BIOMETRX, INC. SECURITIES PURCHASE AGREEMENT
Name
of
Investor:__________________
Number
of
Shares: __________________
BIOMETRX,
INC.
THE
SECURITIES REFERRED TO HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “ACT”) OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL
REGISTERED UNDER THE ACT AND REGISTERED OR QUALIFIED UNDER SUCH LAWS, OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY
TO
THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED. THE
SECURITIES BEING OFFERED BY THE COMPANY ARE SECURITIES AS THAT TERM HAS BEEN
DEFINED IN THE ACT. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE ACT
IN
RELIANCE UPON THE EXEMPTION FROM REGISTRATION PROVIDED BY SECTION 4 (2) THEREOF
AND ARE SUBJECT TO RESTRICTIONS ON TRANSFER. FURTHER, THESE SECURITIES MAY
ONLY
BE SOLD PURSUANT TO EXEMPTIONS FROM REGISTRATION OR QUALIFICATION IN THE VARIOUS
STATES, AND MAY BE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER IN SUCH
JURISDICTIONS.
AGREEMENT
dated as of ______________, 2008, by and between bioMETRX, Inc. a Delaware
corporation (the “Company”) having an address at 000 Xxxxx Xxxxxxxx, Xxxxxxx,
Xxx Xxxx 00000, and the person or entity whose signature appears at the end
of
this Agreement (the “Investor”).
WITNESSETH:
WHEREAS,
the Company desires to sell up to an aggregate of 60 units (the “Units”) of the
Company’s securities, each Unit consisting of 138,750 shares of the Company’s
Common Stock, $.001 par value (the “Common Stock”) and 69,375 Common Stock
Purchase Warrants exercisable at $1.00 per share (the “Warrants”) for $25,000
per Unit to certain persons including the Investor, who are “accredited
investors” within the meaning of Rule 501(a) adopted under the Securities Act of
1933 (the “Act”). The minimum purchase is one Unit at $25,000; and
WHEREAS,
the Investor wishes, pursuant to the terms and conditions hereinafter set forth,
to purchase the number of Units set forth on the signature page hereof.
WHEREAS,
Investor acknowledges receipt of the Confidential Private Placement Memorandum,
dated April __, 2008 (the “Memorandum”), delivered to Investor in connection
with the Offering. Capitalized terms used but not defined herein shall have
the
meanings given in the Memorandum.
NOW
THEREFORE, in consideration of the premises, and the respective representations
and warranties hereinafter set forth, the Company and the Investor agree as
follows:
1. SUBSCRIPTION
The
Investor, intending to be legally bound, hereby irrevocably subscribes for
and
agrees to purchase from the Company the number of Units set forth on the
signature page hereof. Subscription payments should be made payable to
“bioMETRX, Inc.” and should be delivered, together with two executed and
properly completed copies of the Securities Purchase Agreement, to the Escrow
Agent, Xxxxxx & Xxxxxxxxx LLP 000 Xxxxxxx Xxx. Suite 710 Garden City, New
York 11753 Attention: Xxxx X. Xxxxxxxxx, Esq. If the subscription is not
accepted in whole or in part by the Company, the full or ratable amount, as
the
case may be, of any subscription payment received will be promptly refunded
to
the subscriber without deduction therefore or interest thereon.
The
Units
are being offered on a “best efforts $500,000 minimum” basis by various members
of management and employees of the Company. Accordingly, until the minimum
offering amount is received by the Escrow Agent no closing will occur. Once
the
minimum offering amount has been received and accepted by the Company we will
have a first closing. .After the first closing, the Company may conduct closings
at their sole discretion and immediately accept subscriptions and funds.
Regardless of whether all of the Units have been sold, the Offering will
terminate on ______, 2008, unless extended, in the Company’s sole discretion,
for a period of up to sixty (60) days. In a best efforts offering there is
no
assurance that all or any part of the Units will be sold. No commissions or
other similar compensation will be paid in connection with the sale of the
Shares by the Company’s management and its employees.
2. PURCHASE
AND CLOSING
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2.1
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Issuance
and Sale of Units
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Upon
the
terms and subject to the conditions of this Agreement, at the first closing
and
all subsequent closings the Company shall issue and sell to the Investor, and
the Investor shall purchase from the Company, in lawful money of the United
States, the number of Units subscribed for hereunder for the aggregate purchase
price calculated at the rate of $ 25,000 per Unit (the “Purchase Price”). The
offer and sale of the Units are being effected in accordance with and in
reliance on the provisions of Rule 506 under Regulation D under the Act.
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2.2
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Closing
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Promptly
upon execution and delivery of this Agreement by the Company and the
Investor:
(a) The
Investor shall deliver to the Company:
2
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(i)
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two
executed copies of this Agreement (or a photocopy or facsimile thereof);
and
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(ii)
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payment
of the full Purchase Price by certified check or money order made
payable
to the Company.
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(b) The
Company shall deliver to the Investor:
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(i)
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an
executed copy of this Agreement;
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(ii)
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a
stock certificate representing the numbers of shares of Common Stock
contained in the Units purchased hereunder, registered in the name
of the
Investor; and
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(iii)
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a
warrant certificate representing the number of Warrants contained
in the
Units purchased hereunder, registered in the name of the
Investor.
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Promptly
after the first closing and all subsequent closings the Company shall deliver
the Units to the Investor.
3. INVESTOR
REPRESENTATIONS AND WARRANTIES.
The
Investor hereby acknowledges, represents and warrants to, and agrees with,
the
Company as follows:
3.1 The
Investor is acquiring the Units for its own account as principal, for investment
purposes only, and not with a view to, or for, resale, distribution or
fractionalization thereof, in whole or in part, and no other person except
the
Investor’s corporate parent has a direct or indirect beneficial interest in such
Units;
3.2 The
Investor acknowledges its understanding that the offering and sale of the Shares
is intended to be exempt from registration under the Act by virtue of Section
4(2) of the Act and the provisions of Regulation D thereunder. In furtherance
thereof, the Investor represents and warrants to and agrees with the Company
as
follows:
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(a)
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the
Investor has the financial ability to bear the economic risk of its
investment, has adequate means for providing for its current needs
and
personal contingencies and has no need for liquidity with respect
to its
investment in the Company;
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(b)
|
if
the Investor is a natural person,
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(i)
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his
net worth, individually or jointly with his or her spouse, exceeds
$1,000,000 (inclusive of the value of home, home furnishings and
automobiles); or
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3
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(ii)
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his
personal income exceeded $200,000 in 2006 and 2007 and reasonably
expects
that his or her personal income will exceed $200,000 in 2008 (or
whose
joint net income with that of his or her spouse exceeds $300,000
for the
relevant periods);
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(c)
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if
the Investor is an entity (i.e., a corporation, partnership, trust
or
estate), each of the equity owners meet the requirements of either
category (b)(i) or category (b)(ii) above and was not specifically
formed
to acquire the Units subscribed for herein;
or
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(d)
|
the
Investor is a corporation, trust, estate benefit plan, partnership
other
entity, which comes within a category of “accredited investor” as that
term is defined in Rule 501(a) of Regulation D under the Act (17
C.F.R.
230.501(a));
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3.3 The
Investor:
|
(a)
|
has
not been furnished with any documents from the Company other than
this
Securities Purchase Agreement, and is making this investment solely
on the
reputation of management;
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(b)
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has
not been furnished with any oral representation or oral information
in
connection with the offering of the Units which is not contained
in the
Documents; and
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(c)
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has
determined that the Units are a suitable investment and that at this
time
the Investor could bear a complete loss of its
investment;
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3.4 The
Investor is not relying on the Company with respect to economic considerations
involved in this investment.
3.5 The
Investor represents, warrants and agrees that it will not sell or otherwise
transfer the Units unless registered under the Act or in reliance upon an
exemption therefrom, and fully understands and agrees that it must bear the
economic risk of its purchase for an indefinite period of time because, among
other reasons, the Units or underlying securities have not been registered
under
the Act or under the securities laws of certain states and, therefore, cannot
be
resold, pledged, assigned or otherwise disposed of unless they are subsequently
registered under the Act and under the applicable securities laws of such states
or an exemption from such registration is available. The Investor further
understands that sales or transfers of the Units or underlying securities are
restricted by the provisions of state securities laws.
3.6 The
person signing this Securities Purchase Agreement on behalf of such entity
has
been duly authorized by such entity to do so.
3.7 No
representation or warranties have been made to the Investor by the Company,
or
any officer, employee, agent, affiliate or subsidiary of the Company, other
than
the representations of the Company herein.
4
3.8 The
execution and delivery by the Investor of, and the performance by the Investor
of its obligations under this Agreement in accordance with its terms will not
contravene any provision of applicable law or the charter documents of the
Investor or any agreement or other instrument binding upon the Investor, or
any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Investor, and no consent, approval, authorization or
order
of, or qualification with, any governmental body or agency is required for
the
performance by the Investor of its obligations under such Agreements in
accordance with their respective terms.
3.9 If
the
Investor is a corporation, the Investor has been duly organized, is validly
existing and is in good standing under the laws of its state of incorporation.
The Investor has full power and authority (corporate or otherwise) to enter
into
this Agreement and this Agreement has been duly and validly authorized, executed
and delivered by the Investor and are valid and binding obligations of the
Investor, enforceable against the Investor in accordance with their respective
terms, except as such enforcement may be limited by the United States Bankruptcy
Code, laws effecting creditors rights, generally and general equitable
principles.
3.10 The
Investor represents, warrants and agrees that as long as the Shares are
restricted the Investor will not, directly or indirectly, or through one or
more
intermediaries, maintain any short position in the Company’s Common
Stock.
3.11 The
foregoing representations, warranties and agreements shall survive the
Closing.
4. INVESTOR
AWARENESS.
The
Investor acknowledges, represents, agrees and is aware that:
4.1 No
Federal or state agency has passed on the Units or made any finding or
determination as to the fairness of this investment;
4.2 There
are
substantial risks incident to the purchase of Units;
4.3 The
investment in the Company is an illiquid investment and the Investor must bear
the economic risk of investment in the Units for an indefinite period of
time;
4.4 There
are
substantial restrictions on transferability of the Units;
4.5 The
foregoing acknowledgments, representations, warranties and agreements shall
survive the Closing.
5. INDEMNITY.
The
Investor agrees to indemnify and hold harmless the Company and each other
person, if any, who controls it within the meaning of Section 15 of the Act
against any and all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expenses whatsoever reasonably
incurred in investigating, preparing for or defending against any litigation
commenced or threatened or any claim whatsoever) arising out of or based upon
any false representation or warranty or breach or failure by the Investor to
comply with any covenant or agreement made by the Investor herein.
5
6. COMPANY
REPRESENTATIONS AND WARRANTIES.
The
Company hereby acknowledges, represents and warrants to, and agrees with the
Investor (which representations and will be true and correct as of the date
of
the Closing as if the Agreement were made on the date of Closing) as
follows:
6.1 The
Company has been duly organized, is validly existing and is in good standing
under the laws of the State of Florida. The Company has full corporate power
and
authority to enter into this Agreement, and once executed and delivered by
the
Company constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforcement
may
be limited by the United States Bankruptcy Code, laws effecting creditors
rights, generally and general equitable principles.
6.2 This
Securities Purchase Agreement has been duly executed and delivered by the
Company. The execution, delivery and performance by the Company of the
Securities Purchase Agreement has been duly authorized by all requisite
corporate action of the Company and each, upon execution and delivery thereof
by
the Company will constitute the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its respective
terms.
6.3 The
issuance and delivery of the Common Stock have been duly authorized by all
requisite corporate action of the Company and, when so issued, sold and
delivered, the Shares will be duly executed, issued and delivered and will
constitute fully paid, validly issued and nonassessable Shares of the Company,
free and clear of all liens encumbrances and claims whatsoever (except as
arising under applicable securities laws) and, in each case, will not be subject
to preemptive or any other similar rights of the shareholders of the Company,
or
others which rights shall not have been waived or exercised prior to
Closing.
6.4 Subject
to the performance by the Investor of its obligations under this Agreement
and
the accuracy of the representations and warranties of the Investor, the offering
and sale of the Shares will be exempt from the registration requirements of
the
Act.
6.5 The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under this Agreement in accordance with the terms of this
Agreement, will not contravene any provision of applicable law or the charter
documents of the Company or any agreement or other instrument binding upon
the
Company, or any judgment, order or decree of any governmental body, agency
or
court having jurisdiction over the Company, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
this Agreement in accordance with the terms of this Agreement.
6
6.6 All
of
the outstanding shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid, non-assessable and free of preemptive
or
similar rights. As of April 15, 2008, the Company has 100,000,000 shares of
Common Stock authorized, of which aprroximately 19,500,000 shares of Common
Stock are issued and outstanding..
6.7 The
Company is not in violation of its charter or bylaws and is not in default
in
the performance of any bond, debenture, note or any other evidence of
indebtedness or any indenture, mortgage, deed of trust, license, contract,
lease
or other instrument to which the Company is a party or by which it is bound,
or
to which any of the property or assets of the Company is subject, except such
as
have been waived or which would not have, singly or in the aggregate, a material
adverse effect on the Company, taken as a whole.
6.8 There
is
no material litigation or governmental proceeding pending, or to the knowledge
of the Company, threatened against, or involving the property or the business
of
the Company, or, to the best knowledge of the Company which would adversely
affect the condition (financial or otherwise), business, prospects or results
of
operations of the Company, taken as a whole.
6.9 The
foregoing representations, warranties and agreements shall survive the
Closing.
6.10 For
so
long as any Shares held by Investor remain outstanding, the Company covenants
and agrees with the Investor that:
(a) The
Company will undertake to use its best efforts to continue to have its Common
Stock quoted on the OTC Bulletin Board; and
(b) Except
as
expressly set forth in Section 7 below, the Company will not issue stop transfer
instructions to its transfer agent in regard to the Units.
7. MISCELLANEOUS.
7.1 Modification. Neither
this Agreement nor any provisions hereof shall be modified, discharged or
terminated except by an instrument in writing signed by the party against whom
any waiver, change, discharge or termination is sought.
7.2 Notices.
Any
notice, demand or other communication which any party hereto may be required,
or
may elect, to give to anyone interested hereunder shall be sufficiently given
if
(a) deposited, postage prepaid, in a United States mail letter box, registered
or certified mail, return receipt requested, addressed to such address as may
be
given herein, or (b) delivered personally at such address.
7
7.3 Counterparts. This
Agreement may be executed through the use of separate signature pages or in
any
number of counterparts, and each of such counterparts shall, for all purposes,
constitute one agreement binding on all the parties, notwithstanding that all
parties are not signatories to the same counterpart.
7.4 Binding
Effect.
Except
as otherwise provided herein, this Agreement shall be binding upon and inure
to
the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives and assigns. If the undersigned is more than
one person, the obligation of the Investor shall be joint and several, and
the
agreements, representations, warranties and acknowledgments herein contained
shall be deemed to be made by and be binding upon each such person and his
heirs, executors, administrators and successors.
7.5 Entire
Agreement. This
instrument contains the entire agreement of the parties, and there are no
representations, covenants or other agreements except as stated or referred
to
herein.
7.6 Assignability.
This
Agreement is not transferable or assignable by the Investor except as may be
provided herein.
7.7 Applicable
Law.
This
Agreement shall be governed and construed under the laws of the State of New
York.
8. REGULATORY
NOTICES.
THESE
MATERIALS HAVE NOT BEEN REVIEWED BY THE SECURITIES EXCHANGE COMMISSION, THE
ATTORNEY GENERAL OF ANY STATE, OR ANY OTHER REGULATORY AUTHORITY PRIOR TO THEIR
ISSUANCE AND USE. NO ATTORNEY GENERAL FROM ANY STATE HAS PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
[EXECUTION
PAGES FOLLOW]
8
9. EXECUTION.
9.1 Investor.
The
Investor has executed this Securities Purchase Agreement on this _____ day
of
_________________, 2008.
Number
of
Shares to be
purchased:
Price
per
Share: $25,000
Total
Purchase Price: $
INSTRUCTION:
(The execution pages and acknowledgment for subscribers follows this
page.)
9.2 The
Company.
Accepted
this ____ day of ___________, 2008.
| bioMETRX, Inc. | ||
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| By: | ||
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Xxxx Xxxxxx, Chief Executive Officer |
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9
EXECUTION
Please
execute this Securities Purchase Agreement by completing the appropriate section
below.
1. If
the
prospective investor is an INDIVIDUAL, complete the following:
Signature
of Proposed Investor
Name
(Please type or print)
Signature
of Spouse or Co-Investor if funds are to be invested
as
joint
tenants, tenants by the entirety or community property.
Name
(Please type or print)
Address:
_____________________________________ ___
2. If
the
prospective investor is a CORPORATION, complete the following:
The
Investor hereby represents, warrants and covenants that the Investor has been
duly authorized by all requisite action on the part of the prospective investor
listed below to enter into this Securities Purchase Agreement and Investment
Representation and, further, that the prospective investor has all requisite
authority to enter into such Agreement.
The
Investor represents and warrants that each of the above representations or
agreements or understandings set forth herein applies to that prospective
investor and that he has authority under the charter, by-laws and resolutions
of
the Board of Directors of such prospective investor to execute this Agreement.
Such officer encloses a true copy of the charter, the by-laws and the
resolutions of the Board of Directors authorizing the execution of this
Securities Purchase Agreement and Investment Representation.
Name
of
Corporation (Please type or print)
Address:
_________________________________________
By:
Name of
Signatory:
Title:
10
3. If
the
prospective investor is a PARTNERSHIP, complete the following:
The
Investor hereby represents, warrants and covenants that the Investor is a
general partner of the prospective investor named below, has been duly
authorized by the prospective investor to acquire the Shares, the prospective
investor has all requisite authority to enter into this Securities Purchase
Agreement and Investment Representation and set forth below are the names of
all
Partners of the prospective investor.
The
Investor represents and warrants that each of the above representations or
agreements or understandings set forth herein applies to that prospective
investor and he is authorized by such prospective investor to execute this
Securities Purchase Agreement and Investment Representation. Such Partner
encloses a true copy of the Partnership Agreement of said prospective
investor.
Name
of
Partnership (Please type or print)
Address:
_________________________________________
By:
Name of Signatory:
Title:
Names
of
Partners:
4. If
the
prospective investor is a TRUST, complete the following:
The
Investor hereby represents, warrants and covenants that he as Trustee is duly
authorized by the terms of the trust instrument (“Trust Instrument”) for the
prospective investor set forth below to enter into this Securities Purchase
Agreement and Investment Representation.
The
Investor, as trustee, executing this Securities Purchase Agreement and
Investment Representation on behalf of the prospective investor represents
and
warrants that each of the above representations or agreements or understandings
set forth herein applies to that prospective investor and he is authorized
by
such prospective investor to execute this Securities Purchase Agreement and
Investment Representation. Such trustee encloses a true copy of the Trust
Instrument of said prospective investor.
11
Name
of
Trust (Please type or print)
Address:
_________________________________________
By:
Name of Signatory:
Title:
5. If
the
prospective investor is an ESTATE, complete the following:
The
Investor hereby represents, warrants and covenants that he is duly authorized
by
the terms of the Will, and/or Codicil of the prospective investor named below
to
enter into this Securities Purchase Agreement and Investment Representation
and
that the prospective investor has all requisite authority to enter into such
Agreement, pursuant to Letters Testamentary issued by a court of appropriate
jurisdiction.
The
Investor represents and warrants that each of the above representations or
agreements or understandings set herein applies to that prospective investor
and
he is authorized by the terms of the Will and/or Codicil of such prospective
investor to execute this Securities Purchase Agreement and Investment
Representation. Such Executor encloses a true copy of the Will, including any
codicils thereto and Letters Testamentary issued by a court of appropriate
jurisdiction, and any and all amendments thereto, of said prospective
investor.
Name
of
Estate (Please type or print)
Address:
_________________________________________
By:
Name of Signatory:
Title:
12
INDIVIDUAL
ACKNOWLEDGMENT
STATE
OF
____________________ )
) ss.:
COUNTY
OF
__________________ )
On
the
______ day of _____________, 2008, before me personally came
________________________________________, known to me to be the individual(s)
described in and who acknowledged the foregoing instrument and swore and
acknowledged that (he)(she)(they) executed the same as (his)(her)(their) free
act and deed.
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_________________________________
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Notary
Public
|
|
|
My
commission expires:
____________
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PARTNERSHIP
ACKNOWLEDGMENT
STATE
OF
____________________ )
) ss.:
COUNTY
OF
__________________ )On
the
______ day of _____________, 2008, before me personally appeared the above-named
general partner of _______________________________________________, who swore
and acknowledged that being authorized and directed to do so (s)he did sign
the
foregoing instrument, and that the same is the free act and deed of said
Partnership and the free act and deed personally of such general
partner.
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_________________________________
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Notary
Public
|
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|
My
commission expires:
____________
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13
CORPORATE
ACKNOWLEDGMENT
STATE
OF
____________________ )
) ss.:
COUNTY
OF
__________________ )________________________________,
the corporation that executed the foregoing instrument, who, being duly sworn,
acknowledged that (s)he resides at _____________________
__________________________________________, that (s)he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal;
that it was so affixed by the order of the Board of Directors of said
corporation; and that (s)he signed his name there to by like order.
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_________________________________
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Notary
Public
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My
commission expires:
____________
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ESTATE
OR TRUST ACKNOWLEDGMENT
STATE
OF
____________________ )
) ss.:
COUNTY
OF
__________________ )On
the
_______ day of _____________________, 2008, before me personally came
___________________________________________, [the executor of the Last Will
and
Testament of ______________________________________________________, deceased]
or [administrator of the good, chattels and credits
_________________________________ of ___________________________, deceased]
or
[trustee ________________________________ of
__________________________________________, deceased] residing in
______________________________________________________, and known to me to
be
the person described in and who executed the foregoing instrument and
acknowledged that (s)he executed the same as such [executor] or [administrator]
or [trustee].
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_________________________________
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Notary
Public
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My
commission expires:
____________
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14
