EXHIBIT 10.1
EXHIBIT B
PROMISSORY NOTE
In consideration of, and in connection with, the Settlement Agreement
and Mutual Release entered into as of October 9, 1998, by and among plaintiff
Xxxxxxxx X. Xxxxxxx ("Xxxxxxx") and defendants, Interpore International
("Interpore") and Exogen, Inc. ("Exogen") (the "Settlement Agreement"), the
undersigned, Exogen, whose current business address is 00 Xxxxxxxxxxxx Xxxxxx,
X.X. Xxx 0000, Xxxxxxxxxx, XX 00000, promises to pay to the order of Xxxxxxx,
the principal amount of three hundred eighty one thousand eight hundred
seventeen dollars and eighty cents ($381,817.80) in installments, as set forth
in Schedule 1 attached hereto, and made a part hereof. All payments shall be
made to Xxxxxxxx X. Xxxxxxx care of Xxxxx & Xxxxxxxx, P.C., 00 Xxxx 00xx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000-0000, or at such other address as
designated by Xxxxxxx in writing to Exogen.
UNCONDITIONAL RIGHT TO PAYMENT
The obligation of Exogen to pay each and every installment under this
Promissory Note is unconditional and irrevocable and the right of Xxxxxxx to
receive each and every payment hereunder is uncontestable.
Exogen shall not have any right of offset with respect to any payments
due hereunder and Exogen hereby waives any defenses or counterclaims which would
result in a right of offset.
EVENTS OF DEFAULT
The occurrence of any of the following events shall be considered a
default in the obligations under this Promissory Note ("Events of Default"):
(a) Failure to timely pay any installment set forth on Schedule 1
annexed hereto. Subject to paragraph 5 of the Settlement
Agreement, a payment shall only be timely if received by Xxxxx
& Xxxxxxxx, P.C. on or before the due date set forth in
Schedule 1, subject to the ten (10)-day period set forth
below; or
(b) Failure by Exogen to observe or perform any of the
covenants or agreements in the Settlement Agreement; or
(c) A decree or order by a court adjudging Exogen bankrupt or
insolvent, or approving, as properly filed, a petition seeking
reorganization of Exogen's affairs under the federal
bankruptcy code or any other similar federal, state or foreign
law, which is not dismissed within 60 days of filing; or
(d) A decree or order of a court for the appointment of a receiver
or trustee or assignee in bankruptcy or insolvency for Exogen,
or for the winding-up or liquidation of the affairs of Exogen;
or
(e) Exogen institutes proceedings to be adjudicated a voluntary
bankrupt or consents to the institution of a bankruptcy
proceedings or files a petition or answer or consent seeking
reorganization or rearrangement with creditors under any
federal or a state or foreign bankruptcy act or any other
similar federal or state law; or
(f) Exogen makes an assignment for the benefit of creditors or
admits in writing an inability to pay debts generally as they
become due; or
(g) The agreement by Exogen to any merger, buy-out, acquisition,
asset sale transaction or other corporate event resulting in a
change of control which is not conditioned upon the acquiring
entity assuming Exogen's obligations under this Promissory
Note.
Upon the occurrence of any of the above events of default, and upon ten
(10) days written notice to Exogen in accordance with paragraph 5 of the
Settlement Agreement, all payments set forth on Schedule 1, which have not yet
been made, shall become immediately due and payable without presentment, demand
or notice of any kind, all of which are hereby expressly waived, anything in
this Promissory Note to the contrary notwithstanding. Upon the expiration of the
ten (10) day notice period, Xxxxxxx shall have the right to institute an action
against Exogen for all payments set forth on Schedule 1, which have not yet been
made, with interest thereon at the rate of 9% per annum from the date of
commencement of the action. Exogen shall be liable for any and all attorneys'
fees incurred by Xxxxxxx in such an action.
PREPAYMENTS
Exogen shall have the right to pre-pay the unpaid balance of this
Promissory Note without penalty upon 10 days written notice to Xxxxxxx.
MERGER OR CONSOLIDATION
The obligations of Exogen hereunder shall extend to, and be binding
upon, each of its successors, assigns, any corporation of which it owns more
than 50% of the voting stock, and the transferee of all, or substantially all,
of Exogen's assets.
Dated: October 6, 1998
EXOGEN, INC.
By: /s/ XXXXXXX X. XxXXXXXX
------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: President and Chief
Executive Officer
SCHEDULE 1
PAYMENTS BY EXOGEN, INC.
TO
XXXXXXXX X. XXXXXXX
Date Amount
July 1, 1999 $127,272.60
July 1, 2000 $127,272.60
July 1, 2001 $127,272.60
