PLEDGE AND ESCROW AGREEMENT
THIS
PLEDGE AND ESCROW AGREEMENT, dated as of August ___, 2007, is made by
bioMETRX
Technologies, Inc. (the
“Pledgor”) and ________________(the “Escrow Agent”) and
Xxxx Xxxxx and Xxxxxx Xxxxxx
(the
“Holders”).
RECITALS
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A.
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The
Holders loaned the Pledgor’s parent company bioMETRX, Inc., $800,000
represented by two convertible notes, each in the amount of $400,000
(the
“Notes”) dated August 27, 2007 due May 27,
2008.
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B.
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In
order to induce the Holders to make the loan, the Pledgor has agreed
to
pledge an aggregate of 500,000 shares of bioMETRX, Inc. common stock
owned
by it represented by the certificates set forth on Schedule A hereto
(the
“Pledged Securities”) as security for the full payment and performance of
his obligations under the Notes.
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C.
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The
Holders has agreed to accept the Pledged Securities as security for
such
obligations.
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NOW,
THEREFORE, it is agreed as follows:
1. Pledge.
As
collateral security for the payment, performance and observance of the Note,
the
Pledgor herewith pledges, assigns, transfers, hypothecates, and grants to the
Holders, a security interest in the Pledged Securities and the certificate(s)
evidencing the same and such additional property at any time and from time
to
time receivable by the Pledgor as a dividend or in respect of or in exchange
for
any or all such shares, the Pledgor herewith pledges, together with any and
all
products and proceeds of any of the foregoing in whatever form. The Pledged
Securities and the products and proceeds thereof may be referred to collectively
as the “Pledged Collateral.”
2. Delivery
to Agent for Holders.
Concurrently with the execution of this Pledge and Escrow Agreement, the Pledgor
shall deliver the certificates representing the Pledged Securities to the Escrow
Agent, acting as agent for the Holders solely for the purposes of perfecting
the
security interest granted hereby. Acting in such capacity, the Escrow Agent
shall maintain possession of the Pledged Securities until they are required
to
be released to either the Pledgor or the Holders pursuant to the provisions
of
this Agreement. The Pledgor has deposited with the Escrow Agent five stock
powers duly executed in blank with signatures guaranteed by a Medallion
Participant, which shall be delivered with the Pledged Securities.
3. Title.
The
Pledgor agrees to use reasonable efforts to defend the Holders's right, title,
lien and security interest in and to the Pledged Collateral against the claims
and demands of all persons whomsoever. The Pledgor also represents and warrants
to the Holders that it has good title to all of the Pledged Collateral, free
and
clear of all claims, mortgages, pledges, liens, encumbrances and security
interests of every nature whatsoever (“Liens”) except those granted to the
Holders herein and that no consent or approval of any governmental or regulatory
authority, or of any securities exchange is required to be obtained by the
Pledgor in connection herewith.
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4.
Delivery
of the Pledged Securities by Escrow Agent.
Upon
the failure of the Pledgor to pay the interest or principal on the Note when
due
in accordance with the terms thereof or occurrence of an Event of Default
defined in the Note (as amended by Section 6 of this Agreement or herein (an
“Event of Default”) and upon two business days notice to the Escrow Agent and
the other party, the Escrow Agent shall deliver, the certificate(s) representing
the Pledged Securities and additional collateral held pursuant to Section 5
hereof or otherwise to the Holders. Upon payment in full of the Note, the
expiration of any applicable period (not to exceed 60 days) during which the
Holders may be subject to third party claims with respect to the payment of
the
Note, and upon two business days notice to the Escrow Agent and the other party,
the Escrow Agent shall deliver the certificate(s) for the Pledged Securities
and
additional collateral held pursuant to Section 5 hereof or otherwise to the
Pledgor and the Pledge Collateral shall no longer be subject to the security
interest granted hereby.
5.
Dividends.
If,
upon the dissolution or liquidation (in whole or in part) of bioMETRX, Inc.,
any
sum shall be paid as a liquidating dividend or otherwise upon or with respect
to
any of the Pledged Securities, and if any other dividends of any kind shall
be
otherwise paid upon or with respect to any of the Pledged Securities under
any
other circumstances, such sum shall be paid over to the Escrow Agent, to be
held
as additional collateral hereunder. In case any stock or other dividend shall
be
declared on any of the Pledged Securities, or any shares of stock or fractions
thereof shall be issued pursuant to any stock split involving any of the Pledged
Securities, or any shares shall be distributed upon or with respect to the
Pledged Securities pursuant to a recapitalization or reclassification of the
capital of the Holders, or pursuant to the dissolution, liquidation (in whole
or
in part), bankruptcy or reorganization of the Holders, or to the merger or
consolidation of the Holders with or into another Holders, the shares,
obligations or other property so distributed shall be delivered to the Escrow
Agent (together with stock powers executed in blank by each Pledgor, where
appropriate), to be held by it as additional collateral hereunder, and all
of
the same shall constitute Pledged Collateral for all purposes
hereof.
6.
Voting.
Until
there is an Event of Default, the Pledgor shall have the sole and absolute
right
to exercise all voting power with respect to the Pledged Securities. If an
Event
of Default occurs and is continuing, the Holders shall have the sole and
absolute right, in addition to any other rights granted herein, to exercise
any
and all voting power with respect to the Pledged Securities. In such event,
the
Pledgor, upon the demand of Holders, appoint the Holders as the Pledgor’s true
and lawful proxy to vote such shares in any manner which the Holders deems
advisable for or against all matters which may be submitted to a vote of such
stockholders.
7. Rights
of Secured Party.
The
Pledgor agrees that, upon an Event of Default, the Holders shall have the rights
and remedies provided in the Uniform Commercial Code in force in the State
of
New York at the date of this Agreement and in this connection, the Holders
may
upon five days' notice to the Pledgor, sent by registered mail, and without
liability for any diminution in price which may have occurred, sell all the
Pledged Collateral in such manner and for such price as the Holders may
determine or propose to retain the Pledged Collateral in lieu of repayment
of
the Note. At any bona fide public sale the Holders shall be free to purchase
all
or any part of the Pledged Securities. Out of the proceeds of any sale the
Holders may retain an amount equal to the principal and interest then due on
the
Loan, plus the amount of the expenses of the sale.
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8. Endorsement.
Upon an
Event of Default in respect of the Note, the Holders shall have the right,
for
and in the name, place and stead of the Pledgor, to execute endorsements,
assignments or other instruments of conveyance or transfer with respect to
all
or any of the Pledged Collateral.
9. Indemnification
and Costs.
(a) The
Pledgor and the Holders release the Escrow Agent from any claims, causes of
action and demands at any time arising out of or with respect to this Agreement,
the Pledged Collateral and/or any actions, taken or omitted to be taken by
the
Escrow Agent with respect thereto, and the Pledgor and the Holders hereby agree
to hold the Escrow Agent harmless from and with respect to any and all such
claims, causes of action and demands other than those resulting from the gross
negligence or willful misconduct of the Escrow Agent.
(b) The
Holders shall be exclusively responsible for all costs and expenses (if any)
incidental to the performance by the Escrow Agent of its duties as agent
hereunder.
10. Rights
Duties and Immunities.
(a) The
duties and obligations of the Escrow Agent shall be determined solely by the
express provisions of this Agreement. The Escrow Agent shall not be liable
except for the performance of such duties and obligations as are specifically
set out in this Agreement and the Escrow Agent shall not be deemed to have
any
knowledge of, or responsibility for, the terms of any other agreement,
instrument or document.
(b) The
Escrow Agent shall not be responsible in any manner whatsoever for any failure
or inability of any party hereto, or of any one else, to deliver documents
to
the Escrow Agent or otherwise to honor any of the provisions of this
Agreement.
(c) The
Escrow Agent shall be entitled to rely upon any judgment, certification, demand,
notice, instrument or other writing delivered to it hereunder without being
required to determine the authenticity of the correctness of any fact stated
therein or the propriety or validity or the service thereof. The Escrow Agent
shall be fully protected in acting on and relying upon any written notice,
direction, request, waiver, consent, receipt or other paper or document which
the Escrow Agent believes to be genuine. The Escrow Agent may act in reliance
upon any instrument or signature it reasonably believes to be genuine and the
Escrow Agent may assume that any person purporting to give any advice or make
any statement in connection with the provisions hereof has been duly authorized
to do so.
(d) The
Escrow Agent shall not be liable for any error of judgment, or for any act
done
or step taken or omitted by it in good faith, or for any mistake of fact or
law,
or for anything which it may do or refrain from doing in connection herewith,
except its own bad faith, willful misconduct or gross negligence.
(e) The
Escrow Agent may seek the advice of legal counsel as to any question arising
from or relating to the construction of any of the provisions of this Agreement
or its duties or obligations hereunder or otherwise, and it shall incur no
liability and shall be fully protected in respect of any action taken, omitted
or suffered by it in good faith in accordance with the advice of such
counsel.
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(f) The
Escrow Agent does not make and will not be required or deemed to make any
representation as to the validity or genuineness of any agreement, document
or
other instrument held by or delivered to it.
(g) If
a
dispute arises between one or more of the parties hereto, or between any of
the
parties hereto and any person not a party hereto, as to whether or not or to
whom the Escrow Agent shall deliver any of the Pledged Securities or as to
any
other matter arising from or relating to this Agreement or any related
agreement, the Escrow Agent shall not be required to determine such dispute
and
need not make any delivery of any of the Pledged Securities, but will retain
the
same until the rights of the parties to the dispute shall have finally been
determined by written agreement among the parties to the dispute or by final
non-appealable order of a court of competent jurisdiction. In the event that
the
Escrow Agent has received notice of such order or any such agreement, the Escrow
Agent shall cause the Pledged Securities to be released and delivered in
accordance with such agreement or order.
(h) The
Escrow Agent shall be entitled to assume that no dispute of the type referred
to
in Section 11(g) has arisen unless it has received a written notice that such
a
dispute has arisen, which written notice refers specifically to this Agreement
and identifies by name and address the adverse claimants in such dispute. Any
party delivering written notice of a dispute pursuant to this Section 11(h)
shall simultaneously therewith deliver a copy of such notice to all parties.
For
purposes of this Section 11(h), the Escrow Agent shall not be deemed to have
received a written notice until all parties to this Agreement have received
such
written notice. If a dispute of the type referred to in Section 11(g) arises,
the Escrow Agent may, in its sole discretion (but shall not be obligated to),
commence interpleader or similar actions or proceedings for determination of
such dispute.
11. Successor
Escrow Agent.
(a)
The
Escrow Agent may, at any time, resign as such with or without the prior written
consent of all the parties hereto, in which case the Escrow Agent (and any
successor escrow agent) shall deliver the Pledged Securities, a copy of this
Agreement and any other documents delivered to it hereunder to any successor
escrow agent jointly designated by the Holders and Pledgor in writing, or to
any
court of competent jurisdiction, whereupon the Escrow Agent shall be discharged
of and from any and all further duties and obligations arising in connection
with this Agreement. The resignation of the Escrow Agent shall take effect
on
the earlier of (i) the appointment of a successor escrow agent, or (ii) the
day
which is two business days after the date of the delivery of the Pledged
Securities, a copy of this Agreement and any other documents delivered to the
Escrow Agent hereunder to any court of competent jurisdiction. In the event
that
a successor escrow agent has not been appointed at the expiration of such
two-day period, the Escrow Agent’s sole responsibilities hereunder shall be: (i)
to maintain the safekeeping of the Pledged Securities and any other documents
delivered to it hereunder, if any, and (ii) to release and deliver the Pledged
Securities and any such documents in accordance with Section 4 of this
Agreement.
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(b) If
the
Escrow Agent receives a written notice signed by the Holders and Pledgor stating
that they have selected a successor escrow agent, the Escrow Agent shall deliver
the Pledged Securities (and any other documents then held by it hereunder,
if
any) to the successor escrow agent named in the aforesaid notice within 15
days
after receipt of such written notice.
12. Power
of Attorney.
Upon an
Event of Default which is continuing, the Pledgor hereby appoints the Holders
or
Holders's designees, successors or assigns as such Pledgor's attorney-in-fact
for the purpose of carrying out the provisions of this Agreement and taking
any
action and executing any instrument which the Holders may deem necessary or
advisable to accomplish the purposes hereof. Without limiting the generality
of
the foregoing, the Holders shall have the right and power to receive, endorse
and collect all checks and other orders for the payment of money made payable
to
the Pledgor representing any interest or dividend or other distribution payable
in respect of the Pledged Collateral which the Holders is entitled to receive
hereunder or any part thereof and to give full discharge for the
same.
13. Notices.
Any
notice or demand upon the Pledgor shall be deemed to have been sufficiently
given for all purposes thereof if mailed, postage prepaid, by registered or
certified mail, return receipt requested, or if delivered, to the addresses
set
out below or at such other address as the parties hereto may heretofore have
designated in writing:
If
to the
Pledgor:
bioMETRX
Technologies, Inc.
c/o
bioMETRX, Inc.
000
Xxxxx
Xxxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
If
to the
Holderss:
Xxxx
Xxxxx
______________________________
Xxxxxx
Xxxxxx
______________________________
If
to the
Escrow Agent:
_______________________________
Attention:
Xxxx Xxxxxxx
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14. Governing
Law.
EXCEPT
AS
OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT
AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES
THEREOF REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA. HOLDERS AND EACH PLEDGOR AGREE TO SUBMIT TO PERSONAL JURISDICTION
AND TO WAIVE ANY OBJECTION AS TO VENUE IN THE COUNTY OF NASSAU, STATE OF NEW
YORK. SERVICE OF PROCESS ON PLEDGOR OR HOLDERS IN ANY ACTION ARISING OUT OF
OR
RELATING TO ANY OF THE LOAN DOCUMENTS SHALL BE EFFECTIVE IF MAILED TO SUCH
PARTY
AT THE ADDRESS LISTED IN SECTION 14 HEREOF. NOTHING HEREIN SHALL PRECLUDE
HOLDERS OR PLEDGOR FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION.
15. Submission
to Jurisdiction.
Each of
the parties hereto hereby irrevocably and unconditionally consents to submit
to
the exclusive jurisdiction of the courts of the State of New York and of the
United States of America, in each case located in Nassau County, for any action,
proceeding or investigation in any court or before any governmental authority
(“Litigation”) arising out of or relating to the Transaction Documents and the
transactions contemplated thereby (and agrees not to commence any Litigation
relating thereto except in such courts), and further agrees that service of
any
process, summons, notice or document by U.S. registered mail to its respective
address set forth in this Agreement shall be effective service of process of
any
Litigation brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any Litigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United States
of America, in each case located in the County of Nassau, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any
court that any such Litigation brought in any such court has been brought in
an
inconvenient forum.
16. Counsel.
The
Pledgors represents and warrants that they have availed themselves of the advice
of counsel.
17. Multiple
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together shall constitute but one
and
the same instrument.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Pledgor has executed this Agreement as of the day and
year
first above.
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“PLEDGOR”
bioMETRX,
Technologies, Inc.
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| By: |
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| Title |
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Accepted
and
Agreed this ____ day
of August, 2007.
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Accepted
and
Agreed this ____ day
of _________________, 2007.
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| “HOLDERSS” | “ESCROW AGENT” | ||
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XXXX XXXXX |
XXXX XXXXXXX |
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XXXXXX
XXXXXX
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