NEITHER
THE ISSUANCE
AND SALE
OF THE
SECURITIES
REPRESENTED
BY THIS CERTIFICATE
NOR THE
SECURITIES
INTO WHICH THESE
SECURITIES ARE
CONVERTIBLE
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.


 


 


 


Principal
Amount:
$41,500.00  Issue
Date: April
11, 2013


Purchase
Price:
$41,500.00


 


 


 


CONVERTIBLE
PROMISSORY
NOTE


 


FOR
VALUE RECEIVED,
NYXIO TECHNOLOGIES
CORPORATION,
a Nevada corporation
(hereinafter
called
the “Borrower”),
hereby promises
to pay to
the order
of ASHER
ENTERPRISES,
INC., a Delaware
corporation,
or registered
assigns
(the “Holder”)
the sum
of


$41,500.00
together
with any
interest
as set
forth
herein, on
January
16, 2014
(the “Maturity
Date”),
and to
pay interest
on the unpaid
principal
balance
hereof
at the
rate
of eight
percent
(8%)
(the “Interest
Rate”)
per annum
from the
date hereof
(the “Issue
Date”)
until the same becomes
due and
payable,
whether
at maturity
or upon acceleration
or by prepayment
or otherwise. This Note may
not be prepaid
in whole or in part except
as otherwise explicitly
set forth
herein. Any
amount of
principal
or interest on
this Note which
is not paid
when due
shall bear interest
at the rate of
twenty two percent
(22%)
per annum from
the due date thereof
until the same
is paid
(“Default
Interest”).
Interest
shall commence
accruing
on the date
that the
Note is fully paid
and shall be computed
on the basis of a 365-day
year
and the actual
number of days
elapsed.
All payments
due hereunder
(to the extent
not converted
into common stock,
$0.001 par value per
share (the
“Common
Stock”) in
accordance
with the terms
hereof)
shall be made
in lawful money
of the United States
of America. All payments
shall be made
at such address
as the Holder
shall
hereafter
give to
the Borrower
by written
notice made
in accordance
with the provisions
of this Note.
Whenever
any amount
expressed
to be due
by the terms
of this Note
is due on any
day
which is
not a business
day,
the same
shall instead
be due on
the next
succeeding
day which
is a business
day and,
in the case
of any
interest payment
date
which
is not the
date on
which this Note is paid in full,
the extension
of the due date thereof
shall not be taken
into account for
purposes
of determining the
amount of interest
due on such date.
As used in this Note,
the term
“business
day” shall
mean any
day other
than a Saturday,
Sunday or
a day on which commercial
banks in the city
of New York,
New York
are authorized
or required
by law
or executive
order to remain
closed. Each
capitalized
term used herein,
and not otherwise defined,
shall have
the meaning
ascribed
thereto
in that
certain
Securities
Purchase
Agreement
dated
the date
hereof,
pursuant to
which this
Note was
originally
issued
(the “Purchase
Agreement”).




    	1



    	 



    

This
Note is 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 Borrower
and will not impose personal
liability
upon the holder
thereof.


 


The following
terms shall
apply
to this Note:


 


ARTICLE
I. CONVERSION
RIGHTS


 


1.1  Conversion
Right. 
The Holder
shall have
the right
from time
to time,
and
at any
time during
the period
beginning
on the date
which is
one hundred
eighty
(180) days
following the date
of this Note
and ending
on the later
of: (i)
the Maturity
Date and
(ii) the
date of payment
of the Default
Amount (as
defined
in Article
III) pursuant
to Section
1.6(a) or
Article III,
each
in respect
of the
remaining
outstanding
principal
amount of
this Note to
convert
all or any
part
of the outstanding
and unpaid
principal
amount of
this Note into
fully paid
and non-
assessable
shares
of Common Stock,
as such Common
Stock exists
on the Issue Date,
or any shares
of capital
stock or
other securities
of the Borrower
into which
such Common
Stock
shall hereafter
be changed
or reclassified
at the conversion
price 
(the “Conversion
Price”) determined
as provided
herein
(a “Conversion”);
provided,
however,
that in
no event
shall the Holder
be entitled
to convert
any
portion
of this Note
in excess
of that
portion of
this Note upon
conversion
of which the sum of (1)
the number of
shares of Common
Stock beneficially
owned by the
Holder and
its affiliates
(other
than shares
of Common
Stock
which may
be deemed
beneficially
owned through
the ownership
of the unconverted
portion of the Notes
or the unexercised
or unconverted
portion of any
other security
of the Borrower
subject to a
limitation on conversion
or exercise
analogous
to the limitations
contained
herein) and
(2) the
number of
shares of Common
Stock issuable
upon the conversion
of the portion of this Note with respect
to which the
determination
of this
proviso is
being made,
would result
in beneficial
ownership by the Holder
and its affiliates
of more than 9.99%
of the outstanding shares
of Common Stock.
For purposes
of the proviso
to the immediately
preceding
sentence,
beneficial
ownership shall
be determined
 in  accordance
with  Section 
13(d) of the Securities
 Exchange
Act 
of 1934,  as amended
 (the “Exchange
 Act”),
 and 
Regulations
 13D-G 
thereunder,
 except
 as 
otherwise provided
in clause
(1)
of such
proviso, provided,
further,
however,
that the limitations
on conversion
may be waived
by the
Holder upon,
at the
election
of the Holder,
not less
than 61 days’
prior notice
to the Borrower,
and the
provisions
of the conversion
limitation
shall continue to
apply until
such 61st
day (or
such later
date,
as determined
by the Holder,
as may
be specified
in such
notice of waiver).
The number of
shares
of Common Stock
to be issued
upon each
conversion
of this Note
shall be
determined
by dividing the Conversion
Amount (as
defined below)
by the applicable
Conversion
Price
then in
effect on
the date
specified
in the notice
of conversion,
in the form
attached
hereto
as Exhibit
A (the “Notice
of Conversion”),
delivered
to the Borrower
by the
Holder
in accordance
with Section
1.4 below;
provided
that the Notice
of Conversion
is submitted by
facsimile or e-mail
(or by
other means resulting
in, or reasonably
expected
to result
in, notice)
to the Borrower
before
6:00 p.m., New
York, New
York time on such
conversion
date (the
“Conversion
Date”).
The term “Conversion
Amount” means, with respect
to any
conversion
of this Note,
the sum of
(1) the
principal
amount
of this Note
to be converted
in such
conversion
plus (2) at
the Holder’s
option, accrued
and unpaid
interest, if any,
on such
principal
amount
at the interest
rates
provided
in this Note to
the Conversion
Date,
plus (3) at
the Holder’s
option, Default
Interest,
if any,
on the amounts
referred
to in the immediately
preceding
clauses
(1) and/or
(2) plus
(4) at
the Holder’s
option, any
amounts
owed to
the Holder pursuant
to Sections 1.3 and
1.4(g)
hereof.




    	2



    	 



    

1.2 Conversion
Price.


 


(a)
Calculation
 of  Conversion
 Price.
 The  conversion
 price
 (the “Conversion
Price”)
shall equal
the Variable Conversion
Price (as
defined
herein) (subject
to equitable 
adjustments 
for  stock
 splits,  stock
 dividends 
or  rights
 offerings
 by
the  Borrower
relating
to the Borrower’s
securities
or the securities
of any
subsidiary of
the Borrower,
combinations, recapitalization,
reclassifications,
extraordinary
distributions and
similar events).
The "Variable
Conversion
Price"
shall
mean 55%
multiplied by
the Market
Price
(as
defined herein)
(representing
a discount rate
of 45%). “Market
Price”
means the average
of the lowest three
(3) Trading
Prices
(as defined
below) for
the Common
Stock
during
the ten
(10) Trading
Day period
ending on the
latest complete
Trading Day
prior to the Conversion
Date. “Trading
Price”
means,
for any
security
as of
any date,
the closing
bid price
on the Over-the-Counter
Bulletin
Board,
or applicable
trading market
(the “OTCBB”)
as reported
by a reliable
reporting
service
(“Reporting
Service”)
designated
by the Holder
(i.e. Bloomberg)
or, if
the OTCBB
is not the principal
trading
market
for such
security,
the closing
bid price
of such
security
on the principal
securities
exchange
or trading
market
where such
security
is listed
or traded
or,
if no closing
bid price
of such security
is available
in any
of the foregoing
manners,
the average
of the closing bid prices
of any market
makers for
such security
that are
listed in the “pink
sheets” by the National
Quotation Bureau,
Inc.  If the Trading
Price
cannot be calculated
for such security
on such
date in
the manner
provided
above,
the Trading
Price
shall be
the fair
market
value as
mutually
determined
by the Borrower
and the
holders of
a majority
in interest
of the Notes
being converted
for which
the calculation
of the Trading Price
is required
in order
to determine the Conversion
Price
of such Notes.
“Trading
Day”
shall mean
any day
on which
the Common Stock
is tradable
for any
period on
the OTCBB,
or on the
principal
securities
exchange
or other securities
market
on which the Common
Stock is
then being
traded.


 


(b)
Conversion 
Price
 During
Major 
Announcements.
 Notwithstanding anything
contained
in Section
1.2(a) to
the contrary,
in the event
the Borrower
(i) makes
a public announcement
that it
intends
to consolidate
or merge
with any
other corporation
(other
than a merger
in which
the Borrower
is the surviving
or continuing corporation
and its
capital
stock is unchanged)
or sell
or transfer
all or
substantially all
of the assets
of the Borrower
or (ii)
any person,
group
or entity
(including
the Borrower)
publicly
announces
a tender
offer
to purchase


50%
or more
of the
Borrower’s
Common Stock
(or any
other takeover
scheme)
(the date
of the announcement
referred
to in clause
(i) or
(ii) is
hereinafter
referred
to as
the  “Announcement
Date”),
then the Conversion
Price
shall, effective
upon the Announcement
Date and
continuing through
the Adjusted Conversion
Price
Termination
Date (as
defined
below),
be equal
to the lower of
(x) the Conversion
Price which
would have
been
applicable
for a
Conversion
occurring
on the Announcement
Date and
(y) the Conversion
Price
that would
otherwise be in
effect. From
and after
the Adjusted Conversion
Price Termination
Date,
the Conversion
Price shall
be determined
as set
forth
in this Section
1.2(a).  For
purposes
hereof,
 “Adjusted
Conversion Price
Termination
Date”
shall
mean, with
respect
to any
proposed
transaction
or tender
offer
(or takeover
scheme)
for which
a public announcement
as contemplated
by this Section
1.2(b) has
been made,
the date
upon which
the Borrower
(in
the case
of clause
(i) above)
or the
person, group
or entity
(in the
case of
clause
(ii) above)
consummates
or publicly
announces
the termination
or abandonment
of the proposed
transaction
or tender
offer
(or takeover
scheme)
which caused
this Section
1.2(b) to become
operative.




    	3



    	 



    

1.3  Authorized
 Shares.
 The 
Borrower
 covenants
 that 
during 
the  period
 the conversion
right
exists,
the Borrower
will reserve
from its
authorized
and unissued
Common Stock
a sufficient
number of shares,
free
from preemptive
rights,
to provide for
the issuance of Common
Stock upon the
full conversion of
this Note issued
pursuant to the
Purchase
Agreement.
The Borrower
is required
at all
times to
have
authorized
and reserved
five times
the number of
shares that
is actually
issuable upon
full conversion
of the Note (based
on the Conversion
Price
of the Notes in effect
from time to time)(the
“Reserved
Amount”). The Reserved
Amount shall be increased
from time
to time in accordance
with the Borrower’s
obligations pursuant
to Section


4(g)
of the
Purchase
Agreement.
 The
Borrower
represents
that
upon issuance,
such shares
will be duly
and validly
issued, fully
paid and
non-assessable.
 In
addition, if
the Borrower
shall issue any
securities
or make
any
change
to its capital
structure
which
would change
the number
of shares 
of  Common 
Stock  into 
which  the 
Notes  shall
 be  convertible
 at 
the then  current
Conversion
Price,
the Borrower
shall at
the same time make proper
provision
so that
thereafter there
shall be a sufficient
number of
shares of
Common Stock
authorized
and reserved,
free from
preemptive rights,
for conversion
of the outstanding Notes. The
Borrower
(i) acknowledges
that it has
irrevocably
instructed
its transfer
agent
to issue
certificates
for the
Common Stock
issuable upon conversion
of this Note, and
(ii) agrees
that its issuance
of this Note shall constitute
full authority
to its officers
and agents
who are charged
with the duty of executing
stock certificates
to execute
and issue the necessary
certificates
for shares
of Common Stock
in accordance
with the terms and
conditions of this Note.


 


If,
at any
time the Borrower
does not
maintain
the Reserved
Amount it will
be considered
an Event of
Default under
Section 3.2 of
the Note.


 


1.4 Method
of Conversion.


 


(a)
Mechanics
of Conversion.
 Subject
to Section
1.1, this
Note may
be converted
by the
Holder in
whole or in
part at
any time
from time
to time after
the Issue
Date,
by (A)
submitting to the Borrower
a Notice of Conversion
(by
facsimile,
e-mail
or other reasonable
means of communication
dispatched
on the Conversion
Date prior to
6:00 p.m., New
York, New
York time)
and (B)
subject
to Section
1.4(b),
surrendering
this Note at the principal
office of the Borrower.


 


(b)
Surrender
of Note
Upon Conversion.
 Notwithstanding anything
to the contrary
set forth
herein, upon
conversion
of this Note
in accordance
with the terms
hereof,
the Holder shall
not be required
to physically
surrender
this Note to
the Borrower
unless the
entire unpaid
principal
amount of
this Note is
so converted.
The Holder
and
the Borrower
shall maintain
records
showing the
principal
amount so converted
and the dates
of such
conversions
or shall use
such other
method,
reasonably
satisfactory
to the Holder
and the
Borrower,
so as not
to require
physical
surrender
of this Note
upon each
such conversion.
 In the event
of any
dispute or discrepancy,
such records
of the Borrower
shall, prima
facie,
be controlling
and determinative
in the absence
of manifest
error. Notwithstanding
the foregoing,
if any
portion
of this Note
is converted
as aforesaid,
the Holder
may not transfer
this Note unless
the Holder
first
physically
surrenders
this Note to the
Borrower,
whereupon
the Borrower
will forthwith
issue and
deliver upon
the order
of the Holder
a new Note of
like tenor, registered
as the Holder
(upon payment
by the Holder
of any
applicable
transfer
taxes)
may request,
representing
in the aggregate
the remaining
unpaid principal
amount of
this Note. The
Holder and
any assignee,
by acceptance
of this Note, acknowledge
and agree
that, by reason
of the provisions
of this paragraph,
following




    	4



    	 



    

conversion
of a
portion of
this Note,
the unpaid
and unconverted
principal
amount of
this Note represented
by this Note
may be
less than the
amount stated
on the face
hereof.


 


(c)
Payment
of Taxes.
 The Borrower
shall not
be required
to pay
any
tax which
may be payable
in respect
of any
transfer
involved in
the issue and
delivery
of shares
of Common Stock
or other securities
or property
on conversion
of this Note in a name
other than that
of the Holder (or
in street
name),
and the
Borrower
shall not
be required
to issue or
deliver any
such shares
or other
securities
or property
unless
and until
the person
or persons
(other
than the Holder
or the custodian
in whose street
name such
shares are
to be held
for the Holder’s account)
requesting
the issuance
thereof
shall have
paid to the Borrower
the amount
of any
such tax
or shall have
established to the
satisfaction of
the Borrower
that such
tax has
been paid.


 


(d)
Delivery
of Common
Stock
Upon Conversion.
 Upon receipt
by the Borrower
from the
Holder of
a facsimile
transmission
or e-mail
(or other
reasonable
means
of communication)
of a Notice
of Conversion
meeting the
requirements
for conversion
as provided
in this Section
1.4, the Borrower
shall issue and
deliver
or cause to
be issued
and delivered
to or upon the
order
of the Holder
certificates
for
the Common
Stock
issuable upon such
conversion within
three (3)
business
days
after
such receipt
(the “Deadline”)
(and, solely
in the case
of conversion
of the entire
unpaid principal
amount hereof,
surrender
of this Note)
in accordance
with the terms hereof
and the Purchase
Agreement.


 


(e)
Obligation
of Borrower
to Deliver
Common Stock.
 Upon receipt
by the Borrower
of a Notice
of Conversion,
the Holder shall
be deemed
to be the holder
of record
of the Common Stock
issuable upon
such conversion,
the outstanding
principal
amount and
the amount
of accrued
and unpaid
interest on
this Note shall
be reduced
to reflect
such conversion,
and, unless
the Borrower
defaults on
its obligations
under this Article
I, all
rights
with respect
to the portion
of this Note being
so converted
shall
forthwith
terminate except
the right
to receive
the Common
Stock or other
securities,
cash or
other assets,
as herein
provided,
on such conversion.
If the Holder
shall have
given
a Notice of Conversion
as provided
herein,
the Borrower’s
obligation to
issue and deliver
the certificates
for Common
Stock shall
be absolute and
unconditional,
irrespective
of the absence
of any
action
by the Holder
to enforce
the same,
any waiver
or consent with respect
to any provision
thereof, the recovery
of any judgment
against
any person
or any
action
to enforce
the same,
any
failure
or delay
in the enforcement
of any other
obligation
of the Borrower
to the holder
of record,
or any
setoff,
counterclaim,
recoupment,
limitation or
termination,
or any
breach
or alleged
breach
by the Holder
of any obligation
to the Borrower,
and irrespective
of any other
circumstance
which might
otherwise limit such
obligation of the
Borrower
to the Holder
in connection
with such conversion.
The Conversion
Date specified
in the Notice
of Conversion
shall be
the Conversion
Date so
long as the Notice of Conversion
is received by
the Borrower
before
6:00 p.m., New York, New
York time, on such
date.


 


(f)
 Delivery
 of 
Common  Stock
 by 
Electronic
 Transfer.
 In 
lieu  of delivering
physical
certificates
representing
the Common
Stock
issuable upon
conversion, provided
 the  Borrower
is  participating
 in  the 
Depository Trust
 Company
 (“DTC”)
Fast Automated
Securities
Transfer
(“FAST”)
program,
upon request
of the Holder and its compliance
with the provisions
contained
in Section
1.1 and
in this Section
1.4, the Borrower
shall use its best
efforts to cause
its transfer agent
to electronically
transmit
the Common
Stock issuable
upon conversion
to the Holder
by crediting
the account
of Holder’s
Prime
Broker
with DTC through
its Deposit Withdrawal
Agent Commission (“DWAC”)
system.




    	5



    	 



    

(g)
Failure
to Deliver
Common
Stock
Prior
to Deadline.
 Without
in any
way limiting the
Holder’s
right
to pursue
other remedies,
including
actual
damages
and/or equitable
relief,
the parties
agree
that if
delivery
of the Common Stock
issuable upon
conversion of
this Note is
not delivered
by the Deadline
(other
than a
failure
due to
the circumstances
described
in Section
1.3 above,
which
failure
shall
be governed
by such
Section)
the Borrower
shall pay
to the Holder
$2,000 per
day in
cash,
for each
day beyond
the Deadline
that the Borrower
fails
to deliver
such Common
Stock. 
Such
cash amount
shall be paid
to Holder
by the fifth
day of
the month following
the month in
which it
has accrued
or, at
the option
of the Holder
(by
written
notice to
the Borrower
by the
first
day of
the month
following the
month in which
it has accrued),
shall
be added
to the principal
amount
of this Note,
in which
event
interest
shall accrue
thereon in
accordance
with the terms
of this Note and
such additional
principal
amount shall 
be  convertible
 into  Common
Stock 
in accordance
 with  the 
terms  of 
this  Note. 
The Borrower
agrees
that the right
to convert
is a valuable
right to the Holder.
 The damages
resulting from
a failure,
attempt
to frustrate,
interference
with such
conversion
right
are difficult
if not impossible to qualify.
 Accordingly
the parties
acknowledge
 that the
liquidated damages
provision contained
in this Section 1.4(g)
are justified.


 


1.5  Concerning
 the  Shares.
 The  shares
 of  Common
 Stock
 issuable 
upon conversion
of this Note
may not
be sold or
transferred
unless  (i)
such shares
are
sold pursuant
to an effective
registration
statement
under the Act
or (ii) the Borrower
or its transfer
agent
shall have been
furnished
with an
opinion of  counsel
(which
opinion shall
be in form,
substance
and scope
customary
for opinions
of counsel
in comparable
transactions)
to the effect
that the
shares to be
sold or transferred
may be sold
or transferred
pursuant
to an exemption
from such
registration
or (iii)
such shares
are sold or
transferred
pursuant to
Rule 144
under the Act
(or a successor rule)
(“Rule 144”)
or (iv) such
shares
are transferred
to an
“affiliate”
(as defined
in Rule 144) of the Borrower
who agrees
to sell or otherwise
transfer
the shares
only in accordance
with this Section
1.5 and who
is an
Accredited
Investor
(as defined
in the Purchase
Agreement).
Except
as otherwise
provided
in the Purchase
Agreement
(and subject
to the removal
provisions set
forth
below),
until such
time as the
shares
of Common
Stock issuable
upon conversion
of this Note
have been
registered
under the Act
or otherwise
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, each
certificate
for shares
of Common
Stock issuable
upon conversion
of this Note that
has not been so
included in
an effective
registration
statement
or that has not been
sold pursuant to an
effective
registration
statement
or an exemption
that permits
removal
of the legend,
shall bear
a legend
substantially
in the following form,
as appropriate:


 


“NEITHER
THE ISSUANCE
AND SALE
OF  THE
SECURITIES
REPRESENTED
BY THIS
CERTIFICATE
NOR
THE SECURITIES
INTO WHICH
 THESE
SECURITIES
 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




    	6



    	 



    

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 Borrower
shall
issue to the Holder
a new
certificate
therefore
free
of any
transfer
legend
if (i)
the Borrower
or its transfer
agent
shall have
received
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 Common
Stock may
be made
without registration
under the
Act, which
opinion shall be
accepted
by the Company
so that
the sale or
transfer
is effected
or (ii)
in the case
of the Common
Stock issuable
upon conversion
of this Note,
such
security
is registered
for sale
by the
Holder under
an effective
registration
statement
filed
under the
Act
or otherwise
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.  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.


 


1.6 Effect
of Certain
Events.


 


(a)
Effect of
Merger,
Consolidation,
Etc.  At
the option
of the Holder,
the sale,
conveyance
or disposition of
all or
substantially
all of
the assets
of the Borrower,
the effectuation
by the Borrower
of a transaction
or series
of related
transactions
in which
more than


50%
of the
voting power
of the
Borrower
is disposed
of, or
the consolidation,
merger
or other business
combination
of the Borrower
with or into
any
other Person
(as
defined
below)
or Persons
when the
Borrower
is not the
survivor shall
either: 
(i) be deemed
to be an
Event
of Default (as
defined
in Article
III) pursuant
to which
the Borrower
shall be required
to pay to
the Holder upon the
consummation
of and as
a condition
to such
transaction
an amount
equal
to the Default Amount (as
defined
in Article III)
or (ii) be treated
pursuant to Section
1.6(b) hereof.
“Person”
shall mean
any individual,
corporation,
limited liability
company,
partnership,
association,
trust or other
entity or
organization.


 


(b)
Adjustment Due
to Merger,
Consolidation,
Etc.  If,
at any
time when this
Note is issued
and outstanding
and prior
to conversion
of all
of the Notes,
there shall
be any
merger, 
consolidation, 
exchange
of shares,  recapitalization,
 reorganization,
 or other similar
event,
as a result
of which
shares
of Common Stock
of the Borrower
shall be changed
into the same or
a different
number of shares
of another
class
or classes
of stock or securities
of the Borrower
or another
entity,
or in case
of any
sale or conveyance
of all
or substantially
all of
the assets
of the Borrower
other than
in connection
with a plan
of complete
liquidation of the Borrower,
then the Holder
of this Note shall
thereafter
have the right
to receive
upon conversion
of this Note,
upon the basis
and upon
the terms
and conditions
specified
herein and
in lieu
of the shares of
Common Stock
immediately
theretofore
issuable upon conversion,
such stock, securities
or assets
which the Holder
would have
been entitled
to receive
in such
transaction
had this Note been converted
in full immediately
prior to such transaction
(without regard
to any limitations
on conversion
set forth
herein),
and in
any such
case
appropriate
provisions shall
be made with respect
to the rights
and interests
of the Holder of
this Note to
the end that
the provisions hereof
(including,
without limitation, provisions for
adjustment of the Conversion
Price
and of the
number of shares
issuable upon conversion
of the Note) shall
thereafter
be applicable,
as nearly
as may be
practicable
in relation to any
securities
or assets thereafter




    	7



    	 



    

deliverable
upon the
conversion
hereof.
 The
Borrower
shall
not affect
any transaction
described
in this Section
1.6(b) unless
(a) it
first
gives,
to the
extent
practicable,
thirty (30)
days
prior written
notice (but
in any
event
at least
fifteen
(15)
days
prior
written
notice) of
the record
date of
the special
meeting
of shareholders
to approve,
or if there
is no such
record
date,
the consummation 
of,  such
 merger,
 consolidation,
 exchange
of  shares,
 recapitalization,
reorganization
or other
similar
event
or sale
of assets
(during which
time the Holder
shall be entitled
to convert
this Note)
and (b)
the resulting successor
or acquiring
entity (if
not the Borrower)
assumes
by written
instrument the
obligations
of this Section
1.6(b). The
above provisions
shall similarly apply
to successive
consolidations,
mergers,
sales, transfers
or share exchanges.


 


(c)
Adjustment Due
to Distribution.
 If
the Borrower
shall declare
or make any
distribution of
its assets
(or rights
to acquire
its assets)
to holders
of Common
Stock
as a dividend,
stock repurchase,
by way
of return
of capital or otherwise
(including
any dividend
or distribution to the Borrower’s
shareholders
in cash or shares
(or rights
to acquire shares)
of capital stock
of a subsidiary
(i.e., a
spin-off))
(a “Distribution”),
then the
Holder of this Note shall
be entitled,
upon any
conversion
of this Note
after
the date
of record
for
determining
shareholders
entitled to such
Distribution, to receive
the amount of
such assets
which would have
been payable
to the Holder
with respect
to the shares
of Common
Stock issuable
upon such conversion
had such
Holder been
the holder of such
shares of Common
Stock on
the record
date for
the determination
of shareholders
entitled to such
Distribution.


 


(d)
Adjustment Due
to Dilutive Issuance.
 If,
at any
time when
any
Notes are issued
and outstanding,
the Borrower
issues or
sells, or
in accordance
with this Section
1.6(d) hereof
is deemed
to have
issued or
sold, any
shares
of Common
Stock for
no consideration
or for
a consideration
per share
(before
deduction
of reasonable
expenses
or commissions or underwriting
discounts or
allowances
in connection
therewith) less
than
the Conversion
Price
in effect
on the date
of such
issuance
(or deemed
issuance)
of such
shares
of Common
Stock
(a “Dilutive
Issuance”),
then immediately
upon the Dilutive Issuance,
the Conversion
Price
will be reduced
to the amount
of the
consideration
per share
received
by the
Borrower
in such
Dilutive Issuance.


 


The Borrower
shall be deemed
to have issued
or sold
shares of Common
Stock
if the Borrower
in any
manner
issues or
grants
any warrants,
rights
or options (not
including employee
stock
option plans),
whether
or not immediately
exercisable,
to subscribe
for or to purchase
Common Stock
or other securities
convertible into
or exchangeable
for Common Stock
(“Convertible
Securities”)
(such
warrants,
rights
and options
to purchase
Common Stock
or Convertible Securities
are hereinafter
referred
to as
“Options”) and
the price per
share for
which Common
Stock
is issuable upon
the exercise
of such
Options is less
than the
Conversion Price
then in
effect,
then the
Conversion
Price
shall be
equal
to such
price
per share.
For purposes
of the preceding
sentence,
the “price
per share
for which
Common Stock
is issuable upon the exercise
of such
Options” is determined
by dividing (i) the total
amount, if any,
received
or receivable
by the Borrower
as consideration
for the
issuance
or granting of
all such
Options, plus the minimum
aggregate
amount of
additional
consideration,
if any,
payable
to the Borrower
upon the exercise
of all
such Options,
plus, in the case
of Convertible
Securities
issuable upon the exercise
of such Options,
the minimum aggregate
amount of additional
consideration
payable
upon the conversion
or exchange
thereof
at the time
such Convertible
Securities
first
become
convertible or
exchangeable,
by (ii) the
maximum
total
number of
shares of Common
Stock issuable upon the exercise
of all such Options (assuming
full conversion
of




    	8



    	 



    

Convertible
Securities,
if applicable).
 No further
adjustment
to the Conversion
Price
will be made
upon the actual
issuance
of such
Common Stock
upon the exercise
of such Options or
upon the conversion or
exchange
of Convertible
Securities
issuable upon exercise
of such Options.


 


Additionally,
the Borrower
shall be
deemed
to have
issued or
sold shares
of Common
Stock
if the
Borrower
in any
manner
issues or
sells any
Convertible
Securities,
whether 
or  not  immediately
convertible
 (other
 than 
where 
the  same
 are 
issuable 
upon  the exercise
of Options),
and
the price per
share
for which
Common Stock
is issuable upon
such conversion
or exchange
is less
than the Conversion
Price
then in
effect,
then the Conversion
Price
shall be equal
to such price
per share.
 For
the purposes of the preceding
sentence,
the “price
per
share for
which Common
Stock is
issuable upon
such conversion
or exchange”
is determined
by dividing
(i) the
total amount,
if any,
received
or receivable
by the Borrower
as consideration
for the issuance
or sale of all
such Convertible
Securities,
plus the minimum aggregate
amount  of additional
 consideration,
 if any,
 payable
to  the Borrower
upon  the conversion
or exchange
thereof
at the time such
Convertible Securities
first become
convertible
or exchangeable,
by (ii) the maximum
total number
of shares of Common
Stock issuable
upon the conversion
or exchange
of all
such Convertible
Securities.
No further
adjustment
to the Conversion
Price will
be made upon the actual
issuance
of such
Common Stock
upon conversion
or exchange
of such
Convertible
Securities.


 


(e)
Purchase
Rights. 
If,
at any
time when
any
Notes
are issued
and outstanding,
the Borrower
issues any
convertible
securities
or rights
to purchase
stock, warrants,
securities
or other
property
(the “Purchase
Rights”)
pro rata
to the record
holders of
any class
of Common  Stock,
 then 
the Holder of this 
Note will  be entitled
 to  acquire,
 upon  the terms
applicable to
such Purchase
Rights,
the aggregate
Purchase
Rights
which such
Holder could
have acquired
if such Holder
had held
the number of shares
of Common Stock
acquirable upon complete
conversion of this Note (without
regard
to any limitations
on conversion contained
herein) immediately
before
the date
on which
a record
is taken
for
the grant,
issuance
or sale
of such Purchase
Rights
or, if no
such record
is taken,
the date as
of which the record
holders of Common
Stock are
to be determined
for the
grant,
issue or sale
of such Purchase
Rights.


 


(f)
Notice of Adjustments.
 Upon the occurrence
of each
adjustment
or readjustment
of the Conversion
Price
as a
result of
the events
described
in this
Section
1.6, the Borrower,
at its
expense,
shall promptly
compute
such adjustment
or readjustment
and prepare
and furnish
to the Holder
a certificate
setting
forth
such adjustment
or readjustment
and showing
in detail
the facts
upon which
such adjustment
or readjustment
is based.
 The Borrower
shall, upon the
written
request
at any
time of the
Holder,
furnish
to such
Holder
a like certificate
setting forth
(i) such
adjustment
or readjustment, (ii)
the Conversion Price
at the time in effect
and (iii)
the number
of shares
of Common Stock
and the
amount, if
any,
of other
securities
or property
which at
the time would be
received
upon conversion
of the Note.


 


1.7 Trading
Market
Limitations. 
Unless permitted
by the
applicable
rules
and regulations
of the principal
securities
market
on which the
Common Stock
is then
listed or
traded, in no event
shall the Borrower
issue upon conversion
of or otherwise
pursuant to this Note and
the other Notes
issued pursuant
to the Purchase
Agreement
more than
the maximum number
of shares
of Common
Stock
that the
Borrower
can issue
pursuant
to any
rule of
the principal
United States
securities
market
on which
the Common Stock
is then
traded
(the “Maximum
Share
Amount”),
which shall
be 9.99%
of the total
shares outstanding
on the Closing Date
(as defined
in the Purchase
Agreement),
subject to equitable
adjustment from
time to time




    	9



    	 



    

for
stock splits,
stock
dividends,
combinations,
capital
reorganizations
and similar
events
relating to
the Common
Stock
occurring
after
the date
hereof.
 Once
the Maximum
Share
Amount has been
issued, if
the Borrower
fails
to eliminate
any
prohibitions under
applicable
law or
the rules
or regulations
of any
stock
exchange,
interdealer
quotation system
or other self-regulatory
organization
with jurisdiction
over the
Borrower
or any
of its
securities
on the Borrower’s
ability to issue shares
of Common Stock
in excess
of the Maximum Share
Amount, in lieu of any
further
right
to convert this Note,
this will be considered
an Event of Default
under Section
3.3 of the Note.


 


1.8 Status
as Shareholder.
 Upon submission
of a Notice
of Conversion
by a Holder,
(i) the
shares
covered
thereby
(other
than
the shares,
if any,
which cannot
be issued because
their issuance
would exceed
such Holder’s
allocated
portion of the
Reserved
Amount or Maximum
Share
Amount) shall
be deemed
converted
into shares
of Common
Stock
and (ii)
the Holder’s rights
as a
Holder of
such converted
portion of
this Note shall cease
and terminate,
excepting
only the right
to receive
certificates
for such
shares
of Common Stock
and to
any remedies
provided herein
or otherwise available
at law or in equity
to such Holder because
of a failure by
the Borrower
to comply
with the terms of this Note. Notwithstanding
the foregoing,
if a Holder has
not received
certificates
for all
shares
of Common Stock
prior to the tenth
(10th) business
day after
the expiration
of the Deadline
with respect
to a conversion
of any
portion of this Note for
any reason,
then (unless
the Holder otherwise
elects
to retain
its status as a holder
of Common
Stock
by so notifying
the Borrower)
the Holder
shall
regain
the rights
of a Holder
of this Note with respect to such
unconverted
portions of this Note and
the Borrower
shall, as soon as
practicable,
return
such unconverted
Note to
the Holder or,
if the Note has
not been
surrendered,
adjust its
records
to reflect
that
such portion
of this Note has
not been
converted.
In all cases,
the Holder shall retain
all of its rights
and remedies
(including,
without limitation, (i) the right
to receive
Conversion
Default
Payments
pursuant
to Section
1.3 to the extent
required thereby
for such
Conversion
Default and
any subsequent
Conversion
Default
and (ii)
the right
to have the Conversion
Price with
respect
to subsequent
conversions
determined
in accordance
with Section 1.3)
for the Borrower’s
failure
to convert
this Note.


 


1.9 Prepayment.
 Notwithstanding
anything
to the contrary
contained
in this Note,
at any
time during
the period
beginning
on the Issue
Date and
ending
on the date
which is
thirty (30)
days
following the issue
date,
the Borrower
shall have
the right,
exercisable
on not less
than three
(3) Trading
Days
prior written
notice to
the Holder
of the Note
to prepay
the outstanding Note
(principal
and accrued
interest),
in full,
in accordance
with this Section
1.9.  Any notice
of prepayment
hereunder
(an “Optional
Prepayment
Notice”) shall
be delivered
to the Holder of the Note
at its registered
addresses
and shall state:
(1) that
the Borrower
is exercising
its right to prepay
the Note,
and (2)
the date
of prepayment
which shall
be not more
than three
(3) Trading
Days from
the date of the Optional
Prepayment
Notice. On the date fixed
for prepayment
(the “Optional
Prepayment
Date”),
the Borrower
shall
make payment
of the Optional
Prepayment
Amount (as
defined
below)
to or upon
the order
of the Holder
as specified
by the
Holder in writing
to the Borrower
at least one (1)
business day
prior
to the Optional Prepayment
Date. If
the Borrower
exercises
its right
to prepay
the Note,
the Borrower
shall
make payment
to the Holder of an
amount in
cash (the
“Optional
Prepayment
Amount”) equal
to 115%,
multiplied by
the sum of: (w) the then
outstanding principal
amount of this Note plus (x)
accrued and unpaid
interest on
the unpaid
principal
amount of
this Note to the
Optional Prepayment
Date plus
(y) Default
Interest,
if any,
on the amounts
referred
to in clauses
(w) and
(x)
plus (z)
any amounts
owed to
the Holder pursuant
to Sections
1.3 and
1.4(g) hereof.
If the Borrower
delivers
an Optional
Prepayment
Notice
and fails
to pay
the Optional
Prepayment
Amount due
to the Holder




    	10



    	 



    

of the
Note within two
(2) business
days
following
the Optional
Prepayment
Date,
the Borrower
shall forever
forfeit
its right to prepay
the Note pursuant
to this Section 1.9.


 


Notwithstanding
anything
to the contrary
contained
in this Note,
at any
time during the
period beginning
on the date
which is
thirty-one
(31) days
following
the issue date
and ending
on the date
which is
sixty
(60) days
following the issue
date,
the Borrower
shall have
the right,
exercisable
on not less
than three
(3) Trading Days
prior written
notice to the
Holder of the Note
to prepay
the outstanding
Note (principal
and accrued
interest), in
full, in
accordance
with this Section
1.9. Any Optional Prepayment
Notice shall be delivered
to the Holder of the Note at its registered
addresses
and shall state:
(1) that the Borrower
is exercising its right
to prepay the
Note, and (2)
the date of
prepayment
which shall
be not more than
three (3) Trading
Days
from the
date of
the Optional
Prepayment
Notice. On the
Optional Prepayment
Date,
the Borrower
shall make payment
of the Second
Optional Prepayment
Amount (as defined
below) to or
upon the order
of the Holder
as specified
by the Holder
in writing to
the Borrower
at least
one (1) business day
prior to the Optional Prepayment
Date. 
If the Borrower
exercises
its right
to prepay the
Note, the
Borrower
shall make
payment
to the Holder
of an amount
in cash (the
“Second
Optional Prepayment
Amount”) equal
to 120%, multiplied by the sum of:
(w) the then outstanding
principal
amount of this Note plus (x)
accrued and unpaid
interest on the unpaid principal
amount of this
Note to the Optional Prepayment
Date plus (y)
Default Interest,
if any,
on the amounts referred to in
clauses
(w) and (x)
plus (z)
any amounts owed
to the Holder pursuant
to Sections
1.3 and
1.4(g) hereof. If the
Borrower
delivers
an Optional
Prepayment
Notice and
fails to
pay the
Second Optional
Prepayment
Amount due to the
Holder of the
Note within two (2) business days
 following the 
Optional  Prepayment
 Date,
 the  Borrower
shall forever
forfeit its right
to prepay
the Note pursuant
to this Section 1.9.


 


Notwithstanding
anything
to the contrary
contained
in this Note,
at any
time during the
period
beginning on
the date
which is
sixty-one
(61) days
following
the issue date
and ending on the date
which is ninety
(90) days
following the issue date,
the Borrower
shall have the
right,
exercisable
on not less
than three
(3) Trading
Days
prior written
notice to the Holder
of the Note to prepay
the outstanding Note (principal
and accrued
interest), in full,
in accordance
with this Section 1.9. Any
Optional Prepayment
Notice shall be delivered
to the Holder of the Note at its registered
addresses
and shall state:
(1) that the Borrower
is exercising
its right to
prepay the
Note,
and (2)
the date
of prepayment
which shall
be not more
than three
(3) Trading
Days
from the
date of
the Optional
Prepayment
Notice. 
On the Optional
Prepayment
Date,
the Borrower
shall make
payment
of the Third
Optional Prepayment
Amount (as
defined
below) to or
upon the order
of the
Holder as
specified
by the
Holder in writing
to the Borrower
at least one (1) business
day prior
to the Optional Prepayment
Date. If the
Borrower
exercises
its right to prepay
the Note, the
Borrower
shall make
payment
to the Holder
of an amount
in cash (the
“Third Optional
Prepayment
Amount”) equal
to 125%, multiplied by the sum of:
(w) the then
outstanding principal
amount of
this Note plus (x)
accrued and
unpaid interest
on the unpaid
principal
amount of this Note to the Optional
Prepayment
Date plus (y)
Default
Interest, if any,
on the amounts referred to in
clauses
(w) and (x)
plus (z)
any amounts
owed to the Holder pursuant
to Sections
1.3 and
1.4(g) hereof.
If the Borrower
delivers
an Optional
Prepayment
Notice and fails
to pay the Third
Optional Prepayment
Amount due to the Holder of the Note within  two
 (2) 
business days
 following
the  Optional
 Prepayment
 Date,
 the  Borrower
 shall forever
forfeit
its right to prepay
the Note
pursuant
to this Section 1.9.




    	11



    	 



    

Notwithstanding
any
to the contrary
stated
elsewhere
herein,
at any
time during the
period beginning
on the date
that is
ninety-one
(91) day from
the issue date
and ending
one hundred  twenty
(120) days following 
the  issue 
date, 
the Borrower
shall  have
 the  right,
exercisable
on not less
than
three (3)
Trading Days
prior written
notice to the
Holder of
the Note to prepay
the outstanding
Note (principal
and accrued
interest),
in full, in
accordance
with this Section
1.9. Any Optional
Prepayment
Notice shall
be delivered
to the Holder
of the Note at its registered
addresses
and shall state:
(1) that
the Borrower
is exercising
its right to prepay
the Note,
and (2)
the date of
prepayment
which shall
be not more than
three (3) Trading
Days from
the date of the
Optional Prepayment
Notice. On the Optional
Prepayment
Date,
the Borrower
shall make payment
of the Fourth
Optional Prepayment
Amount (as
defined
below) to or upon the
order of the Holder
as specified
by the
Holder
in writing to
the Borrower
at least
one (1) business
day prior
to the Optional
Prepayment
Date.
If the Borrower
exercises
its right
to prepay the Note,
the Borrower
shall make payment
to the Holder of
an amount
in cash (the
“Fourth
Optional Prepayment
Amount”)
equal
to 130%,
multiplied by
the sum of:
(w) the
then outstanding principal
amount of this Note plus (x)
accrued and unpaid
interest on the unpaid principal
amount of this Note to the Optional Prepayment
Date plus (y) Default
Interest, if any,
on the amounts referred to in
clauses
(w) and (x)
plus (z) any
amounts owed to the Holder
pursuant
to Sections 1.3 and
1.4(g) hereof.
If the Borrower
delivers
an Optional
Prepayment
Notice and
fails
to pay the
Fourth
Optional Prepayment
Amount due to the
Holder of the
Note within  two  (2)
 business days 
following the Optional
 Prepayment
 Date,
 the Borrower
 shall forever
forfeit its right
to prepay
the Note
pursuant
to this Section 1.9.


 


Notwithstanding
any
to the contrary
stated
elsewhere
herein,
at any
time during the
period beginning
on the date
that is one hundred
twenty-one
(121) day from
the issue date
and ending
one hundred
fifty
(150)
days following
the issue date,
the Borrower
shall have
the right,
exercisable
on not less than
three (3)
Trading
Days prior
written
notice to
the Holder
of the Note to prepay
the outstanding Note (principal
and accrued
interest), in full,
in accordance
with this Section
1.9.  Any Optional
Prepayment
Notice shall
be delivered
to the Holder
of the Note
at its registered
addresses
and shall
state:
(1) that
the Borrower
is exercising
its right
to prepay
the Note, and
(2) the
date of
prepayment
which shall
be not more
than three
(3) Trading
Days from
the date of the
Optional Prepayment
Notice. On
the Optional Prepayment
Date,
the Borrower
shall make
payment
of the Fifth
Optional Prepayment
Amount (as
defined
below) to or upon
the order
of the
Holder as
specified
by the
Holder in
writing to the
Borrower
at least one
(1) business
day prior to the Optional
Prepayment
Date. If the Borrower
exercises
its right to prepay
the Note, the
Borrower
shall make payment
to the Holder
of an amount
in cash (the
“Fifth Optional
Prepayment
Amount”) equal
to 135%,
multiplied by the
sum of:
(w) the
then outstanding
principal
amount of this Note plus (x)
accrued and
unpaid interest
on the unpaid principal
amount of this Note to the
Optional Prepayment
Date plus (y) Default
Interest, if any,
on the amounts referred
to in clauses
(w) and
(x)
plus (z) any
amounts owed
to the Holder
pursuant to Sections
1.3 and 1.4(g)
hereof.
 If the
Borrower
delivers an
Optional Prepayment
Notice and fails
to pay the Fifth
Optional Prepayment
Amount due to the Holder of
the Note within two
(2) business days
following the Optional Prepayment
Date, the Borrower
shall forever
forfeit
its right to prepay
the Note pursuant
to this Section 1.9.


 


Notwithstanding
any
to the contrary
stated
elsewhere
herein,
at any
time during the
period beginning
on the
date that
is one
hundred
fifty-one
(151) day
from the issue
date and ending
one hundred
eighty
(180) days
following the
issue date,
the Borrower
shall have
the right,
exercisable
on not less
than
three (3)
Trading Days
prior written
notice to
the Holder
of the Note to
prepay the
outstanding Note
(principal
and accrued
interest),
in full,
in accordance
with this




    	12



    	 



    

Section
1.9.  Any Optional
Prepayment
Notice shall
be delivered
to the Holder
of the Note
at its registered
addresses
and shall
state:
(1) that
the Borrower
is exercising
its right
to prepay
the Note,
and (2)
the date
of prepayment
which shall
be not more
than three
(3) Trading
Days
from the date of the Optional
Prepayment
Notice. On the Optional
Prepayment
Date, the
Borrower
shall make
payment
of the
Sixth Optional Prepayment
Amount (as
defined
below) to
or upon the order
of the
Holder as
specified
by the
Holder in
writing to the
Borrower
at least one
(1) business
day prior
to the Optional
Prepayment
Date.
If the Borrower
exercises
its right
to prepay
the Note, the
Borrower
shall make
payment
to the Holder
of an
amount in
cash (the
“Sixth
Optional Prepayment
Amount”) equal
to 140%,
multiplied by the
sum of:
(w)
the then
outstanding principal
amount of this
Note plus (x)
accrued and
unpaid interest
on the unpaid principal
amount of this Note to
the Optional
Prepayment
Date plus (y)
Default
Interest, if any,
on the amounts
referred
to in clauses
(w) and
(x)
plus (z)
any amounts
owed to
the Holder
pursuant
to Sections 1.3 and
1.4(g)
hereof.
 If the
Borrower
delivers an
Optional Prepayment
Notice and fails
to pay the
Sixth
Optional Prepayment
Amount due to
the Holder
of the
Note within two
(2) business days
following the Optional Prepayment
Date, the Borrower
shall forever
forfeit
its right to prepay
the Note pursuant
to this Section 1.9.


 


After
the expiration
of one
hundred eighty
(180)
following the
date of
the Note, the
Borrower
shall have
no right of
prepayment.


 


 


 


ARTICLE
II. 
CERTAIN
COVENANTS


 


2.1 Distributions
on Capital
Stock. 
So long
as the Borrower
shall
have  any
obligation
under this
Note,
the Borrower
shall not
without the Holder’s
written
consent
(a) pay,
declare
or set
apart
for such
payment,
any
dividend
or other
distribution
(whether
in cash, property
or other
securities)
on shares of
capital
stock other
than dividends
on shares of
Common Stock
solely in
the form of
additional
shares
of Common Stock
or (b)
directly
or indirectly
or through
any subsidiary
make any
other payment
or distribution
in respect
of its capital
stock except
for distributions
pursuant to any
shareholders’
rights plan
which is approved
by a
majority
of the Borrower’s
disinterested
directors.


 


2.2 Restriction
on Stock
Repurchases.
 So
long as
the Borrower
shall have
any obligation
under this Note,
the Borrower
shall not
without the Holder’s
written
consent
redeem,
repurchase
or otherwise
acquire
(whether
for cash
or in exchange
for property
or other
securities
or otherwise)
in any
one transaction
or series
of related
transactions
any
shares of
capital stock
of the Borrower
or any
warrants,
rights or
options to purchase
or acquire
any such
shares.


 


2.3 Borrowings.
 So
long as
the Borrower
shall have
any
obligation
under this Note,
the Borrower
shall
not, without the Holder’s
written
consent,
create,
incur,
assume guarantee,
 endorse,
 contingently
agree
 to  purchase
 or  otherwise
 become
 liable 
upon  the obligation
of any
person,
firm,
partnership,
joint venture
or corporation,
except
by the endorsement
of negotiable
instruments
for deposit
or collection,
or suffer
to exist
any liability
for borrowed
money, except
(a) borrowings
in existence
or committed
on the date hereof
and of which
the Borrower
has informed
Holder in
writing prior
to the date
hereof,
(b) indebtedness
to trade creditors
or financial
institutions incurred
in the ordinary
course
of business
or (c) borrowings,
the proceeds
of which shall
be used to
repay this Note.




    	13



    	 



    

2.4 Sale
of Assets. 
So long
as the
Borrower
shall
have any
obligation
under this Note,
the Borrower
shall not,
without the
Holder’s
written
consent,
sell,
lease or
otherwise dispose of
any
significant
portion of
its assets
outside the ordinary
course
of business. Any consent
to the disposition of any
assets may
be conditioned
on a specified
use of the proceeds
of disposition.


 


2.5 Advances
and Loans.
 So
long as
the Borrower
shall have
any
obligation
under this
Note, the
Borrower
shall not,
without the Holder’s
written
consent,
lend money,
give credit
or make
advances
to any
person, firm,
joint venture
or corporation,
including,
without limitation, officers,
directors, employees,
subsidiaries and
affiliates
of the Borrower,
except
loans, credits
or advances
(a) in existence
or committed
on the date hereof
and which
the Borrower
has
informed
Holder in writing
prior
to the date hereof,
(b) made
in the ordinary
course
of business or
(c) not in excess
of $100,000.


 


 


 


ARTICLE
III. 
EVENTS OF DEFAULT


 


If
any
of the following
events of
default (each,
an “Event
of Default”)
shall occur:


 


3.1 Failure
to Pay
Principal
or Interest.
 The
Borrower
fails
to pay
the principal
hereof or interest
thereon
when due on
this Note,
whether
at maturity,
upon acceleration
or otherwise.


 


3.2 Conversion
and the
Shares.
 The
Borrower
fails to
issue shares
of Common Stock
to the Holder
(or announces
or threatens
in writing
that it
will not honor
its obligation
to do so) upon exercise by
the Holder of the conversion
rights of the Holder
in accordance
with the terms of this Note, fails
to transfer
or cause its transfer
agent
to transfer
(issue) (electronically
or in certificated
form)
any certificate
for shares
of Common Stock
issued to the
Holder upon conversion
of or otherwise
pursuant to this Note as
and when required
by this Note, the Borrower
directs
its transfer
agent
not to transfer
or delays,
impairs,
and/or hinders
its transfer
agent in transferring
(or issuing)
(electronically
or in certificated
form)
any certificate
for shares
of Common Stock
to be issued
to the Holder
upon conversion
of or otherwise
pursuant
to this Note as and
when required
by this Note, or fails
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 shares
of Common Stock
issued to
the Holder upon conversion
of or otherwise pursuant
to this Note as
and when
required
by this
Note (or
makes
any
written
announcement,
statement
or threat that
it does not intend to honor the obligations
described
in this paragraph)
and any such
failure shall
continue uncured
(or any
written
announcement,
statement
or threat
not to honor
its obligations shall
not be rescinded
in writing)
for three
(3) business
days after
the Holder
shall have delivered
a Notice of
Conversion. It is an
obligation
of the Borrower
to remain
current
in its obligations
to its transfer
agent.
It shall
be an event
of default
of this Note,
if a conversion
of this Note is delayed,
hindered or frustrated
due to a balance
owed by the Borrower
to its transfer agent.
If at the option of the Holder, the Holder
advances
any funds to the Borrower’s
transfer
agent
in order
to process
a conversion,
such advanced
funds shall
be paid by
the Borrower
to the Holder within forty
eight
(48) hours
of a demand
from the
Holder.


 


3.3 Breach
of Covenants.
 The Borrower
breaches
any
material
covenant
or other material
term or
condition
contained
in this Note
and any
collateral
documents
including but
not




    	14



    	 



    

limited
to the Purchase
Agreement
and such
breach
continues
for
a period
of ten
(10) days
after written
notice thereof
to the Borrower
from the Holder.


 


3.4 Breach
of Representations
and Warranties.
 Any
representation
or warranty
of the Borrower
made
herein
or in any
agreement,
statement
or certificate
given
in writing
pursuant
hereto or
in connection
herewith (including,
without limitation,
the Purchase
Agreement),
shall be false
or misleading
in any material
respect
when made
and the breach
of which has
(or with the
passage
of time
will have)
a material
adverse
effect
on the rights
of the Holder
with respect
to this Note or the
Purchase
Agreement.


 


3.5 Receiver
or Trustee.
 The
Borrower
or any
subsidiary
of the
Borrower
shall make
an assignment
for the
benefit
of creditors,
or apply
for or
consent
to the appointment
of a receiver
or trustee
for it
or for
a substantial
part of
its property
or business,
or such
a receiver
or trustee
shall otherwise
be appointed.


 


3.6 Judgments.
 Any
money judgment,
writ or
similar process
shall be
entered
or filed
against
the Borrower
or any
subsidiary
of the
Borrower
or any
of its property
or other
assets for
more than
$50,000, and
shall remain
unvacated,
unbonded or unstayed
for a period
of twenty
(20) days
unless otherwise
consented
to by the Holder,
which consent
will not be
unreasonably withheld.


 


3.7 Bankruptcy.
 Bankruptcy,
 insolvency,
 reorganization
 or  liquidation
proceedings
or other
proceedings,
voluntary
or involuntary,
for relief
under
any
bankruptcy
law or any
law for the relief
of debtors shall
be instituted by or against
the Borrower
or any subsidiary
of the
Borrower.


 


3.8 Delisting
of Common Stock.
The Borrower
shall fail
to maintain
the listing
of the Common
Stock
on at
least one
of the OTCBB
or an
equivalent
replacement
exchange,
the Nasdaq
National
Market,
the Nasdaq
SmallCap
Market,
the New York
Stock Exchange,
or the American Stock
Exchange.


 


3.9 Failure
to Comply
with the Exchange
Act.  The
Borrower
shall fail
to comply
with the reporting
requirements
of the Exchange
Act; and/or
the Borrower
shall cease
to be subject to the
reporting
requirements
of the Exchange
Act.


 


3.10 Liquidation.
 Any
dissolution, liquidation,
or winding up
of Borrower
or any
substantial portion
of its business.


 


3.11 Cessation
of Operations.
 Any
cessation
of operations
by Borrower
or Borrower
admits it
is otherwise
generally
unable
to pay its
debts as
such debts
become due,
provided, however,
that any
disclosure
of the Borrower’s
ability
to continue
as a “going
concern”
shall not be an admission
that the Borrower
cannot pay
its debts as they
become
due.


 


3.12 Maintenance
of Assets.
 The  failure
 by 
Borrower
 to  maintain
 any
material
intellectual
property
rights,
personal,
real
property
or other
assets
which are
necessary
to conduct its business
(whether
now or in the future).


 


3.13Financial
Statement
Restatement.The
 restatement
 of  any
financial
statements
filed
by the Borrower
with the SEC
for
any date
or period
from
two years
prior to
the




    	15



    	 



    

Issue
Date of
this Note and
until this Note
is no longer
outstanding,
if the result
of such restatement
would, by comparison
to the unrestated
financial
statement,
have constituted
a material
adverse
effect
on the rights
of the Holder
with respect
to this Note or
the Purchase
Agreement.


 


3.14Reverse
Splits.The  Borrower
 effectuates
 a  reverse
 split  of 
its


Common
Stock without
twenty
(20) days
prior
written
notice to the
Holder.


 


 


3.15 Replacement
of Transfer
Agent. In
the event
that the
Borrower
proposes to replace
its transfer
agent,
the Borrower
fails to
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.


 


 


 


3.16 Cross-Default.
 Notwithstanding
anything
to the contrary
contained
in this Note or
the other
related
or companion
documents,
a breach
or default
by the Borrower
of any
covenant
or other
term
or condition
contained
in any
of the Other
Agreements,
after
the passage
of all applicable
notice and
cure
or grace
periods,
shall, at the
option of the Holder,
be considered
a default
under this Note
and the
Other Agreements,
in which
event
the Holder shall
be entitled
(but in
no event
required)
to apply
all rights
and remedies
of the
Holder
under
the terms
of this Note  and
 the  Other
 Agreements
 by reason
 of  a 
default
 under 
said  Other
 Agreement
 or hereunder.
“Other
Agreements”
means, collectively,
all agreements
and instruments
between, among
or by:
(1) the Borrower,
and, or for
the benefit
of, (2)
the Holder and
any
affiliate of
the Holder, including,
without limitation,
promissory
notes; provided,
however,
the term
“Other Agreements”
shall not
include
the related
or companion
documents
to this
Note. Each
of the loan transactions
will be cross-defaulted
with each
other loan
transaction
and with
all other
existing
and future
debt of
Borrower
to the Holder.


 


Upon the
occurrence
and during
the continuation
of any
Event of
Default specified
in Section 3.1 (solely
with respect
to failure
to pay the
principal
hereof
or interest
thereon
when due
at the Maturity
Date),
the Note shall
become immediately
due and payable
and the
Borrower
shall
pay to the
Holder, in
full satisfaction
of its obligations
hereunder,
an amount
equal
to the Default
Sum (as
defined
herein). 
UPON THE OCCURRENCE
AND DURING THE
CONTINUATION
OF  ANY  EVENT
 OF  DEFAULT
 SPECIFIED
 IN  SECTION
 3.2,  THE 
NOTE  SHALL
BECOME
IMMEDIATELY
DUE AND PAYABLE
AND THE
BORROWER
SHALL PAY
TO THE HOLDER,
IN FULL
SATISFACTION
OF ITS
OBLIGATIONS
HEREUNDER,
AN AMOUNT EQUAL TO:
(Y) THE
DEFAULT
SUM (AS
DEFINED
HEREIN);
MULTIPLIED
BY (Z)
TWO (2).
Upon the occurrence
and during
the continuation
of any
Event
of Default specified
in Sections 3.1
(solely
with respect
to failure to pay
the principal
hereof or interest thereon
when
due on this
Note upon a
Trading Market
Prepayment
Event pursuant
to Section
1.7 or upon acceleration),
3.3, 3.4,
3.6, 3.8, 3.9,
3.11, 3.12, 3.13,
3.14, and/or
3. 15 exercisable
through
the delivery
of written
notice to
the Borrower
by such
Holders (the
“Default
Notice”),
and upon
the occurrence
of an Event
of Default specified
the remaining
sections of Articles
III (other
than failure
to pay the
principal
hereof
or interest
thereon
at the
Maturity
Date
specified
in Section
3,1 hereof),
the Note shall
become immediately
due and
payable
and the
Borrower
shall pay
to the Holder,
in full satisfaction
of its obligations
hereunder, an
amount equal
to the greater




    	16



    	 



    

of
(i) 150%
times the
sum of
(w) the
then outstanding
principal
amount
of this Note
plus (x)
accrued
and unpaid
interest
on the unpaid
principal
amount of this
Note to the date of payment
(the “Mandatory
Prepayment
Date”)
plus (y) Default
Interest, if any,
on the amounts
referred
to in clauses
(w) and/or (x)
plus (z) any
amounts owed to the Holder
pursuant to Sections
1.3 and


1.4(g)
hereof
(the
then outstanding
principal
amount of
this Note to
the date
of payment
plus the amounts
referred
to in clauses
(x),
(y)
and (z)
shall collectively
be known as
the “Default
Sum”) or
(ii) the
“parity
value”
of the Default
Sum to
be prepaid,
where
parity
value means
(a) the highest
number of
shares
of Common Stock
issuable upon conversion
of or
otherwise pursuant
to such Default
Sum in
accordance
with Article
I, treating
the Trading
Day immediately
preceding
the Mandatory
Prepayment
Date as the “Conversion
Date” for
purposes of determining
the lowest
applicable Conversion
Price,
unless the Default
Event arises
as a result
of a breach
in respect 
of  a specific
Conversion 
Date in  which
 case such
 Conversion
 Date shall
 be the Conversion
Date), multiplied
by (b)
the highest
Closing Price
for the
Common Stock
during the
period beginning
on the date
of first
occurrence
of the
Event of
Default and
ending one
day prior
to the Mandatory
Prepayment
Date
(the
“Default
Amount”) and
all other
amounts payable
hereunder 
shall  immediately
become 
due  and 
payable,
 all 
without  demand,
 presentment
 or notice,
all of
which hereby
are
expressly
waived,
together
with all
costs, including,
without limitation,
legal
fees and
expenses,
of collection,
and the Holder
shall be
entitled
to exercise
all other
rights and
remedies
available
at law or
in equity.


 


If
the Borrower
fails
to pay the
Default
Amount within five
(5) business
days
of written
notice that
such amount
is due and
payable,
then the
Holder
shall have
the right
at any
time, so
long as the Borrower
remains
in default
(and so
long and to
the extent
that there
are sufficient
authorized
shares),
to require
the Borrower,
upon written
notice,
to immediately
issue, in
lieu of
the Default
Amount, the number
of shares
of Common Stock
of the Borrower
equal
to the Default
Amount divided by
the Conversion
Price
then in effect.


 


ARTICLE
IV. MISCELLANEOUS


 


4.1 Failure
or Indulgence
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 privileges.
All rights and
remedies
existing
hereunder
are cumulative
to, and not exclusive
of, any
rights
or remedies
otherwise available.


 


4.2 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




    	17



    	 



    

address,
or upon
actual
receipt
of such
mailing,
whichever
shall first
occur.
 The addresses
for such communications
shall be:


 


If
to the Borrower,
to:


 


NYXIO
TECHNOLOGIES
CORPORATION


2156 NE Broadway


Portland,
OR 97232


Attn: GIORGIO
JOHNSON, President/Chief
Executive
Officer
facsimile:


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 Holder:


 


ASHER
ENTERPRISES,
INC.


1
Linden Pl.,
Suite 207


Great
Neck, NY.
11021


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


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


 


4.3 Amendments.
 This Note
and any
provision
hereof
may only
be amended
by an
instrument
in writing
signed
by the Borrower
and the
Holder. 
The term
“Note”
and all
reference
thereto,
as used
throughout
this instrument,
shall mean
this instrument
(and the other
Notes issued
pursuant
to the Purchase
Agreement)
as originally
executed,
or if later
amended
or supplemented,
then as so
amended
or supplemented.


 


4.4 Assignability.
This  Note 
shall  be 
binding  upon 
the  Borrower
 and 
its successors
and assigns,
and shall
inure to be the benefit
of the Holder and
its successors
and assigns.
 Each
transferee
of this Note must
be an
“accredited
investor” (as
defined
in Rule 501(a)
of the 1933
Act).
 Notwithstanding
anything
in this Note
to the
contrary,
this Note may be pledged
as collateral
in connection with a bona fide
margin
account
or other lending arrangement.




    	18



    	 



    

4.5 Cost
of Collection.If
 default is made
in the  payment
of this Note, 
the


Borrower
shall pay
the Holder
hereof
costs of collection,
including reasonable
attorneys’
fees.


 


4.6 Governing
Law. 
This Note 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 Note 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 Note 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 Borrower
and Holder
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 Note 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.


 


4.7 Certain
Amounts.  Whenever
pursuant
to this Note
the Borrower
is required
to pay an
amount in
excess
of the outstanding
principal
amount (or
the portion
thereof required
to be paid
at that
time)
plus accrued
and unpaid
interest plus
Default Interest
on such interest,
the Borrower
and the Holder
agree that
the actual
damages
to the Holder
from the receipt
of cash payment
on this Note
may be difficult
to determine
and the amount
to be so paid
by the Borrower
represents
stipulated damages
and not a penalty
and is intended
to compensate
the Holder in part
for loss of the opportunity
to convert
this Note and
to earn
a return
from
the sale of shares
of Common Stock
acquired
upon conversion
of this Note at a price
in excess
of the price paid
for such
shares
pursuant to
this Note. The Borrower
and the Holder
hereby agree
that such amount
of stipulated
damages
is not plainly disproportionate
to the possible loss to the Holder from
the receipt
of a cash payment
without the opportunity to convert
this Note into shares of Common
Stock.


 


4.8 Purchase
Agreement.
 By
its acceptance
of this Note,
each
party
agrees
to be bound by
the applicable
terms of
the Purchase
Agreement.


 


4.9 Notice
of Corporate
Events.  Except
as otherwise
provided
below, the
Holder of
this Note shall
have
no rights
as a
Holder of
Common Stock
unless and
only to the
extent
that it converts
this Note into
Common Stock.
The Borrower
shall provide
the Holder
with prior notification
of any
meeting
of the Borrower’s
shareholders
(and copies
of proxy
materials
and other
information
sent
to shareholders).
In the event
of any
taking
by the Borrower
of a record
of its shareholders
for the
purpose of
determining
shareholders
who are
entitled
to receive
payment
of any
dividend or
other distribution,
any right
to subscribe
for,
purchase
or otherwise
acquire
(including
by way
of merger,
consolidation,
reclassification
or recapitalization)
any share


of
any
class
or any
other
securities
or property,
or to receive
any
other
right,
or for
the purpose
of determining
shareholders
who are
entitled
to vote
in connection
with any
proposed
sale,
lease
or conveyance
of all or
substantially
all of
the assets
of the Borrower
or any
proposed
liquidation, dissolution or
winding up of
the Borrower,
the Borrower
shall mail
a notice
to the Holder,
at least
twenty (20)
days
prior to
the record
date specified
therein
(or thirty
(30) days
prior to the consummation
of the transaction
or event,
whichever
is earlier),
of the
date on
which any
such record is to be taken
for the purpose of
such dividend,
distribution, right
or other event,
and a brief
statement
regarding
the amount and
character
of such
dividend, distribution,
right
or other
event
to the extent
known at
such time.
 The Borrower
shall make
a public announcement
of any
event
requiring
notification
to the Holder
hereunder
substantially
simultaneously
with the notification
to the Holder
in accordance
with the terms of
this Section 4.9.


 


4.10 Remedies.
 The  Borrower
 acknowledges
 that 
a  breach
 by 
it  of  its obligations
hereunder
will cause
irreparable
harm
to the Holder,
by vitiating
the intent
and purpose
of the transaction
contemplated
hereby.
Accordingly,
the Borrower
acknowledges
that the remedy
at law
for a
breach of
its obligations
under this
Note will be inadequate
and agrees,
in the event of
a breach
or threatened
breach
by the Borrower
of the
provisions of
this Note, that the
Holder 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 Note
and to
enforce
specifically
the terms
and provisions
thereof,
without the necessity
of showing economic
loss and
without any
bond or other
security
being required.


 


 


IN
WITNESS
WHEREOF,
Borrower
has
caused
this Note
to be signed
in its
name by
its duly authorized
officer
this April 11, 2013.


 


NYXIO TECHNOLOGIES
CORPORATION


 


/s/ Giorgio
Johnson


By:
GIORGIO
JOHNSON


President/Chief
Executive
Officer




    	19



    	 



    

 


EXHIBIT
A


 


NOTICE
OF CONVERSION



 


The
undersigned
hereby
elects
to convert
$____ principal
amount of the
Note (defined
below)
into that
number of
shares of
Common Stock
to be issued
pursuant to
the conversion
of the Note (“Common
Stock”) as
set
forth
below, of NYXIO
TECHNOLOGIES
CORPORATION,
a Nevada
corporation
(the “Borrower”)
according
to the conditions of
the convertible
note of the
Borrower
dated
as of April
11, 2013 (the
“Note”),
as of the
date written
below. No fee
will be charged
to the Holder
for any
conversion,
except
for transfer
taxes,
if any.


 


Box
Checked
as to applicable
instructions:


 


[
]  The Borrower
shall electronically
transmit
the Common
Stock
issuable pursuant
to this Notice
of Conversion
to the account
of the undersigned
or its nominee
with DTC through
its Deposit Withdrawal
Agent
Commission system
(“DWAC
Transfer”).


 


Name
of DTC Prime
Broker:
Account Number:


 


[ 
]  The  undersigned
 hereby
 requests
 that
 the  Borrower
 issue  a 
certificate
 or certificates
for the
number of shares
of Common
Stock set
forth
below (which
numbers are
based
on the Holder’s
calculation
attached
hereto)
in the name(s)
specified
immediately
below or,
if additional
space is
necessary,
on an
attachment
hereto:


 


ASHER
ENTERPRISES,
INC.


1 Linden
Pl., Suite
207


Great Neck,
NY. 11021


Attention:
Certificate
Delivery


(516)
498-9890


 


Date
of Conversion:


Applicable
Conversion Price:$
Number of
Shares
of Common
Stock to be
Issued


Pursuant
to Conversion of
the Notes: Amount of
Principal
Balance
Due remaining


Under
the Note
after this conversion:


 


ASHER
ENTERPRISES,
INC.


 


By:


Name:
Curt Kramer
Title:  President
Date:


1 Linden
Pl., Suite
207


Great Neck,
NY. 11021






    	20