EXHIBIT 10.1
FORM OF AMENDED AND RESTATED
PROMISSORY NOTE
$____________ As
of May 4, 2009
Apex
Bioventures Acquisition Corporation (the “Company”)
promises to pay to the order of ___________ (the
“Holder”) the principal amount of _________________
Dollars ($_________) (the “Maximum Principal Amount”),
or, if less, the aggregate principal amount outstanding under this
Note, in lawful money of the United States of America, on the terms
and conditions described below.
Subject to the approval of its stockholders, the
Company expects to dissolve and, pursuant to a plan of liquidation
(the “Plan of Liquidation”), discharge its liabilities,
wind up its affairs and distribute to its public stockholders the
net proceeds of the Company’s initial public offering and a
private placement of the Company’s warrants that occurred
immediately prior to the initial public offering.
This Note is one of several notes made by the
Company on the date hereof in the aggregate principal amount of
$520,000 in respect of advances made to the Company by holders of
the Company’s stockholders who purchased an aggregate of
2,156,250 shares of common stock issued prior to the
Company’s initial public offering. This Note
together with such other notes are collectively referred to as the
“Sponsor Notes”.
This Note amends and restates in its entirety
that certain promissory note in the stated principal amount of
$___________ dated as of November 14, 2008, made in favor of the
Holder by the Company (the “Original
Note”). Upon the Company’s execution and
delivery of this Note to the Holder, the Original Note shall be
deemed cancelled and of no further force and effect.
The Company may borrow and repay hereunder at
any time, up to a maximum aggregate amount outstanding at any one
time equal to the Maximum Principal Amount provided, that no Event
of Default (as defined below) has occurred
hereunder. All advances made by the Holder to the
Company hereunder and all payments made by the Company to the
Holder on account of principal hereof shall be noted by the Holder
on the schedule of advances and payments of principal that is
attached as Schedule I hereto and hereby made a part hereof;
provided, however, that any error or omission by the Holder in this
regard shall not affect the obligation of the Company to pay the
full amount of the principal balance and interest on all advances
made to the Company by the Holder.
1.
Interest . Interest shall accrue on the
unpaid principal balance of this Note, from time to time
outstanding, from the date of the Original Note (a) with respect to
the period from and after the date of the Original Note through the
date immediately preceding the date of this Note, at the annual
rate of 1.63% (such rate being the annual applicable federal rate
for short-term debt prescribed by the U.S. Internal Revenue Service
as of the date of the Original Note, and (b) from and after the
date of this Note through May 31, 2009, 0.76%, and (c) thereafter,
with respect to each full or partial calendar month, the annual
applicable federal rate for short-term debt then prescribed by the
U.S. Internal Revenue Service.
(a)
Payment on Maturity . Unless it has been
previously prepaid in full, subject to the Plan of Liquidation,
principal of, and any accrued and unpaid interest on, this Note
shall be due and payable on any business day on or after the
earlier of (i) the Company’s dissolution (as effected by the
filing of a Certificate of Dissolution with the Office of the
Secretary of State of the State of Delaware), and (ii) the first
year anniversary of the date of this Note (in either case, such
business day, the “Maturity Date”) upon at least ten
Business Days’ prior written notice (a “Demand
Notice”) made by the Holder to the
Company. Promptly following receipt of any Demand
Notice, the Company will deliver a copy of the same to each other
holder of Sponsor Notes.
(b)
Manner of Payment . Payment of principal and
interest on this Note 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 a
