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Bridgepointe Master Fund Ltd. v. bioMETRX

December 11, 2009

BRIDGEPOINTE MASTER FUND LTD., PETITIONER,
v.
BIOMETRX, INC., RESPONDENT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

ORDER

Bridgepointe Master Fund Ltd. ("Bridgepointe") petitions, pursuant to Section 9 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., for an Order confirming and entering judgment on an arbitration award made by a panel of the American Arbitration Association on July 2, 2009.

Bridgepointe is an investment fund with its principal place of business in the Cayman Island. Respondent BIOMETRX ("BMRX") is a Delaware Corporation with its principal place of business in Jericho, Long Island, New York. The Court notes its jurisdiction under 28 U.S.C. § 1332.

Bridgepointe and BMRX entered into a series of financial transactions:

(1) Securities Purchase Agreement, dated December 28, 2006;

(2) A Convertible Debenture payable to Bridgepointe, dated December 29, 2006; and

(3) An Extension and Waiver Agreement, dated September 9, 2008.

No payments were made by BMRX and on February 11, 2009, Bridgepointe demanded expedited arbitration pursuant to the terms of the Securities Purchase Agreement, and the Convertible Debenture,*fn1 both of which provided, in pertinent part:

9. GOVERNING LAW; MISCELLANEOUS

a. Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York. Any controversy or claim arising out of or related to the Debenture or the breach thereof, shall be settled by binding arbitration in New York, New York in accordance with the Expedited Procedures (Rules 53-57) of the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). A proceeding shall be commenced upon written demand by the Company or Buyer to the other. The arbitrator(s) shall enter a judgment by default against any party, which fails or refuses to appear in any properly noticed arbitration proceeding. The proceeding shall be conducted by one (1) arbitrator, unless the amount alleged to be in dispute exceeds two hundred fifty thousand dollars ($250,000), in which case three (3) arbitrators shall preside. The arbitrator(s) will be chosen by the parties from a list provided by the AAA, and if the parties are unable to agree within ten (10) days, the AAA shall select the arbitrator(s). The arbitrators must be experts in securities law and financial transactions.

The arbitrators shall assess costs and expenses of the arbitration, including all attorneys' and experts' fees, as the arbitrators believe is appropriate in light of the merits of the parties' respective positions in the issues in dispute. Each party submits irrevocably to the jurisdiction of any state court sitting in New York, New York or to the United States District Court sitting in New York, New York for purposes of enforcement of any discovery order, judgment or award in connection with such arbitration.

The award of the arbitrator(s) shall be final and binding upon the parties and may be enforced in any court having jurisdiction. The arbitration shall be held in such place as set by the arbitrator(s) in accordance with Rule 55. With respect to any arbitration proceeding in accordance with this section, the prevailing party's reasonable attorney's fees and expenses shall be borne by the non-prevailing party.

After Notice of Arbitration was provided, an arbitration hearing was held on June 22, 2009. Bridgepointe made its presentation, submitted evidence and made its arguments; BMRX chose not to participate. After due consideration, the Arbitration Panel made the following award:

1. Within 30 days of the date of this Award, Respondent shall pay to Claimant $576,324.85 and $21,890.00 ...


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