Unassociated Document
SCHEDULE
14C
(Rule
14c-101)
INFORMATION
REQUIRED IN INFORMATION STATEMENT
SCHEDULE
14C INFORMATION
Information
Statement Pursuant to Section 14(c)
of
the Securities Exchange Act of 1934
(Amendment
No.___)
Check
the
appropriate box:
| x |
Preliminary
Information Statement
|
| ¨ |
Confidential,
for use of the Commission only (as permitted by Rule
14c-5(d)(2))
|
| ¨ |
Definitive
Information Statement
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BIOMETRX,
INC.
(Name
of
Registrant as Specified in its Charter)
Payment
of Filing Fee (Check the appropriate box):
| o |
Fee
computed on table below per Exchange Act Rules 14C-5(g) and
0-11.
|
1. Title
of
each class of securities to which transaction applies:
_____________________________________________________________________
2. Aggregate
number of securities to which transaction applies:
_____________________________________________________________________
3. Per
unit
price or other underlying value of transaction computed pursuant to Exchange
Act Rule 0-11:
_____________________________________________________________________
4. Proposed
maximum aggregate value of transaction:
_____________________________________________________________________
| o |
Check
box if any part of the fee is offset as provided by Exchange Rule
0-11(a)(2) and identify the filing for which the offsetting fee was
paid
previously. Identify the previous filing by registration statement
number,
or the Form or Schedule and the date of its
filing.
|
1. Amount
Previously Paid:
_____________________________________________________________________
2. Form,
Schedule or Registration Statement No.:
_____________________________________________________________________
3. Filing
Party:
_____________________________________________________________________
4. Date
Filed:
_____________________________________________________________________
BIOMETRX,
INC.
500
N.
BROADWAY
JERICHO,
NY 11753
INFORMATION
STATEMENT PURSUANT TO SECTION 14(C) OF THE
SECURITIES
EXCHANGE ACT OF 1934 AND REGULATION 14C THEREUNDER
__________________
WE
ARE
NOT ASKING YOU FOR A PROXY AND YOU
ARE
REQUESTED NOT TO SEND US A PROXY
__________________
To
the
Stockholders of bioMETRX, Inc.:
NOTICE
IS
HEREBY GIVEN that certain stockholders of bioMETRX, Inc., a Delaware corporation
(“bioMETRX” or the “Company”) have consented to taking of corporate actions by
consent in lieu of a meeting of stockholders. The corporate actions will be
effective 20 days after the mailing of this information statement to:
| |
1.
|
Approve
an amendment to our Certificate of Incorporation to effect a reverse
stock
split of all of the outstanding shares of Common Stock, at a ratio
of
between one-for-three and
one-for-five.
|
| |
2.
|
Amend
our Certificate of Incorporation to increase the number of shares
of
Common Stock the Company is authorized to issue to 25,000,000 and
decrease
the par value of the Company’s Common Stock to $.001;
and
|
Only
stockholders of record at the close of business on January 13, 2006 are entitled
to notice of these corporate actions. Holders of 60.7% of our Common Stock
gave
their written consent to the above corporate actions. This written consent
was
obtained pursuant to Section 228(a) of the Delaware General Corporation Law,
as
amended.
For
further information regarding the matters as to which stockholder consent was
given, I urge you to carefully read the accompanying Information Statement.
If
you have questions about these proposals or would like additional copies of
the
Information Statement, you should contact Steven Kang, Secretary, bioMETRX,
Inc.,
500 N. Broadway, Jericho, New York 11753; telephone: (516) 750-9733.
| |
|
By order of the Board of
Directors |
| |
|
|
| |
|
Mark Basile |
| |
|
President and Chief Executive
Officer |
Melville,
New York
February
___, 2006
BIOMETRX,
INC.
500
N.
BROADWAY
JERICHO,
NY 11753
(516)
750-9733
INFORMATION
STATEMENT PURSUANT TO SECTION 14(C)
OF
THE
SECURITIES EXCHANGE ACT OF 1934
This
Information Statement (the “Information Statement”) is being mailed on or about
February 17, 2006 to the holders of record at the close of business on January
13, 2006, of the Common Stock of bioMETRX,
Inc., a
Delaware corporation (“bioMETRX”
or the “Company”),
in
connection with action by written consent in lieu of an annual meeting to
authorize and approve:
| |
1.
|
An
amendment to our Certificate of Incorporation to effect a reverse
stock
split of all of the outstanding shares of Common Stock, at a ratio
of
between
one-for-three and one-for-five.
|
| |
2.
|
An
amendment to our Certificate of Incorporation increasing the number
of
authorized shares of our Common Stock, to 25,000,000 shares and decreasing
the par value of the Company’s Common Stock to $.001;
and
|
Members
of the Board of Directors and stockholders owning or having voting authority
for
13,291,105 shares of outstanding Common Stock have voted in favor of the above
actions (the “Consenting Stockholders”). These stockholdings represent
approximately 60.7% of the total outstanding common stock of bioMETRX
sufficient to take the proposed action on the record date of January 13, 2006.
Pursuant to Reg.§240.14c-2(b), these actions will not be effective until 20 days
after this Information Statement is mailed to stockholders. Dissenting
stockholders do not have any statutory appraisal rights as a result of the
action taken. The Board of Directors does not intend to solicit any proxies
or
consents from any other stockholders in connection with this
action.
Section
141(f) of the Delaware General Corporation Law (the “Delaware Law”) provides
that any action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting and without prior notice if a
consent in writing setting forth the action taken is signed by the holders
of
outstanding stock having not less than the minimum number of votes that would
be
necessary to take such action. In order to eliminate the costs and management
time involved in obtaining proxies and in order to effect the above actions
as
early as possible in order to accomplish the purposes hereafter described,
the
Board of Directors voted to utilize, and did in fact obtain, the written consent
of the Consenting Stockholders who own shares representing a majority of our
common stock.
Pursuant
to Section 228(c) of the Delaware Law, we are required to provide prompt notice
of the taking of the corporate action without a meeting to the stockholders
of
record who have not consented in writing to such action. This Information
Statement is intended to provide such notice. No dissenters’ or appraisal rights
under the Delaware Law are afforded to the Company’s stockholders as a result of
the approval of the proposals.
This
Information Statement is being distributed pursuant to the requirements of
Section 14(c) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
The
entire cost of furnishing this Information Statement will be borne by
bioMETRX.
We will
request brokerage houses, nominees, custodians, fiduciaries and other like
parties to forward this Information Statement to the beneficial owners of the
Common Stock held of record by them and will reimburse such persons for their
reasonable charges and expenses in connection therewith.
WHAT
VOTE WAS REQUIRED TO APPROVE EACH ITEM?
For
the
approval of the proposed corporate actions, the affirmative vote of a majority
of the shares of common stock outstanding and entitled to vote at the record
date, or 11,031,843 shares, was required for approval.
CONSENTING
SHAREHOLDERS
On
January 17, 2006, our board of directors unanimously adopted resolutions
declaring the advisability of, and recommended that shareholders approve the
amendment to the Company’s Certificate of Incorporation to authorize a reverse
split of between
one-for-three and one-for-five
of its
shares of common stock and to increase the number of shares the Company is
authorized to issue. In connection with the adoption of these resolutions,
the
board elected to seek the written consent of the holders of a majority of our
outstanding shares in order to reduce the costs and implement the proposals
in a
timely manner.
On
January 17, 2006, the following consenting shareholders, who collectively own
60.7% of our common stock, consented in writing to the proposed
Amendment:
|
Name
|
|
No.
of Shares
|
|
Percentage
|
|
| |
|
|
|
|
|
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The
Naples Trust
|
|
|
4,522,400
|
|
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20.5
|
%
|
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Mark
Basile
|
|
|
2,303,677
|
|
|
10.4
|
%
|
|
Russell
Kuhn
|
|
|
4,274,754
|
|
|
19.4
|
%
|
|
Steven
Kang
|
|
|
1,676,425
|
|
|
7.6
|
%
|
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Steven
Horowitz
|
|
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284,000
|
|
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1.3
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%
|
|
Harbor
View Group, Inc.
|
|
|
329,849
|
|
|
1.5
|
%
|
|
Total
|
|
|
13,391,105
|
|
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60.7
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%
|
Under
Delaware law, we are required to give all shareholders written notice of any
actions that are taken by writtten consent without a shreholder meeting. Under
Section 14(c) of the Exchange Act, the transactions cannot become effective
until 20 days after the mailing date of this Information Statement to our
shareholders.
We
are
not seeking written consent from any of our shareholders and our other
shareholders will not be given an opportunity to vote with respect to the
transactions. All necessary corporate approvals have been obtained, and this
Information Statement is furnished solely for the purposes of:
| · |
Advising
shareholders of the action taken by written consent, as required by
Delaware law; and
|
| · |
Giving
shareholders advance notice of the actions taken, as required by the
Exchange Act.
|
Shareholders
who were not afforded an opportunity to consent or otherwise vote with respect
to the actions taken have no right under Delaware law to dissent or require
a
vote of all our shareholders.
Stock
Ownership Table
This
table shows the number and percentage of bioMETRX common stock owned of record
and beneficially as of January 13, 2006 by each of our directors and executive
officers. The table also shows the name, address and number and percentage
of
shares owned by persons owning five percent of any class.
|
Name
and Address
|
Number
of Shares
|
Percentage
|
| |
|
|
|
Mark
Basile
|
7,576,077(1)(2)
|
33.2%
|
|
CEO
and Chairman
|
|
|
|
500
N. Broadway
|
|
|
|
Jericho,
NY 11753
|
|
|
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|
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Steven
Kang
|
2,426,425(3)
|
10.6%
|
|
Director
|
|
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9
Herkimer Street
|
|
|
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Jericho,
NY 11750
|
|
|
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|
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Frank
Giannuzzi
|
238,000(4)
|
1.1%
|
|
Chief
Financial Officer and Director
|
|
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40
Stewart Street
|
|
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Plainview,
NY 11704
|
|
|
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|
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Clifford
Zsevc
|
120,000(5)
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0.5%
|
|
Chief
Operating Officer
|
|
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10
Pinecone Lane
|
|
|
|
Westbury,
NY 11590
|
|
|
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|
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The
Naples Trust (6)
|
4,522,400
|
20.5%
|
|
736
Carlisle Road
|
|
|
|
Jericho,
NY 11753
|
|
|
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|
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Russell
Kuhn
|
4,343,704(7)
|
19.6%
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8680
Greenback Lane
|
|
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Orangevale,
CA 95662
|
|
|
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|
|
|
Officers
and directors as a group
(4
persons) (1)(2)(3)(4)(5)
|
10,360,502
|
43.9%
|
_______________
|
(1)
|
Includes
4,522,400 shares held by the Naples Trust. Mr. Basile’s mother-in-law is
the trustee for the Naples Trust and Mr. Basile’s wife is the
beneficiary.
|
|
(2)
|
Includes
750,000 shares of common stock issuable within 60 days upon the exercise
of options to purchase a like number of
shares.
|
|
(3)
|
Includes
750,000 shares of common stock issuable within 60 days upon the exercise
of options to purchase a like number of
shares.
|
|
(4)
|
Includes
25,000 shares of common stock issuable within 60 days upon the exercise
of
options to purchase a like number of
shares.
|
|
(5)
|
Includes
25,000 shares of common stock issuable within 60 days upon the exercise
of
options to purchase a like number of
shares.
|
|
(6)
|
Mr.
Basile’s mother-in-law is the trustee for The Naples Trust and Mr.
Basile’s wife is the beneficiary.
|
|
(7)
|
Includes
68,990 shares of common stock issuable within 60 days upon the exercise
of
warrants to purchase a like number of shares. Excludes 275,990 shares
which may be obtained upon the exercise of warrants which, by their
terms,
are not exercisable within 60 days.
|
APPROVAL
OF AMENDMENT OF THE COMPANY’S
CERTIFICATE
OF INCORPORATION
At
present, the Company is authorized to issue 50,000,000 shares of Common Stock,
and 10,000,000 shares of Preferred Stock. The Company’s Board of Directors
approved an amendment to the Company’s Certificate of Incorporation to (a)
reverse split the outstanding shares of the Company’s Common Stock at a ratio of
between one-for-three and one-for-five (the “Reverse Split”); (b) reduce the par
value of the Company’s Common Stock resulting from the Reverse Split to $.001;
and (c) increase the number of shares of Common Stock the Company is authorized
to issue after the reverse split to 25,000,000. A copy of the Amendment to
the
Certificate of Incorporation substantially in the form it will be filed with
the
Secretary of the State of Delaware is attached hereto as Appendix
A.
Reverse
Split and Reduction of Par Value
As
a
result of the Reverse Split, each share of Common Stock outstanding at the
effective time of the Reverse Split, will, without any action on the part of
the
holder thereof, each outstanding share will become between one-third and
one-fifth of a share of Common Stock. Within those parameters, the Board will
have the final decision of the ratio of the Reverse Split. The amendment will
also decrease the par value per share of the Company’s common stock to $.001.
The decrease in the par value per share will reduce the Company’s capital stock
accounts. For purposes of this description, the Common Stock, as presently
constituted, is referred to as the “Old Common Stock” and the Common Stock
resulting from the Reverse Split is referred to as the “New Common Stock.” The
bid price of the Company’s Common Stock on January 17, 2006 was
$.90.
The
Reverse Split will become effective upon the filing with the Secretary of State
of an amendment to the Company’s Certificate of Incorporation which states that,
upon the filing of the Certificate of Amendment, each share of Old Common Stock
then issued and outstanding would automatically become such fraction of a share
of New Common Stock as determined by the Board.
Principal
Effects of the Reverse Split
The
principal effects of the Reverse Split will be as follows:
Based
upon the 22,063,685 shares of Old Common Stock outstanding on the Record Date,
the Reverse Split of one-for-three and one-for-five would decrease the
outstanding shares of Old Common Stock by approximately 66.6% and 80%,
respectively, or to 7,354,562 or 4,412,737 shares, respectively. The Reverse
Split of one-for-three and one-for-five also decreases the authorized number
of
shares of Common Stock from 50,000,000 to 16,666,667 or 10,000,000 shares
respectively.
The
Company will obtain a new CUSIP number for the New Common Stock at the time
of
the Reverse Split. Following the effectiveness of the Reverse Split, each yet
to
be determined number of shares of Old Common Stock, without any action on the
part of the holder, will represent one share of New Common Stock.
Subject
to the provisions for elimination of fractional shares, as described below,
consummation of the Reverse Split will not result in a change in the relative
equity position or voting power of the holders of Old Common Stock.
The
Amendment to the Company’s Certificate of Incorporation will be filed with the
Secretary of State of Delaware twenty days after the mailing of this Information
Statement. The Reverse Split would become effective as of the date of such
filing (the “Effective Date”).
Purposes
of the Reverse Stock Split
The
Reverse Split will decrease the number of shares of Old Common Stock outstanding
and presumably increase the per share market price for the New Common Stock.
Theoretically, the number of shares outstanding should not, by itself, affect
the marketability of the stock, the type of investor who acquires it, or the
Company’s reputation in the financial community, but in practice this is not
necessarily the case, as many investors look upon a stock trading at or under
$1.00 per share as unduly speculative in nature and, as a matter of policy,
avoid investment in such stocks.
Many
leading brokerage firms are reluctant to recommend lower-priced securities
to
their clients and a variety of brokerage house policies and practices currently
tend to discourage individual brokers within firms from dealing in lower-priced
stocks. Some of those policies and practices pertain to the payment of brokers’
commissions and to time-consuming procedures that make the handling of lower
priced stocks unattractive to brokers from an economic standpoint. In addition,
the structure of trading commissions also tends to have an adverse impact upon
holders of lower priced stocks because the brokerage commission on a sale of
a
lower priced stock generally represents a higher percentage of the sales price
than the commission on a relatively higher priced issue.
The
Board
of Directors believes that the Reverse Split is in the best interest of the
Company and its shareholders because it would reduce the number of shares of
its
Common Stock outstanding to amounts that the Board of Directors believes are
more reasonable in light of its size and market capitalization. The Company
requires additional capital for its operations and does not believe that it
will
be able to raise the necessary capital unless the price of the Common Stock
is
higher than the current Common Stock price levels. However, no assurance can
be
given that the Reverse Split will result in any increase in the Common Stock
price or that the Company will be able to complete any financing following
the
Reverse Split.
Exchange
of Certificate and Elimination of Fractional Share Interests
On
the
Effective Date, shares of Old Common Stock will automatically be combined and
changed into one share of New Common Stock. No additional action on the part
of
the Company or any shareholder will be required in order to effect the Reverse
Split. Shareholders will be requested to exchange their certificates
representing shares of Old Common Stock held prior to the Reverse Split for
new
certificates representing shares of New Common Stock. Shareholders will be
furnished the necessary materials and instructions to effect such exchange
promptly following the Effective Date. Certificates representing shares of
Old
Common Stock subsequently presented for transfer will not be transferred on
the
books and records of the Company but will be returned to the tendering person
for exchange. Shareholders should not submit any certificates until requested
to
do so. In the event any certificate representing shares of Old Common Stock
is
not presented for exchange upon request by the Company, any dividends that
may
be declared after the Effective Date of the Reverse Split with respect to the
Common Stock represented by such certificate will be withheld by the Company
until such certificate has been properly presented for exchange, at which time
all such withheld dividends which have not yet been paid to a public official
pursuant to relevant abandoned property laws will be paid to the holder thereof
or his designee, without interest.
No
fractional shares of New Common Stock will be issued to any shareholder.
Accordingly, shareholders of record who would otherwise be entitled to receive
fractional shares of New Common Stock, will, upon surrender of their
certificates representing shares of Old Common Stock, receive a new certificate
representing the New Common Stock rounded up to the nearest whole
share.
Federal
Income Tax Consequences of the Reverse Split
The
combination of shares of the Old Common Stock into one share of New Common
Stock
should be a tax-free transaction under the Internal Revenue Code of 1986, as
amended, and the holding period and tax basis of the Old Common Stock will
be
transferred to the New Common Stock received in exchange therefor.
This
discussion should not be considered as tax or investment advice, and the tax
consequences of the Reverse Split may not be the same for all shareholders.
Shareholders should consult their own tax advisors to know their individual
Federal, state, local and foreign tax consequences.
Change
in Authorized Capital Stock
The
Board
of Directors has approved an amendment to the Company’s Certificate of
Incorporation which would change the number of authorized shares of Common
Stock, and the par value to $.001 per share. The number of authorized common
shares would be increased to 25,000,000 shares.
Discussion
of the Amendment
Under
the
Company’s Certificate of Incorporation, the Board of Directors of the Company
has authority to issue authorized and unissued shares of Common and Preferred
Stock without obtaining approval from the holders of the Common Stock. The
holders of the Company’s Common Stock and Preferred Stock do not have preemptive
rights. The Preferred Stock provisions give the Board of Directors broad
authority to issue shares of Preferred Stock in one or more series and to
determine such matters as the dividend rate and preference, voting rights,
conversion privileges, redemption provisions, liquidation preferences and other
rights of each series. Each share of Common Stock is entitled to one vote.
The
holders of any series of preferred stock issued in the future will be entitled
to such voting rights as may be specified by the Board of Directors.
It
is not
possible to determine the actual effect of the Preferred Stock on the rights
of
the holders of Common Stock until the Board of Directors determines the rights
of the holders of a series of the Preferred Stock. However, such effect might
include (i) restrictions on the payment of dividends to the holders of the
Common Stock; (ii) dilution of voting power to the extent that the holder of
the
Preferred Stock are given voting rights; (iii) dilution of the equity interests
and voting powers if the Preferred Stock is convertible into Common Stock;
and
(iv) restrictions upon any distribution of assets to the holders of the Common
Stock upon liquidation or dissolution and until the satisfaction of any
liquidation preference granted to the holders of Preferred Stock. Because of
the
broad powers granted to the Board of Directors to issue shares of Preferred
Stock and determine the rights, preferences and privileges of the holders of
such series, the Board of Directors has the power to issue shares of Preferred
Stock in a manner which could be used as a defensive measure against a hostile
takeover or to keep the Board of Directors in power. However, the Board of
Directors has no present plans to issue shares for such purpose.
Purpose
It
is
important we preserve our flexibility to issue additional shares of Common
Stock. The Board believes that the authorization of additional authorized shares
of Common Stock is advisable to provide us with the flexibility to take
advantage of opportunities to issue such stock in order to obtain capital,
as
consideration for possible acquisitions or for other purposes including, without
limitation, the issuance of additional shares of Common Stock through stock
splits and stock dividends in appropriate circumstances. There are, at present,
no plans, understandings, agreements or arrangements concerning the issuance
of
additional shares of Common Stock, except for the shares to be issued pursuant
to existing agreements or upon the exercise of stock options, warrants or other
convertible securities, currently outstanding.
Effects
of An Increase in Authorized Shares
Uncommitted
authorized but unissued shares of Common Stock may be issued from time to time
to such persons and for such consideration as the Board may determine. Holders
of the then outstanding shares of Common Stock may or may not be given the
opportunity to vote thereon, depending upon the nature of any such transactions,
applicable law, the rules and policies of the Over the Counter Bulletin Board
(“OTCBB”) or other market which we qualify Common Stock for trading, as the case
may be, and the judgment of the Board regarding the submission of such issuance
to a vote of our stockholders. Our stockholders have no preemptive rights to
subscribe to newly issued shares.
Moreover,
it is possible that additional shares of Common Stock would be issued under
circumstances which would make the acquisition of a controlling interest in
us
more difficult, time-consuming, costly or otherwise discourage an attempt to
acquire control of us. Under such circumstances the availability of authorized
and unissued shares of Common Stock may make it more difficult for stockholders
to obtain a premium for their shares. Such authorized and unissued shares could
be used to create voting or other impediments or to frustrate a person seeking
to obtain control of us by means of a merger, tender offer, proxy contest or
other means. Such shares could be privately placed with purchasers who might
cooperate with the board in opposing such an attempt by a third party to gain
control of us or could also be used to dilute ownership of a person or entity
seeking to obtain control of us. Although we do not currently contemplate taking
such action, shares of Common Stock could be issued for the purposes and effects
described above and the Board reserves its rights to issue such stock for such
purposes.
The
authorization of additional shares of Common Stock pursuant to this proposal
will have no dilutive effect upon the proportionate voting power of our present
stockholders. However, to the extent that shares are subsequently issued to
persons other than our present stockholders, such issuance could have a dilutive
effect on the earnings per share and voting power of present stockholders.
If
such dilutive effect on earnings per share occurs, we expect that any such
dilutive effect would be relatively short in duration. As described above,
we
believe that the proposed increase in the number of authorized shares of Common
Stock will provide the flexibility needed to meet corporate objectives and
is in
the best interest of our stockholders.
FORWARD
LOOKING STATEMENTS
This
Information Statement and other reports that we file with the SEC contain
forward-looking statements about our business containing the words “believes,”
“anticipates,” “expects” and words of similar import. These forward-looking
statements involve known and unknown risks, uncertainties and other factors
that
may cause our actual results or performance to be materially different from
the
results or performance anticipated or implied by such forward-looking
statements. Given these uncertainties, shareholders are cautioned not to place
undue reliance on forward-looking statements. Except as specified in SEC
regulations, we have no duty to publicly release information that updates the
forward-looking statements contained in this Information Statement. An
investment in our Company involves numerous risks and uncertainties, including
those described elsewhere in this Information Statement. Additional risks will
be disclosed from time-to-time in our future SEC filings.
ADDITIONAL
INFORMATION
This
Information Statement should be read in conjunction with certain reports that
we
previously filed with the Securities and Exchange Commission (the “SEC”),
including our:
| · |
Annual
Report for the year ended December 31, 2004 (the “Form
10-KSB”);
|
| · |
Quarterly
Report for the period ended September 30, 2005 (the “Form
10-QSB”)
|
Copies
of
these reports are not included in this Information Statement but may be obtained
from the SEC’s web site at “www.sec.gov.” We will mail copies of our prior SEC
reports to any shareholder upon written request.
| |
|
|
| |
BY
ORDER OF THE
BOARD OF DIRECTORS |
|
|
|
| |
By: |
/s/ Mark
Basile |
| |
Mark
Basile, President |
| |
|
Melville
New York
February
___, 2006