EXHIBIT
10.13
THIS NOTE AND THE SECURITIES ISSUABLE UPON THE
CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
CELLYNX, INC.
CONVERTIBLE PROMISSORY
NOTE
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$10,000.00
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Issue Date: October 25,
2007
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Laguna Niguel, California
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FOR VALUE RECEIVED, Cellynx, Inc., a California
corporation (the " Company ") promises to pay to Daniel Ash
(" Investor "), or its registered assigns, in lawful money
of the United States of America, the principal sum of $10,000.00,
or such lesser amount as shall equal the outstanding principal
amount hereof, together with interest from the date of this
Convertible Promissory Note (" Note ") on the unpaid
principal balance at a rate equal to 4.00% per annum, computed on
the basis of the actual number of days elapsed and a year of 365
days. All unpaid principal, together with any then unpaid and
accrued interest and any other amounts payable hereunder, shall be
due and payable on the earlier of (i) that date which is two years
after the Issue Date listed above, or (ii) when, upon or after the
occurrence of an Event of Default (as defined below), such amounts
are declared due and payable by Investor or made automatically due
and payable in accordance with the terms hereof.
The following is a statement of the rights of
Investor and the conditions to which this Note is subject, and to
which Investor, by the acceptance of this Note, agrees:
1.
Definitions. As used in this Note, the following
capitalized terms have the following meanings:
(a) "Obligations"
shall mean and include all loans, advances, debts, liabilities and
obligations, howsoever arising, owed by the Company to Investor of
every kind and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money), now
existing or hereafter arising under or pursuant to the terms of
this Note, including, all interest, fees, charges, expenses,
attorneys' fees and costs and accountants' fees and costs
chargeable to and payable by the Company hereunder, in each case,
whether direct or indirect, absolute or contingent, due or to
become due, and whether or not arising after the commencement of a
proceeding under Title 11 of the United States Code (11 U. S. C.
Section 101 et seq.), as amended from time to time
(including post-petition interest) and whether or not allowed or
allowable as a claim in any such proceeding.
(b) "Person" shall
mean and include an individual, a partnership, a corporation
(including a business trust), a joint stock company, a limited
liability company, an unincorporated association, a joint venture
or other entity or a governmental authority.
(c) "Securities Act"
shall mean the Securities Act of 1933, as amended.
2.
Prepayment. The Company may prepay this Note in whole
or in part at any time without penalty; provided that any such
prepayment will be applied first to the payment of expenses due
under this Note, second to interest accrued on this Note and third,
if the amount of prepayment exceeds the amount of all such expenses
and accrued interest, to the payment of principal of this
Note.
3. Events of
Default. The occurrence of any of the following shall
constitute an "Event of Default" under this Note:
(a) Failure to Pay.
The Company shall fail to pay (i) when due any principal or
interest payment on the due date hereunder or (ii) any other
payment required under the terms of this Note on the date due and
such payment shall not have been made within five days of the
Company's receipt of Investor's written notice to the Company of
such failure to pay;
(b) Voluntary Bankruptcy
or Insolvency Proceedings. The Company shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator or
custodian of itself or of all or a substantial part of its
property, (ii) be unable, or admit in writing its inability, to pay
its debts generally as they mature, (iii) make a general assignment
for the benefit of its or any of its creditors, (iv) be dissolved
or liquidated, (v) become insolvent (as such term may be defined or
interpreted under any applicable statute), (vi) commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or consent to any such relief or to the
appointment of or taking possession of its property by any official
in an involuntary case or other proceeding commenced against it, or
(vii) take any action for the purpose of effecting any of the
foregoing; or
(c) Involuntary
Bankruptcy or Insolvency Proceedings. Proceedings for the
appointment of a receiver, trustee, liquidator or custodian of the
Company or of all or a substantial part of the property thereof, or
an involuntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to the Company or the
debts thereof under any bankruptcy, insolvency or other similar law
now or hereafter in effect shall be commenced and an order for
relief entered or such proceeding shall not be dismissed or
discharged within 30 days of commencement.
4. Rights of Investor
upon Default. Upon the occurrence or existence of any Event
of Default described in Section 3(a) and at any time
thereafter during the continuance of such Event of Default,
Investor may, by written notice to the Company, declare all
outstanding Obligations payable by the Company hereunder to be
immediately due and payable without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly
waived. Upon the occurrence or existence of any Event of Default
described in Sections 3(b) and 3(c) , immediately and
without notice, all outstanding Obligations payable by the Company
hereunder shall automatically become immediately due and payable,
without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived. In addition to the
foregoing remedies, upon the occurrence or existence of any Event
of Default, Investor may exercise any other right power or remedy
granted to it by law, either by suit in equity or by action at law,
or both.
5.
Conversion.
(a) Optional Conversion;
Number of Shares Issuable Upon Conversion. All or a portion of
the outstanding principal amount of and all accrued interest under
this Note shall be convertible at the option of the Investor into
that number of shares of the Company's Common Stock as is
determined by dividing the principal amount and accrued interest on
the date of conversion by $0.10 per share (adjusted to reflect
subsequent stock dividends, stock splits, combinations or
recapitalizations).
(b) Conversion
Procedure. Before Investor shall be entitled to convert this
Note into shares of Common Stock under this Section 5 , the
Investor shall, at the request of the Company, execute and deliver
to the Company a common stock purchase agreement reasonably
acceptable to the Company containing customary representations and
warranties and transfer restrictions (including a 180-day lock-up
agreement in connection with an initial public offering). In
addition, before Investor shall be entitled to convert this Note
into shares of Common Stock under this Section 5, it shall
surrender this Note, duly endorsed, at the office of the Company
and shall give written notice to the Company at its principal
corporate office, of the election to convert the same pursuant to
this Section 5 , and shall state therein the amount of the
unpaid principal amount of this Note to be converted
and the name or names in which the certificate or certificates for
shares of Common Stock are to be issued. If this Note has been
lost, stolen, destroyed or mutilated, then, in the case of loss,
theft or destruction, the Holder shall deliver an indemnity
agreement reasonably satisfactory in form and substance to the
Company or, in the case of mutilation, the Holder shall surrender
and cancel this Note. The Company shall, as soon as practicable
thereafter, issue and deliver at such office to. Investor a
certificate or certificates for the number of shares of Common
Stock to which Investor shall be entitled upon conversion (bearing
such legends as are required by the common stock purchase
agreement, and applicable state and federal securities laws in the
opinion of counsel to the Company), together with a replacement
Note (if any principal amount is not converted) and any other
securities and property to which Investor is entitled upon such
conversion under the terms of this Note, including a check payable
to Investor for any cash amounts payable as described in Section
5(c) . The conversion shall be deemed to have been made
immediately prior to the close of business on the date of the
surrender of this Note, and the Person or Persons entitled to
receive the shares of Common Stock upon such conversion
shal
