STAAR 1.4 EXHIBIT 10.8
PROMISSORY NOTE
---------------
(SECURED BY STOCK PLEDGE/SECURITY AGREEMENT)
-------------------------------------------
$1,301,745.00 FEBRUARY 28, 0000
XXXXXXXX, XXXXXXXXXX
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, XXXX X. XXXX, A MARRIED MAN (hereinafter "Maker"), hereby promises
-----
to pay to STAAR SURGICAL COMPANY, A DELAWARE CORPORATION, or order (hereinafter
"Holder"), at the address hereinbelow designated on the signature page of this
------
Note, or such other place as Holder may designate by written notice to Maker,
the principal sum hereinbelow described (hereinafter the "Principal Amount"),
--------- ------
together with interest thereon, in the manner and at the times hereinbelow
provided and subject to the terms and conditions hereinbelow described.
1. PRINCIPAL AMOUNT.
----------------
The Principal Amount means the sum of One Million Three Hundred One
Thousand Seven Hundred Forty Five and No/100 Dollars ($1,301,745.00).
2. INTEREST.
--------
Interest on the Principal Amount from time-to-time remaining unpaid
shall accrue from the date of this Note at the lesser of eight percent (8%) or
that fixed rate of interest (as of the date of this Note) which equals the
minimum applicable rate of simple interest (as of the date of this Note) which
will avoid the imputation of income to Maker. Interest shall be computed on the
basis of a three hundred sixty (360) day year and a thirty (30) day month.
3. PAYMENT OF PRINCIPAL AND INTEREST.
---------------------------------
Subject to Paragraph 7, the Principal Amount and accrued and unpaid
interest on the Principal Amount and all other indebtedness under this Note
shall be paid on February 28, 1994. Until such date, all interest on this Note
shall accrue.
4. PREPAYMENTS.
-----------
Maker shall have the right to prepay any portion of the Principal
Amount without prepayment penalty or premium or discount.
5. MANNER OF PAYMENTS/CREDITING OF PAYMENTS.
----------------------------------------
Payments of any amount required hereunder shall be made solely in
lawful money of the United States, without deduction or offset, and shall be
credited first against accrued but
unpaid interest, if any, and thereafter against the unpaid balance of the
Principal Amount.
6. Security.
---------
The payment of this Note is secured by a Stock Pledge/Security
Agreement (hereinafter the "Security Agreement") executed by Maker in favor of
------------------
Holder of even date herewith with respect to certain common stock of Holder
owned by Maker. The Security Agreement contains provisions for acceleration of
the maturity of this Note on the occurrence of certain described events.
7. Acceleration Upon Default.
--------------------------
At the option of Holder, all or any part of the indebtedness of Maker
hereunder shall immediately become due and payable, irrespective of any agreed
maturity, upon the happening of any of the following events of default ("Event
-----
of Default"):
----------
(a) Upon the occurrence of any event of default described under
the Security Agreement;
(c) If any of the following events constituting default occurs,
provided, however, that if any such event of default is reasonably susceptible
of being cured, Maker shall be entitled to a grace period of thirty (30) days
following written notice of such event of default to cure it, and further
provided, that if such event of default is of such character as to reasonably
require more than thirty (30) days to cure, Maker has promptly commenced to cure
said events of default within the thirty (30) day period and uses reasonable
diligence thereafter in curing such events of default, the thirty (30) day
period shall be reasonably extended (but not to exceed one hundred twenty days
(120)):
(i) If Maker shall breach any non-monetary condition or
obligation imposed on Maker pursuant to the terms of this Note;
(ii) If Maker shall make an assignment for the benefit of
creditors;
(iii) If a custodian, trustee, receiver, or agent is appointed
or takes possession of substantially all of the property of Maker;
(iv) If Maker becomes insolvent as that terms is defined in
Section 101(26) of Title 11 of the United States Code;
(v) If Maker shall (A) file a petition with the Bankruptcy Court
under the Bankruptcy Code, or (B) otherwise file any petition or apply to
any tribunal for appointment of a custodian, trustee, receiver, or agent of
Maker, or commence any proceeding related to Maker under any bankruptcy or
reorganization
statute, or under any arrangement, insolvency, readjustment of debt,
dissolution, or liquidation law of any jurisdiction, whether now or
hereafter in effect;
(vi) If any petition is filed against Maker under the Bankruptcy
Code and either (A) the Bankruptcy Code orders relief against Maker under
the chapter of Bankruptcy Code under which the petition was filed, or (B)
such petition is not dismissed by the Bankruptcy Court within thirty (30)
days of the date of filing;
(vii) If any petition or application of the type described in
Subparagraph (v)(A) above is filed against Maker, or any proceeding of the
type described in Subparagraphs (v)(A) or (v)(B) above is commenced, and
either (1) Maker, by any act, indicates his approval thereof, consent
thereto, or acquiescence therein, or (2) an order is entered appointing any
such custodian, trustee, receiver, or agent, adjudicating Maker bankrupt or
insolvent, or approving such petition or application in any such
proceeding, and any such order remains in effect for more than thirty (30)
days;
(viii) If any attachment, execution, or other writ is levied on
substantially all of the assets of Maker and remains in effect for more
than fifteen (15) days.
8. Collection Costs and Attorneys' Fees.
------------------------------------
(a) Maker agrees to pay Holder all costs and expenses, including
actual attorneys' fees, paid or incurred by Holder in connection with the
collection or enforcement of the Note or any instrument securing payment of this
Note, including defending the priority of such instrument or as a result of
foreclosure against, or conducting a trustee sale thereunder.
(b) In the event any party institutes or should the parties
otherwise become a party to any action or proceeding in connection with the
enforcement or interpretation or collection of this Note or any instrument
securing payment of this Note, or for damages by reason of any alleged breach of
this Note or any provision hereof or any alleged breach of any instrument
securing payment of this Note or any provision thereof, or for a declaration of
rights in connection with this Note or any instrument securing payment of this
Note, or for any other relief, including equitable relief, in connection with
this Note or any instrument securing payment of this Note, the prevailing party
in any such action or proceeding shall be entitled to receive from the non-
prevailing party all costs and expenses including, without limitation, actual
attorneys' and other fees incurred by the prevailing party in connection with
such action or proceeding.
9. Notice.
------
Any notice to Maker provided for in this Note shall be given by
personal delivery or by express mail, Federal Express, DHL or similar
airborne/overnight delivery service, or by mailing
such notice by first class or certified mail, return receipt requested,
addressed to Maker at the address set forth below where this Note is executed,
or to such other address as Maker may designate by written notice to Holder. Any
notice to Holder shall be given by personal delivery or by express mail, Federal
Express, DHL or similar airborne/overnight delivery service, or by mailing such
notice by first class or certified mail, return receipt requested, to Holder at
the address set forth below where this Note is executed, or at such other
address as may have been designated by written notice to Maker. Mailed notices
shall be deemed delivered and received three (3) days after deposit in
accordance with this provision in the United States mail.
10. Usury Compliance.
----------------
All agreements between Maker and Holder are expressly limited, so
that in no event or contingency whatsoever, whether by reason of the
consideration given with respect to this Note, the acceleration of maturity of
the unpaid Principal Amount and interest thereon, or otherwise, shall the amount
paid or agreed to be paid to Holder for the use, forbearance, or detention of
the indebtedness which is the subject of this Note exceed the highest lawful
rate permissible under the applicable usury laws. If, under any circumstances
whatsoever, fulfillment of any provision of this Note or any agreement securing
payment of this Note or executed in connection with this Note after timely
performance of such provision is due, shall involve transcending the limit of
validity prescribed by law which a court of competent jurisdiction deems
applicable, then the obligations to be fulfilled shall be reduced to the limit
of such validity, and if, under any circumstances whatsoever, Holder shall ever
receive as interest an amount that exceeds the highest lawful rate, the amount
that would be excessive interest shall be applied to the reduction of the unpaid
Principal Amount and/or late charges under this Note and not to the payment of
interest, or, if such excessive interest exceeds the unpaid balance of the
Principal Amount and/or late charges under this Note, such excess shall be
refunded to Maker.
11. General.
-------
(a) No delay or omission on the part of Holder in exercising any
rights under this Note or under any instrument given to secure this Note, on
default by Maker, including, without limitation, Holder's right to accelerate,
nor reinstatement of this Note by Holder after such exercise, shall operate as a
waiver of Maker's right to exercise such right or of any other right under this
Note or the instruments given to secure this Note, for the same default or any
other default.
(b) Except for the provision of written notice hereinabove set
forth, Maker hereby waives presentment for payment, demand, protest, notice of
protest and notice of dishonor, and all other notices to which Maker might
otherwise be entitled, and further waives the right to require Holder to proceed
against any security for this Note before proceeding against Maker, and further
waives all defenses based on release of security or extension of time or other
indulgence given in respect to payment of this Note.
(c) Holder shall have the right to sell, assign, or otherwise
transfer, either in part or in its entirety, this Note, and any instrument
evidencing or securing the indebtedness of this Note
(provided such instrument is transferred as security for the portion of the Note
which is conveyed), without the consent of Maker. The assignment of this Note by
Holder shall be ineffective until actual notice of same is received by Maker.
Maker shall have no right to delegate its duties under this Note or any
instrument securing this Note without the written consent of Holder, which
consent Holder shall not unreasonably withhold, provided, however, no delegation
of such duties or obligations shall release Maker from any duty or obligation
under this Note or instrument securing payment of this Note.
(d) Subject to the foregoing Subparagraph (c), this Note and all of
the covenants, promises, and agreements contained in it shall be binding on and
inure to the benefit of the respective legal and personal representatives,
devises, heirs, successors, and assigns of Maker and Holder.
(e) This writing is intended by the parties to be an integrated and
final expression of this Note and also is intended to be a complete and
exclusive statement of the terms of that agreement. No course of prior dealing
between the parties, no usage of trade, and no parol or extrinsic evidence of
any nature shall be used to supplement, modify or vary any of the terms hereof.
There are no conditions to the full effectiveness of this Note except as
specifically provided herein.
(f) If any provision of this Note, or the application of it to any
party or circumstance, is held to be invalid, the remainder of this Note, and
the application of such provision to other parties or circumstances, shall not
be affected thereby, the provisions of this Note being severable in any such
instance.
(g) This Note shall be governed by, interpreted under and construed
and enforced in accordance with the laws of the State of California applicable
to contracts entered into in the State of California, by residents of the State
of California, and intended to be performed entirely within the State of
California. Any action to enforce payment of this Note shall be filed and heard
solely in the Municipal or Superior Court of Los Angeles County, California.
(h) Time is of the essence for each and every obligation under this
Note.
MAKER:
/s/ Xxxx X. Xxxx
--------------------------
Xxxx X. Xxxx
MAKER'S ADDRESS:
Xx. Xxxx X. Xxxx
x/x Xxxxx Surgical Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
HOLDER'S ADDRESS:
Staar Surgical Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
DO NOT DESTROY THIS NOTE; WHEN PAID, THIS NOTE
MUST BE SURRENDERED TO MAKER FOR CANCELLATION
