Exhibit 10.48
NEITHER THIS
SECURITY NOR THE SECURITY INTO WHICH THIS SECURITY IS CONVERTIBLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
CONVERTIBLE PROMISSORY
NOTE
FOR VALUE
RECEIVED, Dr. Tattoff, Inc., a Florida corporation, located at 8500
Wilshire Boulevard, Suite 105, Beverly Hills CA 90211 (the “
Borrower ”) hereby promises to pay to the
order of Jeffrey J. Merkel (the “ Holder
”), the principal sum of Fifty Thousand Dollars ($50,000),
upon the following terms:
1.
Interest
Rate . Interest
shall accrue on the unpaid principal balance of this Note from the
date of issuance until paid or converted in full at the rate of
twelve percent (12%) per annum, calculated on a 365/366 day year,
as applicable.
2.
Payment Terms . The Borrower agrees to pay
the unpaid principal balance of this Note and all accrued and
unpaid interest on the date that is the earlier of (i) 180 days
from the date of issuance, or (ii) five (5) business days from the
date of closing by Borrower of equity financing in the aggregate of
not less than $5.0 million (the “ Maturity
Date ”), unless previously converted in accordance
with Section 4 hereof. Borrower may prepay all or any part of
interest or principal at any time without penalty.
3.
Manner and Place of
Payment; Holidays . All payments on this Note shall be made in
coin or currency which, at the time or times of payment, constitute
legal tender for public or private debts in the United States of
America. All payments on this Note shall be made to Holder at the
address stated above, or at such other address as Holder shall
designate in writing. If the prescribed date of payment of any of
the principal or interest hereon is a Saturday, Sunday or legal
holiday, such payment shall be due on the next succeeding business
day.
(i) Conversion . The Holder, at its option, so long as any
portion of this Note remains outstanding, may elect to convert any
outstanding and unpaid principal portion of this Note, and any
accrued and unpaid interest (the date of giving of such notice of
conversion being a “ Conversion Date
”) into shares (“ Shares ”) of
the Borrower’s common stock, par value $.0001 per share
(“ Common Stock ”), at the conversion
price as defined in Section 4(ii) hereof (the “
Conversion Price ”), determined as provided
herein. Upon delivery to the Borrower of a completed Notice of
Conversion, a form of which is annexed hereto, Borrower shall issue
and deliver to the Holder within three (3) business days after the
Conversion Date (such third day being the “ Delivery
Date ”) a certificate evidencing the Shares issuable
for the portion of the Note converted in accordance with the
foregoing. The Shares issuable upon conversion of this Note shall
be determined by dividing that portion of the principal of the Note
and interest, if any, to be converted, by the Conversion Price. On
the Conversion Date any and all obligations of the Borrower with
respect to the portion of the Note so converted shall be deemed
satisfied, and the Borrower will have no further obligation under
the Note with respect to such converted portion in any way other
than to issue the Shares.
(ii) Conversion Price . Subject to adjustment as provided in Section
4(iii) hereof, the Conversion Price per Share shall be the lesser
of (1) $1.00 or (2) eighty percent (80%) of the initial purchase
price of the Common Stock in the public offering of the
Borrower’s securities (“ Public
Offering ”). In the event any portion of this Note
is converted prior to the commencement of the Public Offering, the
Conversion Price shall be $1.00 per share. Fractional Shares will
not be issued and will instead be rounded up to the nearest whole
Share.
(iii) Adjustment . The Conversion Price
and number and kind of shares or other securities to be issued upon
conversion determined pursuant to Section 4(i), shall be subject to
adjustment from time to time upon the happening of certain events
while this conversion right remains outstanding, as
follows:
A. Merger, Sale of Assets, etc
. If the Borrower at any time shall
consolidate with or merge into or sell or convey all or
substantially all its assets to any other corporation, this Note,
as to the unpaid principal portion thereof and accrued interest
thereon, shall thereafter be deemed to evidence the right to
purchase such number and kind of shares or other securities and
property as would have been issuable or distributable on account of
such consolidation, merger, sale or conveyance, upon or with
respect to the securities subject to the conversion or purchase
right immediately prior to such consolidation, merger, sale or
conveyance. The foregoing provision shall similarly apply to
successive transactions of a similar nature by any such successor
or purchaser.
B. Reclassification, etc . If the Borrower at any time shall, by
reclassification or otherwise, change the Shares into the same or a
different number of securities of any class or classes that may be
issued or outstanding, this Note, as to the unpaid principal
portion thereof and accrued interest thereon, shall thereafter be
deemed to evidence the right to purchase an adjusted number of such
securities and kind of securities as would have been issuable as
the result of such change with respect to the Shares issuable
immediately prior to such reclassification or other
change.
C. Splits, Combinations and Dividends
. If the Shares are subdivided or
combined into a greater or smaller number of Shares, or if a
dividend is paid on the Shares in the form of additional Shares,
the Conversion Price shall be proportionately reduced in case of
subdivision of Shares or Share dividend or proportionately
increased in the case of combination of Shares, in each such case
by the ratio which the total number of Shares outstanding
immediately after such event bears to the total number of Shares
outstanding immediately prior to such event.
(iv) Method of Conversion . This Note may be converted by the
Hold
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