Unassociated Document


    
      

    

    Exhibit 10.2

    
      


      THE
SECURITIES REPRESENTED BY THIS PROMISSORY NOTE (AND THE SECURITIES INTO WHICH IT
IS CONVERTIBLE) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT COVERING THESE SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT OR UNDER APPLICABLE
STATE SECURITIES LAWS

       

      3%
CONVERTIBLE SENIOR SECURED PROMISSORY NOTE

       

      
        
          
            
              
                
                  
                    
                      
                        	
                                $

                              	 
      	 
      	 
      	
                                ,
      2009

                              


                      

                    

                  

                

              

            

          

        

      

      


      


      For value
received MiMedX  Group, Inc.,
a Florida corporation (the “Company”),
promises to pay to __________________
(“Holder”)
the principal sum of ____________________ ($________), together with simple
interest on the outstanding principal amount at the rate of three percent (3.0%)
per annum. The principal and all accrued interest shall be due and payable in
full on April __, 2012 (the “Maturity
Date”). This Note is secured by a security interest in certain Collateral
(the “Collateral”),  as
defined in, and subject to the terms of, that certain Security and Intercreditor
Agreement of even date herewith (the “Security
Agreement”).  Interest shall begin to accrue on the date hereof
and shall continue to accrue on the outstanding principal amount hereof until
converted into common stock of the Company (the “Common
Stock”) as provided herein, or until the payment in full of this Note
whichever occurs first.  Interest shall be computed on the basis of a
year of 365 days for the actual number of days elapsed.  All cash
payments of interest hereunder shall be in lawful money of the United States of
America.  Upon payment in full of the amount of all principal and
interest payable hereunder (whether in cash or Common Stock upon a Conversion
Event, as defined below),  this Note shall be surrendered to the
Company for cancellation.

       

      1.         
  This Note is issued pursuant to that certain 3% Convertible Senior
Secured Promissory Note Subscription Agreement dated as of April __, 2009, (the
“Note
Subscription  Agreement”), and is subject to its terms and
conditions. However, in the event of any conflict between the terms of this Note
and the Note Subscription Agreement, the terms of this Note shall
govern.  This Note is pari passu as to
payment  and lien priority rights, ratably with all Other Purchasers
of 3% Convertible Senior Secured Promissory Notes, as provided in the Security
Agreement. This Note is junior
as to payment and lien priority rights with respect to up to $5.0 million in
senior funded debt, as provided in the Security Agreement.

       

      2.        
   This Note is convertible into common stock of the Company at
any time upon the election of the Holder into that number of shares of Common
Stock equal to the quotient of (a) the
outstanding principal amount and accrued interest of this Note as of date of
such election, divided
by (b) $0.50 (the “Conversion
Price”).  Such voluntary election to convert by Holder is
herein called a “Voluntary
Conversion”.   A Voluntary Conversion and a conversion
under any of the circumstances described in Sections 3 and 4  below
are all herein called “Conversion
Events” or singly a “Conversion
Event”.


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

       

      3.    
       Notwithstanding the other terms and
conditions of this Note, in the event of a “Change in Control
Transaction” (as hereinafter defined) which occurs prior to any other
Conversion Event, then, effective immediately prior to such Change in Control
Transaction, the outstanding principal balance of this Note shall automatically,
and without further action by the Holder, convert into that number of shares of
Common Stock equal to the quotient of (a) the
outstanding principal amount and interest due under this Note as of the closing
of such Change in Control Transaction, divided by (b) the
Conversion Price. As
used herein, the term “Change in Control
Transaction” means any of the following transactions which results in
aggregate transaction consideration payable to the common shareholders of the
Company of not less than $0.50 per share: (A) a share exchange, consolidation or
merger of the Company with or into any other entity or any other corporate
reorganization whether or not the Company is the surviving entity (unless the
stockholders of the Company immediately prior to such share exchange,
consolidation, merger or reorganization hold in excess of fifty percent (50%) of
the general voting power of the Company or the surviving entity, as the case may
be, immediately after the closing of such transaction); (B) a transaction or
series of related transactions in which in excess of fifty percent (50%) of the
Company’s general voting power is transferred to a third party (or group of
affiliated third parties) that were not previously stockholders of the Company
(other than in connection with an original issuance of shares of capital stock
by the Company); or (C) a sale of all or substantially all of the assets of the
Company (unless the stockholders of the Company immediately prior to such sale
hold in excess of fifty percent (50%) of the general voting power of the
purchasing party or parties).  The determination of “general voting
power” shall be based on the aggregate number of votes that are
attributable to outstanding securities entitled to vote in the election of
directors, general partners, managers or persons performing analogous functions
to directors of the entity in question, without regard to contractual
arrangements that establish a management structure or that vest the right to
designate directors in certain parties.  In the event of a conversion
upon a Change in Control Transaction, the Holder shall be entitled to
participate in such Change in Control Transaction to the same extent as the
other holders of Common Stock.  In addition, in the event of a
conversion upon a Change in Control Transaction, the Holder (w) shall be
required to participate in such Change in Control Transaction to the extent such
participation is necessary to consummate the Change in Control Transaction or is
otherwise necessary or appropriate in connection therewith (as determined by the
Company in its sole discretion), (x) shall give its consent and approval to such
Change in Control Transaction, (y) shall, at the request of the Company, execute
any documents, instruments or certificates and take any actions determined by
the Company, in its sole discretion, to be necessary or appropriate in
connection with such Change in Control Transaction, and (z) hereby waives any
rights of dissent or appraisal in connection with such Change in Control
Transaction.


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

       

      4.       
    Notwithstanding the other terms and conditions of this
Note, in the event that, prior to the occurrence of another Conversion Event,
the trading price of the Common Stock closes at not less than $1.50 per share
for not less than twenty  (20) consecutive trading days prior to the
Maturity Date, then, effective immediately upon the close of trading on such
twentieth (20th)
consecutive trading day, the outstanding principal balance of this Note shall,
at the election of the Company, and without further action by the Holder,
convert into the number of shares of Common Stock equal to the quotient of (a) the
outstanding principal amount and interest due under this Note on such twentieth
(20th) day,
divided by (b)
the Conversion Price.

       

      5.      
     Upon the occurrence of a Conversion Event, the
applicable amount of outstanding principal and accrued interest under this Note
shall be converted into Common Stock of the Company at the Conversion Price,
without any further action by the Holder and whether or not the Note is
surrendered to the Company or its transfer agent.  The Company shall
not be obligated to issue certificates evidencing the shares of the Common Stock
issuable upon such conversion unless and until such Note is either delivered to
the Company or its transfer agent, or Holder notifies the Company or its
transfer agent that such Note has been lost, stolen or destroyed and executes an
agreement satisfactory to the Company to indemnify the Company from any loss
incurred by it in connection with such Note.  The Company shall, as
soon as practicable after such delivery, or such agreement and indemnification,
issue and deliver at such office to the Holder, a certificate or certificates
for the securities to which Holder shall be entitled and a check payable to the
holder in the amount of any cash amounts payable as the result of a conversion
into fractional shares, as determined by the board of directors of the
Company.  Such conversion shall be deemed to have been made
concurrently with the close of the Conversion Event.  The person or
persons entitled to receive securities issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such securities on
such date.

       

      6.     
      In the event of any default hereunder,
Company shall pay all reasonable attorneys’ fees and court costs actually
incurred by Holder in enforcing and collecting this Note.

       

      7.      
     Company may NOT prepay the principal amount of
this Note and accrued interest hereunder, in whole or part, at any time prior to
the Maturity Date.

       

      8.       
    If there shall be any Event of Default (as defined
below) hereunder, at the option and upon the declaration of the Majority in
Interest (defined as the holders of a majority of the dollar value of the Notes
issued pursuant to the Holder and the Other Purchasers under the Note
Subscription  Agreement) and upon written notice to the Company (which
election and notice shall not be required in the case of an Event of Default
under Sections 8(b) or 8(c)), this Note shall accelerate and all principal and
unpaid accrued interest shall become immediately due and payable. Additionally,
upon the occurrence of an Event of Default, the Holder, at the option and upon
the decision of a Majority in Interest, may exercise its rights as a secured
party, or take or decline to take, any other action, with respect to the
Collateral. The occurrence of any one or more of the following shall constitute
an “Event
of Default”:

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (a)           Company
fails to pay timely any  principal and accrued interest or other
amounts due under this Note on the date the same becomes due and payable, and
such amount remains unpaid for a period of ten (10) business days after written
notice thereof from Holder;

       

      (b)           Company
files any petition or action for relief under any bankruptcy, reorganization,
insolvency or moratorium law or any other law for the relief of, or relating to,
debtors, now or hereafter in effect, or makes any assignment for the benefit of
creditors or takes any corporate action in furtherance of any of the
foregoing;

       

      (c)           An
involuntary petition is filed against Company (unless such petition is dismissed
or discharged within sixty (60) days under any bankruptcy statute now or
hereafter in effect), or a custodian, receiver, trustee, assignee for the
benefit of creditors (or other similar official) is appointed to take
possession, custody or control of any property of Company; or

       

      (d)           The
senior lender has declared a default under any Permitted Senior Indebtedness (as
defined in the Security Agreement).

       

      9.          
 This Note shall be governed by construed and under the laws of the State
of Florida, without giving effect to conflicts of laws principles.

       

      10.           Any
term of this Note may be amended or waived with the written consent of Company
and the holders of a Majority in Interest, provided that this Note may not be
amended if it disproportionately affects the Holder hereof, without the consent
of Holder of this Note.  Upon the effectuation of such waiver or
amendment in conformance with this Section 10, the Company shall promptly give
written notice thereof to the record Holders of the Notes who have not
previously consented thereto in writing.

       

      11.           Nothing
contained in this Note shall be construed as conferring upon the Holder or any
other person the right to vote or to consent or to receive notice as a
stockholder of the Company.

       

      12.           This
Note may be transferred only upon (a) its surrender by Holder to the Company for
registration of transfer, duly endorsed, or accompanied by a duly executed
written instrument of transfer in form satisfactory to the Company and (b)
compliance with applicable provisions of the Note Subscription Agreement,
including (without limitation) the Company’s receipt, if it so requests, of an
opinion of counsel as set forth in the Note Subscription
Agreement.  Thereupon, this Note shall be reissued to, and registered
in the name of, the transferee, or a new Note for like principal amount and
interest shall be issued to, and registered in the name of, the
transferee.  Interest and principal shall be paid solely to the
registered holder of this Note.  Such payment shall constitute full
discharge of the Company’s obligation to pay such interest and
principal.

       

      


       

      COUNTERPART
SIGNATURE PAGE FOLLOWS


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      3%
CONVERTIBLE SENIOR SECURED PROMISSORY NOTE

      COUNTERPART
SIGNATURE PAGE

       

      


       

      This Note
is hereby issued to Holder as of the date first above written.

       

      


      
        
          
            
              
                
                  	 
      	
                          MiMedX  Group,
      Inc.

                        
	 
      	
                           
      

                        	 
      
	 
      	
                           
      

                        	 
      
	 
      	
                          By:

                        	 
      
	 
      	
                          Name:

                        	 
      
	 
      	
                          Title:

                        	 
      


                

              

            

          

        

      

      


      


      


      


      Acknowledged
and Agreed to by Holder:

      


      


      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          	
                                                  Signature
      for Corporate, Partnership, or other Entity Holder:

                                                	
                                                  Signature
      for Individual Holder:

                                                
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                                  (Print
      Name of Entity)

                                                	 
      	
                                                  (Signature)

                                                	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                                  By:

                                                	 
      	 
      	
                                                  Print
      Name:

                                                	 
      
	
                                                  Print
      Name:

                                                	 
      	 
      	 
      	 
      
	
                                                  Print
      Title: