Contract
NEITHER
THESE WARRANTS NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THESE WARRANTS
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD,
PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR
SUCH SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION
IS
AVAILABLE.
No.
___
| Original Issuance: September ___, 2006 |
Warrants
_________
|
BIOMETRX,
INC.
WARRANTS
BioMetrx,
Inc., a Delaware corporation (“BioMetrx”),
certifies that, for value received, _______________, or registered assigns
(the
“Holder”),
is
the owner of _________________ (_________) Warrants of BioMetrx (the
“Warrants”).
Each
Warrant entitles the Holder to purchase from BioMetrx at any time prior to
the
Expiration Date (as defined below) one share of the common stock of BioMetrx
(the “Common
Stock”)
for
$1.00 per share (the “Exercise
Price”),
on
the terms and conditions hereinafter provided. The Exercise Price and the number
of shares of Common Stock purchasable upon exercise of each Warrant are subject
to adjustment as provided in this Certificate. The Warrants have been issued
as
part of an authorized class of 400,000 warrants of like tenor.
1. Expiration
Date; Exercise
1.1 Expiration
Date.
The
Warrants shall expire on September 15, 2011 (the “Expiration
Date”).
1.2 Manner
of Exercise.
The
Warrants are exercisable, in whole or in part, by delivery to BioMetrx of the
following (the “Exercise
Documents”):
(a)
this Certificate (b) a written notice of election to exercise the Warrants;
and
(c) payment of the Exercise Price in cash or by check. Within three business
days following receipt of the foregoing, BioMetrx shall execute and deliver
to
the Holder: (a) a certificate or certificates representing the aggregate number
of shares of Common Stock purchased by the Holder, and (b) if less than all
of
the Warrants evidenced by this Certificate are exercised, a new certificate
evidencing the Warrants not so exercised.
1.3 Automatic
Exercise.
Immediately before the expiration or termination of this Warrant, to the extent
this Warrant is not previously exercised, and at such time the fair market
value
of one share of the Company's Common Stock subject to this Warrant is greater
than the Exercise Price, then in effect as adjusted pursuant to this Warrant,
this Warrant shall be deemed automatically exercised pursuant to Section 1.1
above, even if not surrendered. For purposes of such automatic exercise, the
fair market value of the Company's Common Stock upon such expiration shall
be
determined pursuant to Section 2.3 herein. To the extent this Warrant or any
portion thereof is deemed automatically exercised pursuant to this Section
1.3,
the Company agrees to promptly notify the Holder of the number of shares of
Common Stock, if any, the Holder hereof is to receive by reason of such
automatic exercise and the Holder shall tender the Exercise Price to the Company
within 10 days of receipt of such notice or forfeit the right to the Common
Stock in connection with such automatic exercise.
1.4 Warrant
Exercise Limitation.
Notwithstanding any other provision of this Certificate, or the total number
of
shares of Common Stock otherwise available for purchase by Holder hereunder,
if
as of the date of exercise BioMetrx has a class of securities registered under
Section 12 of the Securities Exchange Act of 1934, as amended, Holder may not
exercise any Warrants under this Section 1 if immediately following such
exercise Holder would beneficially own 5% or more of the outstanding Common
Stock of BioMetrx. For this purpose, a representation of the Holder that
following such exercise it would not beneficially own 4.99% or more of the
outstanding Common Stock of BioMetrx shall be conclusive and binding upon
BioMetrx.
2. Adjustments
of Exercise Price and Number and Kind of Conversion Shares
2.1 In
the event that BioMetrx
shall at any time hereafter (a) pay a dividend in Common Stock or securities
convertible into Common Stock; (b) subdivide or split its outstanding Common
Stock; (c) combine its outstanding Common Stock into a smaller number of shares;
then the number of shares to be issued immediately after the occurrence of
any
such event shall be adjusted so that the Holder thereafter may receive the
number of shares of Common Stock it would have owned immediately following
such
action if it had exercised the Warrants immediately prior to such action and
the
Exercise Price shall be adjusted to reflect such proportionate increases or
decreases in the number of shares.
2.2 In
case of any reclassification
of the outstanding shares of Common Stock (other than a change covered by
Section 2.1 hereof or a change which solely affects the par value of such
shares) or in the case of any merger or consolidation or merger in which
BioMetrx is not the continuing corporation and which results in any
reclassification or capital reorganization of the outstanding shares), the
Holder shall have the right thereafter (until the Expiration Date) to receive
upon the exercise hereof, for the same aggregate Exercise Price payable
hereunder immediately prior to such event, the kind and amount of shares of
stock or other securities or property receivable upon such reclassification,
capital reorganization, merger or consolidation, by a Holder of the number
of
shares of Common Stock obtainable upon the exercise of the Warrants immediately
prior to such event; and if any reclassification also results in a change in
shares covered by Section 2.1, then such adjustment shall be made pursuant
to both this Section 2.2 and Section 2.1 (without duplication). The
provisions of this Section 2.2 shall similarly apply to successive
reclassifications, capital reorganizations and mergers or consolidations, sales
or other transfers.
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2.3 Certain
Anti-Dilution Adjustments.
If
at any
time while any portion of this Warrant remains outstanding, the Company shall
issue shares of Common Stock (or rights, warrants, or other securities
convertible into or exchangeable for shares of Common Stock, other than
issuances covered by Sections 2.1 or 2.2 above, at a price per share (or having
an exercise, conversion, or exchange price per share) less than the Exercise
Price in effect as of the date of issuance of such shares or of such rights,
warrants, or other convertible or exchangeable securities, then, and in each
such case, the Exercise Price shall be reduced (but not increased) to a price
determined by dividing (A) an amount equal to the sum of (x) the number of
shares of Common Stock outstanding immediately prior to such issue (determined
on a fully-diluted basis; i.e., treating as outstanding all shares of Common
Stock issuable upon exercise, exchange or conversion of all outstanding options
(to the extent then vested and exercisable), warrants, or other securities
exercisable or exchangeable for or convertible into, directly or indirectly,
shares of Common Stock) multiplied by the then existing Exercise Price, plus
(y)
the consideration, if any received by the Company upon such issue, by (B) the
total number of shares of Common Stock outstanding immediately after such issue
or sale (determined on a fully-diluted basis as aforesaid). For the purpose
of
determining the consideration received by the Company upon any such issue
pursuant to clause (y) above, if the consideration received by the Company
is
other than cash, its value will be deemed its fair market value, which if not
readily determinable shall be determined in good faith by the Board of Directors
of the Company. An adjustment made pursuant to the paragraph shall be made
on
the next business day following the date on which any such issuance is made
and
shall be effective retroactively immediately after the close of business on
such
date. Notwithstanding anything contrary in this Section 2.3, there shall be
no
reduction to the Exercise Price pursuant to this Section with respect to (i)
the
issuance or sale of options to purchase shares of Common Stock to employees,
consultants and directors, pursuant to a stock option plan approved by the
Board
of Directors, (ii) the issuance of securities pursuant to the conversion or
exercise of convertible or exercisable securities as of the date of this
Warrant, (as adjusted for recapitalizations, stock splits, and the like) which
are currently outstanding as of the date of this Warrant or (iii) the
issuance of securities as consideration for a bona fide business acquisition
of
or by the Company, whether by merger, consolidation, sale of assets, sale or
exchange of stock or otherwise, which involves a third party which is not
affiliated with the Company or its current stockholders or in a strategic
allowance.
2.4 No
Impairment.
The
Company will not, by amendment of its Certificate of Incorporation or any other
organizational or registration rights documents of the Company, or through
any
reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, seek
to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all the provisions of this Section 2 and in the taking
of
all such action as may be necessary or appropriate in order to protect the
rights of the holder of this Warrant against impairment
3. Reservation
of Shares.
BioMetrx shall at all times reserve and keep available out of its authorized
but
unissued shares of Common Stock, such number of shares of Common Stock as shall
from time to time be issuable upon exercise of the Warrants. If at any time
the
number of authorized but unissued shares of Common Stock shall not be sufficient
to permit the exercise of the Warrants, BioMetrx shall promptly seek such
corporate action as may necessary to increase its authorized but unissued shares
of Common Stock to such number of shares as shall be sufficient for such
purpose.
4. Certificate
as to Adjustments.
In each
case of any adjustment in the Exercise Price, or number or type of shares
issuable upon exercise of these Warrants, the Chief Financial Officer of
BioMetrx shall compute such adjustment in accordance with the terms of these
Warrants and prepare a certificate setting forth such adjustment and showing
in
detail the facts upon which such adjustment is based, including a statement
of
the adjusted Exercise Price. BioMetrx shall promptly send (by facsimile and
by
either first class mail, postage prepaid or overnight delivery) a copy of each
such certificate to the Holder.
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5. Loss
or Mutilation.
Upon
receipt of evidence reasonably satisfactory to BioMetrx of the ownership of
and
the loss, theft, destruction or mutilation of this Certificate, and of indemnity
reasonably satisfactory to it, and (in the case of mutilation) upon surrender
and cancellation of these Warrants, BioMetrx will execute and deliver in lieu
thereof a new Certificate of like tenor as the lost, stolen, destroyed or
mutilated Certificate.
6. Representations
and Warranties of BioMetrx.
BioMetrx hereby represents and warrants to Holder that:
6.1 Due
Authorization.
All
corporate action on the part of BioMetrx, its officers, directors and
shareholders necessary for (a) the authorization, execution and delivery of,
and
the performance of all obligations of BioMetrx under, these Warrants, and (b)
the authorization, issuance, reservation for issuance and delivery of all of
the
Common Stock issuable upon exercise of these Warrants, has been duly taken.
These Warrants constitute a valid and binding obligation of BioMetrx enforceable
in accordance with their terms, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency, moratorium, reorganization and similar laws
affecting creditors’ rights generally and to general equitable
principles.
6.2 Organization.
BioMetrx is a corporation duly organized, validly existing and in good standing
under the laws of the State referenced in the first paragraph of this
Certificate and has all requisite corporate power to own, lease and operate
its
property and to carry on its business as now being conducted and as currently
proposed to be conducted.
6.3 Valid
Issuance of Stock.
Any
shares of Common Stock issued upon exercise of these Warrants will be duly
and
validly issued, fully paid and non-assessable.
6.4 Governmental
Consents.
All
consents, approvals, orders, authorizations or registrations, qualifications,
declarations or filings with any federal or state governmental authority on
the
part of BioMetrx required in connection with the consummation of the
transactions contemplated herein have been obtained.
7. Representations
and Warranties of Holder.
Holder
hereby represents and warrants to BioMetrx that:
7.1 Holder
is acquiring the
Warrants for its own account, for investment purposes only.
7.2 Holder
understands that an
investment in the Warrants involves a high degree of risk, and Xxxxxx has the
financial ability to bear the economic risk of this investment in the Warrants,
including a complete loss of such investment. Holder has adequate means for
providing for its current financial needs and has no need for liquidity with
respect to this investment.
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7.3 Holder
has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of an investment in the Warrants and in protecting its
own
interest in connection with this transaction.
7.4 Holder
understands that the
Warrants have not been registered under the Securities Act or under any state
securities laws. Holder is familiar with the provisions of the Securities Act
and Rule 144 thereunder and understands that the restrictions on transfer on
the
Warrants may result in Holder being required to hold the Warrants for an
indefinite period of time.
7.5 Xxxxxx
agrees not to sell,
transfer, assign, gift, create a security interest in, or otherwise dispose
of,
with or without consideration (collectively, “Transfer”)
any of
the Warrants except pursuant to an effective registration statement under the
Securities Act or an exemption from registration. As a further condition to
any
such Transfer, except in the event that such Transfer is made pursuant to an
effective registration statement under the Securities Act, if in the reasonable
opinion of counsel to BioMetrx any Transfer of the Warrants by the contemplated
transferee thereof would not be exempt from the registration and prospectus
delivery requirements of the Securities Act, BioMetrx may require the
contemplated transferee to furnish BioMetrx with an investment letter setting
forth such information and agreements as may be reasonably requested by BioMetrx
to ensure compliance by such transferee with the Securities Act.
8. Notices
of Record Date.
In
the
event:
8.1
BioMetrx shall take a record of the holders of its Common Stock (or other stock
or securities at the time receivable upon the exercise of these Warrants),
for
the purpose of entitling them to receive any dividend or other distribution,
or
any right to subscribe for or purchase any shares of stock of any class or
any
other securities or to receive any other right; or
8.2
of
any consolidation or merger of BioMetrx with or into another corporation, any
capital reorganization of BioMetrx, any reclassification of the capital stock
of
BioMetrx, or any conveyance of all or substantially all of the assets of
BioMetrx to another corporation in which holders of BioMetrx’s stock are to
receive stock, securities or property of another corporation; or
8.3
of
any voluntary dissolution, liquidation or winding-up of BioMetrx;
or
8.4
of
any redemption or conversion of all outstanding Common Stock;
then,
and
in each such case, BioMetrx will mail or cause to be mailed to the Holder a
notice specifying, as the case may be, (a) the date on which a record is to
be
taken for the purpose of such dividend, distribution or right, or (b) the date
on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation, winding-up, redemption or conversion
is to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock (or such stock or securities as at the time are
receivable upon the exercise of these Warrants), shall be entitled to exchange
their shares of Common Stock (or such other stock or securities), for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up.
BioMetrx shall use all reasonable efforts to ensure such notice shall be
delivered at least 5 days prior to the date therein specified.
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9. Registration
Rights.
9.1
Piggyback
Registration.
If
BioMetrx shall determine to register any Common Stock under the Securities
Act
for sale in connection with a public offering of Common Stock (other than
pursuant to an employee benefit plan or a merger, acquisition or similar
transaction), BioMetrx will give written notice thereof to Holder and will
include in such Registration Statement any of the Registrable Shares which
Holder may request be included (“Included
Shares”)
by a
writing delivered to BioMetrx within 15 days after the notice given by BioMetrx
to Holder; provided, however, that if the offering is to be firmly underwritten,
and the representative of the underwriters of the offering refuse in writing
to
include in the offering all of the shares of Common Stock requested by BioMetrx
and others, the shares to be included shall be allocated first to BioMetrx
and
any shareholder who initiated such Registration and then among the others based
on the respective number of shares of Common Stock held by such persons. If
BioMetrx decides not to, and does not, file a Registration Statement with
respect to such Registration, or after filing determines to withdraw the same
before the effective date thereof, BioMetrx will promptly so inform Holder,
and
BioMetrx will not be obligated to complete the registration of the Included
Shares included therein.
9.2
Certain
Covenants.
In
connection with any Registration:
9.2.1
BioMetrx shall take all lawful action such that the Registration Statement,
any
amendment thereto and the prospectus forming a part thereof does not contain
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances under which they are made, not misleading. Upon becoming aware
of
the occurrence of any event or the discovery of any facts during the
Registration Period that make any statement of a material fact made in the
Registration Statement or the related prospectus untrue in any material respect
or which material fact is omitted from the Registration Statement or related
prospectus that requires the making of any changes in the Registration Statement
or related prospectus so that it will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they are made, not misleading
(taking into account any prior amendments or supplements), BioMetrx shall
promptly notify Holder, and, as soon as reasonably practicable prepare (but
in
no event more than five business days in the case of a supplement or seven
business days in the case of a post-effective amendment) and file with the
SEC a
supplement or post-effective amendment to the Registration Statement or the
related prospectus or file any other required document so that, as thereafter
delivered to a purchaser of Shares from Holder, such prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. BioMetrx shall use its reasonable best
efforts to keep the Registration Statement effective at all times during the
period continuing until the earliest of (i) the date that is nine months after
the last day of the calendar month following the month in which the Registration
Statement is declared effective, (ii) the date when the Holder may sell all
Registrable Securities under Rule 144 without volume or other restrictions
or
limits or (iii) the date the Holder no longer owns any of the Registrable
Securities,
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9.2.2
At
least three business days prior to the filing with the SEC of the Registration
Statement (or any amendment thereto) or the prospectus forming a part thereof
(or any supplement thereto), BioMetrx shall provide draft copies thereof to
Holder and shall consider incorporating into such documents such comments as
Holder (and its counsel) may propose to be incorporated therein. Notwithstanding
the foregoing, no prospectus supplement, the form of which has previously been
provided to Holder, need be delivered in draft form to Holder.
9.2.3
BioMetrx shall promptly notify Holder upon the occurrence of any of the
following events in respect of the Registration Statement or the prospectus
forming a part thereof: (i) the receipt of any request for additional
information from the SEC or any other federal or state governmental authority,
the response to which would require any amendments or supplements to the
Registration Statement or related prospectus; (ii) the issuance by the SEC
or
any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; or (iii) the receipt of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
9.2.4
BioMetrx shall furnish to Holder with respect to the Included Shares registered
under the Registration Statement (and to each underwriter, if any, of such
Shares) such number of copies of prospectuses and such other documents as Holder
may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Included Shares by Holder pursuant to the
Registration Statement.
9.2.5
In
connection with any registration pursuant to Section 9.2, BioMetrx shall file
or
cause to be filed such documents as are required to be filed by BioMetrx for
normal Blue Sky clearance in states specified in writing by Holder; provided,
however,
that
BioMetrx shall not be required to qualify to do business or consent to service
of process in any jurisdiction in which it is not now so qualified or has not
so
consented.
9.2.6
BioMetrx shall bear and pay all expenses incurred by it and Holder (other than
underwriting discounts, brokerage fees and commissions and fees and expenses
of
more than one law firm) in connection with the registration of the Shares
pursuant to the Registration Statement.
9.2.7
As
a condition to including Registrable Shares in a Registration Statement, Holder
must provide to BioMetrx such information regarding itself, the Registrable
Shares held by it and the intended method of distribution of such Shares as
shall be required to effect the registration of the Registrable Shares and,
if
the offering is being underwritten, Holder must provide such powers of attorney,
indemnities and other documents as may be reasonably requested by the managing
underwriter.
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9.2.8
Following the effectiveness of the Registration Statement, upon receipt from
BioMetrx of a notice that the Registration Statement contains an untrue
statement of material fact or omits to state any material fact required to
be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, Holder will immediately
discontinue disposition of Included Shares pursuant to the Registration
Statement until BioMetrx notifies Holder that it may resume sales of Included
Shares and, if necessary, provides to Holder copies of the supplemental or
amended prospectus.
9.3
Rule
144. With a view to making available to Holder the benefits of Rule 144,
BioMetrx agrees, during the period from September 30, 2008 until September
30,
2009, unless the shares issuable to the Holder may be sold pursuant to an
effective Registration Statement, to:
9.3.1
comply with the provisions of paragraph (c)(1) of Rule 144; and
9.3.2
file with the SEC in a timely manner all reports and other documents required
to
be filed by BioMetrx pursuant to Section 13 or 15(d) under the Exchange Act;
and, if at any time it is not required to file such reports but in the past
had
been required to or did file such reports, it will, upon the request of a
Holder, make available other information as required by, and so long as
necessary to permit sales of its Shares pursuant to, Rule 144.
9.4
BioMetrx
Indemnification.
BioMetrx agrees to indemnify and hold harmless Holder, and its officers,
directors and agents, and each person, if any, who controls Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities caused
by
(i) any violation or alleged violation by BioMetrx of the Securities Act,
Exchange Act, any state securities laws or any rule or regulation promulgated
under the Securities Act, Exchange Act or any state securities laws, (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any
registration statement or prospectus relating to the Included Shares (as amended
or supplemented if BioMetrx shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or (iii) caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission
or
alleged untrue statement or omission based upon information furnished in writing
to BioMetrx by Holder or on Xxxxxx’s behalf expressly for use
therein.
9.5
Holder
Indemnification.
Holder
agrees to indemnify and hold harmless BioMetrx, its officers, directors and
agents and each person, if any, who controls BioMetrx within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the
same extent as the foregoing indemnity from BioMetrx to Holder, but only with
respect to information furnished in writing by Holder or on Holder’s behalf
expressly for use in any registration statement or prospectus relating to the
Registrable Shares, or any amendment or supplement thereto, or any preliminary
prospectus. Notwistanding anything to the contrary contained herein, xxxxxx’s
obligation to indemnify shall not be in an amount in excess of the net proceeds
received by the holder from the same of the Registration Securities in the
offering in which the indemnification claim relates.
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9.6
Indemnification
Procedures.
In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
this Section 9, such person (an “Indemnified
Party”)
shall
promptly notify the person against whom such indemnity may be sought (the
“Indemnifying
Party”)
in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party,
and
shall assume the payment of all fees and expenses; provided that the failure
of
any Indemnified Party so to notify the Indemnifying Party shall not relieve
the
Indemnifying Party of its obligations hereunder except to the extent (and only
to the extent that) that the Indemnifying Party is materially prejudiced by
such
failure to notify. In any such proceeding, any Indemnified Party shall have
the
right to retain its own counsel, but the fees and expenses of such counsel
shall
be at the expense of such Indemnified Party unless (i) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) in the reasonable judgment of such Indemnified Party
representation of both parties by the same counsel would be inappropriate due
to
actual or potential differing interests between them. It is understood that
the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Parties (including in the case
of
Holder, all of its officers, directors and controlling persons) and that all
such fees and expenses shall be reimbursed as they are incurred. In the case
of
any such separate firm for the Indemnified Parties, the Indemnified Parties
shall designate such firm in writing to the Indemnifying Party. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent shall not be unreasonably withheld or
delayed), but if settled with such consent, or if there be a final judgment
for
the plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes
an
unconditional release of such Indemnified Party from all liability arising
out
of such proceeding.
9.7
Contribution.
To the
extent any indemnification by an Indemnifying Party is prohibited or limited
by
law, the Indemnifying Party agrees to make the maximum contribution with respect
to any amounts for which, he, she or it would otherwise be liable under this
Section 9.6 to the fullest extent permitted by law; provided, however, that
(i)
no contribution shall be made under circumstances where a party would not have
been liable for indemnification under this Section 9.6 and (ii) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within the
meaning used in the Securities Act) shall be entitled to contribution from
any
party who was not guilty of such fraudulent misrepresentation.
10. Nontransferability.
Holder
may not sell or transfer any Warrants to any person without registration under
the Securities Act or providing an opinion of counsel reasonably acceptable
to
the Company that such transfer may lawfully be made without such registration.
Any such purported transfer shall not be effective as between such purported
transferee and BioMetrx.
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11. Severability.
If any
term, provision, covenant or restriction of these Warrants is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the terms, provisions, covenants and restrictions of these Warrants shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
12. Notices.
All
notices, requests, consents and other communications required hereunder shall
be
in writing and shall be effective when delivered or, if delivered by registered
or certified mail, postage prepaid, return receipt requested, shall be effective
on the third day following deposit in United States mail: to the Holder, at
the
Holder’s address of record in the Company’s warrant register; and if addressed
to BioMetrx, at BioMetrx, Inc., 000 Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, XX
00000, or such other address as BioMetrx may designate in writing.
13. No
Rights as Shareholder.
The
Holder shall have no rights as a shareholder of BioMetrx with respect to the
shares issuable upon exercise of the Warrants until the receipt by BioMetrx
of
all of the Exercise Documents.
14. Waivers
and Modifications.
Any
term or provision of this Warrant may be waived only by written document
executed by the party entitled to the benefits of such terms or provisions.
The
terms and provisions of this Warrant may be modified or amended only by written
agreement executed by the parties hereto.
15. Governing
Law.
This
Warrant will be governed by and construed in accordance with and governed by
the
laws of the State of New York, without giving effect to the conflict of law
principles thereof.
16. Consent
to Jurisdiction.
Each
party hereto
hereby
irrevocably and unconditionally submits to the jurisdiction of any federal
or
state court sitting in the County of New York in the State of New York and
irrevocably agrees that all actions or proceedings arising out of or relating
to
this Note shall be litigated exclusively in such court. Each party hereto agrees
not to commence any legal proceeding related hereto or thereto except in such
courts. Each party hereto irrevocably waives any objection which it may now
or
hereafter have to the laying of the venue of any such proceeding in any such
court and hereby further irrevocably and unconditionally waives and agrees
not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each party
hereto consents to process being served in any such action or proceeding by
mailing a copy thereof by registered or certified mail.
17. Waiver
of Jury Trial.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS WARRANT. EACH
PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OF
THE OTHER PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY OF THE
OTHER
PARTIES WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 17.
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly
authorized officer as of the date first set forth above.
| BioMetrx, Inc. | ||
| |
|
|
| By: | ||
|
Xxxx Xxxxxx, Chief Executive Officer
|
||
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EXHIBIT
“A”
NOTICE
OF EXERCISE
(To
be signed only upon exercise of the Warrants)
To: BioMetrx,
Inc.
The
undersigned hereby elects to purchase shares of Common Stock (the “Warrant
Shares”)
of
BioMetrx, Inc. (“BioMetrx”),
pursuant to the terms of the enclosed warrant certificate (the “Certificate”).
The
undersigned tenders herewith payment of the exercise price pursuant to the
terms
of the Certificate.
The
undersigned hereby represents and warrants to, and agrees with, BioMetrx as
follows:
1. Holder
is
acquiring the Warrant Shares for its own account, for investment purposes
only.
2. Holder
understands that an investment in the Warrant Shares involves a high degree
of
risk, and Xxxxxx has the financial ability to bear the economic risk of this
investment in the Warrant Shares, including a complete loss of such investment.
Holder has adequate means for providing for its current financial needs and
has
no need for liquidity with respect to this investment.
3. Holder
has such knowledge and experience in financial and business matters that it
is
capable of evaluating the merits and risks of an investment in the Warrant
Shares and in protecting its own interest in connection with this
transaction.
4. Holder
understands that the Warrant Shares have not been registered under the
Securities Act or under any state securities laws. Holder is familiar with
the
provisions of the Securities Act and Rule 144 thereunder and understands that
the restrictions on transfer on the Warrant Shares may result in Holder being
required to hold the Warrant Shares for an indefinite period of
time.
5. Xxxxxx
agrees not to sell, transfer, assign, gift, create a security interest in,
or
otherwise dispose of, with or without consideration (collectively, “Transfer”)
any of
the Warrant Shares except pursuant to an effective registration statement under
the Securities Act or an exemption from registration. As a further condition
to
any such Transfer, except in the event that such Transfer is made pursuant
to an
effective registration statement under the Securities Act, if in the reasonable
opinion of counsel to BioMetrx any Transfer of the Warrant Shares by the
contemplated transferee thereof would not be exempt from the registration and
prospectus delivery requirements of the Securities Act, BioMetrx may require
the
contemplated transferee to furnish BioMetrx with an investment letter setting
forth such information and agreements as may be reasonably requested by BioMetrx
to ensure compliance by such transferee with the Securities Act.
Each
certificate evidencing the Warrant Shares will bear the following
legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”) OR ANY APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE EXERCISED, SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS
AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
6. Immediately
following this exercise of Warrants, if as of the date of exercise BioMetrx
has
a class of securities registered under Section 12 of the Securities Exchange
Act
of 1934, as amended, the undersigned will not beneficially own five percent
(5%)
or more of the then outstanding Common Stock of BioMetrx (based on the number
of
shares outstanding set forth in the most recent periodic report filed by
BioMetrx with the Securities and Exchange Commission and any additional shares
which have been issued since that date of which Holder is aware have been
issued).
Number
of
Warrants Exercised: ______________
Dated:
____________________
___________________________________________________
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