Contract
Exhibit
10.28
This
Side
Agreement (“Agreement”), dated as of the 11 day of June, 2007,
is by and between VATAS Holding GmbH, a German limited liability company
(“VATAS”) and RemoteMDx, Inc., a Utah
corporation (the “Company”). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Securities Purchase Agreement.
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A.
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WHEREAS,
VATAS and the Company (the “Parties”) entered into a
certain Securities Purchase Agreement (the “Securities Purchase
Agreement”), dated November 9, 2006, whereby VATAS purchased
3,000,000 shares (the “Shares”) of the Company’s Common
Stock.
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B.
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WHEREAS,
pursuant to the Securities Purchase Agreement, the Company agreed
to
register the Shares by the Filing Deadline or pay certain liquidated
damages in the form of additional shares of Common Stock of the
Company
(the “Penalty
Shares”).
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C.
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WHEREAS,
the Company has not yet registered the
Shares.
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D.
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WHEREAS,
as a result of such failure to register, the Company has a current
obligation to issue Penalty Shares in such number as is determined
pursuant to Section 7 of the Securities Purchase
Agreement.
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E.
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WHEREAS,
the Parties are entering into this Agreement in order to clarify
certain
matters relating to the Penalty
Shares;
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NOW
THEREFORE, in consideration of the mutual covenants and promises contained
in
this Agreement, the Parties agree as follows:
1. Penalty
Share Amount. From the date hereof and up to and including the
date thirty (30) days after the date of this Agreement (the “Suspension
Period”), the aggregate amount of Penalty Shares owed to VATAS under
Section 7 of the Securities Purchase Agreement shall be fixed at 750,000,
notwithstanding any provision of such Section 7 that would otherwise operate
during such period to increase the number of Penalty Shares owed.
2. Registration
of the Penalty Shares. The Company shall include all Penalty
Shares (whether in the number fixed pursuant to Section 1 hereof or otherwise
payable to VATAS pursuant to Section 7 of the Securities Purchase Agreement)
for
registration under the Securities Act in the Registration Statement on the
same
terms as specified in respect of the Shares in Section 7 of the Securities
Purchase Agreement.
3. Failure
to register the Penalty Shares. If the Company fails to file the
Registration Statement on or prior to the end of the Suspension Period, the
fixed amount of Penalty Shares specified in Section 1 hereof shall no longer
apply and VATAS shall be owed Penalty Shares as may from time to time be
determined pursuant to Section 7 of the Securities Purchase Agreement, as
if the
Suspension Period had never occurred.
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4. Counterparts. This
Agreement may be executed in any number of counterparts and by different
parties
hereto and separate counterparts each of which when so executed shall be
deemed
to be an original and all of which taken together shall constitute one and
the
same agreement. Delivery of an executed counterpart of a signature page to
this
agreement by telecopier or e-mail shall be effective as delivery of a manually
executed counterpart of this agreement.
5. Applicability
of Securities Purchase Agreement. Except as expressly set forth
herein, all terms and conditions set forth in the Securities Purchase Agreement
shall remain in full force and effect. The provisions of Section 10.1
and 10.4 through 10.9, inclusive, of the Securities Purchase
Agreement shall apply, mutatis mutandis, to this Agreement as if set forth
herein.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF,
the parties hereto have duly executed this Agreement as
of the date
first written above.
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VATAS
HOLDING GMBH
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By:
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/s/ Xxxx
Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Managing
Director
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REMOTEMDX,
INC.
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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CEO
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