EXTENSION AND WAIVER AGREEMENT
This
Extension and
Waiver Agreement Waiver is made this 28th day of August, 2008 by and among
bioMETRX, Inc., a Delaware corporation (the "Company") and the holder of a
Convertible Note identified on the signature page hereto (including its
successors and assigns the "Holder").
WHEREAS,
the Company
entered into a Securities Purchase Agreement with the Holder (the "Securities
Purchase Agreement") dated as ofJune 29, 2006 and in connection therewith issued
a Convertible Note dated June 29, 2006 in the principal amount of
$500,000 ("Note");
and
WHEREAS,
the
principal balance of the Note has
been reduced to $205,000 through the conversion of the Note and the forbearance
note has been reduced to $60,427.81 through the conversion of debt into the
Company's common stock; and
WHEREAS,
the Note
became due on June 29, 2008 and as of the date hereof the Company has been
unable to repay the remaining principal balance due under the Note;
and
WHEREAS,
the
Company's ability to repay the Note is contingent upon the Company's ability
to
obtain additional financing; and
WHEREAS,
the Company
has received a proposal from additional investors who have agreed to provide
to
the Company up to $1,500,000 of additional fmaneing (the "New Financing") on
the
express condition that Holder waive all current defaults under the Note, agrees
to extend the due date ofthe Note until June 29, 2009 and agrees not to convert,
transfer, sell or assign the remaining balance of their Note or sell, transfer
or assign any other securities of the Company it currently owns for a period
of
ninety (90) days from the date ofthis Agreement; and
WHEREAS,
the Company
and the Holder mutually desire to enter into this Agreement in order to allow
the Company to obtain additional financing.
NOW
THEREFORE, the
parties agree as follows:
1.
The Holder hereby
waives any and all defaults relating to the Note and the Transaction Documents (as
defined in the
Securities Purchase Agreement) presently existing ("Existing Defaults") and
agrees to extend the due date ofthe Note until June 29, 2009. Notwithstanding
the foregoing, nothing contained in this Agreement shall constitute a waiver
or
forbearance with respect to any future events of defaults under the Transaction
Documents which do not exist as ofthe date hereof.
2.
The Holder agrees not to convert, transfer,
sell or assign the remaining balance of their Note or sell, transfer or assign
any other securities of the Company it currently owns for a period of ninety (90) days from
the date of
this Agreement without the written consent of the Company.
3.
The Company agrees
to pay the Holder and the Holder agrees to accept 106,271 shares of the
Company's common stock as payment ofSI9.128.75 ofaccrued and unpaid interest
due
under the Note. The Company will cause these shares to be delivered
to the Holder within three (3)
business days from the date of execution ofthis Agreement.
4.
The Company agrees
to reset the exercise price ofthe 500,000 Series A Warrants issued to the Holder
in connection with the purchase ofthe Note as a result of the anti-dilution
provisions contained in the Series A Warrant from SI.OO per share to SO.18
5.
The Holder hereby consents to the Company
entering into and consummating the New Financing as described
in the Term Sheet attached hereto as Exhibit
A.
6.
This Agreement
shall be construed, and the rights and liabilities of the parties hereto
determined, in accordance with the internal laws of the State of New York,
without regards to the principles of conflicts oflaw thereof.
7.
Capitalized terms
not defined herein shall have the meanings given to them in the Transaction Documents.
8.
Except
as set
forth herein, the Holders reserve all
rights, remedies, powers, or privileges available under the documents and
agreements executed in connection therewith, at law or otherwise. This Extension
and Waiver Agreement shall not constitute a novation or satisfaction and accord
ofthe Notes or any other document, instrument and/or agreement executed or
delivered in connection therewith.
9.
This Agreement may
be executed in several counterparts which together shall constitute a single
document.
10.
The parties
hereto agree that each ofthem and/or their respective counsel
This
Extension and
Waiver Agreement has been dilly authorized and approved by all requisite
corporate action by the Company and Holder and does not violate the respective
organizational documents.
