DiaSys Corporation - Exhibit 10.33




EXHIBIT 10.33






CONVERTIBLE PROMISSORY NOTE






	 $100,000.00 	
      November 1, 2004

    






                      
FOR VALUE RECEIVED, the undersigned, DIASYS CORPORATION, a Delaware
Corporation with an address at 81 West Main Street, Waterbury, Connecticut 06702
(the "Company"), promises to pay to the order of GREGORY WITCHEL, an individual
with a place of business at DiaSys Corporation, 81 West Main Street, Waterbury,
Connecticut 06702, ("Payee"), or any subsequent assignee or holder hereof (Payee
or any subsequent assignee or holder hereof sometimes being hereinafter referred
to as "Holder"), the principal sum of ONE HUNDRED THOUSAND AND 00/100 DOLLARS
($100,000.00), together with: (i) interest on the unpaid principal balance
of this Note, from the date hereof until said balance shall have been paid in
full, at the rate or rates and in the manner hereinafter provided; (ii) all costs
and expenses, including reasonable attorneys' fees, incurred in collecting or
attempting to collect the indebtedness evidenced by this Note, or in enforcing
that certain Loan and Security Agreement of even date herewith by and between
Company and Payee (said agreement, as the same may be amended or modified from
time to time, hereinafter referred to as the "Loan Agreement") or any of the other
Security Documents (as hereinafter defined) or protecting or sustaining the lien
thereof or in any litigation or controversy arising from or connected with this
Note or any of the Security Documents; and (iii) all taxes or duties assessed
upon the indebtedness evidenced by this Note or by any of the Security Documents
or upon the Collateral (as hereinafter defined). All amounts owing under this
Note shall be payable in legal tender of the United States of America. This Note
is issued pursuant to the Loan and Security Agreement, dated as of the date hereof
(the "Loan Agreement"), between the Company and the Payee.



ARTICLE I 

  

  Payment Provisions





                      
Section 1.1- Interest. The principal balance of the indebtedness evidenced
by this Note outstanding from time to time shall bear interest, from the date
hereof until said indebtedness shall have been paid in full, at the rate of six
percent (6%) per annum. Interest shall be calculated on the daily unpaid principal
balance of the indebtedness evidenced by this Note based on a 360-day year, provided
that interest shall be due for the actual number of days elapsed during each period
for which interest is being charged. Installments of accrued interest shall be
due and payable commencing on the last day of December, 2004, and continuing on
the last day of each, March, June, September and December thereafter so long as
any of the indebtedness evidenced by this Note is outstanding. 










  

                      
Section 1.2- Principal. The principal amount hereof and all accrued interest
shall be due and payable on October 31, 2007. 



                      
Section 1.3- Payment Days. Any payment under this Note which is stated
to be due on a day other than a "Business Day" (a day on which banks are open
for business in Waterbury, Connecticut) shall be made on the next succeeding Business
Day, and any such extension of time shall be included in the computation of the
amount of interest to be paid. 



                      
Section 1.4- Prepayment. Company shall have the right to prepay the indebtedness
evidenced by this Note at, in whole or in part, at any time, without prepayment
premium or penalty. 



                      
Section 1.5- Events of Default. It shall be an Event of Default hereunder
if Company shall fail to make any payment under this Note when due or if any other
Event of Default (as defined in the Loan Agreement) shall occur. Any failure by
Holder to exercise any right under this Note or under the Loan Agreement arising
or existing as a result of such Event of Default, or any delay in such exercise,
shall not constitute a waiver of the right to exercise such right at a later time
so long as such Event of Default shall remain uncured, and shall not constitute
a waiver of the right to exercise such right if any other Event of Default shall
occur. The acceptance by Holder of payment of any sum payable under this Note
after the due date of such payment shall not be a waiver of Holder's right to
require prompt payment when due of all other sums payable under this Note. 



                      
Section 1.6- Remedies. Upon the occurrence of any Event of Default or upon
maturity hereof, the outstanding principal balance of the indebtedness evidenced
by this Note shall, at the option of Holder, bear interest from the date of occurrence
of such Event of Default or such maturity until collection (including any period
of time occurring after judgment), at the "Default Rate", being the lower of (a)
the highest rate allowed by applicable law, or (b) a rate per annum equal to two
percentage points (2.0%) above the higher of (A) the rate or rates that otherwise
would have been in effect under this Note, or (B) the prime rate of LaSalle Bank
as the same may vary from time to time. If the Holder shall not receive the full
amount of any installment of interest or principal due under the terms of this
Note within ten (10) days after the due date of such payment, then Company shall
pay to Holder, upon demand, a late charge equal to five percent (5%) of such installment,
to cover the additional expenses involved in handling such overdue payment. Such
charge shall be in addition to, and not in lieu of, any other remedy Holder may
have and shall be in addition to, and not in lieu of, Company's obligation to
pay any reasonable fees and charges of any agents or attorneys employed in the
event of any default hereunder. 



                      
Section 1.7- Acceleration. Upon the occurrence of any Event of Default,
the indebtedness evidenced by this Note shall, at the option of and without notice
or demand by the Holder, become at once due and payable. Company shall then pay
the Holder, in addition to any and all other sums and charges due, the entire
principal of and interest accrued on this Note. 












  

                      
Section 1.8- Waivers. Company and each endorser, guarantor and surety of
this Note, and each other person liable or who shall become liable for all or
any part of the indebtedness evidenced by this Note, hereby: 




	 	(a) 	waive demand, presentment, protest, notice
      of protest, notice of dishonor, diligence in collection, notice of nonpayment
      and all notices of a like nature; and 
	 	 	 
	 	(b) 	to (i) the release, surrender, exchange or
      substitution of all or any part of the security for the indebtedness evidenced
      by this Note, or the taking of any additional security, (ii) the release
      of any or all other persons from liability, whether primary or contingent,
      for the indebtedness evidenced by this Note or for any related obligations,
      and (iii) the granting of any other indulgences to any such person. 


 

                      
Each endorser, guarantor and surety of this Note, and each other person
liable or who shall become liable for all or any part of the indebtedness evidenced
by this Note, consent to (i) all renewals, extensions or modifications of this
Note or the Security Documents (including any affecting the time of payment),
and (ii) all advances under this Note or the Security Documents. Any such renewal,
extension, modification, advance, release, surrender, exchange, substitution,
taking or indulgence may take place without notice to any such person, and, whether
or not any such notice is given, shall not impair the liability of any such person.



                      
Section 1.9- Commercial Transaction. COMPANY AND EACH ENDORSER, GUARANTOR
AND SURETY OF THIS NOTE, AND EACH OTHER PERSON LIABLE OR WHO SHALL BECOME LIABLE
FOR ALL OR ANY PART OF THE INDEBTEDNESS EVIDENCED BY THIS NOTE, HEREBY ACKNOWLEDGE
THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL TRANSACTION,
AND TO THE EXTENT ALLOWED UNDER CONNECTICUT GENERAL STATUTES SECTIONS 52-a TO
52-278n, INCLUSIVE, OR BY OTHER APPLICABLE LAW, HEREBY WAIVE THEIR RIGHT TO NOTICE
AND HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH HOLDER OR ITS SUCCESSORS
OR ASSIGNS MAY DESIRE TO USE. 



                      
Section 1.10- Severability. If any one or more of the provisions of this
Note shall for any reason be held to be invalid, illegal or unenforceable, in
whole or in part, or in any respect, or if any one or more of the provisions of
this Note shall operate, or would prospectively operate, to invalidate this Note,
then such provision or provisions only shall be deemed to be null and void and
of no force or effect and shall not affect any other provision of this Note, and
the remaining provisions of this Note shall remain operative and in full force
and effect, shall be valid, legal and enforceable, and shall in no way be affected:
prejudiced or disturbed thereby. 



                      
Section 1.11- Amendments. This Note may not be modified or terminated orally,
but only by a written instrument signed by the party against whom enforcement
of any such modification or termination is sought. Time is and shall be of the
essence in the performance of all obligations under this Note. This Note shall
be governed by and construed in accordance with the laws of the










  

State of Connecticut. 



                      
Section 1.12- Gender. As used in this Note, words of any gender shall be
deemed to apply equally to any other gender, the plural shall include the singular
and the singular shall include the plural (as the context shall require), and
the word "person" shall refer to individuals, entities, authorities and other
natural and juridical persons of every type. 



                      
Section 1.13- Assignment. If this Note is now, or hereafter shall be, signed
by more than one person, it shall be the joint and several obligation of all such
persons (including, without limitation, all makers, endorsers, guarantors and
sureties, if any) and shall be binding on all such persons and their respective
heirs, executors, administrators, legal representatives, successors and assigns.
This Note and all covenants, agreements and provisions set forth in this Note
shall inure to the benefit of Holder and its successors and assigns. 



                      
Section 1.14- Submission to Jurisdiction. The Company hereby consents and
submits to the jurisdiction of any state or Federal court located within the state
of Illinois and waives statutory service of any and all process upon the Company
and consents to the fullest extent permitted by applicable law that all such service
of process be made by registered mail or actual delivery to the Borrower at the
address stated at the beginning of this Promissory Note and service so made shall
be deemed to be completed upon the earlier of mailing or actual delivery thereof.
Without limiting the generality of the foregoing, the Company specifically waives
any defense of lack of jurisdiction, improper venue or forum non conveniens. 



ARTICLE II 

  

  Conversion Right





                      
Section 2.1- Conversion. At the election of the Holder, this Note and accrued
interest thereon may be converted, in whole or in part, at any time, into shares
of the Common Stock, $.001 par value (the "Common Stock") of the Company at a
conversion price equal to Thirty Three Cents ($.33) per share, subject to adjustment
as hereinafter provided, by surrender of this Note to the Company together with
a notice of conversion executed by the Holder specifying the amount hereof to
be so converted. 



                                         
    The Company shall, as promptly as practicable
and in any event within seven days after receipt of such notice and payment, execute
and deliver or cause to be executed and delivered, in accordance with such notice,
a certificate or certificates representing the aggregate number of a share of
Common Stock specified in said notice. The certificate or certificates so delivered
shall be in such denominations as may be specified in such notice and shall be
issued in the name of the Holder or such other name or names as shall be designated
in such notice. This Note shall be deemed to have been converted and such certificate
or certificates shall be deemed to have been issued, and such Holder or any other
person so designated to be named therein shall be deemed for all purposes to have
become a holder of record of Common Stock, as of the date the aforementioned notice
is received by the Company. If this Note shall have been converted only in part,
the Company shall, at the time of delivery of such certificate or certificates,
deliver to 










  

the Holder a new Note evidencing the balance of the unconverted indebtedness represented
by this Note as hereinabove provided, which new Note shall in all other respects
be identical with this Note, or, at the request of the Holder, appropriate notation
may be made on this Note which shall then be returned to the Holder. The Company
shall pay all expenses, stamp, documentary and similar taxes and other charges
payable in connection with the preparation, issuance and delivery of share certificates
and any new Note under this provision. 



                      
Section 2.2- When Conversion Effective. The conversion of this Note shall
be deemed to have been effected immediately prior to the close of business on
the business day on which the Company shall have received a completed notice of
conversion as hereinabove provided, and at such time the person in whose name
any certificate for shares of Common Stock shall be issuable upon such conversion,
as provided in Section 3.3, shall be deemed to have become the Holder of record
of such Common Stock. 



                      
Section 2.3- Shares to Be Fully Paid and Nonassessable. All shares of Common
Stock issued upon the conversion of this Note shall be validly issued, fully paid
and nonassessable and, if such Common Stock is then quoted on NASDAQ or listed
on any national securities exchange (as defined in the Exchange Act), such Common
Stock shall, to the extent permitted under the applicable rules of such exchange
or NASDAQ), be duly quoted or listed thereon, as the case may be. 



                      
Section 2.4- No Fractional Shares Required to Be Issued. The Company shall
not be required to issue fractional shares of Common Stock upon conversion of
this Note. If any fraction of a share of Common Stock would, but for this Section
1.3, be issuable upon final conversion of this Note, in lieu of such fractional
share of Common Stock, the Company shall pay to the Holder in cash an amount equal
to the same fraction of the Fair Market Value of the Company per share of Common
Stock outstanding on the Business Day immediately prior to the date of such conversion.




                      
Section 2.5- Reservation of Stock, Etc. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of this
Note, all shares of Common Stock issuable upon the conversion of this Note. All
shares of Common Stock issued upon the conversion of this Note shall be duly authorized,
validly issued, fully paid and non-assessable. 



                      
Section 2.6- Adjustments for Consolidation, Merger, Sale of Assets, Reorganization,
Etc. In case the Company, after the date hereof, (a) shall effect a capital
reorganization or reclassification of any or all of its capital stock, or (b)
shall consolidate with or merge into any other organization, company, corporation,
partnership, trust, business organization, individual, or group of individuals
(a "Person") and shall not be the continuing or surviving corporation of such
consolidation or merger, or (c) shall permit any other Person to consolidate with
or merge into the Company, and the Company shall be the continuing or surviving
Person but, in connection with such consolidation or merger, the Common Stock
shall be changed into or exchanged for stock or the securities or property of
any other Person, or (d) shall transfer all or substantially all of its properties
and assets to any other Person; then proper provision shall be made so that the
Holder of this Note, upon the conversion hereof at any time after the consummation
of such consolidation, merger, transfer, reorganization or reclassification, shall
be entitled to receive the










  

stock and other securities and property to which such Holder would have been entitled
to, as if such Holder had so converted this Note immediately prior to the consummation
of any such transaction. 



                      
Section 2.7- Adjustments for Stock Dividends; Combinations. In the event
that the Company, at any time or from time to time hereafter, shall (i) declare
or pay any dividend on its capital stock payable in Common Stock; (ii) effect
a subdivision of its outstanding shares into a greater number of shares of Common
Stock or any equity securities convertible into Common Stock (by reclassification
or otherwise than by payment of a dividend in Common Stock); or (iii) combine
or consolidate its outstanding shares of Common Stock, by reclassification or
otherwise, into a lesser number of shares of Common Stock, then, upon the conversion
hereof, at any time after the occurrence of any event described above, the Holder
shall be entitled to receive the Common Stock to which such Holder would have
been entitled if such Holder had converted this Note immediately prior to the
occurrence of such event. 



                      
Section 2.8- No Impairment. The Company will not, by any means, avoid or
seek to avoid the observance or performance of any of the terms of this Note.
Without limiting the foregoing, the Company (a) will not permit the par value,
if any, of any shares of stock receivable upon the conversion of this Note to
exceed the amount payable therefore upon such conversion, (b) will take such action
as may be necessary in order that the Company may validly and legally issue fully
paid and non-assessable shares of Common Stock upon the conversion of this Note,
and (c) will not (i) transfer all or substantially all of its assets to any other
Person, or (ii) consolidate with or merge into any other Person where the Company
is not the surviving Person, unless the other Person acquiring such properties
and assets or surviving after such consolidation or merger shall expressly assume
in writing all the terms of this Note. 



                      
Section 2.9- Transfer Without Registration. Neither this Note nor the shares
of Common Stock issuable hereunder have been registered under the Securities Act
of 1933, as amended (the "1933 Act"), or any state securities laws. Until such
time, if any, as such shares shall have been so registered neither this Note nor
any shares of Common Stock issued upon the conversion of this Note shall be transferred,
sold or assigned, except upon delivery of (a) an opinion (in form and substance
satisfactory to the Company) of counsel satisfactory to the Company to the effect
that such registration is not required or (b) such information as, in the reasonable
opinion of the Company, is necessary in order to establish that such transfer
may be made without registration. Each certificate for shares of Common Stock
issued upon conversion of this Note, unless at the time of conversion such shares
are registered under the 1933 Act, shall bear a legend to such effect. Any certificate
issued at any time in exchange or substitution for any certificate bearing such
legend (except a new certificate issued upon completion of a public offering pursuant
to a registration statement under the 1933 Act) shall also bear such legend unless,
in the opinion of counsel selected by the Holder of such certificate (who may
be an employee of such Holder) and reasonably acceptable to the Company, the securities
represented thereby need no longer be subject to restrictions on resale under
the Securities Act. 










   
   


                      
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
by its authorized officer as of the day and year first above written. 






	 	DIAYSYS CORPORATION 
	 	 
	 	 
	 	By: S/ JEFFREY B. AARONSON
	 	      Jeffrey B. Aaronson,
      President