EXHIBIT 10.85
SETTLEMENT NOTE
$2,189,795.00 March 29, 2002
Los Angeles, California
FOR VALUE RECEIVED, the receipt and sufficiency of which is
acknowledged, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Maker"), hereby promises to pay to STAAR
Surgical Company, or order ("Holder"), at the address designated on the
signature page of this Note, or at such other place as Holder may designate by
written notice to Maker, the principal sum herein below described ("Principal
Amount"), together with interest thereon, in the manner and at the times
provided and subject to the terms and conditions described herein.
1. PRINCIPAL AMOUNT.
The Principal Amount means the sum of $2,189,795.00.
2. INTEREST.
Interest on the Principal Amount from time-to-time remaining
unpaid shall accrue from the date of this Note at the rate of five percent (5%)
per annum, compounded annually. Interest shall be computed on the basis of a
three hundred sixty (360) day year and a thirty (30) day month. If, at anytime
during the term of this Note, the closing bid price for the common stock of
STAAR Surgical Company ("STAAR") on the NASDAQ (or on whichever other public
stock exchange STAAR common stock is trading at the time) is $8.00 or higher for
a period of twenty (20) consecutive trading days, or if STAAR common stock
permanently ceases to trade on any public stock exchange (i.e., is de-listed),
then interest shall thereafter accrue on this Note at the rate of nine and
three-quarters percent (9.75%) per annum, compounded annually.
3. PAYMENT OF PRINCIPAL AND INTEREST.
Subject to paragraph 8, below, Maker shall pay the Principal
Amount and all accrued and unpaid interest on the Principal Amount and all other
indebtedness due under this Note either: (a) four (4) years from the date of
this Note, on March 29, 2006; or (b) the first date after the date of the
execution of this Promissory Note on which the closing bid price for STAAR
common stock on the NASDAQ (or on whichever other public stock exchange STAAR
common stock is trading at the time) is, and has been for twenty (20)
consecutive trading days, $10.00 or greater, whichever comes first. If the date
set for payment under this Note falls on a Saturday, Sunday, or holiday
recognized by either the United States of America or the State of California,
payment under this Note shall be due on the first subsequent business day.
4. SECURITY/RELEASE OF SECURITY.
Maker shall pledge as security for the repayment of all sums
payable under this Note 400,000 shares of STAAR common stock (the "Stock").
Maker shall execute a Stock Pledge Agreement of even date herewith evidencing
▇▇▇▇▇▇'s security interest in the Stock. This is a nonrecourse Promissory Note
with regard to the Principal Amount and interest due (other
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than as to the Stock), but any fees or costs incurred pursuant to Paragraph 9 of
this Note shall constitute a recourse obligation for Maker.
5. PREPAYMENTS.
Maker shall have the right to prepay any portion of the
Principal Amount and interest due without prepayment penalty or premium or
discount.
6. MANNER OF PAYMENTS/CREDITING OF PAYMENTS.
Payments of any amount required hereunder shall be made in
lawful money of the United States or in such other property as Holder, in its
sole and absolute discretion, may accept, without deduction or offset, and shall
be credited first against accrued but unpaid fees and costs, if any, thereafter
against accrued but unpaid interest, if any, and thereafter against the unpaid
balance of the Principal Amount.
7. INTEREST ON DELINQUENT PAYMENTS.
Any payment under this Note not paid when due shall bear
interest at the same rate and method as interest is charged on the Principal
Amount from the due date until paid.
8. 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 date, upon the happening of any of the following events of
default:
(a) If Maker shall breach any condition or obligation
imposed on Maker pursuant to the terms of this Note, the Settlement
Agreement And General Release of even date, or the Stock Pledge
Agreement of even date, provided however that if any such breach is
reasonably susceptible of being cured, Maker shall be entitled to a
grace period of fifteen (15) days following written notice of such event
of default to cure;
(b) If Maker shall make an assignment for the benefit of
creditors;
(c) If a custodian, trustee, receiver, or agent is appointed
or takes possession of substantially all of the property of Maker;
(d) If Maker shall be adjudicated bankrupt or insolvent or
admit in writing Maker's inability to pay Maker's debts as they become
due;
(e) If any petition is filed against Maker under the
Bankruptcy Code and either (A) the Bankruptcy Court orders relief
against Maker, or (B) such petition is not dismissed by the Bankruptcy
Court within thirty (30) days of the date of filing;
(f) If any attachment, execution or other writ is levied on
substantially all of the assets of Maker and remains in effect for more
than five (5) days; or
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(g) If Maker shall apply for or consent to the appointment
of a custodian, trustee, receiver, intervenor, liquidator 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.
Maker shall notify Holder immediately if any event of default occurs. The
existence of the pending chapter 11 bankruptcy case, In re ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, no.
ND01-13364RR before the United States Bankruptcy Court for the Central District
of California, shall not be deemed an event of default for so long as Maker
remains a debtor-in-possession, as per 11 U.S.C. Section 1107(a), in said case.
▇▇▇▇▇▇'s remedies, in the event of any event of default which is not cured
within the specified time period, are limited to those specified in paragraph 9
below and those specified in the Stock Pledge Agreement of even date between
Maker and Holder.
9. COLLECTION COSTS AND ATTORNEYS' FEES.
Maker agrees to pay Holder all costs and expenses, including
reasonable attorneys' fees, paid or incurred by Holder in connection with the
collection or enforcement of this Note or any instrument securing payment of
this Note, including, without limitation, defending the priority of such
instrument or conducting a trustee sale thereunder. In the event any litigation
is initiated concerning the enforcement, interpretation or collection of this
Note by the parties hereto, the prevailing party in any such proceeding shall be
entitled to receive from the non-prevailing party all costs and expenses
including, without limitation, reasonable attorneys' and other fees incurred by
the prevailing party in connection with such action or proceeding.
10. NOTICE.
Any notice to either party under 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 such party at the address
set forth below, or to such other address as either party from time to time may
designate by written notice. Notices delivered by overnight delivery service
shall be deemed delivered the next business day following consignment to such
delivery service. Mailed notices shall be deemed delivered and received in
accordance with this provision three (3) days after deposit in the United States
mail.
11. 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 shall involve transcending
the highest interest rate permitted by law which a court of competent
jurisdiction deems applicable, then the obligations to be fulfilled
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shall be reduced to such maximum rate, 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 under this Note and not
to the payment of interest, or, if such excessive interest exceeds the unpaid
balance of the Principal Amount under this Note, such excess shall be refunded
to Maker. This provision shall control every other provision of all agreements
between Maker and Holder.
12. JURISDICTION: VENUE.
This Note shall be governed by, interpreted under and construed
and enforced in accordance with the laws of the State of California, excluding
any law relating to the conflict of laws. Any action to enforce payment of this
Note shall be filed and heard solely in Los Angeles County, California.
13. BUSINESS PURPOSE.
This Note is entered into by Maker in connection with a business
transaction and not for personal, family or household purposes.
MAKER:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
MAKER'S ADDRESS:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇'S ADDRESS:
STAAR SURGICAL COMPANY
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: Chief Financial Officer
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