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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
DATED AS OF SEPTEMBER 19, 1996
BETWEEN
LEOPOLD STYLING PRODUCTS, INC.
AND
XXXXX X. XXXXXXX
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made this 19th day of
September, 1996, by and between LEOPOLD STYLING PRODUCTS, INC., a Delaware
corporation (hereinafter called "Employer") and XXXXX X. XXXXXXX (hereinafter
called ("Employee").
W I T N E S S E T H:
Employer desires to employ Employee and Employee desires to accept such
employment, all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
accepts such employment, as Chief Financial Officer of Employer and in such
other capacities and for such other duties and services as shall from time to
time be mutually agreed upon by Employer and Employee.
2. FULL TIME OCCUPATION. Employee shall devote Employee's entire
business time, attention and efforts to the performance of Employee's duties
under this Agreement, and shall serve Employer faithfully and diligently and
shall not engage in any other employment while employed by Employer.
3. COMPENSATION AND OTHER BENEFITS.
(a) SALARY. Beginning upon completion of the initial public
offering of Employer's common stock (the "IPO"), Employer shall pay to Employee,
as full compensation for the services rendered by Employee, during Employee's
employment under this Agreement, a salary at a rate of $140,000 for the first
year, 165,000 for the second year, and $190,000 per annum for the remaining term
of this Agreement to be paid in equal monthly installments, or in such other
periodic installments upon which Employer and Employee shall mutually agree.
(b) ANNUAL BONUS. Employer shall be eligible to participate in
a bonus pool established and administered in the sole discretion of the Board of
Directors of Employer or by a committee appointed by the Board of Directors for
the payment of annual bonuses to senior officers ("Bonus Pool"). Employer will
have the right but not the obligation to establish a Bonus Pool. Employee will
be eligible to receive an annual bonus to be determined by the Board of
Directors in its discretion.
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(c) SIGNING BONUS. Employee will receive a one-time $20,000
bonus payment upon the successful completion of the IPO. Except for the bonus
provided for in this subparagraph 3(c) and stock options being granted to
Employee, Employee shall receive no compensation for the period beginning on
September 19, 1996 and ending on the IPO.
(d) AUTOMOBILE ALLOWANCE. Employer will pay Employee a $300.00
automobile allowance payable monthly during the first year and a $400.00
automobile allowance payable monthly during the remainder of the term of
Employee's employment hereunder .
(e) INSURANCE AND OTHER BENEFITS.
(i) Employee shall be entitled to participate in or receive
benefits under all employee and executive benefit plans or arrangements and
prerequisites of employment, including without limitation, plans or arrangements
providing for health and disability insurance coverage, life insurance for the
benefit of Employee's beneficiaries, deferred compensation and pension benefits,
all at the highest level that is available through Employer to other senior
officers of Employer subject to the same terms and conditions as apply to such
other senior officers.
(ii) Employee shall be entitled to receive not less than three
weeks paid vacation per year.
(f) REIMBURSEMENT. Employer shall reimburse Employee for all
reasonable travel and entertainment expenses and other ordinary and necessary
business expenses incurred by Employee in connection with the initial public
offering of Employer; provided, however, that Employee shall not incur such
expenses in an amount in excess of $5,000 during any month without written
authorization from Employer. The term "business expenses" shall not include any
item not deductible by Employer for federal income tax purposes. To obtain
reimbursement, Employee shall submit to Employer receipts, bills or sales slips
for the expenses incurred. Reimbursements shall be made by Employer monthly
within 10 days of presentation by Employee of evidence of the expenses incurred.
4. TERM OF EMPLOYMENT.
(a) EMPLOYMENT TERM. The term of Employee's employment
hereunder shall commence on September 19, 1996 and shall continue until
September 19, 2000 and from year to year thereafter, unless and until terminated
by either party giving written notice to the other not less than 60 days prior
to the end of the then current term.
(b) TERMINATION UNDER CERTAIN CIRCUMSTANCES. Notwithstanding
anything to the contrary herein contained:
(i) Employee's employment shall be automatically
terminated, without notice, effective upon the date of Employee's death;
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(ii) If Employee shall fail, for a period of more than
30 consecutive days, or for 30 days within any 60 day period, to perform any of
Employee's duties under this Agreement as the result of illness or other
incapacity, Employer may, at its option, upon notice to Employee, terminate
Employee's employment effective on the date of that notice;
(iii) If Employee shall breach or violate any of the
provisions of this Agreement, or fail to perform in a manner reasonably
satisfactory to Employer any of the duties required of Employee and such breach,
violation or failure shall continue for a period of 10 days after Employer shall
have given Employee written notice specifying the nature thereof in reasonable
detail, Employer may, at its option, upon notice to Employee, terminate
Employee's employment effective on the date of that notice.
(iv) Employer may terminate Employee's employment at
any time without cause by giving 30 days prior written notice thereof.
(c) PAYMENTS UPON TERMINATION. In the event Employer terminates
Employee's employment pursuant to subparagraph 4(b)(iv), Employer shall be
obligated to pay Employee as liquidated damages Employee's salary pursuant to
subparagraph 3(a), excluding any additional stock options, for (i) 90 days after
such termination, if such termination occurred on or before the second
anniversary of the IPO or (ii) 180 days after such termination, if such
termination occurred after the second anniversary of the IPO. Employer shall pay
such liquidated damages in installments in accordance with subparagraph 3(a)
hereof. Employee shall receive no further compensation after the termination of
Employee's employment as a result of any other circumstances.
5. COMPETITION AND CONFIDENTIAL INFORMATION.
(a) INTERESTS TO BE PROTECTED. The parties acknowledge that
during the term of Employee's employment with Employer, Employee will perform
essential services for Employer. Employee will be exposed to, have access to,
and be required to work with, a considerable amount of Confidential Information
(as defined below). The parties also expressly recognize and acknowledge that
the personnel of Employer have been trained by, and are valuable to, Employer
and that if Employer must hire new personnel or retrain existing personnel to
fill vacancies, it will incur substantial expense in recruiting and training
such personnel. The parties expressly recognize that should Employee compete
with Employer in any manner whatsoever, it could seriously impair the good will
and diminish the value of Employer's business. The parties acknowledge that this
covenant has an extended duration; however, they agree that this covenant is
reasonable and it is necessary for the protection of Employer, its stockholders
and employees. For these and other reasons, and the fact that there are many
other employment opportunities available to Employee if he should terminate his
employment, the parties are in full and complete agreement that the following
restrictive covenants are fair and reasonable and are freely, voluntarily and
knowingly entered into. Furthermore, each party was given the opportunity to
consult with independent legal counsel before entering into this Agreement.
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(b) NON-COMPETITION. During the term of Employee's employment
with Employer and for the period ending 12 months after the termination of
Employee's employment with Employer, regardless of the reason therefor, Employee
shall not (whether directly or indirectly, as owner, principal, agent,
stockholder, director, officer, manager, employee, partner, participant, or in
any other capacity) engage or become financially interested in any competitive
business conducted within the Restricted Territory or solicit, canvas or accept,
or authorize any other person, firm or entity to solicit, canvas or accept, from
any customers of Employer, any business within the Restricted Territory for
Employee or for any other person, firm or entity. As used herein, customers of
Employer shall mean any persons, firms or entities that purchased goods or
services from Employer during the period of Employee' s employment with
Employer; competitive business shall mean any business which sells or provides
or attempts to sell or provide products or services the same as or substantially
similar to the products or services sold or provided by Employer; and the
Restricted Territory shall mean any area in which Employer conducts business.
(c) NON-SOLICITATION OF EMPLOYEES. During the term of
Employee's employment and for a period of 12 months after the termination of
Employee's employment with Employee, regardless of the reason therefor, Employee
shall not directly or indirectly, for himself, or on behalf of, or in
conjunction with, any other person(s), company, partnership, corporation, or
governmental entity, seek to hire, and/or hire any of Employer's personnel or
employees for the purpose of having such employee engage in services that are
the same, similar or related to the services that such employee provided for
Employer.
(d) CONFIDENTIAL INFORMATION. Employee shall maintain in strict
secrecy all confidential or trade secret information relating to the business of
Employer (the "Confidential Information") obtained by Employee in the course of
Employee's employment, and Employee shall not, unless first authorized in
writing by Employer, disclose to, or use for Employee's benefit or for the
benefit of any person, firm or entity at any time either during or subsequent to
the term of Employee's employment, any Confidential Information, except as
required in the performance of Employee's duties on behalf of Employer. For
purposes hereof, Confidential Information shall include without limitation any
trade secrets, knowledge or information with respect to processes, inventions,
formulae, machinery, manufacturing techniques or know-how; any business methods
or forms; any names or addresses of customers or data on customers or suppliers;
and any business policies or other information relating to or dealing with the
purchasing, sales or distribution policies or practices of Employer.
(e) RETURN OF BOOKS AND PAPERS. Upon the termination of
Employee's employment with Employer for any reason, Employee shall deliver
promptly to Employer all catalogues, manuals, memoranda, drawings, and
specifications; all cost, pricing and other financial data; all customer
information; all other written or printed materials which are the property of
Employer (and any copies of them); and all other materials which may contain
Confidential Information relating to the business of Employer, which Employee
may then have in Employee's possession whether prepared by Employee or not.
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(f) DISCLOSURE OF INFORMATION. Employee shall disclose promptly
to Employer, or its nominee, any and all ideas, designs, processes and
improvements of any kind relating to the business of Employer, whether
patentable or not, conceived or made by Employee, either alone or jointly with
others, during working hours or otherwise, during the entire period of
Employee's employment with Employer, or within six months thereafter.
(g) ASSIGNMENT. Employee hereby assigns to Employer or its
nominee, the entire right, title and interest in and to all discoveries and
improvements, whether patentable or not, which Employee may conceive or make
during Employee's employment with Employer, or within six months thereafter, and
which relate to the business of Employer.
(h) EQUITABLE RELIEF. In the event a violation of any of the
restrictions contained in this paragraph is established, Employer shall be
entitled to preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits and other benefits arising from
such violation, which right shall be cumulative and in addition to any other
rights or remedies to which Employer may be entitled. In the event of a
violation of any provision of subparagraph (a), (d) or (e) of this paragraph,
the period for which those provisions would remain in effect shall be extended
for a period of time equal to that period beginning when such violation
commenced and ending when the activities constituting such violation shall have
been finally terminated in good faith.
(i) RESTRICTIONS SEPARABLE. Each and every restriction set
forth in this paragraph is independent and severable from the others, and no
such restriction shall be rendered unenforceable by virtue of the fact that, for
any reason, any other or others of them may be unenforceable in whole or in
part.
6. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received when delivered
against receipt or when deposited in the United States mails, first class
postage prepaid, addressed as set forth below:
(i) If to Employer:
Xxx Xxxx Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx
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with a copy to:
X'Xxxxxx, Cavanagh, Anderson,
Xxxxxxxxxxxxx & Xxxxxxxx, P.A.
Xxx Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
(ii) If to Employee:
0000 Xxxxxxxx
Xxxxxx, Xxxxx 00000
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
(b) INDULGENCES. Neither any failure nor any delay on the part
of either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
(c) CONTROLLING LAW. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement, shall be governed
by and construed in accordance with the laws of the State of Arizona,
notwithstanding any Arizona or other conflict-of-interest provisions to the
contrary.
(d) BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns except that no party may
assign or transfer such party's rights or obligations under this Agreement
without the prior written consent of the other party.
(e) EXECUTION IN COUNTERPART. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.
(f) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
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(g) ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements and conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
(h) PARAGRAPH HEADINGS. The paragraph headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
(i) GENDER. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context requires.
(j) NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday, then the final day shall be
deemed to be the next day which is not a Saturday, Sunday or holiday.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYER:
LEOPOLD STYLING PRODUCTS, INC.
By: _____________________________________
Name: ___________________________________
Its: ____________________________________
EMPLOYEE:
_________________________________________
Xxxxx X. Xxxxxxx
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EXHIBIT 4.1
STOCK CERTIFICATE
Stock Certificate with a Certificate No., the number of shares and the Styling
Technology Corporation emblem, with the following text:
"Styling Technology Corporation, incorporated under the laws of Delaware, CUSIP
No. 863905 10 5. The Corporation is authorized to issue 10,000,000 shares of
Common Stock, par value $.0001 each. This certifies that ________________ is the
registered holder of ________ shares of the Common Stock of Styling Technology
Corporation, transferable only on the books of the Corporation by the holder
hereof in person or by Attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned and registered by
the Transfer Agent and Registrar. In witness whereof, the said Corporation has
caused this Certificate to be signed by its duly authorized officers and its
Corporate Seal to be hereunto affixed this _____ day of _______, 19___."
Countersigned and Registered:
CORPORATE STOCK TRANSFER, INC. STYLING TECHNOLOGY CORPORATION
_____________________________ _______________________________
Secretary President
Corporate Seal
Back of Certificate: various abbreviations and the language:
"THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH CLASS AUTHORIZED TO BE ISSUED.
For value received, ____________ hereby sell, sign and transfer unto
_____________ Shares represented by the within Certificate, and do hereby
irrevocably constitute and appoint _____________ Attorney to transfer the said
Shares on the books of the within named Corporation with full power of
substitution in the premises.
Dated: ___________________________, 19 __.
In presence of __________________________.
Notice: The signature of the Assignment must correspond with the name as written
upon the face of the Certificate and every particular without alteration or
enlargement or any change whatever. Social security or other identifying number
of Assignee."
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THIS OFFERING IS BEING MADE PURSUANT TO SECTION 4(2) OF THE SECURITIES ACT OF
1933. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR UNDER ANY STATE ACTS AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACTS OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT
THAT REGISTRATION IS NOT REQUIRED.
SEPTEMBER 9, 1996 $400,000.00
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NON-NEGOTIABLE UNSECURED PROMISSORY NOTE
FOR VALUE RECEIVED, LEOPOLD STYLING PRODUCTS, INC., a Delaware
corporation ("Maker"), hereby promises to pay to HOLDEN HOLDINGS LIMITED, a
company organized under the Republic of Ireland ("Payee"), the principal sum of
Four Hundred Thousand and 00/100 Dollars ($400,000.00) in lawful money of the
United States, together with simple interest thereon at the Interest Rate (as
hereinafter defined).
1. INTEREST. The principal balance hereof shall bear interest at a rate
of 10% per annum (the "Interest Rate") computed on a 360-day year and 30-day
month basis.
2. PAYMENTS. The principal sum of this Note together with the interest
due hereunder shall be due and payable in full on the date (the "Due Date") that
is the first to occur of (a) January 31, 1997 or (b) ten (10) business days
following the successful consummation of the acquisitions by Maker of Xxxx
Laboratories, Inc., the Body Drench division of Designs by Xxxxxxx, Inc., JDS
Manufacturing, Inc., and Styling Research, Inc. (collectively, the
"Acquisitions").
All amounts due hereunder shall be payable to the order of
______________________________________________________________, or at such other
place as Payee may from time to time designate in writing to Maker. Maker shall
not be deemed in default of this Note unless Maker has failed to make any
payment due hereunder and has failed to cure such nonpayment within seven (7)
days following the date Maker receives notice in writing from Payee (the
"Default Notice") demanding payment of such unpaid installment.
3. COMMON STOCK. In addition to the payments due hereunder, upon the
consummation of an initial public offering ("IPO") of Maker's common stock
pursuant to a registration statement filed by Maker under the Securities Act of
1933 (the "Act") or a private placement for cash of Maker's Common Stork, Maker
shall deliver to Payee (i) the number of shares of Maker's common stock (the
"Shares") determined by dividing one-half (1/2) of the principal sum of this
Note by the initial public offering price per share and (ii) warrants to
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purchase a like number of shares of Common Stock at an exercise price equal to
125% of such public or private offering price per share during the two-year
period commencing with the issuance of the warrants (the "Warrants").
4. REGISTRATION RIGHTS. For purposes of this Section 4:
(A) DEFINITIONS.
(i) The terms "register", "registered", and
"registration" refer to a registration effected by preparing and filing a
registration statement on Form S-1 or Form SB-2 or similar document in
compliance with the Act, and the declaration or ordering of effectiveness of
such registration statement or document;
(ii) The term "Registrable Securities" means the
shares of Common Stock issuable in accordance with Section 3 above and the
shares of Common Stock issuable pursuant to the exercise of the Warrants
issuable in accordance with Section 3 above; and
(iii) The term "Holder" means Payee.
(B) DEMAND REGISTRATION.
(i) At any time during the six-month period
commencing 120 days after Maker has completed an IPO of its Common Stock, the
holders of fifty percent (50%) or more of the Registrable Securities may demand
that Maker prepare and file a registration statement covering all of the
Registrable Securities. In such event, Maker shall promptly give each Holder
notice of Maker's intent to prepare and file such a registration statement.
Notwithstanding the foregoing, Maker shall have no obligation to prepare and
file a registration statement under this Section 4(b) at any time the Company
has given Holders notice pursuant to Section 4(c) below of the Company's
proposal to register securities and is undertaking in good faith to cause such
registration to become effective, or for a period of 180 days following the
effective date of any such registration. During any such period, the Holders
shall be entitled to exercise the registration rights granted to them under
Section 4(c). The Holders shall be entitled to only one demand registration
pursuant to this Section 4(b).
(ii) If any Holders intend to distribute Registrable
Securities by means of an underwriting, they shall so notify the Company not
later than the date twenty (20) days after the date of the Company's mailing of
its notice of intent to prepare and file a registration statement. All Holders
proposing to distribute their Registrable Securities through such underwriting
shall be responsible for underwriting commissions and fees applicable to the
sale of such Holder's securities and shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company.
(iii) The Company is obligated to effect only one
demand registration pursuant to this Section 4(b).
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(C) PIGGYBACK REGISTRATION. Commencing after Maker has
completed an IPO of its Common Stock, if Maker proposes to register (including
for this purpose a registration effected by Maker for stockholders other than
Holder) any of its shares of Common Stock under the Act in connection with the
public offering of such securities solely for cash (other than a registration of
securities to be offered to employees pursuant to an employee benefit plan on
Form S-8, a registration in connection with an exchange offer or any
acquisition, or a registration on any form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), Maker shall give
Holder written notice of such proposed registration at least thirty (30) days
prior to filing the registration statement respecting such proposed
registration. Upon the written request of Holder given within twenty (20) days
after mailing of such notice by Maker in accordance with Section 11 hereof,
Maker shall cause to be registered under the Securities Act all of the
Registrable Securities that Holder has requested to be registered, subject to
Sections 4(d) and 4(f) below.
(D) INFORMATION CONCERNING HOLDER. It shall be a condition
precedent of the obligations of Maker to take any action pursuant to this
Section 4 that Holder shall furnish to Maker such information regarding itself,
the Registrable Securities held by Holder, and the intended method of
disposition of such securities as shall be required to effect the registration
of the Registrable Securities.
(E) EXPENSES. All expenses incurred in connection with the
registration pursuant to this Section 4 (other than underwriter's commissions
and fees or any fees of others employed by Holder, including attorneys' fees),
including without limitation all registration, filing and qualification fees,
printer's and accounting fees, and fees and disbursements of counsel for Maker,
shall be borne by Maker.
(F) ACCEPTANCE OF UNDERWRITING AGREEMENT. Maker shall not be
required under this Section 4 to include any of the Registrable Securities in an
underwriting of securities being issued by Maker unless Holder accepts the terms
of the underwriting agreement as agreed upon between Maker and the underwriter
selected by Maker, and then only in such quantity, if any, as will not, in the
opinion of the managing underwriter, jeopardize or in any way reduce the success
of the offering by Maker.
(G) EXPIRATION OF PIGGYBACK REGISTRATION RIGHTS. Any
obligation of Maker to register the Registrable Securities pursuant to Section
4(c) shall expire on the second anniversary of the receipt by Holder of the
Shares.
5. PREPAYMENT. Notwithstanding anything to the contrary
contained in this Note, Maker shall have the right and privilege to prepay all
or any part of the unpaid principal balance of this Note and any interest
accrued thereon at any time or times without premium or penalty.
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6. WAIVERS. Acceptance by Payee of any payment which is less than the
full amount then due and owing hereunder shall not constitute a waiver of
Payee's right to receive payment in full at such time or at any prior or
subsequent time. No delay or omission on the part of Payee in exercising any
right hereunder shall operate as a waiver of such right or any other right under
this Note. A waiver on any one occasion shall not be construed as a bar to or
waiver of any such right or remedy on any future occasion.
7. COSTS OF COLLECTION. Maker shall be liable for any and all costs and
expenses of collection paid by Payee, including reasonable attorneys' fees,
arising by virtue of default of this Note.
8. ACCELERATION. If Maker is in default of this Note and such default
(unless waived in writing by Payee) is not cured within fifteen (15) days of the
applicable Default Notice, then and in each and every case, unless the entire
then unpaid principal amount of this Note shall have already become due and
payable, Payee may, by a notice in writing to Maker (the "Acceleration Notice"),
declare the principal of and the accrued interest on this Note to be due and
payable within seven (7) days following the date Maker receives the Acceleration
Notice.
9. DEFAULT INTEREST. Maker shall pay interest at the rate of four
percent (4%) per annum plus the interest rate borne by this Note on the amount
of any principal with respect to which Maker is in default hereunder or which
has been declared due but remains unpaid as a result of the application of
Section 7 above and, to the extent that payment of such interest is enforceable
under applicable law, upon overdue installments of interest at the same rates to
the date of payment.
10. AMENDMENT. This Note may not be changed, modified or terminated,
nor may any provision of this Note be waived except by an agreement in writing
signed by the party to be charged.
11. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed given and received when delivered in
person, or two (2) business days after being placed in the hands of a courier
service (e.g., DHL or Federal Express) prepaid, or faxed provided that a
confirming copy is delivered forthwith as otherwise herein provided, addressed
as follows:
If to Payee:
___________________________
___________________________
___________________________
FAX: ______________________
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With a copy to:
___________________________
___________________________
___________________________
FAX: ______________________
If to Maker:
Leopold Styling Products, Inc.
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
With a copy to:
X'Xxxxxx, Cavanagh, Anderson,
Xxxxxxxxxxxxx & Xxxxxxxx, P.A.
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
FAX: (000) 000-0000
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section 11.
12. CONSTRUCTION. By acceptance of this Note, Payee acknowledges and
agrees that Maker and Payee have each participated in the drafting of this Note
and that this Note has been reviewed by the respective legal counsel for such
parties and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be applied
to the interpretation of this Note. No inference in favor of, or against, any
party shall be drawn from the fact that one party has drafted any portion
hereof.
13. SEVERABILITY. If any provision herein shall be unenforceable, such
unenforceable provision shall not render the remaining provisions hereof
unenforceable or invalid.
14. CONTROLLING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA, NOTWITHSTANDING THE CONFLICT
OF LAW PRINCIPLES OF SUCH STATE.
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15. ASSIGNMENT. Except as otherwise provided below, this Note inures to the
benefit of, and binds, the respective successors and assigns of Payee and Maker.
Neither Payee nor Maker may assign or transfer this Note or assign or delegate
any of its respective rights or obligations hereunder without the prior written
consent of the other party in each instance; provided, however, Maker may assign
or transfer this Note to any entity that is controlled by Maker, or is under
common control with Maker, and which entity shall assume all of Maker's
obligations hereunder with respect to this Note.
IN WITNESS WHEREOF, the parties have executed this Note as of the date
first set forth above.
MAKER:
LEOPOLD STYLING PRODUCTS, INC.
By: _____________________________________
Name: ___________________________________
Its: ____________________________________
The undersigned hereby accepts and agrees to be bound by the above
terms and conditions.
PAYEE:
By: _____________________________________
Name: ___________________________________
Its: ____________________________________
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