Transfer Agreement - Actual Legal Document

EXECUTION COPY

Exhibit 10.17

TRANSFER AGREEMENT

BY AND BETWEEN

AFBS, INC.

AND

THERICS, LLC

June 30, 2005

TABLE OF CONTENTS

ARTICLE I

DEFINITIONS

1

1.1.

Accounts Receivable.

1

1.2.

AFBS.

1

1.3.

Agreement.

1

1.4.

Assumed Contracts.

1

1.5.

Books and Records.

2

1.6.

Business.

2

1.7.

Closing.

2

1.8.

Closing Date.

2

1.9.

Consents.

2

1.10.

Contracts.

2

1.11.

Contributed Assets.

2

1.12.

Effective Time.

3

1.13.

Equipment.

3

1.14.

Excluded Assets.

3

1.15.

Governmental Entity.

3

1.16.

Inventory.

3

1.17.

IP Transfer Agreement.

3

1.18.

Law or Laws.

3

1.19.

Liens.

4

1.20.

Permits.

4

1.21.

Post-Closing Liabilities.

4

1.22.

Retained Liabilities.

4

1.23.

Tax Return.

5

1.24.

Taxes.

5

1.25.

Therics.

5

1.26.

Unit Purchase Agreement.

5

ARTICLE II 

TRANSFER

5

2.1.

Purchase and Sale; Assignment; Consideration.

5

2.2.

No Assumption of Retained Liabilities; Post-Closing Liabilities.

5

2.3.

Transfer Taxes.

6

2.4.

Permits.

6

ARTICLE III  

MISCELLANEOUS

6

3.1.

Entire Agreement; Amendment.

6

3.2.

Governing Law.

6

3.3.

Notices.

6

3.4.

Counterparts; Headings.

7

3.5.

Binding Effect.

7

3.6.

Severability.

8

3.7.

Specific Performance.

8

3.8.

Invoices, Bills, Etc.

8

(i)

SCHEDULES

Schedule 1.4  

Assumed Contracts

Schedule 1.9

Consents

Schedule 1.11

Contributed Assets

Schedule 1.13

Equipment

Schedule 1.14

Excluded Assets

Schedule 1.16

Inventory

Schedule 1.20 

Permits

(ii)

TRANSFER AGREEMENT

               This TRANSFER AGREEMENT, effective as of June 30, 2005, by and between AFBS, INC., a Virginia corporation (f/k/a, “Therics, Inc.”) (“ AFBS ”), and THERICS, LLC, an Ohio limited liability company (“ Therics ”), recites and provides as follows:

RECITALS

               WHEREAS, AFBS owns the Contributed Assets (other than the Assumed Contracts) and is a party to the Assumed Contracts; and

               WHEREAS, AFBS desires to contribute the Contributed Assets (other than the Assumed Contracts) to Therics and assign the Assumed Contracts to Therics, and in exchange therefor, Therics desires to accept the Contributed Assets (other than the Assumed Contracts) from AFBS and to assume the Assumed Contracts from AFBS, all on the terms and subject to the conditions set forth herein; and

               NOW, THEREFORE, in consideration of the Recitals and of the mutual covenants, conditions and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it hereby is agreed that:

AGREEMENT

ARTICLE I
DEFINITIONS

               When used in this Agreement, the following terms shall have the meanings specified:

1.1.         

Accounts Receivable .

               “Accounts Receivable” shall mean the accounts receivable, notes receivable, prepaid expenses, other rights to payment from customers of AFBS and associated rights of AFBS existing as of, or arising from the conduct of the business of AFBS prior to, the Effective Time.

1.2.         

AFBS .

               “AFBS” shall have the meaning set forth in the Preamble hereof.

1.3.         

Agreement .

               “Agreement” shall mean this Transfer Agreement, together with the Schedules attached hereto.

1.4.         

Assumed Contracts .

               “Assumed Contracts” shall mean the Contracts of AFBS that are specifically listed on Schedule 1.4  attached hereto.

1.5.         

Books and Records .

               “Books and Records” shall mean the original copies of the books and records of AFBS that are specifically related to the Contributed Assets and that are in possession of AFBS, and all related documents, including, without limitation, all customer lists and records, referral sources, research and development reports and records, service and warranty records, equipment logs, operating guides and manuals, creative materials, advertising materials, promotional materials, studies, reports, correspondence and any other similar documents that are specifically related to the Contributed Assets.

1.6.         

Business .

               “Business” shall mean the business and operations of AFBS as operated and conducted prior to and up through the Effective Time.

1.7.         

Closing .

               “Closing” shall mean the conference held immediately following the execution of this Agreement, on the Closing Date, at the offices of Hunton & Williams LLP located in Richmond, Virginia at 951 East Byrd Street.

1.8.         

Closing Date .

               “Closing Date” shall mean June 30, 2005.

1.9.         

Consents .

               “Consents” shall mean all consents, approvals and waivers related to the Assumed Contracts required to be obtained in order to properly and legally assign or convey the same to Therics in connection with the transactions contemplated by this Agreement, such consents, approvals and waivers to be obtained by AFBS and each of which is listed on Schedule 1.9  attached hereto.

1.10.      

Contracts.

               “Contracts” shall mean all agreements, contracts, purchase orders, leases, licenses, relationships and commitments, written or oral, to which AFBS is a party or by which AFBS or its property is bound.

1.11.      

Contributed Assets.

               “Contributed Assets” shall mean the Assumed Contracts, the Books and Records, the Equipment, the Inventory, the Permits (to the extent assignable) and those other assets of AFBS specifically identified on Schedule 1.11  attached hereto; provided, however, that notwithstanding the foregoing, the Contributed Assets shall specifically exclude the Excluded Assets.

2

1.12.

Effective Time .

               “Effective Time” shall mean 11:57 p.m. (Eastern Daylight Time) on the Closing Date.

1.13.

Equipment .

               “Equipment” shall mean all of the tangible assets of AFBS including, without limitation, the tangible assets specifically listed on Schedule 1.13  attached hereto.

1.14.

Excluded Assets .

               “Excluded Assets” shall mean all assets of AFBS other than the Contributed Assets, including, but not limited to: (i) all minute books, stock records and corporate seals of AFBS; (ii) all Contracts other than the Assumed Contracts; (iii) AFBS’s rights under this Agreement and any other agreements or documents delivered in connection with the transactions contemplated hereby or by the Unit Purchase Agreement; (iv) cash and cash equivalents, (v) cash deposits and letters of credit in favor of AFBS; (vi) books and records relating primarily to the Excluded Assets and the Retained Liabilities, (vii) the Accounts Receivable, (viii) any and all rights to Tax refunds or credits or any claims for such refund or credits, (ix) all intellectual property assets, it being understood that certain intellectual property assets shall be transferred from AFBS to Therics pursuant to the IP Transfer Agreement and any and all goodwill associated with the intellectual property assets so transferred, (x) all insurance policies, and (xi) those other assets set forth on Schedule 1.14  attached hereto.

1.15.

Governmental Entity.

               “Governmental Entity” shall mean any federal, state, local or foreign legislature, court, arbitral tribunal, administrative agency or commission or other governmental or other regulatory authority.

1.16.

Inventory .

               “Inventory” shall mean all the inventories of goods owned by AFBS and held for resale, all supplies held for use, whether by AFBS, its distributors or otherwise, in the ordinary course of the business of AFBS, and all work in process including, without limitation, the goods, supplies and work in process set forth on Schedule 1.16  attached hereto.

1.17.

IP Transfer Agreement .

               “IP Transfer Agreement” shall mean the Intellectual Property Transfer Agreement contemplated to be entered into by and between AFBS and Therics immediately following the Effective Time on the date hereof.

1.18. 

Law or Laws .