SECURITIES PURCHASE AGREEMENT
Exhibit 10.24
SECURITIES PURCHASE AGREEMENT
(the “Agreement”), dated
as of September 14th, 2007,
by and between Futuristic Medical Devices, LLC (“Purchaser”), and RemoteMDx,
Inc., 000 Xxxx Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxx 00000 (Seller”).
WHEREAS, Purchaser and Seller
are executing and delivering this Agreement in reliance upon an exemption from
securities registration afforded by the Securities Act of 1933, as amended (the
“1933
Act”);
WHEREAS, Purchaser desires to
purchase and Seller desires to sell, upon the terms and conditions set forth in
this Agreement, 3,000,000 shares of Common Stock, par value $.0001 of Volu-Sol
Reagents, Inc. (the “Common Stock), a Utah corporation (the “Company”), in consideration
for the payment by Purchaser to Seller of $2,400,000.00 ($0.80 cents per
share).
NOW THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. PURCHASE AND SALE OF COMMON
STOCK.
a. Purchase of the Common
Stock. On the Closing Date (as defined below), Seller agrees
to sell and deliver to Purchaser, and Purchaser agrees to purchase from Seller,
the Common Stock in consideration for $2,400,000.00 (the “Purchase Price”).
b. Closing
Date. Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 5 and Section 6 below, the date and time
of the sale of the Common Stock pursuant to this Agreement (the “Closing Date”) shall be 12:00
noon Eastern Daylight Time on or before March 1, 2008 or such other mutually
agreed upon time. The closing of the transactions contemplated by
this Agreement (the “Closing”) shall occur on the
Closing Date at such location as may be agreed to by the parties.
c. Form of
Payment. On the Closing Date, (i) Purchaser shall pay the
Purchase Price in United States dollars by wire transfer of immediately
available funds to an escrow account (ii) Seller shall deliver to Purchaser
3,000,000 shares of Common Stock, with restrictive legend in Purchaser’s name,
duly endorsed for transfer on behalf of Seller.
d. Contingency. This
Agreement is subject to Purchaser completing its due diligence on the
Company. At any time prior to the Closing Date, Purchaser may notify
Seller of its intent not to execute on the purchase with no recourse to
Purchase.
2. PURCHASER’S
REPRESENTATIONS AND WARRANTIES. Purchaser
represents and warrants to Seller that:
a. Accredited Purchaser;
Investment Purpose. Purchaser represents that it is an
“Accredited Investor” as defined in Regulation D under the Securities Act of
1933. Purchaser is purchasing the Common Stock for its own account
for investment purposes only and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, nor with any present
intention of distributing or selling the same, and it has no present or
contemplated agreement, undertaking, arrangement, obligation, indebtedness or
commitment providing for the disposition thereof; provided, however, that by
making the representations herein, Purchaser does not agree to hold the Common
Stock for any minimum or other specific term and reserves the right to dispose
of the Common Stock at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act and applicable state securities
laws.
b. Reliance on
Exemptions. Purchaser understands that the Common Stock is
being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that Seller is relying upon the truth and accuracy of, and Purchaser’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Common Stock.
c. Non-affiliate
Status. Purchaser is not, and has not for in excess of ninety
(90) days been, and subsequent to the Closing Date will not be, an “Affiliate”
of the Company, as that term is defined by Rule 144 under the 1933
Act. Purchaser is not acting in concert with any other person in a
manner that would require their sales of securities to be aggregated for
purposes of Rule 144 or would cause Purchaser to be considered an “Underwriter”
as that term is defined by Section 2 of the 1933 Act.
d. Company
Information. Purchaser and its advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Company, including copies of the Company’s most recent
financial statements. Purchaser understands that its investment in
the Common Stock involves a significant degree of risk and that the Company’s
auditors have disclaimed reliance on their certification of previous financial
statements.
e. Governmental
Review. Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed upon or
made any recommendation or endorsement of the Common Stock.
f. Transfer or
Resale. Purchaser understands that (i) the sale or resale
of the Common Stock has not been and is not being registered under the 1933 Act
or any applicable state securities laws, and the Common Stock may not be
transferred unless (a) the Common Stock is sold pursuant to an effective
registration statement under the 1933 Act, (b) the Common Stock is sold or
transferred pursuant to an exemption from such registration, (c) the Common
Stock is sold or transferred to an “affiliate” (as defined in Rule 144
promulgated under the 1933 Act (or a successor rule) (“Rule 144”)) of Purchaser who
agrees to sell or otherwise transfer the Common Stock only in accordance with
this Section 2(f) and who is an Accredited Investor, or (d) (i) the Common Stock
is sold pursuant to Rule 144, if such Rule is available; (ii) any sale of such
Common Stock made in reliance on Rule 144 may be made only in accordance with
the terms of said Rule and further, if said Rule is not applicable, any resale
of such Common Stock under circumstances in which the seller (or the person
through whom the sale is made) may be deemed to be an underwriter (as that term
is defined in the 0000 Xxx) may require compliance with some other exemption
under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii)
neither Seller nor any other person is under any obligation to comply with the
terms and conditions of any exemption under the 1933 Act.
g. Authorization;
Enforcement. This Agreement has been duly and validly
authorized by Purchaser. This Agreement has been duly executed and
delivered on behalf of Purchaser, and this Agreement constitutes a valid and
binding agreement of Purchaser enforceable in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors’ rights and remedies or by
other equitable principles of general application.
3. REPRESENTATIONS
AND WARRANTIES OF SELLER. Seller represents and warrants to
Purchaser that:
a. Authorization;
Enforcement. (i) Seller has all requisite corporate power and
authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereby and to sell the Common Stock, in accordance
with the terms hereof, (ii) the execution and delivery of this Agreement by
Seller and the consummation by it of the transactions contemplated hereby
(including without limitation, the sale of the Common Stock to Purchaser) have
been duly authorized by Seller and no further consent or authorization of Seller
or its members is required, (iii) this Agreement has been duly executed and
delivered by Seller, and (iv) this Agreement constitutes a legal, valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally, the enforcement of creditors’ rights and remedies or by
other equitable principles of general application
b. Title. Seller
has good and marketable title to the Common Stock, free and clear of all liens,
pledges and encumbrances of any kind.
c. No
Conflicts. The execution, delivery and performance of this
Agreement by Seller and the consummation by Seller of the transactions
contemplated hereby (including, without limitation, the sale of the Common Stock
to Purchaser) will not (i) violate or conflict with, or result in a breach of
any provision of, or constitute a default (or an event which with notice or
lapse of time or both could become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
agreement, note, bond, indenture or other instrument to which Seller is a party,
or (ii) result in a violation of any law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations and
regulations of any self-regulatory organizations to which Seller is subject)
applicable to Seller or by which any property of the Company or the Common Stock
are bound or affected. Except as specifically contemplated by this
Agreement and as required under the 1933 Act and any applicable federal and
state securities laws, neither Seller nor the Company is required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court, governmental agency, regulatory agency, self regulatory organization or
stock market or any third party in order for it to execute, deliver or perform
any of its obligations under this Agreement in accordance with the terms
hereof. Except for filings that may be required under applicable
federal and state securities laws in connection with the issuance and sale of
the Common Stock, all consents, authorizations, orders, filings and
registrations which Seller is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date
hereof.
d. No
Brokers. Seller has taken no action which would give rise to
any claim by any person for brokerage commissions, finder’s fees or similar
payments relating to this Agreement or the transactions contemplated
hereby.
e. Title. Seller
has good and marketable title to the Common Stock, free and clear of all liens,
pledges and encumbrances of any kind.
f. No Other
Representations. Except as specifically set forth
herein, Seller makes no representations or warranties with respect to the
Company, its financial status, earnings, assets, liabilities, corporate status
or any other matter.
4. COVENANTS.
a. Best
Efforts. The parties shall use their best efforts to satisfy
timely each of the conditions described in Section 5 and Section 6 of this
Agreement.
b. Refraining from
Sales. Seller, and his Affiliates (as hereto defined )
covenant not to engage, directly or
indirectly, in any sale, transfer or other disposition of
Common Stock, whether restricted or otherwise, for a period of 60 days following
the Closing Date.
5. CONDITIONS
TO SELLER’S OBLIGATION TO SELL. The obligation of
Seller hereunder to sell and deliver the Common Stock to Purchaser at the
Closing is subject to the satisfaction, at or before the Closing Date of each of
the following conditions thereto, provided that these conditions are for
Seller’s sole benefit and may be waived by Seller at any time in its sole
discretion:
a. Purchaser
shall have executed this Agreement and delivered the same to
Seller.
b. Purchaser
shall have delivered the Purchase Price in accordance with Section 1(c)
above.
c. The
representations and warranties of Purchaser shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date), and Purchaser shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by Purchaser at or
prior to the Closing Date.
d. No
litigation, statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by or in
any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
6. CONDITIONS
TO PURCHASER’S OBLIGATION TO PURCHASE. The obligation of
Purchaser hereunder to purchase the Common Stock at the Closing is subject to
the satisfaction, at or before the Closing Date of each of the following
conditions, provided that these conditions are for Purchaser’s sole benefit and
may be waived by Purchaser at any time in its sole discretion.
a. Seller
shall have delivered to Purchaser the shares of Common Stock duly endorsed for
transfer in accordance with Section 1(c) above.
b. The
representations and warranties of Seller shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at such time (except for representations and warranties that speak as of a
specific date) and Seller shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by Seller at or prior to
the Closing Date.
c. No
litigation, statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by or in
any court of governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
7. GOVERNING
LAW; MISCELLANEOUS.
a. Governing Law;
Jurisdiction. THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITH SUCH STATE, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT
TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN THE
CITY OF NEW YORK, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS
AGREEMENT, THE AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY
WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR
PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE OF PROCESS UPON A
PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE
SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT ANY PARTY’S RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. THE PARTIES AGREE THAT
A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT
OR IN ANY OTHER LAWFUL MANNER. THE PARTIES HEREBY WAIVE A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER IN RESPECT OF ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.
b. Counterparts; Signatures by
Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other
party. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
c. Headings. The
headings of this Agreement are for convenience of reference only and shall not
form part of, or affect the interpretation of, this Agreement.
d. Severability. In
the event that any provision of this Agreement is invalid or enforceable under
any applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision
hereof which may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof.
e. Entire Agreement;
Amendments. This Agreement and the instruments referenced
herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither Seller nor Purchaser makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument in writing
signed by the party to be charged with enforcement.
f. Notices. Any
notices required or permitted to be given under the terms of this Agreement
shall be sent by certified or registered mail (return receipt requested) or
delivered personally or by courier (including a recognized overnight delivery
service) or by facsimile and shall be effective five days after being placed in
the mail, if mailed by regular United States mail, or upon receipt, if delivered
personally or by courier (including a recognized overnight delivery service) or
by facsimile, in each case addressed to a party. The addresses for
such communications shall be:
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If
to Purchaser:
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Futuristic
Medical Devices, LLC
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C/O
Xxxxxx X. Xxxxxxx
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000
Xxxx Xxxx Xxxx
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Xxxxxx
Xxxxxx, Xxx Xxxx
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00000
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If
to Seller:
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RemoteMDx,
Inc.
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Attn:
CFO
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000
Xxxx Xxxxx Xxxxxx Xxxxx
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Xxxxx
000
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Xxxxx,
Xxxx 00000
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000-000-0000
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Each
party shall provide notice to the other party of any change in
address.
g. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and assigns. Neither
Seller nor Purchaser shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the
other. Notwithstanding the foregoing, subject to Section 2(f),
Purchaser may assign its rights hereunder to any person that purchases the
Common Stock in a private transaction from Purchaser or to any of its
“Affiliates”, without the consent of Seller
h. Third Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person.
i. Further
Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
j. No Strict
Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any
party.
IN WITNESS WHEREOF, Purchaser
and Seller have caused this Securities Purchase Agreement to be duly executed as
of the date first above written.
RemoteMDx,
Inc.
BY _/s/ Xxxxx
Derrick_____________________
NAME_David Xxxxxxx
____________________
ITS____CEO______
____________________
Futuristic
Medical Devices, LLC
BY _/s/ Xxxxx
Weidman____________________
NAME_Steve Weidman_____________ ______
ITS____Manager_________________________
Number of
Shares: 3,000,000
Purchase
Price: $2,400,000.00
($0.80
per share)
