MySkin, Inc. CONSULTING, CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
Exhibit
10.2
CONSULTING,
CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
This
Consulting, Confidentiality and Proprietary Rights Agreement ("Agreement") is
entered into as of the 1stth day of December, 2007(the “Effective
Date”) by and between MySkin, Inc., a California corporation (the “Company”),
and Xxxxxxxxxx Xxxxxxxxxxxx (“Consultant”).
Consultant
acknowledges and agrees that the Company shall have all right, title and
interest in, among other items, all research information and all documentation
or manuals related thereto that Consultant develops or prepares for the Company
during the period of Consultant's engagement by the Company and that such work
by Consultant shall be work made for hire and that the Company shall be the sole
author thereof for all purposes under applicable copyright and other
intellectual property laws. Other than the Proprietary Rights listed on the
Schedule attached hereto, Consultant represents and covenants to the Company
that there are no Proprietary Rights relating to the Company's business which
were made by Consultant prior to Consultant's engagement by the Company.
Consultant agrees promptly to disclose in writing to the Company all Proprietary
Rights in order to permit the Company to claim rights to which it may be
entitled under this Agreement. With respect to all Proprietary Rights
which are assigned to the Company pursuant to this Section 8, Consultant will
assist the Company in any reasonable manner to obtain for the Company's benefit
patents and copyrights thereon in any and all jurisdictions as may be designated
by the Company, and Consultant will execute, when requested, patent and
copyright applications and assignments thereof to the Company, or other persons
designated by the Company, and any other lawful documents deemed necessary by
the Company to carry out the purposes of this Agreement. Consultant will further
assist the Company in every way to enforce any patents, copyrights and other
Proprietary Rights of the Company.
14.
Governing Law. This Agreement shall be governed, construed and
interpreted in accordance with the internal laws of the State of California. In
the event a judicial proceeding is necessary, the sole forum for resolving
disputes arising under or relating to this Agreement are the Municipal and
Superior Courts for the County of Orange, California or the Federal District
Court for the Central District of California and all related appellate courts,
and the parties hereby consent to the jurisdiction of such courts, and that
venue shall be in Orange County, California.
(i) If
to the Company:
0000 X.
Xxxxxx Xxxx. Xxxxx X
Phone:
(000) 000-0000
Attn:
President
(ii) If
to the Consultant:
Xxxxxxxxxx
Xxxxxxxxxxxx
1328 West
Balboa
Apt
“C”
Xxxxxxx
Xxxxx, XX 00000
Attn:
Xxxxxxxxxx Xxxxxxxxxxxx
Any such
notice, demand or other communication shall be deemed to have been given on the
date personally delivered or as of the date mailed, as the case may
be.
Xxxxxxxxxx
Xxxxxxxxxxxx
By: /s/ XXXXXXXXXX
XXXXXXXXXXXX
By: /s/ XXXXXXXXXX
XXXXXXXXXXXX
Name:
Xxxxxxxxxx Xxxxxxxxxxxx
Title:
President
Schedule
Title and
Operational Responsibilities
§ Consultant
will have the title of President.
§ Consultant
shall perform various advanced skin care services as requested.
Consultant
is expected to no less than 40 hours per month to activities related to the
Company.
Consultant
shall report regularly, and not less frequent than once per week, to the Company
her actions on behalf of the Company.
Consultant
shall be paid sixty-five dollars ($65.00) per hour starting February 1,
2008. Consultant shall invoice the Company and Company shall pay
Consultant within 15 days of receipt of the invoice. Such payment
shall be pro-rated should the Agreement terminated prior to the expiration of
the payment period in which the Agreement terminates.
Company
agrees to reimburse Consultant for other reasonably necessary travel expenses.
However, should such expenses exceed $1,500 in any given calendar month; such
expenses shall be pre-approved in advance by Company in order to qualify to
reimbursement. An email authorization by an officer of Company shall be deemed a
valid approval.
Exhibit
10.3
THIS
REVOLVING PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND HAS BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES
ACT.
______________________________________________________________________________
$100,000 As
of September 5, 2008
Orange
County, California
REVOLVING
PROMISSORY NOTE
In
consideration of such advances (hereinafter “Advance” or “Advances”) as Venor,
Inc., or its assigns (collectively, “Holder”), from time to time may make hereon
to or for the benefit of MYSKIN, INC., a California corporation (the “Company”),
at such other place as the parties may mutually agree, pursuant to the Revolving
Credit Commitment, as defined below, up to the maximum aggregate principal
amount of One Hundred Thousand U.S. Dollars ($100,000) (the “Maximum Aggregate
Amount”), the Company hereby promises to pay to Holder the principal amount of
all Advances, together with accrued interest thereon from the date of such
Advances, all subject to the terms and conditions set forth below.
Advances. The
Holder agrees to make Advances to the Company from time to time during the
Revolving Credit Commitment Period, as defined below, in an aggregate principal
amount at any one time outstanding which does not exceed the Maximum Aggregate
Amount (the “Revolving Credit Commitment”). During the Revolving
Credit Commitment Period, the Company may use the Revolving Credit Commitment by
borrowing, prepaying any Advances in whole or in part, and re-borrowing, all in
accordance with the terms and conditions hereof.
Revolving Credit Commitment
Period. The revolving credit commitment period (the “Revolving
Credit Commitment Period”) shall commence as of the date hereof and shall expire
on March 31, 2009 (the “Expiration Date”).
The
Company may request Advances under the Revolving Credit Commitment during the
Revolving Credit Commitment Period on any day of the week, Monday through
Friday, 9 a.m. through 5 p.m., Pacific Time, (hereinafter referred to as any
“Business Day” or “Business Days”), provided that the Company shall give the
Holder irrevocable notice (which notice must be received by the Holder prior to
12:00 Noon, Pacific Time) one (1) Business Day prior to the requested Advance
date, specifying (i) the amount of the Advance, and (ii) the requested Advance
date. Each Advance under the Revolving Credit Commitment shall be in
an amount equal to $5,000 or a whole multiple of $5,000 in excess
thereof. Upon receipt of any such notice from the Company, the Holder
will make the amount of the Advance available prior to 12:00 Noon, Pacific Time,
on the Advance date requested by the Company in funds immediately available to
the Company.
The
Holder shall maintain in accordance with its usual practice an account or
accounts evidencing indebtedness of the Company to the Holder resulting from
each Advance from time to time, including the amounts of principal and interest
payable and paid to the Holder from time to time under this Note. The
parties acknowledge and agree that as of the date hereof, an aggregate principal
amount of $65,000 in Advances is outstanding.
General. Repayment
on any Advances shall be made in lawful tender of the United
States. Any payments on this Note made during the Revolving Credit
Commitment Period, as defined below, shall be credited first to any interest due
and the remainder to principal.
Repayment of Principal and
Interest. All outstanding and unpaid principal, and all
outstanding and accrued unpaid interest, shall become due and payable on and as
of the Expiration Date.
Holder
acknowledges that this Note has not been registered under the Securities Act of
1933, and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Note in the absence of (i) an effective registration
statement under the Securities Act as to this Note and registration or
qualification of this Note under any applicable Blue Sky or state securities
laws then in effect, or (ii) an opinion of counsel, satisfactory to the Company,
that such registration and qualification are not required.
Subject
to the provisions of Section 5.1 hereof,
this Note and all rights hereunder are transferable, in whole or in part, upon
surrender of the Note with a properly executed assignment, in the form
prescribed by the Company, at the principal office of the Company; provided,
however, that this Note may not be transferred in whole or in part without the
prior written consent of the Company.
Until any
transfer of this Note is made in the Note register, the Company may treat the
registered Holder of this Note as the absolute owner hereof for all purposes;
provided, however, that if and when this Note is properly assigned in blank, the
Company may (but shall not be required to) treat the bearer hereof as the
absolute owner hereof for all purposes, notwithstanding any notice to the
contrary.
The
Company will maintain a register containing the name and address of the
registered Holder of this Note. Any registered Holder may change such
registered Holder’s address as shown on the Note register by written notice to
the Company requesting such change.
In the
discretion of the Company, the Company may condition any transfer of all or any
portion of this Note (other than a disposition satisfying the conditions set
forth in clause (i) of Section 5.1 above)
upon the transferee’s delivery to the Company of a written agreement, in form
and substance satisfactory to the Company, whereby the transferee agrees to be
bound by the transfer restrictions set forth in this Section
5.
Events of
Default. The occurrence of any or all of the following events
shall constitute an event of default (each, an “Event of Default”) by the
Company under this Note:
(i) Default
by the Company in any payment on this Note after any such payment becomes due
and payable; or
(ii) Breach
by the Company of any material provisions of any agreement between the Company
and the Holder; or
(iii) The
Company shall file a voluntary petition in bankruptcy or any petition or
answer seeking for itself any reorganization, readjustment, arrangement,
composition or similar relief; or shall commence a voluntary case under the
federal bankruptcy laws; or shall admit in writing its insolvency or its
inability to pay its debts as they become due; or shall make an assignment for
the benefit of creditors; or shall apply for, consent to, or acquiesce in the
appointment of, or the taking of possession by, a trustee, receiver, custodian
or similar official or agent of the Company or of substantially all of its
property and shall not be discharged within ninety (90) days; or a petition
seeking reorganization, readjustment, arrangement, composition or other similar
relief as to the Company under the federal bankruptcy laws or any similar law
for the relief of debtors shall be brought against the Company and shall be
consented to by it or shall remain undismissed for ninety (90)
days.
Consequence of
Default. Upon the occurrence of any Event of Default, the
Holder shall be held in a first credit position on the entire amount due on this
Note, and, this Note shall immediately become due and payable upon written
notice from the Holder, and, from the time of the Company’s receipt of such
written notice until this Note shall be paid in full, the unpaid outstanding
principal balance of this Note shall bear interest at the rate of ten percent
(10%) per annum or the legal rate of interest, whichever is lower, (calculated
on the basis of a three hundred sixty-five (365) day year for the actual number
of days elapsed) (the “Default Rate”). Moreover, after the occurrence
of any such Event of Default, the Holder may proceed to protect and enforce its
rights, at law, in equity or otherwise, against the Company.
Payment of Costs and
Expenses. In the event that this Note is placed in the hands
of any attorney for collection, or any suit or proceeding is brought for the
recovery or protection of the indebtedness hereunder, then and in any such
events, the Company shall pay on demand all reasonable costs and expenses of
such suit or proceedings incurred by the Holder, including a reasonable
attorneys' fee.
Delay. No
extension of time for payment of any amount owing hereunder shall affect the
liability of the Company for payment of the indebtedness evidenced
hereby. No delay by the Holder or any holder hereof in exercising any
power or right hereunder shall operate as a waiver of any power or right
hereunder.
Waiver and
Amendment. No waiver or modification of the terms of this Note
shall be valid without the written consent of the Holder.
Governing
Law. This Note shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into between California residents wholly to be performed in California,
without regard to conflict of law principles of such State.
Severability. In
case any provision contained herein (or part thereof) shall for any reason be
held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or other unenforceability shall not affect any other provision (or
the remaining part of the affected provision) hereof, but this Note shall be
construed as if such invalid, illegal, or unenforceable provision (or part
thereof) had never been contained herein, but only to the extent that such
provision is invalid, illegal, or unenforceable.
Notice. All
notices and other communications among the parties shall be in writing and shall
be deemed to have been duly given when (i) delivered by email or in person, or
(ii) five (5) days after posting in the U.S. mail as registered mail or
certified mail, return receipt requested, or (iii) delivered by
telecopier and promptly confirmed by delivery in person or post as aforesaid in
each case, with postage prepaid, addressed as follows:
If to the
Company, to:
Xxxxxxxxxx@xxxxxxxxx.xxx
If to the
Holder, to:
Venor,
Inc.
xxxxxxxxxxxxx@xxxxxxxxxxxxxxx.xxx
Attention:
President
MYSKIN,
INC., a California corporation
By: /s/ XXXXXXXXXX
XXXXXXXXXXXX
Name: Xxxxxxxxxx
Xxxxxxxxxxxx
Title: President
ACKNOWLEDGED:
Venor, Inc.
By: /s/ XXXX
XXXXXXXXXXXX
Name: Xxxx
Xxxxxxxxxxxx
Title: President