EXCHANGE AGREEMENT
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED
FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
OR
AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
THIS
EXCHANGE AGREEMENT, dated as of September __, 2006, is
made
by and between BioMetrx, Inc., a Delaware corporation (“Company”), and each
purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser”
and
collectively the “Purchasers”).
WHEREAS,
on March 22, 2006 the Company issued to the Purchasers 12%
Negotiable Promissory Notes in the aggregate principal amount of $100,000 (“12%
Note”); and
WHEREAS,
the Notes were amended on July 19, 2006 to extend the maturity date from June
21, 2006 to September 21, 2006; and
WHEREAS,
the Company and the Purchasers wish to provide for the terms and conditions
pursuant to which the 12% Note may be exchanged for the Company’s 10% Note
(“10%
Note”),
and
attendant shares of Common Stock and Warrants as more fully described in
Securities Purchase Agreement being executed simultaneously herewith of the
Company;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which the parties hereby acknowledge, the parties agree as
follows:
1. Exchange
of 12% Notes for 10% Notes.
The
Company and the Purchaser
hereby agree that the 12% Notes shall be exchanged for the 10% Notes which
are
along with the shares of Common Stock and Warrants more fully described in
the
Securities Purchase Agreement.
2. Closing.
At the
Closing, the Purchaser shall deliver the original 12% Notes to the Company
and
the Company shall deliver the 10% Notes in the principal amount of $100,000,
40,000 Shares of the Company Common Stock $.0001 par value (“Common Stock”) and
100,000 Warrants (“Warrants”) to purchase Shares of the Common Stock to the
Purchasers.
3. Further
Assurances.
In
connection with the exchange of the 12% Notes, the Purchaser, by entering into
this Exchange Agreement, agree to execute all agreements and other documents
as
reasonably requested by the Company.
4. Company
Representations and Warranties and Covenants.
The
Company represents,
warrants and covenants to the Purchaser as follows:
a.
Organization.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of Delaware and has all requisite corporate power and authority
to own its properties and carry on its business as now being conducted.
b.
Authority;
Enforceability.
The
Company has the requisite corporate power and authority to execute and deliver
this Agreement and to carry out its obligations hereunder. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or to
consummate the transactions so contemplated. This Agreement has been duly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as (a) enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, moratorium or similar laws from time to time
in
effect affecting creditors’ rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
c.
Third
Party Consents.
No
consent, authorization, order or approval of, or filing or registration with,
any governmental authority or other person is required for the execution and
delivery of this Agreement or the consummation by the Company of any of the
transactions contemplated hereby.
d.
Common
Stock.
All
shares of the Company’s Common Stock to be issued pursuant to this Agreement
will be, when issued, free from liens, duly authorized, validly issued, fully
paid and non-assessable.
e.
No
Other Representations or Warranties.
Except
as set forth above in this Section 4, no other representations or warranties,
express or implied, are made in this Agreement by the Company to the
Purchaser.
5. Purchaser
Representations and Warranties and Covenants.
The
Purchaser represents,
warrants and covenants to the Company as follows:
a.
Investment
Representation.
Purchaser acknowledges
that the 10% Notes, Common Stock and Warrants are restricted securities, that
Purchaser
is
acquiring the Securities for its own account with the present intention of
holding the Securities for purposes of investment and not with a view to
distribution within the meaning of the Securities Act of 1933, as amended and
that the Securities will bear a legend to such effect. Purchaser has relied
solely on its independent investigation in making the decision to purchase
the
Debentures.
b.
No
Other Representations or Warranties.
Except
as set forth above in this Section 5, no other representations or warranties
of
any kind, express or implied, are made in this Agreement by Purchaser to the
Company.
6. Miscellaneous.
a.
Survival
of Representations, Warranties and Agreements.
The
representations, warranties, covenants and agreements in this Agreement or
in
any instrument delivered pursuant to this Agreement shall survive the Closing
and shall not be limited or affected by any investigation by or on behalf of
any
party hereto.
b.
Further
Assurances.
Each of
the Company and Purchaser will use its, as the case may be, best reasonable
efforts to take all action and to do all things necessary, proper or advisable
on order to consummate and make effective the transactions contemplated by
this
Agreement.
c.
Entire
Agreement; No Third Party Beneficiaries.
This
Agreement (including the documents, exhibits and instruments referred to herein)
(a) constitutes the entire agreement and supersedes all prior agreements, and
understandings and communications, both written and oral, among the parties
with
respect to the subject matter hereof, and (b) is not intended to confer upon
any
person other than the parties hereto any rights or remedies
hereunder.
d.
Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of the
State of New York without regard to any applicable principles of conflicts
of
law.
e.
Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one and
the
same document.
f.
Amendment
and Modification.
This
Agreement may not be amended or modified except by an instrument in writing
signed by each of the parties hereto.
IN WITNESS
WHEREOF, the parties have caused this Agreement to be duly executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
BIOMETRX,
INC.
By:_____________________________
By:______________________________
Name:
