1st AMENDMENT TO
CONSUMER ELECTRONICS DISTRIBUTION AGREEMENT
This 1ST Amendment to Distribution Agreement (the "Agreement"),
effective January 12, 2003 (the "Effective Date"), is entered into by RemoteMDx,
Inc., a Utah corporation ("RemoteMDx"), SecureAlert, Inc., a Utah corporation
and wholly owned subsidiary of RemoteMDx ("SecureAlert"), (RemoteMDx and
SecureAlert are sometimes referred to collectively herein as the "Company"),
SecureAlert Entertainment, LLC, a Tennessee limited liability company
("Distributor"), Brian Boling ("Boling") and Tim Welch ("Welch").
RECITALS:
The parties entered into a Consumer Electronics Distribution Agreement
dated January 2, 2003 ("Original Agreement"). The parties hereto now desire to
amend the Original Agreement as provided herein, to provide for payments made by
Distributor directly to manufacturers and suppliers.
AGREEMENTS:
In consideration of the mutual covenants and agreements contained
herein, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Amendments. (a) Sub-Sections 4.1, 4.1.1, 4.1.2, 4.1.3, 4.1.4, 4.1.5 , 4.1.6
and 4.5 are hereby deleted and the following new Sub-Sections 4.1 and 4.5 are
inserted in lieu thereof:
4.1 Pricing and Payment Terms. Company shall sell Products to
Distributor at a price equal to Company's cost for such Products plus
seven percent (7%) of such cost. All payments for Products will be made
directly by Distributor to manufacturers and suppliers in compliance
with the payment terms and conditions established by such manufacturers
and suppliers. Distributor shall pay to Company the seven percent (7%)
markup for Products sold during any month not later than the 10th day
of the next month, beginning on February 10, 2003. Simultaneous with
the delivery of payment to Company, Distributor shall deliver to
Company a report (certified by the appropriate officer of the
Distributor) setting forth the cost of all Products sold by Distributor
pursuant to this Agreement during the immediately preceding month based
on Company's cost for Products sold. Once payment has been made by
Distributor to manufacturer or supplier, then Distributor shall notify
the Company in writing within 10 days of such payment. In the event
Distributor has failed to make timely payment to a manufacturer or
supplier, the Company can make payment directly to such supplier or
manufacturer and, upon presentment of appropriate written documentation
to Distributor evidencing such payment, Distributor shall reimburse
Company therefore. If Distributor fails to reimburse Company for any
payment made by Company directly to the manufacturer or supplier within
five (5) days of the date Company provides written documentation to
Distributor of its payment to the manufacturer or supplier, such
failure will be deemed a breach of this Agreement and the Company may
immediately and without further notice to Distributor terminate the
Agreement and all of Distributor's rights hereunder. Notwithstanding
the foregoing, all parties hereto acknowledge that in connection with
the execution and delivery of this Agreement Remote MDx, SecureAlert,
Distributor and others have executed and delivered an Agreement dated
as of even date pursuant to which two promissory notes in favor of Dr.
Ed Boling and Thomas Natale will be modified by execution and delivery
of two new promissory notes, each in the principal amounts of
$261,439.40. In the event any payment is not made pursuant to either of
such promissory notes, without regard to any notice or cure periods
contained therein, then Distributor is hereby authorized to the extent
of such nonpayment to withhold payment to Company pursuant to this
subsection and make payment directly to Dr. Ed Boling or Thomas Natale,
as the case may be.
4.5 Returns. Company is responsible for returns and non-conforming
product until ownership transfers to Distributor or Distributor's
Customer in accordance with the terms specified in the freight
contract. After the transfer of ownership, all returns and
non-conforming product will be the responsibility of Distributor.
(b) Sub-Section 4.6 is hereby amended by deleting , in the
fifth line from the end of such Sub-Section, the reference to "Section
4.1.2" and inserting in lieu thereof a reference to "Section 4.1."
2. Ratification. Except as specifically modified hereby, the terms and
provisions of the Original Agreement are hereby ratified and confirmed and
remain in full force and effect.
3. Entire Agreement; Amendment; Waiver. The complete and exclusive statement of
the agreement between the parties relating to this subject shall consist of the
Original Agreement and this Agreement. For example, any written, typed or
preprinted terms contained on a purchase order shall be superseded by the terms
of this Agreement, unless both parties specifically agree in writing to the
different terms. The waiver by either party of any default or breach of the
Original Agreement or this Agreement, or any obligation hereunder, shall be
ineffective unless in writing. No failure to exercise any right or power under
the Original Agreement or this Agreement or to insist on strict compliance by
the other party shall constitute a waiver of the right subsequently to exercise
such right or power or to insist on strict compliance. This Agreement may not be
amended except by a written document signed by an authorized representative of
both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date specified above.
REMOTEMDX, INC. SECUREALERT ENTERTAINMENT, LLC
By:/s/ David Derrick By:/s/ Jim Steinmeyer
Title: Chief Manager
Title:President
Attest:
SECUREALERT, INC. By:/s/ Tim Welch
Title: Secretary-Treasurer
By:/s/ David Derrick
/s/ James Steinmeyer
- -----------------------------------------
James Steinmeyer
Title: Chief Manager
/s/ Brian Boling
- -----------------------------------------
Brian Boling
Title: ____________________________________
/s/ Tim Welch
- -----------------------------------------
Tim Welch
Title: ____________________________________
2nd AMENDMENT TO
CONSUMER ELECTRONICS DISTRIBUTION AGREEMENT
This 2nd Amendment to Distribution Agreement (the "Agreement"),
effective January 21, 2003 (the "Effective Date"), is entered into by RemoteMDx,
Inc., a Utah corporation ("RemoteMDx"), SecureAlert, Inc., a Utah corporation
and wholly owned subsidiary of RemoteMDx ("SecureAlert"), (RemoteMDx and
SecureAlert are sometimes referred to collectively herein as the "Company"),
SecureAlert Entertainment, LLC, a Tennessee limited liability company
("Distributor"), Brian Boling ("Boling") and Tim Welch ("Welch").
RECITALS:
The parties entered into a Consumer Electronics Distribution Agreement
dated January 2, 2003 ("Original Agreement"). Company also entered into an
agreement with Ron Bishop ("Bishop") providing for, among other things, the
termination of certain agreements between the Company and Bishop. In connection
with the execution of the agreement between the Company and Bishop, Distributor
has agreed to make certain payments to Bishop and Company has agreed to allow
Distributor to offset such payments to Bishop against payments owed by
Distributor to Company pursuant to the Original Agreement. The parties hereto
now desire to amend the Original Agreement as provided herein, to provide for
the offset of payments to Bishop, and to enter into the other agreements
provided herein as consideration for the resolution of certain matters among the
parties.
AGREEMENTS:
In consideration of the mutual covenants and agreements contained
herein, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Amendment. The following new subsection 4.1.7 is hereby added to the Original
Agreement.
4.1.7 Notwithstanding anything to the contrary contained in
this Section 4, Distributor shall have the right to make
payments to Bishop in an amount not to exceed $25,555.33 per
month beginning January 20, 2003 and continuing on the same
day of each month thereafter through March 20, 2003. Beginning
in February of 2003, Distributor shall have the right to
offset up to $15,000 per month of such payments to Bishop
against payments required under Section 4 of the Agreement, as
amended, until such time as Distributor has fully offset all
payments made by Distributor hereunder to Bishop, or until
such time as Distributor has received repayment of such
amounts from SecureAlert Telematics, Inc. ("SAT"), whichever
occurs first. Distributor agrees to provide Company with a
written statement and such other evidence as Company may
reasonably request to evidence the amount and dates of
Distributor's payments to Bishop under this Section 4.1.7.
2. Registration. In connection with the Agreement and Plan of Merger among
Volu-Sol, Inc., SecureAlert Incorporated and SecureAlert II, Inc. dated June 14,
2001, as the same has been amended from time to time ("Merger Agreement"),
RemoteMDx has issued stock and warrants to the former SecureAlert II, Inc.
shareholders. Company hereby agrees that it will include all shares of RemoteMDx
common stock issued to former SecureAlert II, Inc. shareholders pursuant to the
Merger Agreement, including shares of common stock issued or issuable pursuant
to any warrants issued under the Merger Agreement, on any registration statement
filed by RemoteMDx or any affiliate with respect to the registration of such
affiliates' common stock of RemoteMDx following execution of this Agreement.
Nothing in this paragraph 2 shall alter any obligations of Boling or Welch
pursuant to Section 3 of that certain agreement entered into by and among
RemoteMDx, SecureAlert, ADP Management Corporation, David Derrick, Jim Dalton,
Tom Natale, Boling, Welch, Dr. Ed Boling, Distributor and SAT dated as of
December 31, 2002.
3. Ratification. Except as specifically modified hereby, the terms and
provisions of the Original Agreement are hereby ratified and confirmed and
remain in full force and effect.
4. Entire Agreement; Amendment; Waiver. The complete and exclusive statement of
the agreement between the parties relating to this subject shall consist of the
Original Agreement and this Agreement. For example, any written, typed or
preprinted terms contained on a purchase order shall be superseded by the terms
of this Agreement, unless both parties specifically agree in writing to the
different terms. The waiver by either party of any default or breach of the
Original Agreement or this Agreement, or any obligation hereunder, shall be
ineffective unless in writing. No failure to exercise any right or power under
the Original Agreement or this Agreement or to insist on strict compliance by
the other party shall constitute a waiver of the right subsequently to exercise
such right or power or to insist on strict compliance. This Agreement may not be
amended except by a written document signed by an authorized representative of
both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date specified above.
REMOTEMDX, INC. SECUREALERT ENTERTAINMENT, LLC
By:/s/ David Derrick By: /s/ Jim Steinmeyer
Title:President Title: President
Date:January 22, 2003 Date:
Attest:
By:/s/ Tim Welch
Title: Secretary-Treasurer
SECUREALERT, INC.
By: David Derrick
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Title:President
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Date: January 22, 2003
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/s/ James Steinmeyer
- ----------------------------------------
James Steinmeyer
/s/ Brian Boling
- ---------------------------------------
Brian Boling
/s/ Tim Welch
- ---------------------------------------
Tim Welch
3rd AMENDMENT TO
CONSUMER ELECTRONICS DISTRIBUTION AGREEMENT
This 3rd Amendment to Distribution Agreement (the "Agreement"),
effective February 12, 2003 (the "Effective Date"), is entered into by
RemoteMDx, Inc., a Utah corporation ("RemoteMDx"), SecureAlert, Inc., a Utah
corporation and wholly owned subsidiary of RemoteMDx ("SecureAlert"), (RemoteMDx
and SecureAlert are sometimes referred to collectively herein as the "Company"),
SecureAlert Entertainment, LLC, a Tennessee limited liability company
("Distributor"), Brian Boling ("Boling") and Tim Welch ("Welch").
RECITALS:
The original Consumer Electronics Distribution Agreement dated January
2, 2003, as amended, is hereby amended to provide that Distributor will purchase
from Company 24 Toshiba 43A62 PTVs at $800 per unit and 12 Samsung 54 inch PTVs
at $910 per unit, all of which Company will have boxed in saleable condition
ready for pick up by Distributor not later than March 8, 2003. As partial
payment for the units, Company authorizes Distributor to wire $30,000 to
Cellular XL Associates, L.P. as payment on Company's account with Cellular XL
Associates, L.P. The balance of the purchase price shall be paid within 10 days
to Company. In the event Company fails to have the units ready for pick up by
Distributor in salable condition by March 8, 2003, then Distributor may
immediately offset the full purchase price against any amounts owed to Company
under the original agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date specified above.
REMOTEMDX, INC. SECUREALERT ENTERTAINMENT, LLC
By:/s/ Tom Natale By:/s/ Tim Welch
Title:President Title: Secretary
Date:____________________________________ Date:________________________________
SECUREALERT, INC.
By: Tom Natale
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Title:President
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Date:
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/s/ James Steinmeyer
James Steinmeyer
/s/ Brian Boling
- ---------------------------------------
Brian Boling
/s/ Tim Welch
- ---------------------------------------
Tim Welch
[4th Amendment]
I hereby authorize SecureAlert Entertainment LLC to pay Belmont
Distributing and Samsung directly for the shipments on January 3rd 2003 and this
will constitute an amendment to the Consumer Electronics Distribution Agreement
between RemoteMDx, Inc., SecureAlert Entertainment LLC and others dated January
1st, 2003.
Agreed: /s/ Tom Natale
Tom Natale
President RemoteMDx
AMENDMENT NO. 5 TO
CONSUMER ELECTRONICS DISTRIBUTION AGREEMENT
This Fifth Amendment to Distribution Agreement (the "Agreement"), is
entered into effective June 30, 2003 (the "Effective Date") by RemoteMDx, Inc.,
a Utah corporation ("RemoteMDx"), SecureAlert, Inc., a Utah corporation and
wholly owned subsidiary of RemoteMDx ("SecureAlert"), (RemoteMDx and SecureAlert
are sometimes referred to collectively herein as the "Company"), SecureAlert
Entertainment, LLC, a Tennessee limited liability company ("Distributor"), Brian
Boling ("Boling") and Tim Welch ("Welch").
RECITALS:
The parties entered into a Consumer Electronics Distribution Agreement
dated January 2, 2003 ("Original Agreement"). The parties hereto now desire to
amend the Original Agreement as provided herein, and to enter into the other
agreements provided herein as consideration for the resolution of certain
matters among the parties.
AGREEMENTS:
In consideration of the mutual covenants and agreements contained
herein, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Amendment. Sections 4.1, 4.2, 4.3, 4.5, 5.2, and 5.3, of the
Original Agreement are hereby amended and superseded in their entirety as
provided below. In addition, Section 4.1.7 shall be renumbered as Section 4.7.
4.1 Pricing and Payment Terms. Distributor shall pay to Company a price
for Products equal to Company's actual cost for such Products plus an
amount up to or equal to seven percent (7%) of such cost for all
Products sold by Distributor. All purchase orders will be submitted to
the Company in writing by Distributor (via mail, email or fax). If
submitted by e-mail, the order shall be confirmed by mail or fax.
Company shall be obligated to fill purchase orders in accordance with
the terms contained therein. The Company will designate suppliers of
Products, provided that such suppliers are acceptable to Distributor.
Company may at its discretion require payment either directly to
Company or directly to certain Product manufacturers and suppliers in
compliance with the payment terms and conditions established by such
manufacturers and suppliers. In the event Company requires payment
directly to Company, then Company shall establish and maintain in full
force and effect a letter of credit in favor of Distributor in an
amount not less than One Million Dollars ($1,000,000) securing
Company's obligation to pay manufacturers and suppliers strictly in
compliance with the payment terms and conditions established by such
manufacturers and suppliers. Such letter of credit shall be
irrevocable, issued by a financial institution satisfactory to
Distributor in Distributor's sole discretion and otherwise
satisfactory to Distributor in Distributor's sole discretion. Further,
such letter of credit shall provide for draws by Distributor
immediately upon Company's failure to strictly comply with the payment
terms and conditions established by such manufacturers and suppliers.
Distributor shall pay Company for Product costs within thirty (30)
days of the date of Company's invoice to Distributor. In the event
Company either fails to establish and maintain a letter of credit as
aforesaid or requires payment directly to Product manufacturers or
suppliers, Distributor shall pay to such manufacturers or suppliers
the Product costs in compliance with the payment terms and conditions
established by such manufacturers and suppliers. Distributor shall
also remit to the Company an amount equal to the margin described
hereinabove (of up to seven percent (7%) of the cost) for all Products
sold during any month, no later than 10 days after the end of the
month. Notwithstanding the foregoing, the Company shall remain solely
responsible for the payment of all amounts owed to suppliers and
manufacturers. At least monthly on or before the 10th day of the
month, Distributor shall deliver to Company a report (certified by the
appropriate officer of the Distributor) itemizing all sales by
Distributor pursuant to this Agreement during the immediately
preceding month. Notwithstanding anything contained herein to the
contrary, all parties hereto acknowledge that in connection with the
execution and delivery of the 1st Amendment to the Original Agreement
RemoteMDx, SecureAlert, Distributor and others executed and delivered
an Agreement pursuant to which two promissory notes in favor of Dr. Ed
Boling and Thomas Natale will be modified by execution and delivery of
two new promissory notes, each in the principal amounts of
$261,439.40. In the event any payment is not made pursuant to either
of such promissory notes, without regard to any notice or cure periods
contained therein, then Distributor is hereby authorized to the extent
of such nonpayment to withhold payment to Company pursuant to this
subsection and make payment directly to Dr. Ed Boling or Thomas
Natale, as the case may be.
4.2 Intentionally omitted.
4.3 Shipment. To the extent the Distributor or a customer does not arrange
shipment, Company shall arrange for shipment of Products sold to or by
Distributor, which may include shipment directly from the manufacturer
or supplier to the consumer or purchaser on such terms and subject to
such conditions as may be agreed among the Company, Distributor, the
supplier and the purchaser. Unless otherwise agreed, title to the
Product shall pass to the purchaser based on shipping terms.
4.5 Returns. Company is responsible for all Product returns and
non-conforming Product in accordance with the terms specified in the
applicable freight contracts. In addition, the Company shall process
all warranty claims for defective or non-performing Products for the
time the Company owns the product. Company will pass through to
consumers the warranty and return provisions made available by the
manufacturers of the Products.
5.2 Audit Rights. Distributor shall maintain complete books and records
regarding its operations, including, without limitation, all sales of
the Products distributed by Distributor and amounts paid hereunder to
Company, for five years from the time period to which such records
relate. Company has the right, at its expense, to inspect and audit
these books and records upon five business days' notice to
Distributor. If an audit shows that any amounts owing the Company were
underpaid, Distributor shall promptly pay the additional amount due
plus interest as set forth above. If the underpayment was 5% or more
of the total, Distributor shall pay the actual cost of the audit.
5.3 Defective Product. The Company purchases product with a manufacturer's
warranty and passes that warranty to Distributor and to customers. The
Company to the satisfaction of its customers will resolve problems
arising outside of manufacturer's warranty and hereby appoints
Distributor to coordinate and assist Company with respect to the
return of defective products sold by Company; provided, however, that
all such returns shall be handled as provided in Section 4.5, above.
2. Ratification. Except as specifically modified hereby, the terms and
provisions of the Original Agreement are hereby ratified and confirmed and
remain in full force and effect.
3. Entire Agreement; Amendment; Waiver. The complete and exclusive statement
of the agreement between the parties relating to this subject shall consist
of the Original Agreement as previously amended and this Agreement. For
example, any written, typed or preprinted terms contained on a purchase
order shall be superseded by the terms of this Agreement, unless both
parties specifically agree in writing to the different terms. The waiver by
either party of any default or breach of the Original Agreement or this
Agreement, or any obligation hereunder, shall be ineffective unless in
writing. No failure to exercise any right or power under the Original
Agreement or this Agreement or to insist on strict compliance by the other
party shall constitute a waiver of the right subsequently to exercise such
right or power or to insist on strict compliance. This Agreement may not be
amended except by a written document signed by an authorized representative
of both parties.
4. No Default; Waiver. All parties acknowledge that this Agreement has an
effective date of June 30, 2003, but is being executed and delivered on
September 30, 2003. Accordingly as of September 30, 2003 all parties
represent and warrant to all other parties that no default, or other breach
or violation of, the Original Agreement as amended has occurred and is
continuing. No party hereto knows of any circumstances, facts or events
which could lead to the occurrence of such a default, breach or violation
and hereby acknowledges that all parties are entering into this Agreement
in reliance upon the representations and warranties made herein. To the
extent any default, breach or violation occurred under the Original
Agreement as amended prior to September 30, 2003, all parties hereto hereby
waive and release all other parties from any liability or claim of every
nature with respect to any and all such pre September 30, 2003 defaults,
breaches or violations. This paragraph 4 shall survive the expiration or
other termination of the Original Agreement.
5. Modification of 2nd Amendment. Paragraph 2 of the 2nd Amendment to Consumer
Electronics Distribution Agreement dated January 21, 2003 is hereby
modified to state that the obligations of Company thereunder to, among
other things, include all shares of RemoteMDx common stock issued to former
SecureAlert II, Inc. shareholders on any registration statement, will
survive the expiration or other termination of the Original Agreement and
continue in full force and effect until such time as such shares of common
stock are registered. Nothing herein shall release any individual otherwise
subject to a lock-up or similar restrictive covenant from the restrictions
and limitations contained in such covenant.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
5 to the Original Agreement as of the Effective Date, notwithstanding the
parties have executed the Amendment on the dates indicated below their
respective signatures below.
REMOTEMDX, INC. SECUREALERT ENTERTAINMENT, LLC
By: David Derrick By: Tim Welch
----------------------------------- -----------------------------------
Title: Title: Secretary
Date: October 17, 2003 Date: October 16, 2003
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SECUREALERT, INC.
By: David Derrick
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Title:
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Date: October 17, 2003
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