Unassociated Document


    THE
      SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE UNITED
      STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER THE
      PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED
      BY
      THE REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND IN RELIANCE ON
      STATUTORY EXEMPTIONS UNDER THE 1933 ACT, AND UNDER ANY APPLICABLE STATE
      SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR
      ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER THE PROVISIONS OF THE
      1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE
      REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE
      COMMISSION.

     

    


    SECURED
      SENIOR PROMISSORY NOTE

    Seoul,
      Korea

    November
      27, 2007

    


    FOR
      VALUE
      RECEIVED, Eugene Science,
      Inc., a
Delaware
      corporation ("Borrower"),
      hereby promises to pay to the order of ________________
      ("Lender"),
      in
      lawful money of the United States at the address of Lender set forth herein,
      the
      principal amount of $_______ (the “Note”),
      together with interest. This secured senior promissory note (this "Note")
      has
      been executed by Borrower on the date set forth above (the "Effective
      Date")
      pursuant to the Note and Warrant Purchase Agreement entered into as of the
      date
      hereof between Lender and Borrower (the "Purchase
      Agreement").
      Capitalized terms used but not defined herein shall have the meanings assigned
      to such terms in the Purchase Agreement.

     

    1. Interest.
      This
      Note shall bear interest at a
      rate
      of 10%
      per
      annum (“Interest
      Rate”)
      from
      the Effective Date and continuing until payment in full of this
      Note.

     

    2. Maturity
      Date.
      All or
      any portion of this Note, all accrued interest hereon and all other sums due
      hereunder, shall be due and payable on demand by Lender on May 27,
      2008
      (the “Maturity
      Date”),
      subject to one
      extension of 6 months of
      the
      Maturity Date as set forth in the Purchase Agreement. 

     

    3. Application
      of Payments.
      

     

    3.1. Except
      as
      otherwise expressly provided herein, payments under this Note shall be applied
      (i) first to the repayment of any sums incurred by Lender for the payment of
      any
      expenses in enforcing the terms of this Note, (ii) then to the payment of
      accrued but unpaid interest due under this Note and (iii) then to the payment
      of
      outstanding principal due under this Note.

     

    3.2. Upon
      payment in full of this Note and applicable accrued and unpaid interest hereon,
      this Note shall be marked "Paid in Full" and returned to Borrower.

     

    4. Waiver
      of Notice.
      Borrower hereby waives diligence, notice, presentment, protest and notice of
      dishonor.

     

    5. Optional
      Conversion.
      At any
      time prior to May 27, 2008, upon 10 days prior written notice to Borrower
      (“Conversion
      Date”),
      Lender shall have the right, in its sole discretion, to covert all outstanding
      principal and accrued interest under this Note existing as of close of business
      on the Conversion Date into shares of the Company’s Common Stock (“Common
      Stock”)
      at the
      conversion price set forth below. If Lender elects to convert this Note into
      shares of Common Stock, the number of shares of Common Stock to be issued upon
      such conversion shall be equal to the quotient obtained by dividing (a) the
      outstanding principal and accrued but unpaid interest due on this Note on the
      Conversion Date by (b) $0.65.


    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    6. Transfer.
      This
      Note may be transferred by Lender at any time, provided that such transfer
      complies with applicable securities laws
      and the
      limitations on transfer set forth in Section 6.8 of the Purchase
      Agreement.

     

    7. Events
      of Default.
      The
      occurrence of any of following events (each an "Event
      of Default"),
      not
      cured in any applicable cure period, shall constitute an Event of Default of
      Borrower:

     

    7.1. The
      failure to make when due any payment described in this Note or the Purchase
      Agreement, whether on or after the Maturity Date, by acceleration or otherwise;
      and

     

    7.2. A
      breach
      of any representation, warranty, covenant or other provision of this Note or
      the
      Purchase Agreement, which, if capable of being cured, is not cured within 10
      days following notice thereof to the Company;

     

    7.3. (i)
      The
      application for the appointment of a receiver or custodian for Borrower or
      the
      property of Borrower, (ii) the entry of an order for relief or the filing of
      a
      petition by or against Borrower under the provisions of any bankruptcy or
      insolvency law, (iii) any assignment for the benefit of creditors by or against
      Borrower, or (iv) the insolvency of Borrower.

     

    Upon
      the
      occurrence of any Event of Default that is not cured within any applicable
      cure
      period, if any,
      the
      Lender may elect, by written notice delivered to Borrower, to take at any time
      any or all of the following actions: (i)
      declare this Note, and all notes issued pursuant to the Purchase Agreement,
      to
      be forthwith due and payable, whereupon the entire outstanding principal due
      under this Note, together with all accrued and unpaid interest thereon, and
      all
      other cash obligations hereunder, shall become forthwith due and payable,
      without presentment, demand, protest or any other notice of any kind, all of
      which are hereby expressly waived by Borrower, anything contained herein to
      the
      contrary notwithstanding, and (ii) exercise any and all other remedies provided
      hereunder or available at law or in equity.
      In
      addition to the foregoing, Borrower may be required to issue warrants to Lender
      as set forth in Section 2.6 of the Purchase Agreement,
      which
      issuance would not preclude Lender from taking any and all actions whether
      at
      law or equity to enforce its rights.
      

     

    
      
         

      

      
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    8. Miscellaneous.

     

    8.1. Successors
      and Assigns.
      Subject
      to the exceptions specifically set forth in this Note, the terms and conditions
      of this Note shall inure to the benefit of and be binding upon the respective
      executors, administrators, heirs, successors and assigns of the
      parties.

     

    8.2. Loss
      or Mutilation of Note.
      Upon
      receipt by Borrower of evidence satisfactory to Borrower of the loss, theft,
      destruction or mutilation of this Note, together with indemnity reasonably
      satisfactory to Borrower, in the case of loss, theft or destruction, or the
      surrender and cancellation of this Note, in the case of mutilation, Borrower
      shall execute and deliver to Lender a new promissory note of like tenor and
      denomination as this Note.

     

    8.3. Notices.
      Any
      notice, demand, offer, request or other communication required or permitted
      to
      be given pursuant to the terms of this Note shall be in writing and shall be
      deemed effectively given the earlier of (i) when received, (ii) when delivered
      personally, (iii) one business day after being delivered by facsimile (with
      receipt of appropriate confirmation), (iv) one business day after being
      deposited with an overnight courier service, or (v) four days after being
      deposited in the U.S. mail, First Class with postage prepaid, and addressed
      to
      the recipient at the addresses set forth in the Purchase Agreement unless
      another address is provided to the other party in writing.

     

    8.4 Governing
      Law.
      This
      Note shall be governed in all respects by the laws of the State of California
      as
      applied to agreements entered into and performed entirely within the State
      of
      California by residents thereof, without regard to any provisions thereof
      relating to conflicts of laws among different jurisdictions. The parties hereto
      hereby agree that any suit or proceeding arising under this Agreement, or in
      connection with the consummation of the transactions contemplated hereby, shall
      be brought solely in a federal or state court located in the County of Orange
      and State of California. 

     

    8.5 Waiver
      and Amendment.
      Any
      term of this Note may be amended, waived or modified only with the written
      consent of Borrower and Lender.

     

    8.6 Remedies;
      Costs of Collection; Attorneys' Fees.
      No
      delay or omission by Lender in exercising any of its rights, remedies, powers
      or
      privileges hereunder or at law or in equity and no course of dealing between
      Lender and the undersigned or any other person shall be deemed a waiver by
      Lender of any such rights, remedies, powers or privileges, even if such delay
      or
      omission is continuous or repeated, nor shall any single or partial exercise
      of
      any right, remedy, power or privilege preclude any other or further exercise
      thereof by Lender or the exercise of any other right, remedy, power or privilege
      by Lender. The rights and remedies of Lender described herein shall be
      cumulative and not restrictive of any other rights or remedies available under
      any other instrument, at law or in equity. If an Event of Default occurs,
      Borrower agrees to pay, in addition to the Note and interest payable thereon,
      reasonable attorneys' fees and any other reasonable costs incurred by Lender in
      connection with its pursuit of its remedies under this Note.

     

    [Remainder
      of Page Intentionally Left Blank; Signature Page Follows] 


    
      
         

      

      
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    IN
      WITNESS WHEREOF, Borrower has caused this Note to be signed on the Effective
      Date.

    


    


    
      	 	BORROWER:
	 	
            
	 	EUGENE SCIENCE INC.
	 	
            
	 	
               

              
                

              
By:  Seung
              Kwon Noh
	 	    Chief
              Executive Officer