversion Notice”) to the Company. The Company shall keep track of the amount outstanding on the Note after any Conversion, based on the Conversion Notices received. |
| (iv) | Upon receipt by the Company from the Holder of a Conversion Notice the Company shall issue and deliver or cause to be issued and delivered to or upon the order of the Holder certificates for the Common Stock issuable upon such conversion within three (3) business days after such receipt. If eligible for DWAC transfer, and so requested in the Conversion Notice, the Company shall transmit the shares via DWAC system. |
| - 2 - |
| (v) | Any conversion will be limited by: (i) Holder may not make more than one conversion every ten Trading Days, and (ii) the amount of Conversion Shares at any conversion may not be more than the total number of shares of Common Stock traded over the ten Trading Days preceding the Conversion Notice multiplied by five percent (5%). |
| (vi) | The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective registration statement under the Securities Act or (ii) the Company or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”). Until such time as the shares of Common Stock issuable upon conversion of this Note have been registered under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold, each certificate for shares of Common Stock issuable upon conversion of this Note that has not been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate: “NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.” |
| 2. | Defaults . |
(a) Events of Default . The occurrence and continuance of any one or more of the following events with respect to the Company shall constitute an event of default hereunder (“ Event of Default ”):
| (i) | if the Company shall fail to pay when due any amount owed on this Note and such failure continues for five (5) Business Days after Holder notifies the Company thereof in writing of such failure; | |
| (ii) | if the Company fails to perform or observe any other provision of this Note and such failure continues for thirty (30) Business Days after Holder notifies the Company thereof in writing of such failure; | |
| (iii) | if there is a Change of Control (as defined in the most recently effective employment agreement between the Company and its highest ranking officer with an employment agreement) of the Company; | |
| (iv) | if, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (a “ Bankruptcy Law ”), the Company shall (i) commence a voluntary case or proceeding; (ii) consent to the entry of an order for relief against it in an involuntary case; (iii) consent to the appointment of a trustee, receiver, assignee, liquidator or similar official; (iv) make an assignment for the benefit of its creditors; or (v) admit in writing its inability to pay its debts as they become due; or | |
| (v) | if a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for the Company or substantially all of the Company’s properties, or (iii) orders the liquidation of the Company, and in each case the order or decree is not dismissed within 60 Business Days. |
| - 3 - |
(b) Notice by Holder . Upon the occurrence of an Event of Default hereunder (unless all Events of Default have been waived by Holder or cured), Holder may, at Holder’s option, (i) by written notice to the Company, declare the entire unpaid Principal Amount of this Note (together with any accrued but unpaid interest thereon) immediately due and payable regardless of any prior forbearance, and (ii) subject to the other provisions of this Note (including Section 6 hereof), exercise any and all rights and remedies available to it under applicable law, including, without limitation, the right to collect from the Company all sums due under this Note. The Company shall pay all reasonable costs and expenses incurred by or on behalf of Holder in connection with Holder’s exercise of any or all of Holder’s rights and remedies under this Note, including, without limitation, reasonable attorneys’ fees and disbursements. During the period in which an Event of Default is occurring (and has not been waived by Holder or cured), notwithstanding the provisions of Section 1(a), the Principal Amount shall bear interest not at 5% as provided in such section, but instead at a rate of fifteen percent (15%).
| 3. | Representations and Warranties of Holder . The Holder by his acceptance hereof represents and warrants to the Company that he or she is acquiring the Note for his or her own account for investment only and not with a view to distribution or resale. The Holder agrees not to sell or otherwise dispose of the Note in violation of the provisions of the Securities Act of 1933, as amended (the “ Act ”). The Holder understands that the Note has not been registered by reason of its issuance in a transaction exempt from the registration requirements of the Act. The Holder understands that the Company is under no obligation to register the Note under the Act or to file for or comply with an exemption from registration, and recognizes that exemptions from registration, in any case, are limited and may not be available if Holder may wish to sell, transfer or otherwise dispose of the Note. The Holder represents and warrants to the Company that he or she has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of receiving and holding this Note and is able to incur a complete loss of his or her investment and to bear the risk of such a loss for an indefinite period of time. The Holder understands that the Note is a risky and speculative investment. The Holder acknowledges that the Company has given him or her access to the corporate records and accounts of the Company, has made its officers available for interview and has furnished him or her with all documents required by him or her to make an informed decision with regard to the investment in the Note. |
| 4. | Waiver of Presentment, Etc. The Company hereby expressly waives presentment for payment, demand, notice of dishonor, protest and notice of protest. Acceptance by Holder of any payment that is less than the full amount then due and owing hereunder shall not constitute a waiver of Holder’s right to receive payment in full at such time or at any prior or subsequent time. |
| - 4 - |
| 5. | Notices . Any notice required or permitted by this Note shall be in writing and shall be deemed received when received by fax (with confirmation of actual receipt), when received by express mail with signature confirmation, or seven (7) business days after being deposited in U.S. certified or registered mail, with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page. |
| 6. | Transfers; Successors and Assigns . This Note shall be binding upon the Company and its successors and permitted assigns, and shall inure to the benefit of Holder and Holder’s heirs, successors and permitted assigns. This Note is non-negotiable and neither party may assign its, his or her rights or obligations hereunder without the prior written consent of the other party, except in connection with the sale of all or substantially all of the Company’s assets, except that the Holder may sell this Note in a private transaction to an accredited investor. |
| 7. | Headings . The headings in this Note are for reference only and shall not affect the interpretation of this Note. |
| 8. | Severability . If any term or provision of this Note is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Note or invalidate or render unenforceable such term or provision in any other jurisdiction. |
| 9. | Amendment and Modification . This Note may only be amended, modified or supplemented by an agreement in writing signed by each party hereto, and only in accordance with Section 8 of the Agreement. |
| 10. | Governing Law . This Note shall be governed by and construed in accordance with the laws of the State of Florida, applicable to agreements made and to be performed entirely within such State, without regard to the conflict of laws principles thereof. |
| 11. | Entire Agreement . This Note, the exhibits and schedules hereto and the other documents to be delivered hereunder constitute the sole and entire agreement of the parties to this Note with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. |
[remainder of page intentionally left blank]
| - 5 - |
IN WITNESS WHEREOF, the parties hereto have caused this Note to be executed as of the date first written above by their respective officers thereunto duly authorized.
| POSITIVEID CORPORATION | ||
| By: | ||
| Name: | William J Caragol | |
| Title: | Chairman and CEO | |
| 1690 South Congress Ave., Suite 201, Delray Beach, FL 33445 | ||
| - 6 - |
AGREEMENT BY AND AMONG
POSITIVEID CORPORATION,
SANOMEDICS, INC. AND THERMOMEDICS, INC.
This AGREEMENT is entered into as of August 25, 2016 by and among PositiveID Corporation , a Delaware corporation (the “Company”); Sanomedics, Inc. , a Delaware Corporation (“Sano”) and, Thermomedics, Inc. , a Nevada corporation (“Thermo”) (together, the “Parties”).
WHEREAS , the parties hereto entered into that certain Stock Purchase Agreement, dated as of October 21, 2015 and First Amendment to such Stock Purchase Agreement, dated as of December 4, 2015 (the “SPA”) (capitalized terms used and not otherwise defined herein shall have the meanings given to such term in the SPA) pursuant to which the Company agreed to purchase, and Sano agreed to sell, all of the shares of Thermo; and
WHEREAS , the parties hereto entered into that certain Management Services and Control Agreement, dated as of December 4, 2015 (the “MSACA”) pursuant to which full control of Thermo, including operational and financial benefits and responsibility for Thermo, was transferred to the Company; and
WHEREAS , in contemplation of the closing of the transactions under the SPA, the parties hereto desire to make certain agreements and to amend and clarify certain terms of the SPA and MSACA as set forth herein.
NOW, THEREFORE , in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
| 1. | Amendment to the SPA . This Agreement is intended to amend certain terms and clarify certain deliverables under the SPA. Any terms in the SPA not addressed in this Agreement shall remain unchanged pursuant to the SPA. |
| 2. | Termination to MSACA . Effective as of the date of this Agreement the MSACA is terminated. |
| 3. | Amendments to the SPA (section 2.03(a)) . The Parties agree that Section 2.03(a)(v) of the SPA is deleted in its in its entirety and replaced to read as follows: Section 2.03(a) (v) Reserved. The Parties agree to amend Section 2.03(a)(viii) of the SPA. The amendment to Section 2.03(a)(viii) shall eliminate the need of Sanomedics to deliver any Note to the Devlin Law firm. Additionally, any legal expense or losses incurred by the Company after June 30, 2016 related to the Exergen litigation shall have the effect of reducing any future earnouts that may be owed to Sanomedics, dollar for dollar. Further, the Parties agree to eliminate the requirements of Section 2.03(a)(ix) of the SPA; specifically, Sanomedics will not be required to provide fully paid tail product liability insurance. |
| 4. | Amendments to the SPA (Section 7.02) - Indemnification . Section 7.02 shall be amended to both amend Sections 7.02(c) and 7.02(d), and to add Section 7.02(e). Sections 7.02(c) through 7.02(e) shall be replaced in their entirety as follows: |
(c) any actual fraud committed by Seller, the Company or any of their Affiliates in connection with the transactions contemplated by this Agreement;
(d) any liability or Losses for Taxes of the Company or with respect to the Business, or the costs related to the preparation and filing thereof, relating to periods on or prior to the Closing Date; or
(e) any liability or Losses resulting from (i) product liability claims prior to December 4, 2015, (ii) Exergen litigation related legal expenses or losses incurred after June 30, 2016, or (iii) any claims paid or settled by the Company or Thermo with any of the parties scheduled on either Schedule 2.03(a)(v) or 2.03(a)(viii) of the Seller Disclosure Schedules to Stock Purchase Agreement, dated October 21, 2015.
| 5. | Finalization of SPA Section 2.04 – Final of Closing Net Working Capital Adjustment. The Parties agree to settle the Final Closing Net Working Capital. As the cash purchase price was paid, without holdback, on December 4, 2015, the Parties agree to settle the final adjustment through a reduction of the Preferred Series J shares to be released from escrow. As a result, the 125 shares of Preferred Series J stock shall be released as follows: 71 shares to Sano and 54 shares returned to the Company’s treasury. |
| 6. | Other Deliverables . The Parties shall deliver all items on Exhibit A prior to closing. |
| 7. | Miscellaneous . |
a) The Parties agree that the provisions SPA may be amended in the future to reflect the amendment and agreements made herein. Any such amendment to the SPA shall be governed by the applicable amendment provisions of the SPA.
b) The SPA and this Agreement may be further amended or modified in whole or in part only by a writing which makes reference to the SPA and this Agreement, and any amendments thereto, as applicable, executed by the Parties. The obligations of any party hereunder may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the party claimed to have given the waiver; provided, however, that any waiver by any party of any violation of, breach of, or default under any provision of this Agreement or any other agreement provided for herein shall not be construed as, or constitute, a continuing waiver of such provision, or waiver of any other violation of, breach of or default under any other provision of this Agreement or any other agreement provided for herein.
c) This Agreement (together with the Schedules and the Exhibits thereto) and the other agreements and instruments expressly provided for therein and herein, together with the SPA, and any amendments thereto, set forth the entire understanding of the parties hereto and supersede in their entirety all prior contracts, agreements, arrangements, communications, discussions, representations, and warranties, whether oral or written, among the parties with respect to the subject matter hereof.
d) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together will constitute one and the same instrument. Any facsimile copy of this Agreement will be deemed an original for all purposes.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written.
| SANOMEDICS, INC. | ||
| By: | /s/ David Langle | |
| Name: | David Langle | |
| Title: | Chief Executive Officer | |
[Sano Signature Page to Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written.
| POSITIVEID CORPORATION | ||
| By: | /s/ William J. Caragol | |
| Name: | William J. Caragol | |
| Title: | Chief Executive Officer | |
| Thermomedics, Inc | ||
| By: | /s/ William J. Caragol | |
| Name: | William J. Caragol | |
| Title: | President | |
[Company and Thermo Signature Page to Agreement]
PositiveID Completes Acquisition of Thermomedics and the Caregiver Non-Contact Thermometer
Since
Assuming Control of Thermomedics, PositiveID has significantly expanded the distribution
channel and sales and marketing for Caregiver
DELRAY BEACH, FL, August 26, 2016 – PositiveID Corporation (“PositiveID” or “Company”) (OTCQB: PSID), a life sciences company focused on detection and diagnostics, announced today that it has completed its acquisition of Thermomedics Inc., the designer and marketer of the Caregiver® infrared, non-contact thermometer, which is FDA-cleared for clinical use.
Under a management services and control agreement (the “Control Agreement”), PositiveID assumed full operational control of Thermomedics in December 2015. PositiveID has now completed the acquisition of the capital stock of Thermomedics and terminated the Control Agreement.
Since assuming control of Thermomedics, the Company has expanded the distribution channel for Caregiver with several new healthcare products distributors, and has also revitalized sales and marketing efforts, with several significant opportunities in the pipeline.
Caregiver is a clinical grade, infrared thermometer for measurement of forehead temperature in adults, children, and infants, without contact. It delivers an oral-equivalent temperature directly from the forehead in one to two seconds. Since there is no skin contact and Caregiver does not require probe cover supplies, it reduces the risk of cross-contamination, which is an increasing concern, and saves healthcare facilities the cost of covers (as much as $0.05 to $0.10 per temperature), storage space, and waste disposal costs. It is estimated that Caregiver can offer savings of $250 or more per year per device in probe cover supplies alone.
William J. Caragol, Chairman and CEO of PositiveID, said, “While we have had full control and responsibility for all strategic, operational and financial decisions for Thermomedics since December, we are very pleased to have now officially completed the acquisition. This final step allows us to focus fully on bringing important sales opportunities to fruition, as we continue our work to capture a meaningful share of the fastest growing segment of the global thermometer market.”
The global market for temperature monitoring devices is forecast to reach $1 billion by 2020, with infrared thermometers experiencing the fastest growth driven in part by concerns over the spread of highly infectious diseases like Ebola, according to Global Industry Analysts, Inc.
About PositiveID Corporation
PositiveID Corporation is a life sciences tools and diagnostics company with an extensive patent portfolio. PositiveID develops biological detection and diagnostics systems, specializing in the development of microfluidic systems for the automated preparation of and performance of biological assays. PositiveID is also a leader in the mobile technology vehicle market, with a focus on the laboratory market and homeland security. For more information on PositiveID, please visit http://www.psidcorp.com , or connect with PositiveID on Twitter , Facebook or LinkedIn .
Statements about PositiveID's future expectations, including the likelihood that since there is no skin contact and Caregiver does not require probe cover supplies, it reduces the risk of cross-contamination, which is an increasing concern, and saves healthcare facilities the cost of covers (as much as $0.05 to $0.10 per temperature), storage space, and waste disposal costs; the likelihood that Caregiver can offer savings of $250 or more per year per device in probe cover supplies alone; the likelihood that the Company can capture a meaningful share of the fastest growing segment of the global thermometer market; the likelihood that the global market for temperature monitoring devices is forecast to reach $1 billion by 2020, with infrared thermometers experiencing the fastest growth driven in part by concerns over the spread of highly infectious diseases like Ebola; constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act of 1934, and as that term is defined in the Private Litigation Reform Act of 1995. Such forward-looking statements involve risks and uncertainties and are subject to change at any time, and PositiveID's actual results could differ materially from expected results. These risks and uncertainties include, without limitation, the Company’s ability to target the professional healthcare market, as well as other risks. Additional information about these and other factors that could affect the Company's business is set forth in the Company's various filings with the Securities and Exchange Commission, including those set forth in the Company's 10-K filed on April 12, 2016, and 10-Qs filed on August 12, May 16, 2016, and November 12, 2015, under the caption "Risk Factors." The Company undertakes no obligation to update or release any revisions to these forward-looking statements to reflect events or circumstances after the date of this statement or to reflect the occurrence of unanticipated events, except as required by law.
Contacts:
PositiveID Corporation
Allison Tomek
(561) 805-8044
atomek@positiveidcorp.com
RedChip Companies
Jon Cunningham
(407) 644-4256
jon@redchip.com