UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): March 4, 2016

 

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 (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 filed by the Company on December 7, 2015 (the “December 2015 8-K”).

 

As a result of the Company assuming control of Thermomedics pursuant to the Control Agreement it was determined under applicable accounting standards that December 4, 2015 was the acquisition date of Thermomedics. The Company amended the December 2015 8-K to disclose the required financial information for the Acquisition through the Current Report on Form 8-K/A filed by the Company on February 19, 2016.

 

The Company is filing this Current Report to disclose certain updates to the agreement of the parties with respect to the Acquisition and Control Agreement.

 

Item 1.01 Entry into a Material Definitive Agreement.

 

On March 4, 2016, PositiveID, the Seller and Thermomedics entered into a letter agreement (the “March Agreement”), which includes an amendment to the Control Agreement, an agreement to terminate intercompany indebtedness, and an agreement for the transfer of Thermomedics’ intellectual property.

 

Under the terms of the March Agreement, PositiveID, the Seller and Thermomedics agreed to extend the closing date for the Purchase Agreement to March 31, 2016.

 

The Seller also agreed to release, cancel, terminate or otherwise settle all intercompany indebtedness and accounts owed by Thermomedics to the Seller as of December 4, 2015, and the Seller agreed to also cause Thermomedics to release, cancel, terminate or otherwise settle all intercompany indebtedness and accounts owed by the Seller to Thermomedics as of December 4, 2015. Additionally, pursuant to the March Agreement, effective as of December 4, 2015, the Seller agreed to transfer all patents and other intellectual property owned by the Seller, but which relate to, or are used by, Thermomedics, to Thermomedics such that Thermomedics is the rightful and valid owner of all of its intellectual property and the intellectual property used in the business as of such date.

 

Except as otherwise modified by the March Amendment, the terms of the Control Agreement remains in effect and unchanged. Further, the Purchase Agreement and SPA Amendment continue to be in effect.

 

The foregoing description of the terms of the March Agreement does not purport to be complete and is qualified in its entirety by reference to the provisions of such agreement, which is filed as Exhibit 10.4 to this Current Report on Form 8-K.

 

 
 

 

Item 9.01 Financial Statements and Exhibits

 

Exhibit
Number		   Description
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   March Agreement, dated March 4, 2016, by and between PositiveID Corporation, Sanomedics Inc., and Thermomedics, Inc.

 

 
 

 

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: March 8, 2016 By: /s/ William J. Caragol
  Name: William J. Caragol
  Title: Chief Executive Officer

 

 
 



 

Exhibit 10.4

 

AGREEMENT BY AND AMONG

POSITIVEID CORPORATION,

SANOMEDICS, INC. AND THERMOMEDICS, INC.

 

This AGREEMENT is entered into as of March 4, 2016 by and among PositiveID Corporation, a Delaware corporation (the “Company”); Sanomedics, Inc., a Delaware Corporation (“Sano”) and, its wholly-owned subsidiary, 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”) (capitalized terms used and not otherwise defined herein shall have the meanings given to such term in 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 and in furtherance of Sano’s and Thermo’s obligations under the MSACA, the parties hereto desire to make certain agreements and to amend certain terms of the 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 MSACA. Section 11 of the Agreement shall be amended in its entirety to read as follows:
   
  “Term. This Agreement shall commence effective as of the date first written above and shall remain in effect until the date of closing pursuant to the terms of the SPA. It will be considered an Event of Default if Sano has not delivered to the Company (or the Company has waived delivery with respect to such item) each of the items as set in Section 2.03(a) of the SPA (the “Deliverables”) or prior to March 31, 2016 (the “Default Date”). Notwithstanding the foregoing, in the event that Sano delivers the Deliverables (or the Company has waived delivery with respect to such item) on or prior to the date which is twenty (20) days following the Default Date (the “Extension Date”), an Event of Default shall be deemed not to have occurred. Sano may terminate this Agreement at any time following the Extension Date, subject to the consent of the Manager, by (i) repaying the Company all principal and interest for any advances made to Thermo pursuant to this Agreement (the “Advance Amount”), (ii) repaying the Company all principal and interest for the advanced Cash Purchase Price made to Sano pursuant to this Agreement (“Purchase Amount”) and (iii) paying the Termination Fee; provided; however; that if Sano has provided the Deliverables to the Company and the Company does not (or is not willing to) consummate the Stock Purchase Transaction, Sano and Thermo shall: (A) not have any obligation to pay a Termination Fee; and (B) have six (6) months to repay the Advance Amount and the Purchase Amount to the Company.”

 

   
 

 

2. Agreement as to Intercompany Indebtedness. Sano shall release, cancel, terminate or otherwise settle all Intercompany Indebtedness and accounts owed by Thermo to Sano or any of its Affiliates (other than Thermo) as of December 4, 2015, and Sano shall cause Thermo to release, cancel, terminate or otherwise settle all Intercompany Indebtedness and accounts owed by Sano or any of its Affiliates (other than the Thermo) to Thermo as December 4, 2015. Effective as of December 4, 2015, Sano, on behalf of itself and its Affiliates (other than the Thermo), hereby forever fully and irrevocably waives, releases and discharges Thermo and Representatives from any and all claims, liabilities, obligations or agreements of any kind or nature whatsoever.
   
3. Agreement as to Thermo Intellectual Property. Effective December 4, 2015, Sano shall transfer all Patents and other Intellectual Property in its name or the name of one of its affiliates (other than Thermo) that are included on the schedules to the SPA (Schedule(s) 3.11(b) as of October 21, 2015), and shall take any and all actions necessary to transfer all Intellectual Property used by Thermo or with respect to Thermo or the Business to Thermo effective as of December 4, 2015 such that Thermo is the rightful and valid owner of all of its Intellectual Property and the Intellectual Property used in the Business as of such date. Sano represents that the Patents and other Intellectual Property included on Schedule 3.11(b) of the SPA as of October 21, 2015 are the only Patents and other Intellectual Property used by Thermo or with respect to Thermo or the Business to Thermo as of December 4, 2015.
   
4. Miscellaneous
   
  a) The Parties agree that the provisions SPA and the MSACA may be amended in the future to reflect the amendment and agreements made herein. Any such amendment to the SPA and the MSACA shall be governed by the applicable amendment provisions of the SPA and the MSACA.
   
  b) As of and after the date hereof, each reference in the MSACA to “this Agreement”, “hereunder”, “hereof”, “herein”, “hereby” or words of like import referring to the MSACA shall mean and be a reference to the MSACA as amended by this Agreement. Except as specifically amended by this Agreement, each term, provision and condition of the MSACA survives, remains and shall continue in full force and effect.

 

   
 

 

  c) The SPA, MSACA and this Agreement may be further amended or modified in whole or in part only by a writing which makes reference to the SPA, MSACA 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.
   
  d) 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 the MSACA, 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.
   
  e) 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]