CONSENT AND
WAIVER
This Consent
and Waiver Agreement is made as of the 3 rd day of
January, 2007 by and among bioMETRX, Inc., a Delaware corporation
(the “Company”) and the individuals and entities listed
on Schedule A (collectively referred to as “Holders”
and individually as a “Holder”).
REFERENCE is
hereby made to the $1,600,000 principal amount of Convertible Notes
(“Notes”) issued on or about June 29, 2006 and due 24
months thereafter of the Company, to the Holders.
WHEREAS, in
connection with the issuance of the Notes, the Company issued A and
B Warrants to the Holders and entered into a Securities Purchase
Agreement and Registration Rights Agreement with each Holder
(collectively referred to as the “Transaction
Documents”); and
WHEREAS, the
Company is in default under the terms of the Note and Transaction
Documents; and
WHEREAS, the
Company’s ability to repay the Notes would be impaired if the
Company is not able to obtain additional financing; and
WHEREAS, the
Company has received a proposal from additional investors who have
agreed to provide to the Company $1,500,000 of additional financing
(the “New Financing”) on the express condition that
Holders waive all current defaults on the Notes and forebear from
exercise any of their existing rights of default until March 31,
2007.
WHEREAS, the
Holders are willing to waive the existing defaults (i) in exchange
for new convertible notes in the amount(s) set forth next to the
Holder’s name on Schedule A to this document.
NOW THEREFORE,
the parties agree as follows:
1.
The Holders hereby waive any and
all defaults relating to the Note and Transaction Documents
presently existing (“Existing Defaults”)and agree to
forebear from exercising any rights accruing upon default in the
Transaction Documents relating to any default until March 31, 2007.
Notwithstanding the foregoing, nothing contained in this Agreement
shall constitute a waiver or forebearance with respect to any
future events of defaults under the Transaction Documents which do
not exist as of the date hereof.
2.
The Company agrees to issue to each
Holder a Convertible Note (“Forbearance Notes”)in the
form annexed hereto as Exhibit A in the principal amount set forth
next to the Holder’s name on Schedule A in the aggregate
principal amount of $387,437.39 representing liquidated damages due
under the Note and Transaction Documents. The Company shall deliver
original executed Forbearance Notes to the Holders within three (3)
business days of the closing of the New Financing.
3.
The Holder hereby consents to the
Company entering into and consummating the New Financing
.
4.
The Holder hereby consents to the
Company including for resale under the Securities Act of 1933 in
any future registration statement to be filed by the Company any
and all shares of the Company’s common stock underlying the
securities being issued in the New Financing. The Company confirms
to each Holder that nothing contained in the terms of the New
Financing prohi
