UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event
reported): October 1, 2014
Nyxio Technologies Corporation
(Exact name of small business issuer
as specified in its charter)
| Nevada |
98-0501477 |
| (State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification No.) |
| |
| 1330 S.W. 3rd Ave., Portland, Oregon 97201 |
| (Address of principal executive offices) |
| |
| 800-398-4132 |
| (Issuer’s telephone number) |
| |
|
_______________________________________________________
(Former name or former address, if changed
since last report) |
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
[ ] Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
SECTION 1 – Registrant’s Business and Operations
Item 1.01. Entry Into A Material Definitive Agreement
On October 1, 2014, our Board of Directors approved our entry into
a Share Exchange Agreement (the “Agreement”) with 212 DB Corp., a private Delaware corporation (“212”).
212 is an electronic entertainment company best known for its Play Gig It and Rock This gaming applications. Under the Agreement,
we will acquire all of the issued and outstanding capital stock of 212 in exchange for: (i) our direct assumption of $7,126,658.27
in debt owed by 212 to a variety of note holders and other creditors; and (ii) our issuance of convertible preferred stock having
a stated value of $10,000,000 to the former stockholders of 212.
In connection with the Agreement, we will issue to 212’s former
stockholders, on a pro-rata basis, a total of 1,000 shares of Series A Preferred Stock. As specified in the 1st Amended
Certificate of Designation, our Series A Preferred Stock has a stated value of $10,000 per share and is convertible at the stated
value into shares of our common stock at price equal to the greater of $0.0001 per share or 90% of the average of the closing bid
prices for our common stock for the five trading days preceding the conversion. The conversion right is limited such that no holder
of Series A Preferred Stock, following any conversion, is allowed to hold more than 4.99% of our issued and outstanding common
stock. The Series A Preferred Stock is non-voting. Holders of Series A Preferred Stock are entitled to a preference in liquidation,
up to the stated value per share, over the holders of our common stock.
Of the $7,126,658.27 in 212 debt that we assumed directly under
the Agreement, $6,200,000 consists of convertible debentures (the “212 Debentures”), and $926,658.27 consists of general
accounts payable. Under the Agreement, the 212 Debentures shall be amended such that the terms of conversion for such notes shall
be substantially the same as the terms for the conversion shares of our Series A Preferred Stock.
The foregoing is a summary of the material terms of the Agreement,
which contains additional terms, covenants, and representations. The Agreement should be reviewed in its entirety for additional
information.
SECTION 3 – Securities and Trading Markets
Item 3.02 Unregistered Sales of Equity Securities
In connection with the Agreement, the previous shareholders of 212
will receive 1,000 shares of our Series A Preferred Stock. These shares will be issued pro rata to a total of eighty-seven former
shareholders of 212 on the effective date of the Agreement in reliance on the exemption from registration afforded by Section 4(a)(2)
of the Securities Act of 1933.
SECTION 5 – Corporate Governance and Management
Item 5.03 Amendment to Articles
of Incorporation or Bylaws
Effective October 1, 2014, our Board of Directors approved
an amendment to the Certificate of Designation governing the rights of holders of Series A Preferred Stock. Prior to the amendment,
there were no shares of Series A Preferred Stock issued and outstanding. Under the Amended Certificate of Designation, Series A
Preferred Stock now consists of 1,000 shares having the rights and features discussed in Item 1.01 above.
Item 9.01 Financial Statements and Exhibits
The exhibits listed in the following Exhibit Index are filed
as part of this Current Report on Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Nyxio Technologies Corporation
/s/ Giorgio Johnson
Giorgio Johnson
Chief Executive Officer
Date: October 3, 2014
|
ROSS MILLER
Secretary of State
206 North Carson Street
Carson City, Nevada 89701-4299
(775) 684 5708
Website: www.nvsos.gov |
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|
Amendment to Certificate of Designation
After Issuance of Class of Series |
|
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| USE BLACK INK ONLY – DO NOT HIGHLIGHT |
ABOVE SPACE IS FOR OFFICE USE ONLY |
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|
Certificate
of Amendment to Certificate of Designation
For
Nevada Profit Corporations
(Pursuant
to Nevada Revised Statutes 78.1955 – After Issuance of Class or Series) |
| |
| 1) Name of corporation: |
| Nyxio Technologies Corporation |
| |
| 2) Stockholder approval pursuant to statue has been obtained. |
| |
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| 3) The class or series of stock being amended: |
| Series A Preferred Stock |
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| 4) By resolution adopted by the board of directiors, the certificate of designation is being amended as follows or the new class or series is: |
| RESOLVED, that, pursuant to the authority granted to and vested in the Board by the provisions of the articles of incorporation of the Corporation (the “Articles of Incorporation”), there hereby is created, out of the one thousand five hundred (1,500) shares of preferred stock, par value $.01 per share, of the Corporation authorized by the Articles of Incorporation (“Preferred Stock”), a series of Series A Preferred Stock, consisting of one thousand (1,000) shares, which series shall have the following powers, designations, preferences and relative participating, optional and other special rights, and the following qualifications, limitations and restrictions: SEE ATTACHED |
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| 5) Effective date of filing: (optional) |
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| |
| 6) Signature: |
| /s/ Giorgio Johnson |
______________________________________
1st
AMENDED CERTIFICATE OF DESIGNATION
OF
NYXIO
TECHNOLOGIES, INC.
Pursuant
to Section 78.1955 of the
Nevada
Revised Statutes
______________________________________
SERIES
A PREFERRED STOCK
On
behalf of Nyxio Technologies, Inc., a Nevada corporation (the “Corporation”), the undersigned hereby certifies
that the following resolution has been duly adopted by the board of directors of the Corporation (the “Board”):
RESOLVED,
that, pursuant to the authority granted to and vested in the Board by the provisions of the articles of incorporation of the Corporation
(the “Articles of Incorporation”), there hereby is created, out of the one thousand five hundred (1,500) shares
of preferred stock, par value $.01 per share, of the Corporation authorized by the Articles of Incorporation (“Preferred
Stock”), a series of Series A Preferred Stock, consisting of one thousand (1,000) shares, which series shall have the
following powers, designations, preferences and relative participating, optional and other special rights, and the following qualifications,
limitations and restrictions:
The
specific powers, preferences, rights and limitations of the Series A Preferred Stock are as follows:
1. Designation;
Rank. This series of Preferred Stock shall be designated and known as “Series A Preferred Stock.” The number of
shares constituting the Series A Preferred Stock shall be one thousand (1,000) shares. Except as otherwise provided herein, the
Series A Preferred Stock shall, with respect to rights on liquidation, winding up and dissolution, rank senior to the common stock,
par value $0.01 per share (the “Common Stock”).
2. Dividends.
The holders of shares of Series A Preferred Stock have no dividend rights except as may be declared by the Board in its sole and
absolute discretion, out of funds legally available for that purpose.
3. Stated
Value; Fractional Shares. The Stated Value of the Series A Preferred Stock shall be ten thousand dollars ($10,000) per share.
Fractional shares of Series A Preferred Stock may be issued to any holder thereof. In the event of an issuance of fractional shares
of Series A Preferred Stock, the fractional issuance shall be rounded to the nearest fourth decimal place.
4. Liquidation
Preference.
(a) In
the event of any dissolution, liquidation or winding up of the Corporation (a “Liquidation”), whether voluntary
or involuntary, each holder of Series A Preferred Stock shall be entitled, after provision for the payment of the Corporation’s
debts and other liabilities, to be paid in cash in full, before any distribution is made on any Common Stock, an amount of $10,000
per share, in cash (the “Series A Liquidation Amount”). The Corporation shall, not later than 20 days prior to the
earlier of the record date for the taking of a vote of stockholders with respect to any Dissolution or the date set for the consummation
of a Dissolution, provide to the holders of the Series A Preferred Stock such information concerning the terms of the Dissolution
and the value of the assets of the Corporation as may be reasonably requested by the holders of shares of Series A Preferred Stock.
If, upon a Dissolution, the net assets of the Corporation distributable among the holders of all outstanding Series A Preferred
Stock shall be insufficient to permit the payment of the Series A Liquidation Amount in full, then the entire net assets of the
Corporation remaining after the provision for the payment of the Corporation’s debts and other liabilities shall be distributed
among the holders of the Series A Preferred Stock ratably in proportion to the full preferential amounts to which they would otherwise
be respectively entitled on account of their Series A Preferred Stock. Upon any such Dissolution, after the holders of Series
A Preferred Stock shall have been paid in full the Series A Liquidation Amount, the remaining net assets of the Corporation shall
be distributed to the other stockholders of the Corporation as their respective interests may appear.
(b) A
sale of all or substantially all of the Corporation’s assets or an acquisition of the Corporation by another entity by means
of any transaction or series of related transactions (including, without limitation, a reorganization, consolidated or merger)
that results in the transfer of fifty percent (50%) or more of the outstanding voting power of the Corporation (a “Change
in Control Event”), shall not be deemed to be a Liquidation for purposes of this Designation.
5. Optional
Conversion of Series A Preferred Stock. The Holders of Series A Preferred Stock shall have conversion rights as follows:
(a) Conversion
Right; Ownership Limitation. Each share of Series A Preferred Stock shall be convertible at the Stated Value thereof, at the
option of the Holder, and without the payment of additional consideration by the Holder, at any time, into shares of Common Stock
of the Corporation on the Optional Conversion Date (as hereinafter defined) at a conversion at a Conversion Price equal to the
greater of (1) $0.0001 per share; or (2) a price equal to 90% of the average of the closing bid prices for the Corporation’s
Common Stock, as reported by OTC Markets, Inc., for the five (5) prior trading days preceding the day upon which a Conversion
Demand is received by the Company.
In
no event shall the Corporation issue upon any conversion of Series A Preferred Stock a number of shares of Common Stock which,
together with the Holder’s other shares of Common Stock, would cause the Holder to beneficially own in excess of 4.99% of
the Corporation’s issued and outstanding common stock following the conversion.
(b) Mechanics
of Optional Conversion. To effect the optional conversion of shares of Series A Preferred Stock in accordance with Section
4(a) of this Designation, any Holder of record shall make a written demand for such conversion (for purposes of this Designation,
a “Conversion Demand”) upon the Corporation at its principal executive offices setting forth therein (i) the
certificate or certificates representing such shares, and the proposed date of such conversion (for purposes of this Designation,
the “Optional Conversion Date”). Upon receipt of the Conversion Demand, the Corporation shall give written
notice (for purposes of this Designation, a “Conversion Notice”) to the Holder setting forth therein (i) the
address of the place or places at which the certificate or certificates representing any shares not yet tendered are to be converted
are to be surrendered; and (ii) whether the certificate or certificates to be surrendered are required to be endorsed for transfer
or accompanied by a duly executed stock power or other appropriate instrument of assignment and, if so, the form of such endorsement
or power or other instrument of assignment. The Conversion Notice shall be sent by first class mail, postage prepaid, to such
Holder at such Holder’s address as may be set forth in the Conversion Demand or, if not set forth therein, as it appears
on the records of the stock transfer agent for the Series A Preferred Stock, if any, or, if none, of the Corporation. On or before
the Optional Conversion Date, each Holder of the Series A Preferred Stock so to be converted shall surrender the certificate or
certificates representing such shares, duly endorsed for transfer or accompanied by a duly executed stock power or other instrument
of assignment, if the Conversion Notice so provides, to the Corporation at any place set forth in such notice or, if no such place
is so set forth, at the principal executive offices of the Corporation. As soon as practicable after the Optional Conversion Date
and the surrender of the certificate or certificates representing such shares, the Corporation shall issue and deliver to such
Holder, or its nominee, at such Holder’s address as it appears on the records of the stock transfer agent for the Series
A Preferred Stock, if any, or, if none, of the Corporation, a certificate or certificates for the number of whole shares of Common
Stock issuable upon such conversion in accordance with the provisions hereof.
(c) No
Fractional Shares. No fractional shares of Common Stock or scrip shall be issued upon conversion of shares of Series A Preferred
Stock. In lieu of any fractional share to which the Holder would be entitled but for the provisions of this Section 5(c) based
on the number of shares of Series A Preferred Stock held by such Holder, the Corporation shall issue a number of shares to such
Holder rounded up to the nearest whole number of shares of Common Stock. No cash shall be paid to any Holder of Series A Preferred
Stock by the Corporation upon conversion of Series A Preferred Convertible Stock by such Holder.
(d) Issue
Taxes. The converting Holder shall pay any and all issue and other non-income taxes that may be payable in respect of any
issue or delivery of shares of Common Stock on conversion of shares of Series A Preferred Stock.
6. Voting.
The holders of Series A Preferred Stock shall not be entitled to vote, except with regard to matters required by law to be submitted
to a vote of the holders of Series A Preferred Stock.
IN
WITNESS WHEREOF the undersigned has signed this Designation this 15th day of September, 2014.
| |
Nyxio Technologies,
Inc. |
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|
|
| |
By: |
/s/ Giorgio Johnson |
| |
Name:
Giorgio Johnson
Title:
CEO |
SHARE
EXCHANGE AGREEMENT
This
Share Exchange Agreement
(this “Agreement”),
dated effective as
of _____________, 2014,
is by and among
212 DB Corp., a Delaware
corporation (“212”), at least a
majority of the common shareholders
of 212 (the
“212 Common
Stockholders”) and Nyxio
Technologies Corp., a
Nevada corporation (“NYXO”).
212, the 212
Common Stockholders
and NYXO are individually referred to herein as the “Party” or collectively as the “Parties.”
WHEREAS,
NYXO wishes to
acquire from 212,
and 212 wishes
to transfer to
NYXO all of
the common stock
of 212 issued
and outstanding as
of the date
of this Agreement,
subject to the
terms and conditions
set forth herein;
WHEREAS,
212 wishes to
acquire from NYXO,
and NYXO wishes
to transfer to
212 designated and
validly issued preferred
stock, subject to
the terms and
conditions set forth
herein; and
WHEREAS,
the transaction contemplated
herein shall qualify
as a “tax-free”
exchange within the
meaning of Section
368(b) of the
Internal Revenue Code
of 1986, as
amended.
NOW,
THEREFORE, IN CONSIDERATION
of the mutual covenants contained
in this Agreement, and
for other good
and valuable consideration
the receipt and
adequacy of which
are hereby acknowledged,
the Parties hereby
agree as follows:
ARTICLE
1
DEFINITIONS
Section
1.1. In addition to
the terms defined
elsewhere in this
Agreement, for all
purposes of this
Agreement, the following
terms shall have
the meanings indicated
in this Definitions
Section:
“212
Charter” means 212’s
Amended & Restated Certificate of Incorporation,
and as such may
be amended from
time to time.
“212
Common Stock”
means all common
stock of 212,
par value $0.001
per share, and
any securities into
which such common
stock may hereafter
be reclassified.
“212
Common Stockholders”
means at least
a majority of
the shareholders of
record of the
212 Common Stock,
immediately preceding the
Closing Date (as
defined below).
“Action”
means any action,
suit, inquiry, notice
of violation, proceeding
(including any partial
proceeding such as
a deposition) or
investigation pending or
threatened in writing against or
affecting the Company,
any Subsidiary or
any of their
respective properties before
or by any court, arbitrator, governmental or
administrative agency, regulatory
authority (federal, state, county, local or
foreign), stock market, stock exchange
or trading facility.
“Affiliate”
means any person
or entity that,
directly or indirectly
through one or
more intermediaries, controls
or is controlled
by or is
under common control
with a person
or entity, as
such terms are
used in and
construed under Rule
144 under the
Securities Act of
1933.
“Business
Day” means any
day except Saturday,
Sunday and any
day which is
a federal legal
holiday or a
day on which
banking institutions in
the State of
New York are
authorized or required
by law or
other governmental action
to close.
“SEC”
means the Securities
and Exchange Commission.
“Escrow
Agent” means
212’s legal counsel,
Brinen & Associates,
LLC, having an
address at 7
Dey Street, Suite
1503, New York,
New York 10007.
“Exchange
Act” means the
Securities Exchange Act
of 1934, as
amended.
“Exchange
Closing” means the
time and date
on which the
Parties determines to
schedule the consummation
of the Transaction,
which shall in
no event be
later than _______________,
2014.
“Exchange
Closing Date” means
the date on
which the Exchange
Closing occurs.
“Material
Adverse Effect” means
any of the
following: (i) a
material and adverse
effect on the
legality, validity or
enforceability of any
Transaction Document (as
defined below); (ii)
a material and
adverse effect on
the results of
operations, assets, prospects,
business or condition
(financial or otherwise)
of either of
the Parties and/or
their Subsidiaries, taken
as a whole;
or (iii) an
adverse impairment to a Party’s
ability to perform
on a timely
basis its obligations under
the Transaction Documents.
“NYXO
Charter” means NYXO’s
Amended & Restated
Certificate of Incorporation,
and as such
may be amended
from time to
time.
“NYXO
Common Stock”
means the common
stock of NYXO,
par value $0.001
per share, and
any securities into
which such common
stock may hereafter
be reclassified
“NYXO
Preferred Stock” means
the preferred stock
of NYXO as
defined under Section2.1(b)
below.
“Person”
means an individual
or corporation, partnership,
trust, incorporated or
unincorporated association, joint
venture, limited liability
company, joint stock
company, government (or
an agency or
subdivision thereof) or
other entity of
any kind.
“Proceeding”
means an action,
claim, suit, investigation
or proceeding (including,
without limitation, an
investigation or partial
proceeding, such as
a deposition), whether
commenced or threatened.
“Rule
144” means Rule
144 promulgated by
the SEC pursuant
to the Securities
Act, as such
Rule may be
amended from time
to time, or
any similar rule
or regulation hereafter
adopted by the
SEC having substantially
the same effect
as such Rule.
“Securities
Act” means the
Securities Act of
1933, as amended.
“Subsidiary”
means any “significant
subsidiary” as defined
in Rule 1-02(w)
of the Regulation
S-X promulgated by
the SEC under
the Exchange Act.
“Trading
Day” means: (i)
a day on
which the NYXO
Common Stock
is traded on
a Trading Market
(as defined below);
or (ii) if
the NYXO Common
Stock is not
quoted on any
Trading Market, a
day on which
the Common
Stock is quoted
in the over-the-counter
market as reported
by the OTC
Markets (or any
similar organization or
agency succeeding to
its functions of
reporting prices); provided,
that in the event that the Common
Stock is not listed or quoted as set forth
in (i) and (ii) hereof, then Trading Day shall
mean a Business Day.
“Trading
Market” means whichever
of the New
York Stock Exchange,
the American Stock
Exchange, the NASDAQ
National Market, the
NASDAQ SmallCap Market
or Over the
Counter (“OTC”) Market
on which the
NYXO Common
Stock is listed
or quoted for
trading on the
date in question.
“Transaction”
has the meaning
set forth in
Section 2.1.
“Transaction
Documents” means this
Agreement and any
other documents or
agreements executed in
connection with the
transactions contemplated hereunder.
ARTICLE
2
EXCHANGE
AND ASSUMPTION
Section
2.1 Exchange of
Interests. On the
terms and subject
to the conditions
set forth in
this Agreement, the
transactions, assumptions and
conditions as set
forth in this
Article 2 (collectively
the “Transaction”), at
the Exchange Closing:
(a)
212 shall
issue and deliver
to NYXO the
212 Common
Stock, representing all
of the common
stock of 212
issued and outstanding
as of the
date of this
Agreement;
(b)
NYXO shall issue
and deliver to the 212 Common Stockholders
a number of shares of
NYXO Preferred Stock
having a stated
value equal to
Ten Million Dollars
($10,000,000.00) as of
the Closing Date,
subject to the
terms and conditions
set forth below
(the “NYXO Preferred
Stock”), pursuant to
a duly authorized
and filed Certificate
of Designation (the “Certificate
of Designation”),
attached hereto at Exhibit A. The NYXO Preferred Stock shall have the following terms and conditions:
(i)
Voting and Dividends.
The NYXO Preferred
Stock shall not
be entitled to
dividends or voting,
except with respect
to matters affecting
the rights of
the NYXO Preferred
Stockholders or as
otherwise required by
law.
(ii)
Conversion. Each
share of NYXO
Preferred Stock shall
be convertible into
NYXO Common
Stock at the
greater of the
following: (i) $0.0001
per share; or
(ii) Ninety Percent
(90%) of the
average closing bid
price for NYXO
Common Stock
over the Five
(5) Trading Days
preceding the conversion
on the Trading
Market.
(iii)
Limitation. In
no event shall
any holder of
the NYXO Preferred
Stock be entitled
to convert any
NYXO Preferred Stock
if such conversion
would result in
beneficial ownership by
such holder or
its Affiliates of
any amount greater
than Four Point
Nine Nine Percent
(4.99%) of the
then- outstanding shares
of NYXO Common
Stock (the “4.99%
Limitation”).
(c)
The Parties
intend that the
Transaction contemplated herein
shall qualify as
a “tax-free” exchange
within the meaning
of Section 368(b)
of the Internal
Revenue Code of
1986. From and
after the date
of this Agreement
and until the
Closing Date, each
Party hereto shall
use its reasonable
best efforts to cause this transaction
to qualify, and will not knowingly take
any action, cause any action to be taken,
fail to take any action or
cause any action to fail to
be taken which action or failure to act
could prevent this transaction from qualifying as a reorganization under the provisions
of Section 368(b) of the Code.
Section
2.2 Amendment of
Notes. As a
condition precedent to
the Transaction, 212
shall amend or
cause to amend
any and all
outstanding convertible promissory
notes payable by
212 (the “Notes”)
at the Exchange Closing Date
to include substantially the
same terms and conditions
of the NYXO Preferred
Stock, including without
limitation the 4.99%
Limitation above. The notes,
as amended, are attached hereto
at Exhibit B.
Section
2.3 Assumption of Debts.
(a)
In connection with
the Transaction and
as a condition
precedent, NYXO shall
expressly assume certain
debts and accounts
of 212 in
the amount of
Seven Million One
Hundred Twenty-Six Thousand
Six Hundred Fifty-Eight
Dollars Twenty-Seven Cents ($7,126,658.27),
as detailed in
the Debt Summary
attached hereto at
Exhibit C.
(a) Notwithstanding
the foregoing, NYXO
shall not assume
any payroll tax
liability incurred prior
to the Closing
Date (the “Payroll
Taxes”) and 212
shall indemnify and
hold harmless NYXO,
and its officers
and directors, for
any liability, claims
or losses associated
with the Payroll
Taxes. 212 expressly
agrees to engage
legal representation in
connection with Payroll
Taxes to submit
an Offer in Compromise
to the Internal
Revenue Service or
otherwise resolve the
liability on a
good faith and
best efforts basis, and shall hold sufficient funds or shares in escrow sufficient
to satisfy such liability. The amount held in escrow shall be mutually agreed between the Parties.
Section
2.4 Delivery of
Securities. Subject to
the terms and
conditions hereof, at
the Exchange Closing:
(a)
212 shall
deliver to NYXO
a stock certificate
registered in the
name of NYXO
representing all the
212 Common
Stock to be
issued at the
Exchange Closing;
(b)
NYXO shall
deliver to the
212 Common
Stockholders stock certificates
registered in the
name of the
212 Common Stockholders
representing the pro
rata shares of
NYXO Preferred
Stock to be
issued at the
Exchange Closing;
(c)
NYXO shall
deliver to the
Escrow Agent stock
certificates representing the
NYXO Preferred Shares,
registered in the
names of the
212 Common Stockholders,
to be held
in escrow pending
the satisfaction of
the terms and
conditions set forth
herein. Upon satisfaction
of the terms
and conditions set
forth herein, the Escrow Agent shall
deliver, or cause to
be delivered, the certificates to
the 212 Common Stockholders; and
(d)
212 shall
deliver to the
Escrow Agent a
stock certificate representing
all 212 Common
Stock, registered in
the names of
NYXO, to be
held in escrow
pending the satisfaction
of the terms
and conditions set
forth herein. Upon
satisfaction of the
terms and conditions
set forth herein,
the Escrow Agent
shall deliver, or
cause to be delivered, the certificate
to NYXO.
Section
2.5 Supplemental Action.
If, at any
time after the
Exchange Closing, any
of the Parties
shall determine that
any further conveyances,
agreements, documents, instruments,
and assurances or
any further action
is necessary or
desirable to carry
out the provisions
of this Article
2, the Parties
shall execute and
deliver any and
all proper conveyances,
agreements, documents, instruments,
and assurances and
perform all necessary or proper acts to
carry out the provisions of this
Article 2.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF
212
The
following representations and
warranties are made
by 212 to
NYXO as of
the date hereof
and as of
the Exchange Closing
Date:
Section
3.1 Duly Organized,
Assets, Qualification, etc.
212: (i) is
a duly organized and
validly existing Delaware
corporation; (ii) has
the power and
authority to own,
lease and operate
its properties and
assets and carry
on its business
as now conducted;
(iii) owns the
exclusive right, title
and interest in
the assets listed on Exhibit
E attached hereto; and (iv) is
duly qualified and licensed to do business
and in good standing as
a foreign corporation in each jurisdiction
where the failure to be so qualified or
licensed could reasonably be expected to have a Material Adverse Effect.
Section
3.2 Authorization, Validity
and Effect of
Agreements. The execution,
delivery and performance
by 212 of
each of the
Transaction Documents and
the consummation of
the transactions contemplated
thereby (i) are
within the power
of 212 and
(ii) have been
duly authorized by
all necessary corporate
actions on the
part of 212.
Upon issuance pursuant to
the terms of
hereof, all such
shares of capital stock of 212 issued hereunder will be validly issued, fully
paid, and non-assessable.
Section
3.3 Enforceability. Each Transaction
Document executed, or
to be executed,
by 212
has been, or
will be, duly
executed and delivered
by 212 and
constitutes, or will
constitute, a legal,
valid and binding
obligation of 212,
enforceable against 212
in accordance with
its terms, except
as limited by
bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of
creditors’ rights generally
and general principles
of equity.
Section
3.4 Non-Contravention. The
execution and delivery
by 212 of
the Transaction Documents
and the performance
and consummation of
the transactions contemplated
thereby do not
and will not:
(i) violate 212’s
Certificate of Incorporation
or; (ii) violate
any material judgment,
order, writ, decree,
statute, rule or
regulation applicable to
212; (iii) violate
any provision of,
or result in
the breach or the acceleration of,
or entitle any other person to accelerate (whether after the giving of notice or lapse
of time or both), any material mortgage, indenture, agreement, instrument or contract to which 212 is a party or by which it is
bound; or (iv) result in the creation or imposition of any material lien upon any property,
asset or revenue of 212 or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license,
authorization or approval applicable to 212, its business or operations, or any of its assets
or properties.
Section
3.5 Approval. No
consent, approval, order
or authorization of,
or registration, declaration
or filing with,
any governmental authority
or other person
or entity is
required in connection
with the execution
and delivery of
the Transaction Documents
executed by 212
and the performance
and consummation of
the transactions contemplated
thereby, other than:
(i) filings required
by state and federal securities
laws, if applicable; and
(ii) those that
have been made
or obtained prior
to the date
of this Agreement.
Section
3.6 Capitalization. The
authorized share capital
of 212, immediately
prior to the
Exchange Closing, consists
of Two Hundred
Million (200,000,000) shares
of 212 Common
Stock, of
which Seventy-Two Million
Two Hundred Fifteen
Thousand Nine Hundred
Twelve (72,215,912) shares
are issued and
outstanding. The Capitalization
Table of 212
is attached hereto
at Exhibit D.
Except as stated above or disclosed
in this Agreement (and the Exhibits hereto), there are no outstanding options, warrants,
rights (including conversion or preemptive
rights and rights of first refusal), proxy or
shareholder agreements, or agreements of any kind for the purchase or acquisition from 212 of any of its
securities. All issued and outstanding
shares of capital stock of
212: (i) have been duly authorized
and validly issued and are fully paid and non-assessable; and (ii) were issued in compliance with all
applicable Delaware laws and in accordance with all applicable securities laws, and any relevant state securities laws,
or pursuant to valid exemptions therefrom. The rights, privileges and restrictions of the
212 Common Stock are as stated in the 212 Charter.
Section
3.7 Liabilities. Except for
the liabilities disclosed
in this Agreement,
including without limitation
the Notes and
debts listed under
Exhibit C, 212
has no material
liabilities and, to
the best of
its knowledge, no
material contingent liabilities,
except current liabilities
incurred in the
ordinary course of
business not exceeding
One Hundred Thousand
Dollars ($100,000.00) individually
or Two Hundred
Fifty Thousand Dollars
($250,000.00) in the
aggregate which have
not been, either
in any individual case or in the aggregate, materially adverse.
Section
3.8 Title to Properties
and Assets; Liens,
Etc. 212 has
good and marketable
title to its
properties and assets
and good title
to its leasehold
estates, in each
case subject to
no mortgage, pledge,
lien, lease, encumbrance
or charge, other
than: (i) those
resulting from taxes
which have not
yet become delinquent;
(ii) minor liens
and encumbrances which
do not materially
detract from the
value of the
property subject thereto or materially impair the operations of
212; and (iii) those that have otherwise arisen in the ordinary course of business.
Section
3.9 Compliance with Other
Instruments. 212 is
not in violation
or default of
any term of
the 212 Charter
or bylaws, each
as amended, or
in violation or
default in any
material respect of
any mortgage, indenture,
contract, lease, agreement,
instrument or contract to
which it is
party or by which it is bound or
of any judgment, decree, order or writ, except for such violations or defaults which
would not result in a material adverse change in the assets, condition or affairs of the Company,
financially or otherwise.
Section
3.10 Litigation. There
is no action,
suit, proceeding or
investigation pending or,
to the Company’s
knowledge, currently threatened
against 212 or
that questions the
validity of Transaction
Documents or the
right of 212
to enter into
any of such
agreements, or to
consummate the transactions
contemplated hereby or thereby, nor is
212 aware that there
is any basis for any of the foregoing.
The foregoing includes, without limitation,
actions pending or, to 212’s knowledge,
threatened involving the prior employment of any of 212’s employees, their use in connection with the 212’s
business of any information or techniques allegedly proprietary to any of its former
employers, or its obligations under any agreements with prior employers. 212 is not
and has not been a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality. There is no action, suit, proceeding or investigation by
212 currently pending or which 212 intends to initiate.
Section
3.11 Investment Representations.
(a)
212 understands
that the NYXO
Preferred Stock have
not been registered
under the Securities
Act by reason
of a specific
exemption from the
registration provisions of
the Securities Act,
the availability of
which depends upon,
among other things,
the bona fide
nature of the
investment intent and
the accuracy of 212’s representations
as expressed herein or otherwise made
pursuant hereto. 212 is acquiring the NYXO Preferred
Stock, including the NYXO Common
Stock to which the NYXO Preferred Stock is convertible
into, for its own account, not
as a nominee or agent, for investment
and not with a view to, or for resale in connection with, any distribution or public
offering thereof within the meaning of
the Securities Act.
(b)
212 understands
that the NYXO
Preferred Stock issued
pursuant to this
Agreement will be
“restricted securities” under
the federal securities
laws, inasmuch as
the NYXO
Preferred Stock are
being acquired from
NYXO in a
transaction not involving
a public offering
and that under such laws such Securities
may not be resold without registration under the Securities Act or an exemption therefrom.
The NYXO Preferred Stock issued pursuant to this Agreement will be endorsed with a
legend to such
effect. 212 has been
informed and understands
that: (i) there are
substantial restrictions on the transferability of the; and (ii) no federal or state agency has made any finding or determination
as to the fairness for public investment, nor any recommendation nor endorsement, of the Securities.
(c)
212 understands
that all books,
records, and documents
of NYXO relating
to this investment
have been and
remain available for
inspection by 212
upon reasonable notice.
212 confirms that
all documents requested
have been made
available, and that
212 has been
supplied with all
of the information concerning this
investment that has been requested. 212 confirms that it has obtained
sufficient information, in its judgment or that of its independent purchaser representative, if any, to evaluate
the merits and
risks of this
investment. 212 confirms
that it has
had the opportunity
to obtain such independent legal and tax advice and financial planning services
as it has deemed appropriate prior to making a decision to
acquire for the NYXO Preferred Stock.
In making a decision to acquire the
NYXO Preferred Stock, 212 has relied exclusively upon its experience and judgment, upon such independent investigations as
it, or they, deemed appropriate, and upon information provided by
NYXO in writing or found in the books, records, or documents of NYXO.
(d)
212 is
aware that the
acquisition of NYXO
Preferred Stock is
highly speculative and
subject to substantial
risks. 212 is
capable of bearing
the high degree
of economic risk
and burdens of
this venture, including,
but not limited
to, the possibility
of a complete
loss, the lack
of a sustained
and orderly Trading
Market, and limited
transferability of the
NYXO Preferred Stock, which
may make the liquidation of this
investment impossible for the indefinite future.
(e)
None of
the following information
has ever been
represented, guaranteed, or
warranted to the
undersigned, expressly or
by implication by
NYXO or any
broker, agent or
employee of NYXO,
or by any
other person: (i)
the approximate or
exact length of
time that 212 will
be required to remain as a holder
of the NYXO Preferred Stock; (ii) the amount of consideration, profit, or loss to be
realized, if any,
as a result
of an investment
in the NYXO
Preferred Stock or
the NYXO Common
Stock subsequently converted
into; or (iii) that the past performance
or experience of NYXO, its officers, directors,
associates, agents, affiliates, or employees or any other person will in any way indicate or
predict economic results in connection with the plan of operations of NYXO or the return on the
investment.
(f)
212 hereby
agrees not to,
except as contemplated
by the transaction
set forth herein,
to purchase or
sell the NYXO
Preferred Stock or
any equity instrument
related to the
NYXO Preferred Stock
“on the basis of”,
as such term
is defined in Rule 10b5-1 of
the Exchange Act, any material
nonpublic information.
Section
3.12 Audit. 212 hereby
represents and warrants
to NYXO that
it will complete
an audit of
212’s financials within
Seventy (70) days
from the Closing
Date, and that
212 will deliver
such audit to
NYXO within Five
(5) businesses days
from completion thereof.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF
NYXO
The
following representations and
warranties are made
by NYXO to
212 as of
the date hereof
and as of
the Exchange Closing
Date:
Section
4.1 Duly Organized,
Qualification, etc. NYXO:
(i) is a
duly organized and
validly existing Nevada
corporation; (ii) has
the power and
authority to own,
lease and operate
its properties and
carry on its
business as now
conducted; and (iii)
is duly qualified,
licensed to do
business and in
good standing as
a foreign corporation
in each jurisdiction
where the failure
to be so
qualified or licensed
could reasonably be
expected to have
a Material Adverse
Effect.
Section
4.2 Authorization, Validity
and Effect of
Agreements. The execution,
delivery and performance
by NYXO of
each of the
Transaction Documents and
the consummation of
the transactions contemplated
thereby: (i) are
within the power
of NYXO and
(ii) have been duly authorized
by all necessary corporate actions
on the part of NYXO. All such shares of capital stock of NYXO issued hereunder will be validly issued, fully paid, and non-assessable.
Section
4.3 Enforceability. Each Transaction
Document executed, or to be executed, by NYXO
has been, or
will be, duly
executed and delivered
by NYXO and
constitutes, or will
constitute, a legal,
valid and binding
obligation of NYXO,
enforceable against NYXO
in accordance with
its terms, except as limited
by bankruptcy, insolvency or
other laws of general application relating
to or affecting the enforcement of creditors’ rights generally and general
principles of equity.
Section
4.4 Non-Contravention. The
execution and delivery
by NYXO of
the Transaction Documents
and the performance
and consummation of
the transactions contemplated
thereby do not
and will not:
(i) violate NYXO’s
Certificate of Incorporation
or; (ii) violate
any material judgment,
order, writ, decree, statute, rule or regulation applicable to NYXO; (iii) violate any provision of, or result in the breach
or the acceleration of, or entitle any other person to accelerate (whether after the giving of notice
or lapse of time or both), any material mortgage, indenture, agreement, instrument or contract to which
NYXO is a party or by which it is bound; or (iv) result in the creation or imposition of any material lien upon
any property, asset or revenue
of NYXO or the suspension, revocation, impairment, forfeiture, or
nonrenewal of any material permit, license, authorization or approval applicable to NYXO, its business or operations, or
any of its assets or properties.
Section
4.5 Approval. No
consent, approval, order or authorization of, or
registration, declaration or
filing with, any
governmental authority or
other person or
entity is required
in connection with
the execution and
delivery of the
Transaction Documents executed
by NYXO and
the performance and
consummation of the
transactions contemplated thereby,
other than: (i)
filings required by
state and federal
securities laws; or (ii) those that
have been made or obtained prior to the date of
this Agreement.
Section
4.6 Capitalization. The authorized
share capital of
NYXO, immediately prior
to the Exchange
Closing, consists of:
(i) Eight Billion
(8,000,000,000) shares of
NYXO Common
Stock, of which
Three Billion Five
Hundred Eighty-Three Million
Seven Hundred Twenty-One
Thousand Two
(3,583,721,002) are issued and
outstanding; and (ii) One
Thousand Five Hundred (1,500) shares of
authorized preferred stock, consisting of: (A) One Thousand One Hundred (1,100) Series
A Preferred Stock authorized, of which no shares outstanding; and (B) One Hundred (100) shares of Series B Convertible Preferred
Stock, of which One Hundred (100) shares
are issued and outstanding. Except as stated above or otherwise disclosed in this Agreement,
there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy
or shareholder agreements, or agreements of any kind for the purchase or acquisition
from NYXO of any of its securities. All issued and outstanding shares of
capital stock of NYXO: (i) have been duly authorized and validly issued and are fully
paid and non-assessable;
and (ii) were
issued in compliance
with all applicable Nevada
laws and in accordance with all
applicable securities laws, and any relevant state securities
laws, or pursuant to valid exemptions therefrom.
The rights, privileges and restrictions of the
NYXO Preferred Stock and the NYXO Common
Stock are as stated
in the NYXO Charter.
Section
4.7 SEC and
OTC Markets Disclosure; Financial
Statements. NYXO has
filed all reports
required to be
filed by it
to remain current
on the OTC
Pink Markets (OTC:
NYXO) and
all reports required
to be filed
by it under
the Securities Act
and the Exchange
Act, including pursuant
to Section 13(a) or 15(d) thereof,
for the Twelve (12) months preceding the
date hereof (or such shorter period as NYXO was required by OTC Markets or the SEC
to file such reports) (the foregoing materials being collectively referred to herein as the “SEC Reports”).
As of their respective dates, the SEC Reports complied in all material respects with the requirements of the SEC, and none of
the SEC Reports, when filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated
therein or necessary in
order to make
the statements therein,
in light of
the circumstances under which they
were made, not misleading. The financial statements of NYXO included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing
Section
4.8 Company Status.
NYXO is not
now, and has
not been for
at least Twelve
(12) months prior
to the Closing
Date, a “shell”
as described in
Rule 144(i)(1)(i) of
the Securities Act
and has filed
“Form 10 Information”
as that term
is defined in
Rule 144(i)(3), with
the Commission reflecting
its status as an entity that is no longer a shell more than Twelve (12) months
prior to the date of this Agreement.
Section
4.9 Material Changes.
Since the date
of the latest
audited financial statements
included within the
SEC Reports, except
as specifically disclosed
in the SEC
Reports: (i) there
has been no
event, occurrence or
development that has
had or that
could reasonably be
expected to result
in a Material
Adverse Effect; (ii)
except in connection with the Transaction,
NYXO has not incurred any liabilities
(contingent or otherwise) other than: (A) trade payables, accrued expenses and other
liabilities incurred in the ordinary course of business consistent with past practice; and (B) liabilities not required to be
reflected in NYXO's financial statements filed with the SEC; and (iv) NYXO has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock.
Section
4.10 Additional NYXO Representations.
NYXO represents it:
(a)
Is not
under investigation by
an administrative authority;
(b)
Is not
subject to any
order restraining the
NYXO from issuing
shares;
(c)
Does not
have any officer,
director or affiliate
that is currently
or has been
under investigation by
the SEC or
any other governmental
or regulatory agency;
(d)
Does not
have any officer
or director that
has been convicted
of any felony
within the past
Ten (10) years
nor been convicted
of a misdemeanor
sounding in any
financial crime or
a crime of
moral turpitude in
the last Five
(5) years;
(e)
Has not
filed a registration
statement that has
a stop order
on it; and
(f)
Has not
been the subject
of any administrative
enforcement order finding
fraud or deceit
in connection with
the purchase or
sale of a
security.
(g)
Neither NYXO nor
any of the
NYXO’s affiliates have,
and no person
acting on behalf
thereof has taken
or will take,
directly or indirectly,
any action designed
to, or that
might reasonably
be expected to cause
or result in,
stabilization in violation
of law, or
manipulation, of the
prince of the
common stock
Section
4.11 Investment Representations.
(a)
NYXO understands
that the shares
of 212 Common
Stock are not
listed on any
Trading Market and
have not been
registered under the
Securities Act by
reason of a
specific exemption from
the registration provisions
of the Securities
Act, the availability
of which depends
upon, among other things,
the bona fide
nature of the investment
intent and the
accuracy of NYXO’s
representations as expressed herein or
otherwise made pursuant
hereto. NYXO is
acquiring the 212
Common Stock
for its own account, not as a nominee or agent, for investment and not with
a view to, or for resale in connection with, any distribution
or public offering thereof
within the meaning
of the Securities
Act.
(b)
NYXO understands
that 212 is
a private company and that the 212
Common Stock
issued pursuant to
this Agreement will
be “restricted securities”
under the federal
securities laws, inasmuch
as the 212
Common Stock
are being acquired
in a transaction
not involving a
public offering and
that under such
laws such Securities
may not be
resold without registration
under the Securities
Act or an
exemption therefrom. The NYXO
Preferred Stock issued
pursuant to this Agreement
will be endorsed with a legend to such effect. NYXO has been informed and understands
that (i) there are substantial restrictions on the transferability of the,
and (ii) no federal or state agency has made any finding or determination as
to the fairness for public investment, nor any recommendation nor endorsement, of the Securities.
(c)
NYXO understands
that all books,
records, and documents
of 212 relating
to this investment
have been and
remain available for
inspection by NYXO
upon reasonable notice. NYXO
confirms that all
documents requested have
been made available,
and that 212
has been supplied
with all of
the information concerning
this investment that
has been requested. NYXO confirms
that it has obtained sufficient information,
in its judgment
or that of
its independent purchaser
representative, if any, to evaluate
the merits and risks of this acquisition. NYXO confirms that it has had the opportunity to obtain
such independent legal and tax advice
and financial planning services
as it has deemed appropriate prior
to making a decision to acquire the 212 Common Stock. In making a decision to acquire
the 212 Common Stock, NYXO has relied
exclusively upon its experience and judgment, upon such independent investigations as it, or they, deemed appropriate, and upon
information provided by 212 in writing or found in the books, records, or documents
of 212.
(d)
NYXO is
aware that an
investment in the
212 Common
Stock is highly
speculative and subject
to substantial risks.
NYXO is capable
of bearing the
high degree of
economic risk and
burdens of this
venture, including, but
not limited to,
the possibility of
a complete loss,
the lack of
a sustained and
orderly public market,
and limited transferability
of the 212
Common Stock,
which may make the
liquidation of this investment
impossible for the
indefinite future.
(e)
The offer
to acquire the
212 Common
Stock was directly
communicated to NYXO
by such a
manner that NYXO,
or its purchaser
representative, if any,
was able to
ask questions of
and receive answers
from 212 or
a person acting
on its behalf
concerning the terms
and conditions of
this Transaction. At
no time, except
in connection and
concurrently with such
communicated offer, was
NYXO presented with
or solicited by
or through any
leaflet, public promotional
meeting, television advertisement, or
any other form
of general advertising.
(f)
None of
the following information
has ever been
represented, guaranteed, or
warranted to the
undersigned, expressly or
by implication by
212 or any
broker, agent or
employee of
NYXO, or by
any other person:
(i) the approximate
or exact length
of time that
NYXO will be
required to remain as a
holder of the 212 Common Stock;
(ii) the amount of consideration,
profit, or loss to
be realized, if any,
as a result
of an investment
in 212; or
(iii) that the
past performance or
experience of 212,
its officers, directors, associates, agents, affiliates, or employees or any other person will in any way indicate or predict
economic results in connection with the plan of operations of 212 or the return on the investment.
ARTICLE
5
OTHER
AGREEMENTS OF
THE PARTIES
Section
5.1 Restrictive Legend. The 212 Common
Stock and the NYXO Preferred Stock (collectively,
the “Securities”) may
only be disposed
of in compliance
with state and
federal securities laws.
Certificates evidencing the
Securities will contain
a legend with
restriction substantially similar
the standard restrictive
legend under the
Securities Act. Each
Party agrees that
the removal of
the restrictive legend
from certificates representing Securities as
set forth in this Section 5.1 is
predicated upon the issuer’s reliance that such Party will sell any Securities
pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements,
or an exemption therefrom.
Section
5.2 Restriction on
Transfer; Right of First Refusal. Before
any shares of 212
Common Stock may
be sold by
NYXO or transferred
(including transfer by
operation of law),
such shares shall
first be offered
to the 212
Common Stockholders.
Section
5.3 Integration. Each
Party shall not,
and shall use
its best efforts
to ensure that
no Affiliate of
such Party shall,
sell, offer for
sale or solicit
offers to buy
or otherwise negotiate
in respect of
any security (as
defined in Section
2 of the
Securities Act) that
would be integrated
with the offer
or sale of
such Party’s Securities
in a manner
that would require
the registration under
the Securities Act
of the sale of the Securities
of such Party hereunder, or
that would be integrated with the offer
or sale of such Securities
for purposes of
the rules and
regulations of any
Trading Market in a
manner that would
require stockholder approval of
the sale of
the Securities pursuant
hereto.
Section
5.4 Listing of
Securities. NYXO agrees:
(i) if NYXO
applies to have
the NYXO
Common Stock traded on any other
Trading Market, it will
include in such application the
shares of NYXO
Common Stock
convertible pursuant to
the NYXO Preferred
Stock, and will
take such other action as is necessary
or desirable to cause such NYXO Common Stock to be listed on such other Trading Market
as promptly as possible; and (ii) it will take all action reasonably necessary to continue the listing and trading of its NYXO
Common Stock on a Trading Market and will comply in all material respects with NYXO’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market.
ARTICLE
6
MISCELLANEOUS
Section
6.1 Fees and
Expenses. Each Party
shall pay the
fees and expenses
of its advisers,
counsel, accountants and
other experts, if
any, and all
other expenses incurred
by such Party
incident to the
negotiation, preparation, execution,
delivery and performance
of the Transaction
Documents. The Company
shall pay all stamp and other taxes and duties levied in connection with the
sale of the Securities.
Section
6.2 Entire Agreement.
The Transaction Documents,
together with the
exhibits and schedules
thereto, contain the
entire understanding of
the Parties with
respect to the
subject matter hereof
and supersede all
prior agreements, understandings,
discussions and representations,
oral or written,
with respect to such matters, which the Parties acknowledge have been merged
into such documents, exhibits and schedules.
Section
6.3 Notices. Any
and all notices
or other communications
or deliveries required
or permitted to
be provided hereunder
shall be in
writing and shall
be deemed given
and effective on
the earliest of:
(i) the date
of transmission, if
such notice or
communication is delivered
via facsimile (provided
the sender receives
a machine-generated confirmation
of successful transmission)
at the facsimile
number specified in
this Section 6.3
prior to 6:30
p.m. (EST) on
a Trading Day;
(ii) the next
Trading Day after
the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number specified in this Section 6.3 on a day
that is not a Trading Day or later than 6:30 p.m. (EST) on any Trading Day; (iii) the Trading Day following the date of mailing,
if sent by U.S. nationally recognized overnight courier service; or (iv) upon actual receipt by the Party to whom such notice
is required to be
given. The address for such notices
and communications shall be
as follows:
| If
to 212: |
212
DB Corp.
1609
Scotland Avenue
Charlotte,
North Carolina 28207 |
With
a copy, that
shall not constitute
notice, to:
| Attn: |
Joshua
D. Brinen,
Esq.
Brinen
& Associates, LLC
7
Dey Street, Suite
1503
New
York, New York
100007
Telephone:
(212) 330-8151
Facsimile:
(212) 227-0201 |
| If
to NYXO: |
Nyxio
Technologies Corp.
1330
S.W. 3rd Avenue
Portland,
Oregon 97201 |
With
a copy, that
shall not constitute
notice, to:
| Attn: |
Joe
Laxague, Esq.
Clark
Corporate Law Group
LLP
3273
East Warm Springs
Las
Vegas, Nevada 89120
Telephone:
(702) 312-6255
Facsimile:
(702) 944-7100 |
or
such other address
as may be
designated in writing
hereafter, in the
same manner, by
such Person.
Section
6.4 Amendments; Waivers; No Additional Consideration. No provision of
this Agreement may be
waived or amended
except in a
written instrument signed
by each of
the Parties. No
waiver of any
default with respect
to any provision,
condition or requirement
of this
Agreement shall be
deemed to be
a continuing waiver
in the future
or a waiver
of any subsequent
default or a
waiver of any
other provision, condition
or requirement hereof,
nor shall any
delay or omission of either
Party to exercise any right hereunder in any manner impair the exercise of any such right.
Section
6.5 Construction. The headings
herein are for
convenience only, do
not constitute a
part of this Agreement
and shall not
be deemed to
limit or affect any
of the provisions hereof. The
language used in
this Agreement will
be deemed to
be the language
chosen by the
Parties to express
their mutual intent,
and no rules
of strict construction
will be applied
against any Party.
This Agreement shall be construed
as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring
or disfavoring any
Party by virtue
of the authorship
of any provisions of this
Agreement or any of the
Transaction Documents.
Section
6.6 Successors and
Assigns; No
Third-Party Beneficiaries. This
Agreement shall be
binding upon and inure to the benefit of
the Parties and their successors and permitted
assigns. This Agreement
is intended for
the benefit of
the Parties hereto
and their respective
successors and permitted
assigns and is
not for the
benefit of, nor
may any provision
hereof be enforced
by, any other
Person.
Section
6.7 Governing Law. All
questions concerning the
construction, validity, enforcement
and interpretation of
this Agreement shall
be governed by
and construed and
enforced in accordance
with the internal
laws of the
State of New
York, without regard
to the principles
of conflicts of
law thereof. Each
Party agrees that
all Proceedings concerning
the interpretations, enforcement and
defense of the transactions contemplated
by this Agreement and any other Transaction Documents (whether brought against a
Party hereto or
its respective Affiliates, employees or
agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York,
Borough of Manhattan. Each Party hereto hereby irrevocably submits to the exclusive jurisdiction of such courts for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein (including with respect to the enforcement of the any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any such New York
Court, or that such Proceeding has been
commenced in an improper
or inconvenient forum. Each Party hereto
hereby irrevocably waives personal service
of process and consents to process being served in any such Proceeding 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 manner
permitted by law. Each Party
hereto hereby irrevocably waives, to
the fullest extent permitted
by applicable law,
any and all right
to trial by jury
in any legal
proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby. If either Party shall commence a Proceeding to
enforce any provisions of a Transaction Document, then the prevailing Party in such
Proceeding shall be reimbursed by
the other Party for its
reasonable attorneys’ fees and
other costs and expenses incurred
with the investigation, preparation and
prosecution of such Proceeding.
Section
6.8 Indemnification. Each of the Parties hereto agrees to
indemnify and hold
harmless the other
Party and its
officers, directors, employees,
agents, affiliates and
equity owners from
and against any
and all claims,
demands, actions, suits,
proceedings, losses, damages
(including reasonable attorneys’
fees and costs)
arising out of
or relating to
any breach by
either Party of
any of the
terms and conditions of this Agreement or of any breach of their respective representations
and warranties.
Section
6.9 Survival. The representations, warranties,
agreements and covenants
contained herein shall
survive the Exchange
Closing and the
delivery of the
Securities.
Section
6.10 Execution. This
Agreement may be
executed in two
or more counterparts,
all of which
when taken together
shall be considered
one and the
same agreement and
shall become effective
when counterparts have
been signed by
each Party and
delivered to the
other Party, it
being understood that
both Parties need
not sign the
same counterpart. In the
event that any
signature is delivered
by facsimile transmission, such
signature shall create
a valid and binding obligation
of the Party executing (or
on whose behalf such signature is executed) with the same force and effect as if such facsimile
signature page were
an original thereof.
Section
6.11 Severability. If
any provision of
this Agreement is
held to be
invalid or unenforceable
in any respect,
the validity and
enforceability of the
remaining terms and
provisions of this
Agreement shall not
in any way
be affected or
impaired thereby and
the Parties will
attempt to agree
upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this Agreement.
Section
6.12 Replacement of
Securities. If any certificate
or instrument evidencing any Securities
is mutilated, lost,
stolen or destroyed,
the issuer shall
issue or cause
to be issued
in exchange and
substitution for and
upon cancellation thereof,
or in lieu
of and substitution
therefor, a new
certificate or instrument,
but only upon
receipt of evidence
reasonably satisfactory to
the issuer of
such loss, theft
or destruction and customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the
issuance of such
replacement Securities. If
a replacement certificate
or instrument evidencing
any Securities is requested due to a
mutilation thereof, the issuer may require
delivery of such mutilated certificate or instrument as a condition precedent to any
issuance of a replacement.
Section
6.13 Remedies. In
addition to being
entitled to exercise
all rights provided
herein or granted
by law, including
recovery of damages,
each Party will
be entitled to
specific performance under
the Transaction Documents.
The Parties agree
that monetary damages
may not be
adequate compensation for any
loss incurred by reason of any
breach of obligations described in the
foregoing sentence and hereby agrees to
waive in any action
for specific performance of
any such obligation the
defense that a remedy at law would
be adequate.
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF, the
Parties hereto have
caused this Share
Exchange Agreement to
be duly executed
by their respective
authorized signatories as
of the date
first indicated above.
The 212 DB
Corp. action by
shareholder consent is
attached hereto at
Exhibit F and
is hereby incorporated
by reference.
| 212
DB Corp. |
Nyxio
Technologies Corp. |
| |
|
| By:
/s/ John Acunto |
By:
/s/ Giorgio Johnson |
| Name:
John Acunto |
Name:
Giorgio Johnson |
| Title:
Chairman and CEO |
Title:
CEO |
EXHIBIT
A
Certificate
of Designation
EXHIBIT
B
Amended
Convertible Promissory Notes
EXHIBIT
C
Debt
Summary
| Convertible
Debentures |
$6,200,000.00 |
| AP 8.1.14 |
$926,658.27 |
| |
$7,126,658.27 |
| |
Current |
|
1
- 30 |
|
31
- 60 |
|
61
- 90 |
|
>
90 |
|
TOTAL |
| Beckman
Lieberman & Barandes,
LLP |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
31,231.00 |
|
31,231.00 |
| Clear
Channel Broadcasting |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
132,900.00 |
|
132,900.00 |
| Con
Edison |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
156.13 |
|
156.13 |
| Crunch
Digital |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
48,000.00 |
|
48,000.00 |
| CSC
Corporation Service Co |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
704.00 |
|
704.00 |
| Dan
Klores Communication, LLC |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
78,660.88 |
|
78,660.88 |
| David
M. Ehrlich &
Associates |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
4,927.50 |
|
4,927.50 |
| Evan
M. Greenspan, Inc. |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
13,632.02 |
|
13,632.02 |
| FX
Gear Inc |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
22,865.00 |
|
22,865.00 |
| IESI
- NY Corporation |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
680.45 |
|
680.45 |
| Justin
A Permijo |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
17,500.00 |
|
17,500.00 |
| Keane
& Beane PC |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
4,625.31 |
|
4,625.31 |
| Maven
Partners, LLc |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
287,066.78 |
|
|
| MindSmack.
TV, LLC |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
783.05 |
|
783.05 |
| Pozo
Goldstein, LLP |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
500.00 |
|
500.00 |
| PR
Newswire |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
7,414.00 |
|
7,414.00 |
| Premium
Assignment Corporation |
0.00 |
|
1,217.15 |
|
0.00 |
|
0.00 |
|
0.00 |
|
1,217.15 |
| QuikTrak |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
572.00 |
|
572.00 |
| Quill
Corporation |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
1,009.88 |
|
1,009.88 |
| Right
Scale |
0.00 |
|
0.00 |
|
0.00 |
|
1,988.26 |
|
40,358.03 |
|
42,346.29 |
| SF&P
Advisors |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
850.00 |
|
850.00 |
| Shukat
Arrow Hafer Weber
& Herbsman LLP |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
33,233.90 |
|
33,233.90 |
| Signature
Cleaning Services |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
2,120.34 |
|
2,120.34 |
| The
Hartford |
0.00 |
|
0.00 |
|
0.00 |
|
262.42 |
|
0.00 |
|
262.42 |
| Time
Warner
Cable |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
1,787.38 |
|
1,787.38 |
| U
Test Inc |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
50,000.00 |
|
50,000.00 |
| United
Healthcare |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
13,845.79 |
|
13,845.79 |
| Wild
Bull Holdings |
500.00 |
|
500.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
1,000.00 |
| Wilson
Sonsini Goodrich
and Rosati |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
14,567.00 |
|
14,567.00 |
| Worldwide
Stock Transfer,
LLC |
0.00 |
|
0.00 |
|
200.00 |
|
200.00 |
|
1,800.00 |
|
2,200.00 |
| SKS
Consulting, Inc. |
0.00 |
|
0.00 |
|
0.00 |
|
0.00 |
|
110,000.00 |
|
110,000.00 |
| TOTAL |
500.00 |
|
1,717.15 |
|
200.00 |
|
2,450.68 |
|
921,790.44 |
|
926,658.27 |
EXHIBIT
D
212
Capitalization Table
212
DB Corp. Series
C Issuances
Since
3/20/2014
| Shareholder
Name |
No.
Shares |
| James Patracuolla |
1,334,000 |
| Mathew Guiresse |
397,500 |
| Rick
Ross |
61,475 |
| 2 Chainz |
8,197 |
| Jeff
Robinson |
102,460 |
| Kevin
Liles |
150,000 |
| Saturn Posidien |
608,930 |
| Apollo
Group Holdings |
1,894,449 |
| Total: |
4,557,011 |
EXHIBIT
E
Summary
of 212 Assets
Artist
Agreements
|
Music
Licenses
|
Intellectual
Property
|
| J. Balvin |
Sony |
www.rockthis.com |
| Jeremih |
Universal Music Group |
www.playgigit.com |
| Joe Budden |
Warner Music Group |
Rock This Game |
| Joell Ortiz |
|
Play Gigit Game |
| K. Michelle |
|
| Marsha Ambrosius |
| MGK |
| Ray J |
| Miguel |
| Nas |
| Nengo
Flow |
| NeHYo |
| Pusha T |
| Jowell & Randy |
| Talib Kweli |
| Rick Ross |
| Royce da 5'9" |
| Soulja Boy Tell EM |
| T Pain |
| TYGA |
| J. Alvarez |
| Sean Kingston |
| Goodie Mob |
| Flo Rida |
| Fabolous |
| Cypress Hill |
| Crooked
I |
| 2 Chainz |
| Troy
Ave |
| Brandy |
| Dream |
| Lil Wayne |
| Raekwon |
| Common |
| Melanie Fiona |
| Kid Daytona |
| Kosha Dillz |
| Marcus Moody |
EXHIBIT
F
Action
by 212 DB
Corp. Shareholder Consent
Nyxio Technologies (CE) (USOTC:NYXO)
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