SECURITIES PURCHASE AGREEMENT
Exhibit
10.26
Execution
Version
SECURITIES
PURCHASE
AGREEMENT (the “Agreement”), dated as of July 5, 2007,
by and between Xxxxx Xxxxxxx, Xxxxx Xxxxxx and ADP Management, Inc., 0000 Xxxxx
Xxxxxxx 00, Xxxxxxxxxx, XX 00000 (collectively referred to herein as
“Sellers” and each individually as a
“Seller”), and VATAS Holding GmbH, a German limited
liability
company with offices at Xxxxxxxxxxxxxxxx 00, X-00000, Xxxxxx, Xxxxxxx
(“Purchaser”).
WHEREAS,
Purchaser and
Sellers 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 Sellers desire to sell, upon the terms and conditions
set forth in this Agreement, an aggregate of 6,000,000 shares of Common Stock,
par value $.0001 of REMOTE MDX, INC. (the “Common Stock”), a
Utah corporation (the “Company”), with each Seller contributing
the allocable portion specified in Schedule A;
WHEREAS,
in consideration for Sellers agreeing to sell the Common Stock, Purchaser shall
pay Sellers an aggregate of $7,800,000.00 in cash;
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),
Sellers agree to sell and deliver to Purchaser, and Purchaser agrees to purchase
from Sellers, the Common Stock in consideration for $7,800,000 cash (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 July 25,
2007 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. Purchaser agrees to pay to Sellers the Purchase Price on
the terms and conditions as set forth below:
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i.
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The
Purchase Price shall be paid in United States dollars via wire transfer
of
immediately available funds to an escrow account designated by Sellers
in
writing not less than five (5) business days prior to the Closing
Date and
shall be paid at Closing;
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ii.
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The
Purchase Price shall be allocated among Sellers in accordance with
their
respective pro rata contributions of Common Stock as listed on Schedule
A.
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d. Delivery
of Common Stock. Sellers shall deliver to Purchaser 6,000,000
shares of Common Stock, with restrictive legend in Purchaser’s name, duly
endorsed for transfer on behalf of Sellers. The Company, evidenced by
its signature at the foot of this Agreement, hereby represents and warrants
that
upon delivery to the Transfer Agent, Company shall promptly cause to be issued
to Purchaser, at Sellers’ cost and expense, one or more new certificates in the
aggregate amount of 6,000,000 shares of Common Stock in the name of Purchaser,
with restrictive legend.
2. PURCHASER’S
REPRESENTATIONS AND
WARRANTIES. Purchaser represents and
warrants to Sellers that:
a. Accredited
Purchaser; Investment Purpose. Purchaser represents that it is an
“Accredited Investor” as defined in Regulation D under the 1933
Act. 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 Sellers are 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 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 as a result of the purchase of the Common Stock will not
be,
an “affiliate” (“Affiliate”) of the Company, as that term is
defined by Rule 144 under the 1933 Act (“Rule
144”). Purchaser is not acting in concert with any other
person in a manner that would require its purchases 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 for the year ended September 30, 2006 and the six months ended March
31, 2007 (unaudited) Purchaser and its advisors have been afforded the
opportunity to ask questions of Sellers. Neither such inquiries nor
any other due diligence investigation conducted by Purchaser or any of its
advisors or representatives shall modify, amend or affect Purchaser’s right to
rely on Sellers’ representations and warranties contained in Section 3
below.
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 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 Sellers nor
any other persons are 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 SELLERS. Each 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.
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 commercially reasonable
efforts to satisfy timely each of the conditions described in Section 5 and
Section 6 of this Agreement.
b. Refraining
from Sales. Sellers shall not, and shall cause their Affiliates
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 SELLERS’ OBLIGATION TO SELL. The
obligation of Sellers 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 Sellers’ sole benefit and may be waived by Sellers at any
time in their sole discretion:
a. Purchaser
shall have executed this Agreement and delivered the same to
Sellers.
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. Sellers
shall have executed this Agreement and delivered same to Purchaser.
x. Xxxxxxx
shall deliver the Company’s duly executed counterpart of the letter agreement by
and between Purchaser and the Company regarding the registration rights of
the
Common Stock.
x. Xxxxxxx
shall have delivered to Purchaser the shares of Common Stock duly endorsed
for
transfer in accordance with Section 1(c) above.
d. The
representations and warranties of each 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 Sellers 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 Sellers at or prior
to
the Closing Date.
e. 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.
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 Electronic Delivery. 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 or e-mail 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 Sellers 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 or by electronic mail 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), facsimile or electronic mail, in each case addressed to
a
party. The addresses for such communications shall be:
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If
to Sellers:
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ADP
Management
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0000
Xxxxx Xxxxxxx 00
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Xxxxxxxxxx,
XX 00000
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Attn:
Xxxxx Xxxxxxx
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Tel: 000-000-0000
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Facsimile:
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E-mail:
xxxxxxxx@xxxxxxx0.xxx
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If
to Purchaser:
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VATAS
Holding GmbH
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Xxxxxxxxxxxxxxxx
00
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X-00000
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Xxxxxx,
Xxxxxxx
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Attention:
Xxxx Xxxxxxxxx
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Facsimile: x00
0 00 000000 00
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E-mail:
Xxxx.Xxxxxxxxx@xxxxx.xx
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With
a copy to:
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Xxxxxxxx
& Xxxxxxxx MNP
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CityPoint
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One
Xxxxxxxxx Xxxxxx
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Xxxxxx
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XX0X 0XX
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Xxxxxx
Xxxxxxx
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Attention:
Xxxxxxxx Xxxxxxx
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Facsimile:
x00 (0)00 0000 0000
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E-mail: XXxxxxxx@XxXx.xxx
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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. Sellers
may not assign this Agreement or any rights or obligations hereunder without
the
prior written consent of Purchaser. 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
Sellers. Purchaser may substitute an alternative party associated
with Purchaser to act as the purchaser of the Common Stock pursuant to this
Agreement.
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 Sellers have caused this Securities
Purchase Agreement to be duly executed as of the date first above
written.
ADP
Management
By:
/s/
Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title: Secretary
/ Treasurer
Xxxxx
Xxxxxxx
By: /s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxx
By: /s/
Xxxxx Xxxxxx
VATAS
Holding GmbH
By: /s/
Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title: Managing
Director
Schedule
A
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Shareholder
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Contributed
Amount of
Shares
By
Each Seller
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Xxx
Xxxxxx
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2,477,000
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Xxxxx
Xxxxxxx
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2,523,000
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ADP
Management
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1,000,000
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Total
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6,000,000
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