SECURITIES
PURCHASE
AGREEMENT


 


This SECURITIES PURCHASE AGREEMENT (the “Agreement”),
dated as of April
11, 2013, by and between NYXIO TECHNOLOGIES
CORPORATION,
a Nevada corporation,
with headquarters
located at
2156 NE Broadway, Portland,
OR 97232 (the “Company”), and ASHER ENTERPRISES,
INC., a Delaware corporation,
with its address at 1 Linden Place, Suite 207,
Great Neck, NY
11021 (the
“Buyer”).


 


WHEREAS:


 


A.
 The Company
and the
Buyer
are
executing
and
delivering
this Agreement
in reliance
upon the exemption
from securities
registration
afforded
by the rules
and regulations
as promulgated
by the United
States
Securities
and Exchange
Commission (the
“SEC”)
under
the Securities
Act of 1933, as
amended
(the “1933
Act”);


 


B.
 Buyer
desires
to purchase
and the
Company
desires
to issue and
sell, upon
the terms and
conditions set
forth
in this Agreement
an 8%
convertible
note of
the Company,
in the form
attached
hereto
as Exhibit
A, in the
aggregate
principal
amount of
$41,500.00 (together
with any
note(s)
issued in
replacement
thereof
or as a
dividend thereon
or otherwise with
respect
thereto in
accordance
with the terms
thereof,
the “Note”),
convertible
into shares
of common stock,
$0.001 par
value per
share,
of the Company
(the
“Common
Stock”),
upon the terms
and subject to the
limitations and
conditions set forth
in such Note.


 


C.
 The Buyer
wishes to
purchase,
upon the terms
and conditions
stated
in this Agreement,
such principal
amount of
Note as
is set
forth
immediately
below
its name
on the signature
pages
hereto; and


 


NOW
THEREFORE,
the Company
and the
Buyer
severally
(and
not jointly)
hereby
agree
as follows:


 


1.Purchase
and Sale
of Note.


 


a.
 Purchase
of Note. 
On the
Closing Date (as
defined
below),
the Company
shall issue
and sell
to the Buyer
and the
Buyer
agrees
to purchase
from the
Company
such principal
amount of
Note as
is set
forth
immediately
below the
Buyer’s
name on
the signature
pages
hereto.


 


b.
Form
of Payment.
 On the
Closing Date
(as defined
below),
(i) the Buyer
shall pay
the purchase
price
for
the Note to be issued
and sold to it at the
Closing (as
defined
below) (the
“Purchase
Price”)
by wire
transfer
of immediately
available
funds to
the Company,
in accordance
with the Company’s
written
wiring instructions,
against
delivery
of the Note in
the principal
amount equal
to the Purchase
Price
as is
set forth
immediately
below
the Buyer’s
name on the signature
pages
hereto, and
(ii) the Company
shall  deliver
such duly executed
Note on behalf
of the Company,
to the Buyer,
against
delivery
of such Purchase
Price.




    	1



    	 



    

c.
 Closing Date.
 Subject
to the satisfaction
(or
written
waiver)
of the conditions
thereto set
forth
in Section
6 and
Section
7 below,
the date
and time
of the issuance
and sale
of the
Note pursuant
to this Agreement
(the “Closing
Date”)
shall be 12:00
noon, Eastern Standard
Time on or about April 16, 2013,
or such other mutually
agreed upon
time. The closing
of the transactions
contemplated
by this Agreement
(the “Closing”)
shall occur
on the Closing
Date at
such location
as may be agreed
to by the parties.


 


2.Buyer’s
 Representations
 and 
Warranties.The
 Buyer
 represents
 and warrants
to the Company
that:


 


a.
 Investment
 Purpose.
 As  of 
the  date
 hereof,
 the  Buyer
 is purchasing
the Note and
the shares
of Common
Stock
issuable upon
conversion
of or otherwise
pursuant
to the Note (including,
without limitation,
such additional
shares of
Common Stock,
if any,
as are
issuable (i)
on account
of interest
on the Note,
(ii) as
a result of the events
described
in Sections 1.3 and
1.4(g) of
the Note or (iii)
in payment
of the Standard
Liquidated Damages
Amount (as
defined
in Section
2(f) below)
pursuant
to this Agreement,
such
shares
of Common Stock
being collectively
referred
to herein
as the “Conversion
Shares”
and,
collectively
with the Note,
the “Securities”)
for
its own account
and not
with a present
view towards
the public sale or distribution
thereof, except
pursuant to sales
registered
or exempted
from registration
under the


1933
Act; provided,
however,
that
by making
the representations
herein,
the Buyer
does not agree
to hold any
of the Securities
for any
minimum or other
specific
term and
reserves
the right
to dispose of
the Securities
at any
time in accordance
with or pursuant
to a registration
statement
or an exemption
under the
1933 Act.


 


b.Accredited
Investor
Status.
 The Buyer
is an
“accredited
investor”


as
that term is defined
in Rule
501(a) of
Regulation
D (an “Accredited
Investor”).


 


c.
 Reliance
on Exemptions.
The  Buyer
 understands
that the Securities
are
being offered
and sold
to it in
reliance
upon specific
exemptions
from the registration
requirements
of United States
federal
and state
securities
laws and
that the
Company
is relying
upon the truth
and accuracy
of,
and the
Buyer’s
compliance
with, the
representations,
warranties,
agreements,
acknowledgments
and understandings
of the Buyer
set forth
herein
in order
to determine
the availability
of such
exemptions
and the
eligibility
of the Buyer
to acquire
the Securities.


 


d.
Information.
 The Buyer
and its
advisors,
if any,
have been,
and for
so long as
the Note
remain
outstanding will
continue to
be, furnished
with all
materials
relating
to the business,
finances
and operations
of the Company
and materials
relating
to the offer
and sale
of the Securities
which have
been requested
by the
Buyer
or its advisors.
 The Buyer
and its advisors,
if any,
have
been,
and for
so long as
the Note
remain
outstanding will continue
to be, afforded
the opportunity to ask
questions of the Company.
Notwithstanding the foregoing,
the Company
has  not 
disclosed
 to  the 
Buyer
 any
material
 nonpublic  information
 and 
will  not disclose such
information
unless such
information
is disclosed
to the public prior to
or promptly following
such disclosure
to the Buyer.
Neither
such inquiries
nor any
other due
diligence
investigation
conducted
by Buyer
or any
of its advisors
or representatives
shall modify,
amend or affect
 Buyer’s
 right
 to  rely
on  the 
Company’s
 representations
 and 
warranties
 contained
 in




    	2



    	 



    

Section
3 below. 
The Buyer
understands
that its
investment
in the Securities
involves a significant
degree
of risk.
The Buyer
is not aware
of any
facts that
may
constitute
a breach
of any
of the Company's
representations
and warranties
made herein.


 


e.
 Governmental
 Review.
 The Buyer
understands
that no United States
federal
or state
agency
or any
other government
or governmental
agency
has passed
upon or made
any recommendation
or endorsement
of the
Securities.


 


f.
 Transfer
or Re-sale.
 The Buyer
understands
that (i)
the sale
or re-
sale of
the Securities
has
not been and
is not being
registered
under the 1933
Act or any
applicable
state
securities
laws, and
the Securities
may not be
transferred
unless (a)
the Securities
are sold pursuant
to an effective
registration
statement
under the 1933 Act,
(b) the Buyer
shall have delivered
to the Company,
at the cost
of the Buyer,
an opinion
of counsel
that shall
be in form,
substance and
scope
customary for
opinions of
counsel
in comparable
transactions
to the effect
that the Securities
to be sold or transferred
may be sold or transferred
pursuant
to an exemption
from such registration,
which opinion shall be accepted
by the Company,
(c) the Securities
are sold or
transferred
to an “affiliate”
(as defined
in Rule 144
promulgated
under the


1933
Act (or
a successor
rule)
(“Rule
144”)) of
the Buyer
who agrees
to sell
or otherwise transfer
the Securities
only
in accordance
with this Section
2(f) and
who is an
Accredited
Investor,
(d) the Securities
are sold pursuant
to Rule 144, or (e) the Securities
are sold pursuant
to Regulation
S under the 1933
Act (or
a successor
rule) (“Regulation
S”),
and the Buyer
shall have delivered
to the Company,
at the cost
of the Buyer,
an opinion
of counsel
that shall
be in form, substance
and scope
customary for
opinions of counsel in corporate
transactions, which
opinion shall be accepted
by the Company;
(ii) any
sale of such
Securities
made in reliance
on Rule 144
may be made
only
in accordance
with the
terms of said
Rule and
further,
if said Rule
is not applicable,
any re-sale
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 exemption
under the
1933 Act or the rules
and regulations
of the SEC thereunder;
and (iii) neither
the Company
nor any other person
is under
any
obligation
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 (in
each
case). 
Notwithstanding the
foregoing
or anything else
contained
herein
to the contrary,
the Securities
may be pledged
as collateral
in connection
with a bona fide margin
account
or other lending
arrangement.


 


g.Legends.
 The Buyer
understands
that the Note
and, until such
time as the
Conversion
Shares
have been
registered
under
the 1933 Act
may be
sold pursuant
to Rule


144
or Regulation
S without any
restriction
as to
the number
of securities
as of
a particular
date that
can then
be immediately
sold, the Conversion
Shares
may bear
a restrictive
legend
in substantially
the following
form
(and a
stop-transfer
order
may be
placed
against
transfer
of the certificates
for such
Securities):








    	3



    	 



    

 


“NEITHER
THE
ISSUANCE AND
SALE
OF THE
SECURITIES
REPRESENTEDBYTHISCERTIFICATENORTHE
SECURITIESINTOWHICH
THESESECURITIES
ARE EXERCISABLE   HAVE   BEEN
REGISTERED   UNDER
THE SECURITIES
ACT OF
1933, AS
AMENDED,
OR APPLICABLE
STATE SECURITIES
LAWS. 
THE
SECURITIES
MAY NOT
BE OFFERED
FOR SALE,
SOLD,
TRANSFERRED
OR ASSIGNED
(I) IN
THE ABSENCE
OF (A)
AN EFFECTIVE
REGISTRATION
STATEMENT 
FOR  THE
 SECURITIES
UNDER  THE
SECURITIES
ACT OF
1933, AS AMENDED,
OR (B)
AN OPINION
OF COUNSEL
(WHICH
COUNSEL
SHALL BE
SELECTED BY THE
 HOLDER),
 IN  A GENERALLY
ACCEPTABLE
 FORM,
THAT
REGISTRATION
IS NOT
REQUIRED
UNDER SAID
ACT OR (II)
UNLESS SOLD
PURSUANT
TO RULE 144 OR
RULE 144A UNDER SAID
ACT.  NOTWITHSTANDING
THE FOREGOING,
THE  SECURITIES
 MAY  BE  PLEDGED
 IN CONNECTION
WITH A BONA
FIDE MARGIN
ACCOUNT
OR OTHER
LOAN
OR FINANCING
ARRANGEMENT
SECURED BY
THE
SECURITIES.”


 


The
legend
set forth
above shall
be removed
and the
Company
shall issue
a certificate
without such
legend
to the
holder of
any Security
upon which
it is stamped,
if, unless
otherwise required
by applicable
state securities
laws, (a)
such Security
is registered
for sale
under an
effective
registration
statement
filed
under the
1933 Act
or otherwise
may be
sold pursuant
to Rule 144
or Regulation
S without any
restriction
as to
the number
of securities
as of
a particular
date that
can then
be immediately
sold, or (b)
such holder
provides
the Company
with an
opinion of counsel,
in form,
substance
and scope
customary
for
opinions of counsel
in comparable
transactions,
to the effect
that a
public sale
or transfer
of such
Security
may be
made without registration
under the
1933 Act,
which opinion
shall be
accepted
by the
Company
so that
the sale or transfer
is effected.
The Buyer
agrees to sell
all Securities,
including those represented
by a certificate(s)
from which
the legend
has
been
removed,
in compliance
with applicable
prospectus
delivery
requirements,
if any.
In the event
that the
Company
does not
accept
the opinion of counsel
provided
by the
Buyer
with respect
to the transfer
of Securities
pursuant
to an
exemption
from registration,
such as Rule
144 or Regulation
S, at the
Deadline, it
will be considered
an Event of
Default
pursuant
to Section 3.2 of
the Note.


 


h.
 Authorization;
Enforcement.
This Agreement
has been
duly and validly
authorized.
 This Agreement
has been
duly executed
and delivered
on behalf
of the Buyer,
and this
Agreement
constitutes
a valid
and binding agreement
of the
Buyer
enforceable
in accordance
with its terms.


i.
 Residency.
 The Buyer
is a resident
of the jurisdiction
set forth
immediately
below the Buyer’s
name on
the signature
pages
hereto.


 


3.Representations
 and 
Warranties
 of  the 
Company.The
 Company
represents
and warrants
to the Buyer
that:




    	4



    	 



    

a.
 Organization
and Qualification.
 The Company
and each
of its Subsidiaries
(as defined
below),
if any,
is a corporation
duly organized,
validly existing
and in good
standing under
the laws
of the jurisdiction
in which
it is incorporated,
with full
power and
authority
(corporate
and other)
to own, lease,
use and
operate its
properties
and to
carry on
its business as
and where
now owned,
leased,
used, operated
and conducted.
 Schedule
3(a) sets
forth
a list of
all of
the Subsidiaries
of the Company
and the
jurisdiction
in which
each
is incorporated.
The Company
and each
of its Subsidiaries
is duly qualified
as a foreign
corporation
to do business
and is
in good standing
in every
jurisdiction
in which
its ownership
or use of property
or the nature
of the business
conducted
by it makes
such qualification
necessary
except
where the failure
to be so qualified
or in good standing would not have
a Material
Adverse Effect.
“Material
Adverse
Effect”
means
any material
adverse
effect on
the business, operations,
assets, financial
condition or prospects
of the Company
or its Subsidiaries,
if any,
taken as
a whole, or
on the
transactions
contemplated
hereby
or by
the agreements
or instruments
to be entered
into in connection
herewith.  “Subsidiaries”
means any
corporation
or other organization,
whether
incorporated
or unincorporated,
in which
the Company
owns, directly
or indirectly,
any
equity
or other
ownership interest.


 


b.
 Authorization;
Enforcement.
 (i)
The Company
has all
requisite corporate
power and
authority
to enter
into and
perform
this Agreement,
the Note and
to consummate
the transactions
contemplated
hereby
and thereby
and to
issue the Securities,
in accordance
with the terms
hereof and
thereof,
(ii) the
execution
and delivery
of this Agreement,
the Note by
the Company
and the
consummation
by it of
the transactions
contemplated
hereby
and thereby
(including
without limitation,
the issuance
of the Note
and the issuance
and reservation
for issuance
of the Conversion
Shares issuable
upon conversion
or exercise
thereof) have
been
duly authorized
by the Company’s
Board
of Directors
and no
further
consent
or authorization
of the Company,
its Board
of Directors,
or its shareholders
is required,
(iii) this Agreement
has been
duly executed
and delivered
by the
Company
by its
authorized
representative,
and such
authorized
representative
is the true
and official
representative
with authority
to sign this
Agreement
and the
other documents
executed
in connection
herewith
and bind the
Company
accordingly,
and (iv)
this Agreement
constitutes,
and
upon execution
and delivery
by the
Company
of the Note,
each of
such instruments
will constitute,
a legal,
valid and
binding obligation
of the Company
enforceable
against
the Company
in accordance
with its terms.


c.
 Capitalization.
 As of
the date
hereof,
the authorized
capital
stock of the
Company
consists of:
(i) 121,212,122
shares
of Common
Stock,
$0.001 par
value per
share, of which
162,056 shares
are issued
and outstanding;
and (ii)
100 shares
of Class
B Convertible Preferred
Stock,
$0.01 par value
per share,
of which 100
shares are
issued and
outstanding;
no shares
are
reserved
for issuance
pursuant
to the Company’s
stock option
plans, no shares
are reserved
for issuance
pursuant
to securities
(other than
shares
reserved
for the Note and
four (4) prior
convertible
promissory notes in favor
of the Buyer:
(a) prior
convertible
promissory note in
favor of the Buyer
dated
June 6, 2012 in
the amount of $63,000.00,the principal
of which
is now reduced
to $25,600.00; (b)
prior convertible
promissory note in
favor of
the Buyer
dated
July 10, 2012 in
the amount of
$37,500.00; (c) prior
convertible
promissory note dated
November 13,
2012 in the amount
of $40,000.00 and
(d) prior convertible
promissory note dated
January
31, 2013
in the amount
of $37,500.00) exercisable
for,
or convertible into
or exchangeable
for shares
of Common Stock
and the aggregate
total of 9,000,000 (post reverse




    	5



    	 



    

split)
shares are
reserved
for issuance
upon conversion
of the Note
and the prior
convertible
promissory
note referenced
above. 
All of such
outstanding shares
of capital
stock are,
or upon issuance
will be,
duly authorized,
validly issued,
fully paid
and non-assessable.
 No shares
of capital stock
of the Company
are
subject to preemptive
rights or any
other
similar rights
of the shareholders
of the Company
or any liens or
encumbrances
imposed through the
actions or failure
to act
of the Company.
As of the
effective
date of this
Agreement,
(i) there
are no outstanding
options, warrants,
scrip, rights
to subscribe
for,
puts, calls, rights
of first
refusal,
agreements,
understandings,
claims
or other
commitments
or rights of
any character
whatsoever
relating to,
or securities
or rights
convertible
into or exchangeable
for any
shares of
capital
stock of the Company
or any of
its Subsidiaries,
or arrangements
by which
the Company
or any of its Subsidiaries
is or may become
bound to issue additional shares
of capital stock
of the Company
or any of its Subsidiaries,
(ii) there
are no
agreements
or arrangements
under which
the Company
or any of
its Subsidiaries
is obligated to register
the sale
of any of
its or their
securities
under the


1933
Act and
(iii) there
are no
anti-dilution
or price
adjustment
provisions contained
in any
security
issued by the
Company
(or in
any agreement
providing rights
to security
holders)
that will be
triggered
by the issuance
of the
Note or
the Conversion
Shares.
 The Company
has furnished
to the Buyer
true and
correct
copies
of the
Company’s
Certificate
of Incorporation
as in effect
on the date
hereof
(“Certificate
of Incorporation”),
the Company’s
By-laws,
as in effect
on the date hereof
(the “By-laws”),
and the terms
of all securities
convertible
into or exercisable
for Common
Stock
of the
Company
and the
material
rights
of the holders
thereof in
respect
thereto. The Company
shall provide
the Buyer
with a written
update of this representation
signed by
the Company’s
Chief
Executive
on behalf
of the Company
as of the
Closing Date.


 


d.
Issuance
of Shares.
 The Conversion
Shares
are duly
authorized
and reserved
for issuance
and, upon
conversion
of the Note in accordance
with its respective
terms, will
be validly
issued,
fully paid
and non-assessable,
and free
from all
taxes,
liens, claims
and encumbrances
with respect
to the issue thereof and
shall not be subject to preemptive
rights or other similar
rights of shareholders
of the Company
and will
not impose personal
liability upon the
holder thereof.


 


e.
 Acknowledgment
of Dilution.
 The Company
understands
and acknowledges
the potentially
dilutive effect
to the Common
Stock
upon the
issuance
of the Conversion
Shares
upon conversion
of the Note.
The Company
further
acknowledges
that its obligation
to issue Conversion
Shares upon
conversion
of the Note in
accordance
with this Agreement,
the Note is absolute and
unconditional
regardless
of the dilutive effect that
such issuance
may have
on the ownership interests
of other
shareholders
of the
Company.


 


f.
 No Conflicts.
 The execution,
delivery
and performance
of this Agreement,
the Note by
the Company
and the
consummation by
the Company
of the transactions
contemplated
hereby
and thereby
(including,
without limitation,
the issuance
and reservation
for issuance
of the Conversion
Shares) will not
(i) conflict
with or result
in a violation
of any provision
of the Certificate
of Incorporation
or By-laws,
or (ii)
violate or
conflict
with, or result
in a breach
of any
provision
of, or
constitute a
default
(or an
event
which with
notice or
lapse
of time or both
could become
a default)
under, or give
to others
any rights
of termination, amendment,
acceleration
or cancellation
of, any
agreement,
indenture,
patent,
patent
license or instrument
to which the Company
or any of its
Subsidiaries
is a party,
or (iii) result in a




    	6



    	 



    

violation
of any
law, rule,
regulation,
order,
judgment
or decree
(including
federal
and state
securities
laws and
regulations
and regulations
of any
self-regulatory
organizations
to which
the Company
or its securities
are subject)
applicable
to the Company
or any
of its
Subsidiaries
or by which
any
property
or asset
of the Company
or any
of its Subsidiaries
is bound or affected
(except
for such
conflicts,
defaults, terminations,
amendments,
accelerations,
cancellations
and violations as
would not, individually
or in the aggregate,
have a Material
Adverse Effect).
Neither
the Company
nor any
of its Subsidiaries
is in violation
of its Certificate
of Incorporation,
By-laws
or other organizational
documents and
neither
the Company
nor any of its Subsidiaries
is in default
(and no
event
has occurred
which with
notice or lapse of time
or both could
put the Company
or any
of its Subsidiaries
in default)
under, and
neither
the Company
nor any
of its Subsidiaries
has taken
any
action
or failed
to take
any
action that
would give
to others
any rights
of termination,
amendment,
acceleration
or cancellation
of, any
agreement,
indenture
or instrument to which
the Company
or any
of its Subsidiaries
is a party or by
which any
property
or assets
of the
Company
or any
of its Subsidiaries
is bound or
affected,
except
for possible defaults
as would
not, individually
or in the
aggregate,
have
a Material
Adverse Effect.
The businesses
of the Company
and its
Subsidiaries,
if any,
are
not being
conducted,
and shall
not be conducted
so long
as the
Buyer
owns any
of the Securities,
in violation
of any
law,
ordinance
or regulation
of any governmental
entity. Except
as specifically
contemplated
by this Agreement
and as
required
under
the 1933
Act and
any
applicable
state securities
laws, the
Company
is not required
to obtain
any consent,
authorization
or order
of, or
make any
filing
or registration
with, any
court,
governmental
agency,
regulatory
agency,
self regulatory
organization
or stock
market
or any
third party
in order
for it
to execute,
deliver
or perform
any of
its obligations
under this Agreement,
the Note in accordance
with the terms
hereof or
thereof
or to issue
and sell
the Note in accordance
with the terms
hereof and
to issue the Conversion
Shares upon
conversion
of the Note.  All
consents,
authorizations,
orders,
filings
and registrations
which
the Company
is required to obtain
pursuant
to the preceding
sentence
have been
obtained or effected
on or prior to the
date hereof.
The Company
is not in
violation of
the listing requirements
of the Over-the-
Counter
Bulletin
Board
(the “OTCBB”)
and does
not reasonably
anticipate
that the
Common Stock
will be delisted by
the OTCBB in the foreseeable
future.
The Company
and its Subsidiaries
are unaware
of any
facts
or circumstances
which might
give rise
to any
of the foregoing.


 


g.
 SEC
Documents;
Financial
Statements.
 The Company
has
timely filed
all reports,
schedules,
forms,
statements
and other
documents
required
to be filed
by it with the
SEC pursuant
to the reporting
requirements
of the Securities
Exchange
Act
of 1934, as
amended
(the “1934
Act”)
(all
of the foregoing
filed
prior to the
date hereof
and all
exhibits included
therein and
financial
statements
and schedules
thereto
and documents
(other than
exhibits
to such documents)
incorporated
by reference
therein, being
hereinafter
referred
to herein as the “SEC
Documents”).
Upon written request
the Company
will deliver
to the Buyer
true and
complete copies
of the SEC Documents,
except
for such
exhibits
and incorporated
documents. 
As of their
respective dates,
the SEC
Documents
complied in
all material
respects
with the requirements
of the 1934 Act
and the rules
and regulations
of the SEC
promulgated
thereunder applicable
to the SEC
Documents,
and none of the SEC
Documents,
at the time they
were filed
with the SEC,
contained
any untrue
statement
of a material
fact
or omitted to
state a material
fact required
to be stated
therein or necessary
in order
to make the statements
therein, in light
of the circumstances
under which they
were made,
not misleading. 
None of the statements




    	7



    	 



    

made
in any
such SEC
Documents
is, or has
been,
required
to be amended
or updated
under applicable
law (except
for such
statements
as have
been
amended
or updated
in subsequent
filings
prior the date
hereof).
 As of their
respective
dates,
the financial
statements
of the Company
included
in the
SEC Documents
complied
as to
form
in all
material
respects
with applicable
accounting
requirements
and the
published rules
and regulations
of the SEC
with respect
thereto.
Such
financial
statements
have been
prepared
in accordance
with United
States generally
accepted
accounting
principles,
consistently
applied, during
the periods involved 
and fairly
present
in all material
respects
the consolidated
financial
position of the Company
and its consolidated
Subsidiaries
as of the dates
thereof and
the consolidated
results
of their operations and
cash flows
for the periods
then ended
(subject,
in the case of
unaudited statements,
to normal
year-end
audit adjustments).
Except
as set
forth
in the financial
statements
of the Company
included
in the SEC
Documents,
the Company
has
no liabilities,
contingent
or otherwise,
other than
(i) liabilities
incurred
in the ordinary
course
of business subsequent
to September
30, 2012, and
(ii) obligations
under contracts
and commitments
incurred
in the ordinary
course
of business and
not required
under generally
accepted
accounting principles
to be
reflected
in such
financial
statements,
which, individually
or in the aggregate,
are not material
to the financial
condition or operating
results of the Company.
The Company
is subject to the reporting
requirements
of the


1934 Act.


 


h.
Absence
of Certain
Changes.
 Since
September
30, 2012, there
has been
no material
adverse
change
and no
material
adverse
development
in the assets,
liabilities, business,
properties,
operations, financial
condition, results
of operations, prospects
or 1934 Act reporting
status of the
Company
or any
of its Subsidiaries.


 


i.
 Absence
of Litigation.
 There
is no action,
suit, claim,
proceeding,
inquiry or investigation
before
or by any
court,
public board,
government
agency,
self-regulatory
organization
or body pending
or, to
the knowledge of
the Company
or any
of its Subsidiaries,
threatened
against or
affecting
the Company
or any
of its Subsidiaries,
or their
officers
or directors
in their
capacity
as such,
that could
have a
Material
Adverse Effect.
Schedule
3(i) contains
a complete list and
summary description
of any pending
or, to the knowledge
of the Company,
threatened
proceeding
against
or affecting
the Company
or any
of its Subsidiaries,
without regard
to whether
it would have
a Material
Adverse
Effect.
The Company
and its Subsidiaries
are unaware
of any
facts
or circumstances
which might
give rise
to any
of the foregoing.


 


j.
 Patents,
 Copyrights,
 etc.
 The  Company
 and 
each  of 
its Subsidiaries
owns or possesses
the requisite licenses
or rights
to use all
patents,
patent applications,
patent
rights, inventions,
know-how, trade
secrets,
trademarks,
trademark
applications,
service marks,
service names,
trade
names
and copyrights
(“Intellectual
Property”)
necessary
to enable
it to conduct
its business
as now
operated
(and, as
presently
contemplated
to be operated
in the
future);
there is
no claim
or action
by any
person
pertaining
to, or
proceeding
pending,
or to the Company’s
knowledge threatened,
which challenges
the right
of the Company
or of a
Subsidiary
with respect
to any
Intellectual
Property
necessary
to enable
it to conduct
its business as
now operated
(and, as
presently
contemplated
to be operated
in the future);
to the best
of the Company’s
knowledge,
the Company’s
or its Subsidiaries’
current
and intended
products,
services
and processes
do not infringe
on any
Intellectual
Property
or other rights
held




    	8



    	 



    

by
any person;
and the
Company
is unaware
of any
facts
or circumstances
which might
give rise
to any
of the foregoing.
 The Company
and each
of its Subsidiaries
have taken
reasonable
security
measures
to protect
the secrecy,
confidentiality
and value
of their
Intellectual
Property.


 


k.
No Materially
Adverse
Contracts,
Etc.  Neither
the Company
nor any of
its Subsidiaries
is subject
to any
charter,
corporate
or other
legal
restriction,
or any
judgment,
decree,
order,
rule or regulation
which in
the judgment
of the Company’s
officers
has or is expected
in the future
to have a Material
Adverse Effect.
 Neither
the Company
nor any
of its Subsidiaries
is a party
to any
contract
or agreement
which in
the judgment
of the Company’s
officers has
or is expected
to have a
Material
Adverse
Effect.


 


l.
 Tax
Status. The
Company
and each
of its Subsidiaries
has made
or filed
all federal,
state and
foreign
income and
all other
tax returns,
reports
and declarations
required by
any
jurisdiction
to which it is subject (unless
and only
to the extent
that the Company
and each
of its Subsidiaries
has set
aside on
its books provisions
reasonably
adequate
for the payment
of all unpaid
and unreported
taxes)
and has
paid all
taxes
and other
governmental
assessments
and charges
that are
material
in amount,
shown or determined
to be due on such
returns, reports
and declarations,
except
those being contested
in good
faith and
has set
aside on its
books provisions
reasonably
adequate
for the payment
of all taxes
for periods
subsequent to the
periods to which
such returns,
reports
or declarations
apply.
 There
are no
unpaid taxes
in any material
amount claimed
to be due by the taxing
authority
of any
jurisdiction,
and the officers
of the Company
know of no basis
for any
such claim.
 The Company
has not executed
a waiver
with respect
to the
statute of
limitations relating
to the
assessment
or collection
of any
foreign,
federal,
state or local
tax. None
of the
Company’s
tax returns
is presently
being audited
by any taxing
authority.


 


m.
 Certain
 Transactions.
 Except
 for 
arm’s 
length 
transactions
pursuant
to which
the Company
or any
of its Subsidiaries
makes
payments
in the ordinary
course
of business
upon terms
no less
favorable
than the
Company
or any
of its Subsidiaries
could obtain
from third
parties
and other
than the grant
of stock
options disclosed
on Schedule
3(c), none of
the officers,
directors,
or employees
of the
Company
is presently
a party
to any
transaction
with the Company
or any
of its
Subsidiaries
(other
than
for services
as employees,
officers
and directors),
including
any contract,
agreement
or other
arrangement
providing for
the furnishing
of services
to or by,
providing for
rental
of real
or personal
property
to or from,
or otherwise requiring
payments
to or from
any officer,
director
or such employee
or, to
the knowledge of the
Company,
any
corporation,
partnership,
trust or
other entity
in which any
officer,
director,
or any
such
employee
has
a substantial
interest or
is an
officer,
director,
trustee or
partner.


 


n.
Disclosure. All information
relating
to or concerning
the Company
or any
of its Subsidiaries
set forth
in this Agreement
and provided
to the
Buyer
pursuant
to Section
2(d) hereof
and otherwise
in connection
with the transactions
contemplated
hereby
is true and
correct
in all
material
respects
and the Company
has not
omitted to
state any
material
fact necessary
in order
to make
the statements
made herein
or therein,
in light
of the circumstances
under which
they were
made, not
misleading. No
event
or circumstance
has occurred
or exists with respect
to the Company
or any
of its Subsidiaries
or its or their business,




    	9



    	 



    

properties,
prospects,
operations
or financial
conditions,
which, under
applicable
law, rule
or regulation,
requires
public disclosure
or announcement
by the
Company
but which
has not
been so
publicly announced
or disclosed
(assuming for
this purpose
that the
Company’s
reports
filed under
the 1934 Act
are being
incorporated
into an
effective
registration
statement
filed
by the Company
under the
1933 Act).


 


o.
 Acknowledgment
Regarding
Buyer’
Purchase
of Securities.
 The Company
acknowledges
and agrees
that the
Buyer
is acting solely
in the capacity
of arm’s
length purchasers
with respect
to this Agreement
and the transactions
contemplated
hereby.
 The Company
further
acknowledges
that the
Buyer
is not acting
as a
financial
advisor or
fiduciary
of the Company
(or in
any
similar capacity)
with respect
to this Agreement
and the transactions
contemplated
hereby
and any
statement
made by
the Buyer
or any of its respective
representatives
or agents
in connection
with this Agreement
and the transactions
contemplated
hereby is
not advice
or a recommendation
and is
merely incidental
to the Buyer’
purchase
of the Securities.
The Company further
represents
to the Buyer
that the Company’s
decision to enter
into this Agreement
has been
based
solely on
the independent
evaluation
of the
Company
and its representatives.


 


p.
No  Integrated
 Offering.
 Neither
 the 
Company,
 nor  any
of  its affiliates,
nor any
person acting
on its or
their behalf,
has directly
or indirectly
made
any
offers
or sales
in any security
or solicited
any offers
to buy any
security
under
circumstances
that would require
registration
under the 1933 Act
of the issuance
of the Securities
to the Buyer.
The issuance
of the Securities
to the Buyer
will not be
integrated
with any
other issuance
of the Company’s
securities
(past, current
or future)
for purposes
of any shareholder
approval
provisions applicable
to the Company
or its securities.


 


q.
No Brokers.
 The
Company
has taken
no action
which would
give rise
to any
claim
by any
person for
brokerage
commissions,
transaction
fees or
similar payments
relating
to this Agreement
or the transactions
contemplated
hereby.


 


r.
 Permits;
Compliance.
The Company
and each
of its Subsidiaries
is in possession of all
franchises,
grants,
authorizations,
licenses, permits,
easements,
variances,
exemptions,
consents,
certificates,
approvals
and orders
necessary
to own, lease
and operate
its properties
and to
carry
on its
business as
it is now
being conducted
(collectively,
the “Company
Permits”),
and there
is no action
pending or,
to the
knowledge
of the
Company,
threatened
regarding
suspension or
cancellation
of any
of the Company
Permits. 
Neither
the Company
nor any
of its
Subsidiaries
is in
conflict
with, or in
default or
violation of,
any of
the Company
Permits,
except
for any
such conflicts,
defaults
or violations
which, individually
or in the aggregate,
 would  not 
reasonably
 be expected
to  have a Material
 Adverse
Effect. Since
September
 30,  2012, 
neither
 the  Company
nor  any
 of  its 
Subsidiaries
 has 
received
 any
notification with respect
to possible conflicts,
defaults
or violations of
applicable laws,
except
for notices
relating to
possible conflicts,
defaults or
violations, which
conflicts,
defaults or
violations would not have
a Material
Adverse Effect.


 


s.Environmental
Matters.




    	10



    	 



    

(i)
There are,
to the Company’s
knowledge,
with respect
to the Company
or any
of its
Subsidiaries
or any
predecessor
of the Company,
no past
or present
violations of
Environmental
Laws
(as defined
below),
releases
of any
material
into the environment,
actions, activities,
circumstances,
conditions, events,
incidents, or contractual
obligations which
may give
rise to any
common law environmental
liability
or any
liability
under the Comprehensive
Environmental
Response,
Compensation
and Liability
Act of
1980 or similar
federal,
state,
local or
foreign
laws
and neither
the Company
nor any
of its Subsidiaries
has received
any notice
with respect
to any of the foregoing,
nor is any action
pending or,
to the Company’s
knowledge,
threatened
in connection
with any
of the foregoing.
The term “Environmental
Laws”
means all
federal,
state,
local or
foreign
laws relating
to pollution or protection
 of human
 health
 or the  environment
 (including,
 without  limitation,
 ambient
 air,
surface water,
groundwater,
land surface
or subsurface
strata),
including,
without limitation,
laws relating
to emissions, discharges,
releases
or threatened
releases
of chemicals,
pollutants contaminants,
or toxic or hazardous
substances
or wastes
(collectively,
“Hazardous
Materials”)
into the environment,
or otherwise
relating
to the manufacture,
processing,
distribution, use,
treatment,
storage,
disposal,
transport or
handling of
Hazardous
Materials,
as well
as all
authorizations,
codes, decrees,
demands
or demand
letters, injunctions,
judgments, licenses,
notices or
notice letters,
orders,
permits, plans
or regulations
issued, entered,
promulgated
or approved
thereunder.


 


(ii)
Other than
those that are
or were stored,
used or disposed
of in compliance
with applicable
law, no
Hazardous
Materials
are
contained
on or about
any real
property
currently
owned,
leased
or used
by the
Company
or any
of its
Subsidiaries,
and no Hazardous
Materials
were
released
on or about
any
real
property
previously
owned,
leased
or used by
the Company
or any
of its
Subsidiaries
during the period
the property
was
owned, leased
or used by
the Company
or any
of its Subsidiaries,
except
in the normal
course
of the Company’s
or any
of its Subsidiaries’
business.


 


(iii)
 There
are
no underground
storage tanks
on or under
any real
property
owned, leased
or used
by the Company
or any
of its Subsidiaries
that are
not in compliance
with applicable
law.


 


t.
 Title to
Property.
 The
Company
and its
Subsidiaries
have
good and
marketable
title in fee
simple to all
real
property
and good
and marketable
title to all
personal property
owned by
them which
is material
to the business
of the Company
and its Subsidiaries,
in each
case free
and clear
of all
liens, encumbrances
and defects
except
such as
are described
in Schedule
3(t) or such
as would not
have a Material
Adverse Effect.
Any real
property
and facilities
held under
lease by the Company
and its Subsidiaries
are held
by them under
valid, subsisting and enforceable
leases
with such exceptions
as would not have
a Material
Adverse Effect.


 


u.
Insurance.
 The Company
and each
of its Subsidiaries
are
insured by
insurers
of recognized
financial
responsibility
against
such losses
and risks
and in
such amounts
as management
of the Company
believes
to be prudent
and customary
in the businesses
in which
the Company
and its
Subsidiaries
are engaged.
Neither the
Company
nor any
such Subsidiary
has any
reason
to believe that
it will not be able to renew
its existing insurance




    	11



    	 



    

coverage
as and
when such
coverage
expires
or to
obtain similar
coverage
from similar
insurers as
may be necessary
to continue
its business
at a
cost that
would not have
a Material
Adverse Effect.
 Upon written
request
the Company
will provide
to the Buyer
true
and correct
copies
of all policies
relating
to directors’
and officers’
liability coverage,
errors
and omissions
coverage,
and commercial
general
liability coverage.


 


v.
 Internal
Accounting Controls.
 The Company
and each
of its Subsidiaries
maintain
a system
of internal
accounting
controls
sufficient,
in the judgment
of the Company’s
board of
directors,
to provide
reasonable
assurance
that (i)
transactions
are executed
in  accordance
 with  management’s
 general
 or  specific
authorizations,
 (ii) 
transactions 
are recorded
as necessary
to permit
preparation
of financial
statements
in conformity
with generally
accepted
accounting
principles
and to
maintain
asset
accountability,
(iii)
access
to assets
is permitted
only in accordance
with management’s
general
or specific
authorization
and (iv)
the recorded
accountability
for assets
is compared
with the existing
assets
at reasonable
intervals
and appropriate
action is taken
with respect to any
differences.


 


w.
 Foreign
Corrupt
Practices.
 Neither
the Company,
nor any
of its Subsidiaries,
nor any
director,
officer,
agent,
employee
or other
person acting
on behalf
of the Company
or any
Subsidiary
has,
in the course
of his actions
for,
or on behalf
of, the
Company,
used any
corporate
funds
for any
unlawful
contribution,
gift,
entertainment
or other
unlawful
expenses
relating
to political
activity;
made any
direct
or indirect unlawful
payment
to any foreign
or domestic government
official
or employee
from corporate
funds;
violated
or is in violation of any
provision of the U.S.
Foreign
Corrupt Practices
Act of 1977, as amended,
or made any
bribe,
rebate,
payoff,
influence
payment,
kickback
or other unlawful
payment
to any
foreign
or domestic
government
official
or employee.


 


x.
 Solvency.
 The Company
(after
giving
effect
to the transactions
contemplated
by this Agreement)
is solvent
(i.e.,
its assets
have
a fair
market
value in
excess
of the amount
required
to pay
its probable
liabilities
on its existing
debts as
they become
absolute and
matured)
and currently
the Company
has
no information
that would lead
it to reasonably
conclude
that the
Company
would not, after
giving effect
to the transaction
contemplated
by this Agreement,
have
the ability
to, nor does
it intend
to take
any
action that
would impair
its ability
to, pay its debts from
time to time incurred
in connection therewith
as such debts
mature. The Company
did not receive
a qualified
opinion from
its auditors
with respect
to its most recent
fiscal
year
end and,
after
giving effect
to the transactions
contemplated
by this Agreement,
does not anticipate
or know of
any basis
upon which
its auditors
might issue
a qualified
opinion in respect
of its current
fiscal
year.


 


y.
 No Investment
Company.
 The Company
is not,
and upon
the issuance
and sale
of the
Securities
as contemplated
by this Agreement
will not be
an “investment
company”
required
to be registered
under the
Investment
Company
Act of 1940
(an “Investment
Company”).
The Company
is not controlled
by an
Investment
Company.


 


z.Breach
of Representations
and Warranties
by the
Company.
 If
the


Company
breaches
any
of the representations
or warranties
set forth
in this
Section
3, and
in




    	12



    	 



    

addition
to any
other
remedies
available
to the
Buyer
pursuant
to this Agreement,
it will be considered
an Event of
default under
Section 3.4 of
the Note.


 


4.COVENANTS.


 


a.
 Best
Efforts.
 The
parties
shall use
their
best efforts
to satisfy
timely
each
of the conditions
described
in Section
6 and 7 of this Agreement.


 


b.
Form 
D;  Blue 
Sky Laws.
 Unless 
the  Company
believes
 it  is exempt
from such
filing,
the Company
agrees
to file
a Form
D with respect
to the Securities
as required
under
Regulation
D and
to provide
a copy
thereof
to the Buyer
promptly
after
such filing.
 The Company
shall, on
or before
the Closing Date,
take
such action
as the
Company shall
reasonably
determine
is necessary
to qualify
the Securities
for sale
to the Buyer
at the applicable
closing pursuant
to this Agreement
under
applicable
securities
or “blue
sky” laws
of the
states
of the United States
(or to
obtain
an exemption
from such
qualification),
and shall
provide evidence
of any such
action so taken
to the Buyer
on or prior
to the Closing
Date.


 


c.
 Use of
Proceeds.
 The
Company
shall
use the proceeds
for general
working capital
purposes.


 


d.
Right
of First
Refusal.
 Unless
it shall
have first
delivered
to the Buyer,
at least
seventy
two (72)
hours prior
to the
closing of
such Future
Offering
(as defined
herein),
written
notice describing
the proposed
Future
Offering,
including the
terms
and conditions
thereof and
proposed
definitive documentation
to be entered
into in connection
therewith, and
providing the
Buyer
an option
during the
seventy
two (72)
hour period
following delivery
of such
notice to
purchase
the securities
being offered
in the Future
Offering
on the same terms
as contemplated
by such
Future
Offering
(the limitations
referred
to in this
sentence
and the preceding
sentence
are collectively
referred
to as the “Right
of First Refusal”)
(and subject
to the exceptions
described
below),
the Company
will not conduct
any equity
financing
(including
debt with
an equity
component)
(“Future
Offerings”)
during
the period
beginning
on the Closing Date and
ending twelve (12)
months following the Closing Date.
In the event the terms
and conditions
of a proposed
Future
Offering
are
amended
in any
respect
after
delivery
of the notice to the Buyer
concerning
the proposed
Future Offering,
the Company
shall deliver
a new notice to the Buyer
describing
the amended
terms and conditions
of the proposed Future
Offering
and the
Buyer
thereafter
shall have
an option
during the seventy
two (72)
hour period following
delivery
of such new
notice to purchase
its pro rata share
of the securities
being offered
on the same
terms
as contemplated
by such proposed
Future
Offering,
as amended.
The foregoing
sentence
shall apply
to successive
amendments
to the terms
and conditions
of any
proposed Future
 Offering.
The  Right
of First
Refusal
shall not apply
 to any
transaction
involving (i) issuances
of securities
 in  a firm
 commitment
 underwritten
 public offering
(excluding
a continuous
offering pursuant
to Rule
415 under
the 1933 Act)
or (ii)
issuances
of securities
as consideration
for a merger,
consolidation
or purchase
of assets,
or in connection
with any strategic
partnership
or joint venture (the
primary
purpose of which
is not to raise equity
capital),
or in connection
with the disposition
or acquisition
of a business,
product
or license by
the Company.
The Right
of First
Refusal
also shall
not apply
to the issuance
of securities
upon exercise
or conversion of the Company’s
options, warrants
or other convertible




    	13



    	 



    

securities
outstanding as
of the date
hereof
or to the
grant
of additional
options or warrants,
or the issuance
of additional
securities,
under any
Company
stock option
or restricted
stock plan
approved
by the
shareholders
of the Company.
The Right
of First
Refusal
shall apply
only to like
transactions (i.e.
convertible
debentures)
that are
less than $100,000.00
in the aggregate.


 


e.
 Expenses.
 At the
Closing,
the Company
shall reimburse
Buyer
for expenses
incurred
by them
in connection
with the
negotiation,
preparation,
execution,
delivery
and performance
of this Agreement
and the other
agreements
to be executed
in connection
herewith (“Documents”),
including,
without limitation,
reasonable
attorneys’
and consultants’
fees and
expenses,
transfer
agent fees,
fees for
stock quotation
services,
fees relating
to any
amendments
or modifications
of the Documents
or any
consents or
waivers
of provisions
in the Documents,
fees for the
preparation
of opinions of counsel,
escrow fees,
and costs of restructuring
the transactions
contemplated
by the Documents.
 When
possible, the Company
must pay these
fees
directly,
otherwise the
Company must
make immediate
payment
for reimbursement
to the Buyer
for all
fees
and expenses
immediately
upon written
notice by the Buyer
or the submission
of an
invoice by
the Buyer.
The Company’s
obligation
with respect
to this transaction is to reimburse
Buyer’
expenses
shall be $3,000.


 


f.
 Financial
Information.
 Upon written
request
the Company
agrees
to send
or make
available
the following reports
to the Buyer
until the Buyer
transfers,
assigns,
or sells all
of the Securities:
(i) within
ten (10)
days after
the filing with the SEC,
a copy of its Annual
Report
on Form
10-K its
Quarterly
Reports
on Form
10-Q and
any Current
Reports
on Form 
8-K;  (ii)
within  one (1) day
after
release,
copies 
of all  press
 releases
 issued 
by the Company
or any
of its Subsidiaries;
and (iii)
contemporaneously
with the making available
or giving
to the shareholders
of the Company,
copies
of any notices
or other information
the Company
makes
available
or gives
to such shareholders.


 


g.[INTENTIONALLY
DELETED]


 


h.
 Listing.
 The
Company
shall promptly
secure
the listing of
the Conversion Shares
upon each national
securities
exchange
or automated
quotation system,
if any,
upon which
shares of
Common Stock
are then
listed
(subject
to official
notice of issuance)
and, so long
as the Buyer
owns any
of the Securities,
shall maintain,
so long as
any other
shares of Common
Stock shall
be so listed, such
listing of all Conversion
Shares from
time to time issuable upon
conversion
of the Note. The
Company
will obtain
and, so
long as
the Buyer
owns any of the Securities,
maintain
the listing and trading
of its Common Stock
on the OTCBB or any
equivalent
replacement
exchange,
the Nasdaq
National
Market
(“Nasdaq”),
the Nasdaq SmallCap
Market
(“Nasdaq
SmallCap”),
the New York
Stock Exchange
(“NYSE”),
or the American
Stock
Exchange
(“AMEX”)
and will
comply in
all respects
with the Company’s
reporting,
filing and
other obligations
under the bylaws
or rules
of the Financial
Industry Regulatory
Authority
(“FINRA”)
and such
exchanges,
as applicable.
The Company
shall promptly
provide
to the Buyer
copies
of any
notices
it receives
from the
OTCBB
and any
other exchanges
or quotation
systems
on which
the Common Stock
is then
listed regarding
the continued
eligibility
of the
Common Stock
for listing
on such exchanges
and quotation
systems.




    	14



    	 



    

i.
 Corporate
Existence.
 So
long as
the Buyer
beneficially
owns any
Note, the
Company
shall maintain
its corporate
existence
and shall
not sell all
or substantially
all of the
Company’s
assets,
except
in the event
of a merger
or consolidation
or sale
of all
or substantially
all of the Company’s
assets, where
the surviving or successor
entity in such
transaction
(i) assumes
the Company’s
obligations
hereunder and
under the agreements
and instruments
entered
into in connection
herewith and
(ii) is
a publicly
traded
corporation
whose Common Stock
is listed for trading
on the OTCBB, Nasdaq,
Nasdaq
 SmallCap,
NYSE or AMEX.


 


j.
 No Integration.
 The Company
shall not
make any
offers
or sales
of any
security
(other
than the
Securities)
under
circumstances
that
would require
registration
of the Securities
being offered
or sold hereunder
under
the 1933 Act
or cause
the offering
of the Securities
to be integrated
with any other
offering
of securities
by the Company
for the purpose
of any stockholder
approval
provision applicable
to the Company
or its securities.


 


k.
Breach
 of  Covenants.
 If 
the  Company
 breaches
 any
 of  the
covenants
set forth
in this Section
4, and
in addition
to any
other remedies
available
to the Buyer
pursuant
to this Agreement,
it will be considered
an event
of default
under Section
3.4 of the Note.


 


l.
 Failure
to Comply
with the 1934
Act.  So
long as
the Buyer
beneficially
owns the Note,
the Company
shall
comply
with the reporting
requirements
of the


1934 Act;
and the
Company
shall continue
to be
subject to
the reporting
requirements
of the


1934 Act.


 


m.
 Trading
Activities. 
Neither
the Buyer
nor its affiliates
has an
open short position in the
common stock of the
Company
and the Buyer
agree
that it shall
not, and that it
will cause
its affiliates
not to, engage
in any
short
sales
of or hedging
transactions
with respect
to the common stock of
the Company.


 


5.
Transfer
 Agent
 Instructions.
 The  Company
 shall 
issue  irrevocable
instructions
to its transfer
agent
to issue certificates,
registered
in the name
of the Buyer
or its nominee, for
the Conversion
Shares
in such
amounts
as specified
from time
to time by
the Buyer
to the Company
upon conversion
of the Note
in accordance
with the terms
thereof
(the “Irrevocable
Transfer
Agent
Instructions”).
In the event
that the Borrower
proposes to replace
its transfer
agent,
the Borrower
shall provide,
prior to
the effective
date of
such replacement,
a fully
executed
Irrevocable
Transfer
Agent
Instructions
in a form
as initially
delivered
pursuant
to the Purchase
Agreement
(including
but not limited
to the provision
to irrevocably
reserve
shares
of Common
Stock
in the Reserved
Amount) signed
by the
successor
transfer
agent
to Borrower
and the Borrower.
Prior to registration
of the Conversion
Shares under
the 1933 Act or the date
on which
the Conversion
Shares
may be sold
pursuant
to Rule
144 without
any restriction
as to the
number of
Securities
as of
a particular
date
that can
then be
immediately
sold, all
such certificates
shall bear
the restrictive
legend
specified
in Section
2(g)
of this Agreement.
 The Company
warrants
that: (i)
no instruction
other than
the Irrevocable
Transfer
Agent
Instructions
referred
to in this
Section 5,
and stop
transfer
instructions
to give
effect
to Section
2(f) hereof
(in the case of the Conversion
Shares, prior
to registration
of the Conversion
Shares under
the 1933




    	15



    	 



    

Act
or the date
on which
the Conversion
Shares
may be
sold pursuant
to Rule
144 without any
restriction
as to
the number
of Securities
as of
a particular
date that
can
then be
immediately
sold), will
be given
by the
Company
to its transfer
agent
and that
the Securities
shall otherwise
be freely
transferable
on the books
and records
of the Company
as and
to the
extent
provided
in this Agreement
and the
Note; (ii)
it will not
direct its
transfer
agent
not to transfer
or delay,
impair, and/or
hinder its
transfer agent
in transferring
(or issuing)(electronically
or in certificated
form)
any certificate
for Conversion
Shares
to be issued
to the Buyer
upon conversion
of or otherwise pursuant
to the Note as
and when
required
by the Note and
this Agreement;
and (iii) it will
not fail
to remove
(or directs
its transfer
agent
not to remove
or impairs,
delays,
and/or hinders
its transfer
agent
from removing)
any restrictive
legend
(or to withdraw
any stop
transfer
instructions in
respect thereof)
on any
certificate
for any
Conversion
Shares issued
to the Buyer
upon conversion
of or otherwise
pursuant to the
Note as and
when required
by the Note
and this Agreement.
 Nothing 
in  this  Section
 shall affect
in  any
way the
Buyer’s
obligations and agreement
set forth
in Section
2(g)
hereof
to comply
with all applicable
prospectus
delivery
requirements,
if any,
upon re-sale
of the Securities.
 If the Buyer
provides
the Company,
at the cost
of the Buyer,
with (i)
an opinion
of counsel
in form,
substance
and scope
customary
for opinions
in comparable
transactions,
to the effect
that a public sale
or transfer of such
Securities
may be
made without registration
under the
1933 Act
and such
sale or
transfer
is effected
or (ii) the Buyer
provides
reasonable
assurances
that the Securities
can be sold pursuant
to Rule 144, the Company
shall permit
the transfer,
and, in
the case
of the Conversion
Shares,
promptly instruct
its transfer
agent
to issue one or more certificates,
free
from restrictive
legend,
in such name
and in
such
denominations
as specified
by the
Buyer.
 The
Company
acknowledges
that a breach
by it
of its obligations
hereunder
will cause
irreparable
harm
to the Buyer,
by vitiating
the intent and
purpose of
the transactions
contemplated
hereby. 
Accordingly,
the Company
acknowledges
that the remedy
at law
for a breach
of its obligations
under this Section
5 may be inadequate
and agrees,
in the event
of a breach
or threatened
breach
by the Company
of the provisions
of this Section,
that the
Buyer
shall be
entitled,
in addition to
all other
available
remedies,
to an
injunction restraining
any breach
and requiring
immediate
transfer,
without the necessity
of showing
economic
loss and without any
bond or other
security
being required.


 


6.
 Conditions to
the Company’s
Obligation
to Sell.
 The obligation
of the Company
hereunder
to issue and
sell the
Note to
the Buyer
at the
Closing is
subject to
the satisfaction,
at or
before
the Closing Date
of each
of the following
conditions thereto,
provided
that these
conditions are
for the
Company’s
sole benefit
and may
be waived
by the Company
at any
time in its sole discretion:


 


 


 


same
to the Company.


a.The
Buyer
shall have
executed
this Agreement
and delivered
the


 


b.
The Buyer
shall
have delivered
the Purchase
Price
in accordance
with Section 1(b)
above.


 


c.
The representations
and warranties
of the Buyer
shall be
true and
correct
in all
material
respects
as of
the date
when
made and
as of
the Closing Date
as though
made at
that
time (except
for representations
and warranties
that speak
as of a specific
date),
and the  Buyer
 shall 
have  performed,
 satisfied
 and 
complied 
in  all 
material
 respects
 with  the




    	16



    	 



    

covenants,
agreements
and conditions
required
by this
Agreement
to be performed,
satisfied
or complied with by
the Buyer
at or prior
to the Closing
Date.


 


d.
No  litigation,
 statute,
 rule,
 regulation,
 executive
 order,
 decree,
ruling or
injunction shall
have been
enacted,
entered,
promulgated
or endorsed
by or
in any
court or
governmental
authority
of competent
jurisdiction
or any
self-regulatory
organization
having authority
over the
matters
contemplated
hereby
which
prohibits the
consummation
of any
of the transactions
contemplated
by this Agreement.


 


7.
Conditions to
The Buyer’s
Obligation to
Purchase.
 The obligation
of the Buyer
hereunder
to purchase
the Note at
the Closing is subject
to the satisfaction,
at or
before
the Closing Date
of each
of the
following conditions,
provided
that these
conditions are
for the Buyer’s
sole benefit
and may
be waived
by the
Buyer
at any
time in its sole discretion:


 


 


 


the same
to the Buyer.


a.The
Company
shall have
executed
this Agreement
and delivered


 


b.The
Company
shall have
delivered
to the Buyer
the duly
executed


Note (in
such denominations
as the Buyer
shall request)
in accordance
with Section
1(b) above.


 


c.
 The Irrevocable
Transfer
Agent
Instructions,
in form
and substance
satisfactory
to a majority-in-interest
of the Buyer,
shall have
been delivered
to and acknowledged
in writing by
the Company’s
Transfer
Agent.


 


d.
The representations
and warranties
of the Company
shall be
true and
correct
in all
material
respects
as of
the date
when made
and as
of the
Closing Date
as though made
at such
time (except
for representations
and warranties
that speak
as of
a specific
date) and
the Company shall
have performed,
satisfied
and complied
in all material
respects
with the covenants,
agreements
and conditions required
by this Agreement
to be performed,
satisfied
or complied
with by the Company
at or
prior to
the Closing Date.
The Buyer shall
have received
a certificate
or certificates,
executed
by the chief
executive
officer
of the Company,
dated as
of the Closing Date,
to the foregoing
effect
and as to such
other matters
as may be reasonably
requested
by the Buyer including,
but not limited to certificates
with respect to the Company’s
Certificate
of Incorporation,
By-laws
and Board
of Directors’
resolutions relating
to the transactions
contemplated
hereby.


 


e.
 No  litigation,
 statute,
 rule,
 regulation,
 executive
order, 
decree,
ruling or
injunction shall
have been
enacted,
entered,
promulgated
or endorsed
by or
in any
court or
governmental
authority
of competent
jurisdiction or
any self-regulatory
organization
having authority
over the
matters
contemplated
hereby
which
prohibits the
consummation
of any
of the transactions
contemplated
by this Agreement.


 


f.
 No event
shall have
occurred
which could
reasonably
be expected
to have
a Material
Adverse
Effect
on the Company
including
but not limited
to a change
in the


1934 Act
reporting
status of
the Company
or the
failure
of the Company
to be timely
in its 1934


Act
reporting
obligations.




    	17



    	 



    

 


 


g.
 The Conversion
Shares shall
have been
authorized
for quotation
on the OTCBB and
trading
in the Common
Stock on
the OTCBB shall
not have been
suspended
by the SEC
or the OTCBB.


 


h.The
Buyer
shall
have received
an officer’s
certificate
described
in


Section
3(c) above,
dated
as of the
Closing Date.


 


 


 


8.Governing
Law; Miscellaneous.


 


a.
 Governing
 Law.
 This  Agreement
 shall 
be  governed
 by 
and construed
in accordance
with the laws
of the State
of New
York without
regard
to principles
of conflicts
 of laws. Any
action 
brought
 by either
party against
 the other concerning
the transactions
contemplated
by this
Agreement
shall
be brought
only in the state
courts
of New York
or in the
federal
courts
located
in the state
and county
of Nassau.
The parties
to this Agreement
hereby
irrevocably
waive any
objection
to jurisdiction
and venue
of any
action instituted
hereunder
and shall
not assert
any defense
based
on lack
of jurisdiction
or venue
or based
upon forum non
conveniens.
The Company
and Buyer
waive trial
by jury. The
prevailing
party shall
be entitled
to recover
from the
other party
its reasonable
attorney's
fees
and costs.
In the event
that any
provision
of this Agreement
or any other
agreement
delivered
in connection
herewith is
invalid or
unenforceable
under any
applicable
statute or
rule of
law, then
such provision
shall be
deemed
inoperative
to the extent
that it
may conflict
therewith and
shall be
deemed
modified to
conform
with such
statute or rule
of law. Any
such provision
which may
prove invalid
or unenforceable
under any
law shall
not affect
the validity
or enforceability
of any
other provision of any
agreement.
Each party
hereby
irrevocably
waives
personal service
of process
and
consents
to process
being served
in any
suit, action
or proceeding
in connection
with this Agreement
or any other
Transaction
Document
by mailing
a copy thereof
via registered
or certified
mail or
overnight
delivery
(with evidence
of delivery)
to such
party at
the address
in effect
for notices
to it under this Agreement
and agrees
that such
service
shall constitute good
and sufficient
service
of process
and notice
thereof.
Nothing contained
herein
shall be deemed
to limit in any way
any right
to serve process
in any
other manner
permitted
by law.


 


b.
 Counterparts.
 This Agreement
may be executed
in one or
more counterparts,
each of which
shall be deemed
an original
but all
of which shall
constitute one and the
same agreement
and shall
become effective
when counterparts
have been
signed
by each
party
and delivered
to the other
party.


 


 


c.
 Headings.
 The headings
of this Agreement
are for convenience
of reference
only and
shall not form
part of, or
affect
the interpretation
of, this Agreement.


 


d.
Severability.
 In
the event
that any
provision of
this Agreement
is invalid or
unenforceable
under any
applicable
statute
or rule
of law,
then such
provision shall
be deemed
inoperative
to the
extent
that it
may conflict
therewith and
shall be
deemed
modified
to conform
with such
statute or rule of law.
 Any provision
hereof which may
prove invalid
or




    	18



    	 



    

unenforceable
under any
law shall
not affect
the validity
or enforceability
of any
other provision
hereof.


 


e.
 Entire Agreement;
 Amendments.
 This  Agreement
 and 
the instruments
referenced
herein
contain
the entire
understanding
of the parties
with respect
to the matters
covered
herein
and therein
and, except
as specifically
set
forth
herein
or therein,
neither the
Company
nor the Buyer
makes
any representation,
warranty,
covenant
or undertaking
with respect
to such
matters. No
provision of
this Agreement
may be waived
or amended
other than by
an instrument
in writing
signed
by the majority
in interest of the
Buyer.


 


f.
 Notices. 
All notices,
demands,
requests,
consents,
approvals,
and other
communications
required
or permitted
hereunder
shall be in
writing
and, unless
otherwise specified
herein,
shall be
(i) personally
served,
(ii)
deposited
in the mail,
registered
or certified,
return
receipt
requested,
postage prepaid,
(iii) delivered
by reputable
air
courier
service
with charges
prepaid,
or (iv)
transmitted
by hand
delivery,
telegram,
or facsimile,
addressed
as set
forth below
or to
such other
address
as such
party
shall
have specified
most recently
by written
notice. Any notice
or other
communication
required
or permitted
to be given
hereunder
shall be
deemed effective
(a)
upon hand delivery
or delivery
by facsimile,
with accurate
confirmation
generated
by the transmitting
facsimile machine,
at the
address
or number
designated
below
(if delivered
on a business
day
during
normal business
hours where
such notice
is to be received),
or the first
business day
following
such
delivery
(if delivered
other
than on a business
day during
normal business
hours where such
notice is to be received)
or (b) on the second business
day following 
the  date 
of  mailing 
by  express
 courier
 service,
 fully
prepaid,
 addressed
 to  such
address,
or upon actual
receipt
of such mailing,
whichever
shall first
occur.
 The addresses
for such communications
shall be:


 


If
to the Company,
to:


NYXIO
TECHNOLOGIES
CORPORATION


2156 NE Broadway


Portland,
OR 97232


Attn: GIORGIO
JOHNSON, President/Chief
Executive
Officer
facsimile: [enter
fax number]


 


With
a copy
by fax
only to
(which copy
shall not constitute
notice): [enter
name of
law firm]


Attn: [attorney
name] [enter
address line 1] [enter
city, state,
zip]


facsimile:
[enter
fax number]


 


If
to the Buyer:


ASHER
ENTERPRISES,
INC.


1
Linden Pl.,
Suite 207


Great
Neck, NY.
11021


Attn: Curt
Kramer, President
facsimile: 516-498-9894




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With
a copy
by fax
only to
(which copy
shall not constitute
notice): Naidich
Wurman
Birnbaum
& Maday
LLP


80 Cuttermill
Road, Suite
410


Great
Neck, NY
11021


Attn: Bernard
S. Feldman,
Esq. facsimile: 516-466-3555


 


Each
party
shall provide
notice to the
other party
of any
change
in address.


 


g.
 Successors
and Assigns.
 This Agreement
shall be
binding upon and
inure to
the benefit
of the
parties
and their
successors
and assigns.
 Neither
the Company
nor the Buyer
shall assign
this Agreement
or any
rights
or obligations hereunder
without the prior
written
consent
of the
other. Notwithstanding
the foregoing,
subject to
Section 2(f),
the Buyer
may assign
its rights
hereunder
to any
person
that purchases
Securities
in a private
transaction
from the Buyer
or to any
of its “affiliates,”
as that
term is defined
under the 1934 Act,
without the consent of
the Company.


 


h.
Third Party
Beneficiaries.
 This Agreement
is intended
for the benefit
of the parties
hereto
and their
respective
permitted
successors
and assigns,
and is
not for the
benefit of,
nor may
any
provision hereof
be enforced
by,
any
other person.


 


i.
 Survival.
 The representations
and warranties
of the Company
and the agreements
and covenants
set forth
in this Agreement
shall survive
the closing
hereunder
notwithstanding any
due diligence
investigation
conducted
by or on
behalf
of the Buyer.
 The Company
agrees
to indemnify
and hold
harmless
the Buyer
and all
their officers,
directors,
employees
and agents
for
loss or damage
arising
as a
result of
or related
to any
breach
or alleged
breach by the
Company
of any
of its representations,
warranties
and covenants
set forth
in this Agreement
or any
of its covenants
and obligations
under this
Agreement,
including
advancement
of expenses
as they are
incurred.


 


j.
 Publicity.
 The Company,
and the
Buyer
shall have
the right
to review a reasonable
period
of time before issuance
of any
press releases,
SEC, OTCBB
or FINRA
filings,
or any other
public statements
with respect
to the transactions
contemplated
hereby;
provided,
however,
that the Company
shall be entitled,
without the prior
approval
of the Buyer,
to make any
press release
or SEC, OTCBB
(or other applicable
trading
market)
or FINRA
filings
with respect
to such
transactions
as is
required
by applicable
law and
regulations
(although the
Buyer
shall be consulted
by the Company
in connection
with any
such press
release
prior to its
release
and shall
be provided with
a copy thereof
and be given
an opportunity
to comment thereon).


 


k.
Further
Assurances.
 Each
party
shall
do and
perform,
or cause
to be done and performed,
all such
further
acts
and things,
and shall
execute
and deliver
all such
other agreements,
certificates,
instruments
and documents,
as the
other party
may reasonably
request
in order
to carry
out the intent
and accomplish
the purposes
of this Agreement
and the consummation
of the transactions
contemplated
hereby.




    	20



    	 



    

 


 


l.
 No Strict
Construction.
 The language
used in
this Agreement
will be deemed
to be the
language
chosen
by the
parties
to express
their mutual
intent, and
no rules
of strict construction
will be applied against
any
party.


 


m.
 Remedies.
 The Company
acknowledges
that a
breach
by it
of its obligations
hereunder
will cause irreparable
harm to
the Buyer
by vitiating
the intent
and purpose of
the transaction
contemplated
hereby.
 Accordingly,
the Company
acknowledges
that the remedy
at law
for a
breach
of its obligations
under this
Agreement
will be inadequate
and agrees,
in  the  event
 of  a 
breach
 or  threatened
 breach
by the  Company
of  the 
provisions  of 
this Agreement, that
the Buyer
shall be entitled,
in addition to all
other available
remedies
at law or in
equity,
and in
addition
to the penalties
assessable
herein,
to an
injunction
or injunctions restraining,
preventing
or curing
any breach
of this Agreement
and to enforce
specifically
the terms and
provisions hereof,
without the necessity
of showing economic loss and
without any bond or
other security
being
required.


 


IN
WITNESS
WHEREOF,
the undersigned
Buyer
and the
Company
have
caused
this


Agreement
to be duly
executed
as of
the date
first above
written.


 


 


 


NYXIO TECHNOLOGIES
CORPORATION


By:



GIORGIO
JOHNSON President/Chief
Executive
Officer


 


ASHER
ENTERPRISES,
INC.


 


By:


Name:
Curt Kramer


Title:
President


1 Linden
Pl., Suite
207


Great
Neck, NY.
11021


 


 


 


AGGREGATE
SUBSCRIPTION
AMOUNT:


 


Aggregate
Principal
Amount of Note:$41,500.00


 


Aggregate
Purchase
Price:$41,500.00


 


 


 


3269
(5)
4-11-13
giorgioj503@gmail.com








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