Exhibit 10.2


 


THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS (COLLECTIVELY, THE “LAWS”).
THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF EITHER (I) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE LAWS, OR (II) AN
OPINION OF COUNSEL PROVIDED TO THE ISSUER IN FORM, SUBSTANCE AND SCOPE
REASONABLY ACCEPTABLE TO THE ISSUER TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THE LAWS DUE TO AN AVAILABLE EXCEPTION TO OR EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE LAWS.


 




	
  DATE:  JULY 7, 2009

  	
   

  	
  U.S.
  $1,000,000.00

  






 


BIO-KEY INTERNATIONAL, INC.


 


EIGHT PERCENT
(8%) PROMISSORY NOTE DUE NOVEMBER 3, 2009


 


FOR VALUE RECEIVED, BIO-KEY INTERNATIONAL, INC., a corporation duly organized and
validly existing under the laws of the State of Delaware, U.S.A. (the “Company”)
promises to pay to the order of THE SHAAR FUND, LTD., the registered holder
hereof and its successors and assigns (the “Holder”), One Million
Dollars ($1,000,000), and to pay interest on the principal sum outstanding, at
the rate of eight percent (8%) per annum due and payable on the date that is
120 days from the date of this Note (the “Maturity Date”).  Accrual of interest on the outstanding
principal amount, payable in cash, shall commence on the date hereof and shall
continue until payment in full of the outstanding principal amount has been
made or duly provided for. The interest so payable will be paid to the person
in whose name this Note (or one or more predecessor Notes) is registered on the
records of the Company regarding registration of the Note (the “Note
Register”).


 


The principal of, and interest on, this Note are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, at the
address last appearing on the Note Register of the Company as designated in
writing by the Holder hereof from time to time. The Company will pay the
outstanding principal of and any and all accrued and unpaid interest due upon
this Note on the Maturity Date to the record Holder of this Note as of the
fifth (5th) business day prior to the Maturity Date
and addressed to such Holder at the last address appearing on the Note
Register. The forwarding of such funds shall constitute a payment of
outstanding principal and interest hereunder and shall satisfy and discharge
the liability for principal and interest on this Note to the extent of the sum
represented by such payment plus any amounts so deducted or withheld. Except as
herein provided, this Note may not be prepaid without the prior written consent
of the Holder.


 

















 


This Note is subject to the following additional
provisions:


 


1.             Note Exchangeable.            The
Note is exchangeable at any time for an equal aggregate principal amount of
Notes of different authorized denominations, as requested by the Holder
surrendering the same without the Company’s written consent. No service charge
will be made for such registration or transfer or exchange.


 


2.             Withholding.         The
Company shall be entitled to withhold from all payments of principal or
interest pursuant to this Note any amounts required to be withheld under the
applicable provisions of the United States income tax or other applicable laws
at the time of such payments.


 


3.             Transfer/Exchange of Note; Legend.


 


(a)           This Note has been issued subject to
investment representations of the original purchaser hereof and may be
transferred or exchanged only in compliance with the Securities Act of 1933, as
amended (the “1933 Act”) and applicable state securities laws. Prior to
due presentment for transfer of this Note, the Company and any agent of the
Company may treat the person in whose name this Note is duly registered on the
Company’s Note Register as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or not his Note
be overdue, and neither the Company nor any such agent shall be affected or
bound by notice to the contrary.  If
presentment for transfer is made, the parties agree hereunder to execute any
and all documents necessary to effectuate said transfer within thirty (30) days
of presentment.


 


(b)           The Holder understands and acknowledges
by its acceptance hereof that (i) except as provided herein, this Note has
not been and is not being registered under the 1933 Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless (a) subsequently
registered thereunder, or (b) pursuant to an exemption from such
registration; (ii) any sale of such securities made in reliance on Rule 144
promulgated under the 1933 Act may be made only in accordance with the terms of
said Rule and further, if said Rule is not applicable, any resale of
such securities under circumstances in which the seller (or the person through
whom the sale is made) may be deemed to be an underwriter (as that term is
defined in the 1933 Act) may require compliance with some other regulation
and/or exemption under the 1933 Act or the rules and regulations of the
United States Securities and Exchange Commission (the “SEC”) thereunder;
and (iii) neither the Company nor any other person is under any
obligation, other than as provided herein to register such securities under the
1933 Act or any state securities laws or to comply with the terms and
conditions of any exemption thereunder.


 


4.             Prepayment by the Company. 
The Company shall have the right (but not the obligation) to prepay all
or any portion of this Note, provided the Company is not then in violation of
any of its obligations under this Note.


 


5.             Payment Default. 
If the Company fails to pay all outstanding amounts due to Holder on
account of this Note on or before the Maturity Date (the “Payment Default”),
then, notwithstanding other provisions of this Note, the following provisions
will apply:


 


2

















 


(a)           This Note, and all rights and obligations
of the Company and the Holder hereunder, will automatically terminate.


 


(b)           Simultaneously with the termination of
this Note under Section 5(a), the Company will issue to the Holder a new
secured promissory note in the form of Annex A hereto, pursuant to which (i) the
principal amount due thereunder shall be equal to the outstanding amount due
under this Note upon the Payment Default (including, but not limited to, all
principal and accrued but unpaid interest), (ii) the outstanding principal
shall accrue interest at an interest rate in excess of the interest rate
provided herein, (iii) the principal amount and all accrued interest will
be due and payable to the Holder on the date that is 120 days from the issuance
of the note, (iv) if unpaid at maturity, the Holder shall have the option
to convert anytime thereafter the outstanding principal and accrued but unpaid
interest into shares of the Company’s common stock, and (v) the
outstanding amount due thereunder shall be secured by a security interest in
all of the Company’s assets.


 


6.             General Default. 
If one or more of the following described “Events of Default”
shall occur:


 


(a)           Any of the representations or warranties
made by the Company herein, or in any certificate or financial or other written
statement heretofore or hereafter furnished by or on behalf of the Company in
connection with the execution and delivery of this Note shall be false or
misleading in any material respect at the time made and the Holder shall have
provided seven (7) days prior written notice to the Company of the alleged
misrepresentation or breach of warranty and the same shall continue uncured for
a period of seven (7) days after such written notice from the Holder; or


 


(b)           The Company shall fail to perform or
observe, in any material respect, any other covenant, term, provision,
condition, agreement or obligation of the Company under this Note and such
failure shall continue uncured for a period of seven (7) days after
written notice from the Holder of such failure; or


 


(c)           The Company shall either:  (i) become insolvent; (ii) admit in
writing its inability to pay its debts generally or as they become due; (iii) make
an assignment for the benefit of creditors or commence proceedings for its
dissolution; or (iv) apply for, or consent to the appointment of, a
trustee, liquidator, or receiver for its or for a substantial part of its
property or business; or


 


(d)           A trustee, liquidator or receiver shall
be appointed for the Company or for a substantial part of its property or
business without the Company’s consent and such appointment is not discharged
within sixty (60) days after such appointment; or


 


(e)           Any governmental agency or any court of
competent jurisdiction at the instance of any governmental agency shall assume
custody or control of the whole or any substantial portion of the properties or
assets of the Company and shall not be dismissed within sixty (60) days
thereafter; or


 


(f)            After the date of this Note, any money
judgment, writ or note of attachment, or similar process in excess of One Hundred
Thousand Dollars ($100,000.00) in the aggregate shall be


 


3

















 


entered or filed against
the Company or any of its properties or assets and shall remain unpaid,
unvacated, unbonded or unstayed for a period of fifteen (15) days or in any
event later than five (5) days prior to the date of any proposed sale
thereunder; or


 


(g)           Bankruptcy, reorganization, insolvency or
liquidation proceedings or other proceedings for relief under any bankruptcy
law or any law for the relief of debtors shall be instituted by or against the
Company and, if instituted against the Company, shall not be dismissed within
sixty days after such institution or the Company shall by any action or answer
approve of, consent to, or acquiesce in any such proceedings or admit the
material allegations of, or default in answering a petition filed in, any such
proceeding; or


 


(h)           After the date of this Note, the Company
shall make any payments on any other loan or outstanding debt other than (i) approx.
$180,000 due to Data Radio pursuant to an outstanding Company note, or (ii) trade
payables in the ordinary course of business;


 


then, or at any time
thereafter, and in any and every such case, unless such Event of Default shall
have been waived in writing by the Holder (which waiver in one instance shall
not be deemed to be a waiver in another instance or for any other prior or
subsequent Event of Default) at the option of the Holder and in the Holder’s
sole discretion, the Holder may immediately accelerate the maturity hereof,
whereupon all principal and interest hereunder shall be immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Company, anything herein or in any
Note or other instrument contained to the contrary notwithstanding, and the
Holder may immediately, and upon the expiration of any period of grace, enforce
any and all of the Holder’s rights and remedies provided herein or any other
rights or remedies afforded by law or equity. 
In addition, the Company shall pay interest on overdue principal and (to
the fullest extent permitted by law) on overdue interest at a rate of four (4%)
percent of the then applicable interest rate per annum, payable in cash.


 


7.             Maximum Payments. 
Nothing contained herein shall be deemed to establish or require the
payment of a rate of interest or other charges in excess of the maximum
permitted by applicable law.  In the
event that the rate of interest required to be paid or other charges hereunder
exceed the maximum permitted by such law, any payments in excess of such
maximum shall be credited against amounts owed by the Company to the Holder and
thus refunded to the Company.


 


8.             Obligations of the Company herein are
Unconditional.  No provision of this Note shall alter or
impair the obligation of the Company, which obligation is absolute and
unconditional, to repay the principal amount of this Note at the time, place,
rate, and in the coin currency, hereinabove stated. This Note and all other
Notes now or hereafter issued in replacement of this Note on the same or
similar terms are direct obligations of the Company. This Note ranks at least
equally with all other Notes now or hereafter issued under the terms set forth
herein.


 


9.             Note Holder Not Deemed a Stockholder. 
No Holder, as such, of this Note shall be entitled to vote or receive
dividends or be deemed the holder of shares of the Company for any purpose, nor
shall anything contained in this Note be construed to confer upon the Holder
hereof, as such, any of the rights of a stockholder of the Company or any right
to vote, give or withhold


 


4

















 


consent to any corporate
action (whether any reorganization, issue of stock, reclassification of stock,
consolidation, merger, conveyance or otherwise), receive notice of meetings,
receive dividends or subscription rights, or otherwise. Notwithstanding the
foregoing, the Company will provide the Holder with copies of the same notices
and other information given to the stockholders of the Company generally,
contemporaneously with the giving thereof to the stockholders.


 


10.          Restrictive Covenant.  
After the date of this Note, the Company shall not make any payments on
any other loan or outstanding debt other than (i) approx. $180,000 due to
Data Radio pursuant to an outstanding Company note, or (ii) trade payables
in the ordinary course of business.


 


11.          No Limitation on Corporate Action.                No provisions of this Note and no right or option granted or conferred
hereunder shall in any way limit, affect or abridge the exercise by the Company
of any of its corporate rights or powers to recapitalize, amend its Certificate
of Incorporation, reorganize, consolidate or merge with or into another corporation,
or to transfer all or any part of its property or assets, or the exercise of
any other of its corporate rights and powers.


 


12.          Waiver of Demand, Presentment, Etc. 
The Company hereby expressly waives demand and presentment for payment,
notice of nonpayment, protest, notice of protest, notice of dishonor, notice of
acceleration or intent to accelerate, bringing of suit and diligence in taking
any action to collect amounts called for hereunder and shall be directly and
primarily liable for the payment of all sums owing and to be owing hereunder,
regardless of and without any notice, diligence, act or omission as or with
respect to the collection of any amount called for hereunder.


 


13.          Failure or Delay Not Waiver. 
No failure or delay on the part of the Holder in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or privilege.  All rights and remedies existing hereunder
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.


 


14.          Attorney’s Fees. 
The Company agrees to pay all costs and expenses, including without
limitation reasonable attorney’s fees, which may be incurred by the Holder in
collecting any amount due under this Note or in enforcing any of Holder’s
rights as described herein.


 


15.          Access to Books and Records. 
The Holder will have the right to inspect and audit the Company’s original
books, records, and documents at any time and from time to time, during normal
business hours, upon reasonable notice to the Company.


 


16.          Enforceability.     In
case any provision of this Note is held by a court of competent jurisdiction to
be excessive in scope or otherwise invalid or unenforceable, such provision
shall be adjusted rather than voided, if possible, so that it is enforceable to
the maximum extent possible, and the validity and enforceability of the
remaining provisions of this Note will not in any way be affected or impaired
thereby.


 


17.          Governing Law.  This Note
shall be governed by and construed in accordance with the laws of the state of
New York without giving effect to applicable principles of conflict of law. Each of the
parties submits to the exclusive jurisdiction of the state and federal courts
of


 


5

















 


New
York County, New York in connection with any dispute arising under this Note
and hereby waives, to the maximum extent permitted by law, any objection,
including any objection based on forum non conveniens, to the bringing of any
such proceeding in such jurisdictions. To the extent determined by such court,
the Company shall reimburse the Holder for any reasonable legal fees and disbursements
incurred by the Holder in enforcement of or protection of any of its rights
under this Note.


 


18.          Notices.  All notices
and other communications given or made pursuant to this Note shall be in
writing and shall be deemed effectively given upon the earlier of actual
receipt or:  (a) personal delivery
to the party to be notified, (b) when sent, if sent by electronic mail or
facsimile during normal business hours of the recipient, and if not sent during
normal business hours, then on the recipient’s next business day, (c) five
(5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) business day after
deposit with a nationally recognized overnight courier, freight prepaid,
specifying next business day delivery, with written verification of
receipt.  All communications shall be
sent to the respective parties at the following addresses or to such other
e-mail address, facsimile number or address as subsequently modified by written
notice given in accordance with this Section 18:


 


	
  If
  to the Borrower, to:

  	
  BIO-key
  International, Inc.

  
	
   

  	
  3349
  Highway 138

  
	
   

  	
  Building
  D, Suite B

  
	
   

  	
  Wall,
  NJ 07719

  
	
   

  	
  Attn:
  Chief Executive Officer

  
	
   

  	
  Facsimile:
  [                            ]

  
	
   

  	
   

  
	
  with
  a copy (which shall not constitute notice) to:

  	
  Choate,
  Hall & Stewart LLP

  
	
   

  	
  Two
  International Place

  
	
   

  	
  Boston,
  MA 02110

  
	
   

  	
  Attention:
  Charles J. Johnson, Esq.

  
	
   

  	
  Facsimile:
  (617) 248-4000

  
	
   

  	
   

  
	
  If to the Holder, to:

  	
  The Shaar Fund Ltd.

  
	
   

  	
  c/o Maarten Robberts

  
	
   

  	
  SS&C Fund Services
  N.V.

  
	
   

  	
  Pareraweg 45

  
	
   

  	
  Curacao, Netherlands
  Antilles

  
	
   

  	
  Facsimile: (599-9)
  434-3560

  
	
   

  	
   

  
	
  with
  a copy (which shall not constitute notice) to:

  	
  Meltzer,
  Lippe, Goldstein & Breitstone, LLP

  
	
   

  	
  190
  Willis Avenue

  
	
   

  	
  Mineola,
  NY 11501

  
	
   

  	
  Attention:
  Ira R. Halperin, Esq.

  
	
   

  	
  Facsimile:
  (516) 747-0653

  



 


6

















 


19.          Assignment.  This Note
shall not be assigned by the Company without the prior written consent of the
Holder.  This Note shall bind the Company
and its successors and permitted assigns and shall inure to the benefit of the
Holder and its successors and assigns.


 


20.          Amendment Provision.  This Note may
be amended or modified only upon the written consent of the Company and the
Holder.


 


21.          Entire Agreement.                This Note and constitutes the full and
entire understanding between the Company and the Holder with respect to the
subject matter hereof and thereof. Neither this Note nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument signed
by the Company and the Holder.


 


22.          Waiver of Jury Trial.  
THE COMPANY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS NOTE OR ANY OTHER
INSTRUMENT,  DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED
HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND THE BORROWER HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THIS WAIVER OF THE RIGHT TO TRIAL BY JURY.


 


[REMINDER OF PAGE
INTENTIONALLY LEFT BLANK]


 


7

















 


IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed by an officer thereunto duly authorized, all as
of the date first hereinabove written.


 


 


	
   

  	
  BIO-KEY INTERNATIONAL,
  INC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  State of New York

  	
  )

  	
   

  
	
   

  	
  ) ss:

  	
   

  
	
  County of
                   

  	
  )

  	
   

  
					



 


On the         
day of July, 2009 before me, the undersigned, personally appeared                             ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity, and that
by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  



 


8