Secured Promissory Note from Skinvera LLC



 Exhibit 10.128 

THIS NOTE HAS NOT 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 (THE “SECURITIES ACT”), AND APPLICABLE STATE SECURITIES LAWS 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 

SKINVERA LLC 

6% Secured Promissory Note 
  

			
	$1,800,000	  	March 10, 2010


Skinvera LLC, a limited liability organized under the laws of Nevada (the “Company”), for value received, hereby promises to
pay to Senetek PLC, with an address at 831A Latour Court, Napa, California 94558 (“Senetek” and, together with its successors or permitted assigns, the “Holder”), the principal amount of One Million Eight Hundred Thousand Dollars
($1,800,000), in lawful money of the United States. 
 This Note has been issued pursuant to that certain Asset Purchase
Agreement, dated as of the date hereof (the “Purchase Agreement”), by and between the Company and Senetek. Capitalized terms used herein and not otherwise defined herein will have the respective meanings ascribed to such terms in the
Purchase Agreement. 
 Payment Provisions – The principal shall be equal to $1,800,000 and is due and payable on the 7th
anniversary of the date hereof. Interest shall be paid monthly and shall begin accruing on the unpaid principal amount of the Note from the date hereof to but excluding the date of repayment, at an interest rate of 6.0% per annum;
(the “Stated Interest”); provided, however, that the Company may, solely in its own discretion, elect to defer any interest payment due within the next 24 months and in such case such deferred interest payment amounts shall be added to the
principal. 
 All agreements herein made are expressly limited so that in no event whatsoever, whether by reason of advancement
of proceeds hereof, acceleration of maturity of the unpaid balance hereof or otherwise, shall the amount paid or agreed to be paid to the Holder for the use of the money advanced or to be advanced hereunder exceed the maximum rate permitted by law
(the “Maximum Rate”). If, for any circumstances whatsoever, the fulfillment of any provision of this Note or any other agreement or instrument now or hereafter evidencing, securing or in any way relating to the debt evidenced hereby shall
involve the payment of interest in excess of the Maximum Rate, then, ipso facto, the obligation to pay interest hereunder shall be reduced to the Maximum Rate; and if for any circumstance whatsoever, the Holder shall ever receive interest,
the 







 
amount of which would exceed the amount collectible at the Maximum Rate, such amount as would be excessive interest shall be applied to the reduction of the principal balance remaining unpaid
hereunder and not to the payment of interest. This provision shall control every other provision in any and all other agreements and instruments existing or hereafter arising between the Company and the Holder with respect to the debt evidenced
hereby. 
 This Note and certain of the Company’s obligations hereunder are collateralized by a security interest in those
assets purchased by the Company pursuant to an Asset Purchase Agreement, dated as of even date herewith and pursuant to a Collateral Pledge and Security Agreement, dated as of even date herewith (the “Security Agreement”), by the Company,
in favor of the Holder. If an Event of Default (as defined below) shall have occurred and the principal amount of this Note shall become due and payable, the Holder shall be entitled to exercise, in addition to any right, power or remedy permitted
in law or equity, all such Holder’s remedies under the Security Agreement. 
 1. Payments. Payment shall be made by
wire transfer of immediately available funds to an account designated by the Holder or by check sent to the Holder’s address set forth above or to such other address as the Holder may designate for such purpose from time to time by written
notice to the Company, in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts. 

2. Events of Default. 

(a) For purposes of this Note, each of the following events shall constitute an “Event of Default” hereunder:
(i) failure of the Company to pay the principal amount or the interest amounts when due hereunder in accordance with the terms hereof which breach is not cured within ten (10) business days after written notice of same; (ii) the
material breach of this Note, which breach is not cured within ten (10) business days after written notice of same; (iii) the commencement of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with
respect to Maker or Maker’s debts under the federal bankruptcy laws, as now constituted or hereafter amended, or under any other bankruptcy, insolvency, or similar law now or hereafter in effect; (iv) the commencement of an involuntary
case or other proceeding seeking liquidation, reorganization or other relief with respect to Maker or Maker’s debts under the federal bankruptcy laws, as now constituted or hereafter amended, or under any other bankruptcy, insolvency or similar
law now or hereafter in effect, and such case or other proceeding shall not be vacated or dismissed within sixty (60) days after its commencement; (v) the entry of an order for relief by any court having jurisdiction in any involuntary
bankruptcy case filed against Maker under the federal bankruptcy laws, as now constituted or hereafter amended; or (vi) the appointment of a receiver, trustee, liquidator or custodian for Maker or for all or a significant portion of
Maker’s assets or affairs. Upon and after an Event of Default, at the option of Holder and upon written notice to Maker, the principal indebtedness evidenced hereby shall at once become due and payable and may be collected forthwith, regardless
of the maturity date. 
  

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 3. Miscellaneous. 

(a) The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and permitted
assigns of the parties; provided, however, that neither party may assign any of its rights or obligations hereunder without the prior written consent of the other, except that the Holder may assign all or any portion of its rights hereunder to an
Affiliate of the Holder without such consent. Assignment of all or any portion of this Note in violation of this Section 5(a) shall be null and void. Nothing in this Note, expressed or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations, or liabilities under or by reason of this Note, except as expressly provided in this Note. 

(b) Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be deemed
delivered (i) when received, if delivered by hand, (ii) one Business Day after being sent by nationally recognized overnight courier service, (iii) three Business Days after being sent by certified or registered mail, return receipt
requested, or (iv) upon confirmed transmission when sent by facsimile or other electronic transmission if sent during normal business hours of the recipient and otherwise on the next Business Day (provided, that any facsimile or other
electronic transmission is followed by delivery via another method permitted hereby), addressed: 
  

			
	If to the Company:	  	Skinvera LLC
		  	2951 Marion Drive, Unit #21
		  	Las Vegas, NV 89115
		  	Attention: Chief Executive Officer
		
	If to the Holder:	  	Senetek plc
		  	301 Central Ave, #384
		  	Hilton Head, South Carolina 29926
		  	Attention: John Ryan
		  	Tel: 842.290.8930
		  	Fax: 843.842.7248
		  	Email: jryan@senetek.net
		
	With a copy to:	  	DLA Piper LLP
		  	1251 Avenue of the Americas
		  	New York, New York 10020-1104
		  	Attention: William N. Haddad
		  	Tel: 212.335.4998
		  	Fax: 212.884.8498
		  	Email: william.haddad@dlapiper.com

 or, in either
case, to such other address as the party shall have furnished in writing in accordance with the provisions of this Section 3(b). Any notice given by means other than as set forth above shall be deemed effective upon receipt. 

 

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 (c) Upon receipt of evidence satisfactory to the Company, of the loss, theft,
destruction or mutilation of this Note (and upon surrender of this Note if mutilated), including an affidavit of the Holder thereof that this Note has been lost, stolen, destroyed or mutilated, the Company shall execute and deliver to the Holder a
new Note of like date, tenor and denomination. 
 (d) No course of dealing and no delay or omission on the part of the
Holder or the Company in exercising any right or remedy shall operate as a waiver thereof or otherwise prejudice the Holder’s or the Company’s rights, powers or remedies, as the case may be. No right, power or remedy conferred by this Note
upon the Holder or the Company shall be exclusive of any other right, power or remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise, and all such remedies may be exercised singly or concurrently. Any
waiver must be in writing. 
 (e) If one or more provisions of this Note are held to be unenforceable under applicable
law, such provision shall be excluded from this Note and the balance of this Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. This Note may be amended only by a written instrument
executed by the Company and the Holder hereof. Any amendment shall be endorsed upon this Note, and all future Holders shall be bound thereby. 

(f) This Note shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to
principles governing conflicts of law. 
 (g) The Company irrevocably consents to the exclusive jurisdiction of any
Federal or State court located in New York, New York in connection with any action or proceeding arising out of or relating to this Note, any document or instrument delivered pursuant to, in connection with or simultaneously with this Note, or a
breach of this Note or any such document or instrument. 
 {Remainder of this page left intentionally blank. Signature page to
follow.} 
  

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 IN WITNESS WHEREOF, the Company has caused this Note to be executed and dated the day
and year first above written. 
  

			
	SKINVERA
		
	By:	 	 



			
	Name: Frank Massino
	Title: Manager


  

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