UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
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| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
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Item 1.01 Entry Into A Material Definitive Agreement Business
Amendment No. 1
On May 10, 2023, Apeiron Capital Investment Corp., a Delaware corporation (“Apeiron”), GIO World Health, Ltd., a private company formed under the laws of England and Wales (the “Company”), and certain other parties entered into that certain Amendment No. 1 to Business Combination Agreement (the “Amendment”). The Amendment amends certain provisions of that certain Business Combination Agreement, dated as of March 8, 2023 (as amended by the Amendment and as may be further amended, restated and/or supplemented in accordance with its terms, the “Agreement”), by and among (i) Apeiron, (ii) the Company, (iii) Apeiron Capital Sponsor, LLC, a Delaware limited liability company, in the capacity as the representative from and after the Closing for the stockholders of the Purchaser (other than the Sellers and their respective successors and assigns) in accordance with the terms and conditions of the BCA (the “Purchaser Representative”), (iv) each of the shareholders of the Company that are named on Annex I to the Agreement (collectively, the “Sellers”), and (v) Deven Patel, in the capacity as the representative for the Sellers in accordance with the terms and conditions of the Agreement (the “Seller Representative”), for a proposed business combination among the parties (the “Proposed Transaction”). Capitalized terms used and not otherwise defined in this Current Report on Form 8-K have the meanings given to them in the Agreement.
The Amendment (i) amends the definition of a “National Exchange” that Apeiron’s shares must be listed on as a condition to closing to include, in certain circumstances, a trading marketplace operated by OTC Markets Group Inc.; (ii) makes certain clarifying changes to the calculation of the Exchange Consideration, the treatment of treasury shares in the Proposed Transaction and certain other matters; and (iii) makes certain other adjustments to covenants of the Company relating to the “Company Restructuring,” as defined in the Agreement. Other than as expressly modified pursuant to the Amendment, the Agreement, which was previously filed as Exhibit 2.1 to the Current Report on Form 8-K filed by Apeiron on March 14, 2023, remains in full force and effect.
The foregoing description of the Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amendment, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K and which is incorporated herein by reference.
Promissory Note
On April 5, 2023, Apeiron issued a promissory note (the “Note”) in the principal amount of up to $250,000 to SIA Ventures, LLC. The Note was issued in connection with advances that SIA Ventures, LLC may make in the future to Apeiron for working capital expenses. The Note bears no interest and is due and payable (a) upon Apeiron’s consummation of a business combination and (b) on the date of the liquidation of Apeiron. The foregoing description is qualified in its entirety by reference to the Note, a copy of which is attached as Exhibit 10.1 hereto and is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-balance Sheet Arrangement of a Registrant.
The Promissory Note disclosure contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this
Cautionary Note Regarding Forward-Looking Statements
This report contains forward-looking statements for purposes of the “safe harbor” provisions under the United States Private Securities Litigation Reform Act of 1995. Any statements other than statements of historical fact contained herein are forward-looking statements. Such forward-looking statements include, but are not limited to, expectations, hopes, beliefs, intentions, plans, prospects, financial results or strategies regarding GIO and the Proposed Transaction and the future held by the respective management teams of Apeiron or GIO, the anticipated benefits and the anticipated timing of the Proposed Transaction, future financial condition and performance of GIO and expected financial impacts of the Proposed Transaction (including future revenue, pro forma enterprise value and cash balance), the satisfaction of closing conditions to the Proposed Transaction, financing transactions, if any, related to the Proposed Transaction, the level of redemptions of Apeiron’s public stockholders and the products and markets and expected future performance and market opportunities of GIO These forward-looking statements generally are identified by the words “anticipate,” “believe,” “could,” “expect,” “estimate,” “future,” “intend,” “may,” “might,” “strategy,” “opportunity,” “plan,” “project,” “possible,” “potential,” “project,” “predict,” “scales,” “representative of,” “valuation,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this communication, including, without limitation: (i) the risk that the Proposed Transaction may not be completed in a timely manner or at all, which may adversely affect the price of Apeiron’s securities, (ii) the risk that the Proposed Transaction may not be completed by Apeiron’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by Apeiron, (iii) the failure to satisfy the conditions to the consummation of the Proposed Transaction, including, among others, the requirement that the definitive agreement related to the Agreement and the transactions contemplated thereby be approved by the stockholders of Apeiron and by the stockholders of GIO, respectively, (iv) the failure to obtain regulatory approvals, as applicable, required to consummate the Proposed Transaction, (v) the occurrence of any event, change or other circumstance that could give rise to the termination of the Agreement, (vi) the effect of the announcement or pendency of the Proposed Transaction on GIO's business relationships, operating results, and business generally, (vii) risks that the Proposed Transaction disrupts current plans and operations of GIO, (viii) the outcome of any legal proceedings that may be instituted against GIO or against Apeiron related to the Agreement or the Proposed Transaction, (ix) the ability of Apeiron’s securities to once again become listed on a national securities exchange, (x) changes in the competitive market in which GIO operates, variations in performance across competitors, changes in laws and regulations affecting GIO's business and changes in the combined capital structure, (xi) the ability to implement business plans, growth, marketplace and other expectations after the completion of the Proposed Transaction, and identify and realize additional opportunities, (xiii) the potential inability of GIO to achieve its business and customer growth, and (xiv) the ability of GIO to enforce its current or future intellectual property, along with potential claims of infringement by GIO of the intellectual property rights of others. The foregoing list of factors is not exhaustive. Recipients should carefully consider such factors and the other risks and uncertainties described and to be described in the “Risk Factors” section of Apeiron’s initial public offering prospectus filed with the SEC on November 10, 2021, Apeiron’s Annual Report on Form 10-K filed for the year ended December 31, 2021, as filed with the SEC on March 22, 2022 and subsequent periodic reports filed by Apeiron with the SEC, the Registration Statement to be filed by Apeiron in connection with the Proposed Transaction and other documents filed or to be filed by Apeiron from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Recipients are cautioned not to put undue reliance on forward-looking statements, and neither GIO nor Apeiron assume any obligation to, nor intend to, update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise, except as required by law. Neither GIO nor Apeiron gives any assurance that either GIO or Apeiron, or the combined company, will achieve its expectations.
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Participants in the Solicitation
Apeiron, GIO and their respective directors and executive officers may be deemed participants in the solicitation of proxies of Apeiron’s stockholders in connection with the Proposed Transaction. Apeiron’s stockholders and other interested persons may obtain more detailed information regarding the names, affiliations, and interests of certain of Apeiron executive officers and directors in the solicitation by reading Apeiron’s final prospectus filed with the SEC on November 10, 2021 in connection with Apeiron’s initial public offering (“IPO”), Apeiron’s Annual Report on Form 10-K for the year ended December 31, 2021, as filed with the SEC on March 22, 2022 and Apeiron’s other filings with the SEC. A list of the names of such directors and executive officers and information regarding their interests in the Proposed Transaction, which may, in some cases, be different from those of stockholders generally, will be set forth in the Registration Statement relating to the Proposed Transaction when it becomes available. These documents can be obtained free of charge from the source indicated above.
No Offer or Solicitation
This communication shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Proposed Transaction. This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended (the “Securities Act”) or an exemption therefrom.
Information Sources; No Representations
The communication furnished herewith has been prepared for use by Apeiron and GIO in connection with the transaction. The information therein does not purport to be all-inclusive. The information therein is derived from various internal and external sources, with all information relating to the business, past performance, results of operations and financial condition of Apeiron derived entirely from Apeiron and all information relating to the business, past performance, results of operations and financial condition of GIO derived entirely from GIO No representation is made as to the reasonableness of the assumptions made with respect to the information therein, or to the accuracy or completeness of any projections or modeling or any other information contained therein. Any data on past performance or modeling contained therein is not an indication as to future performance.
No representations or warranties, express or implied, are given in respect of the communication. To the fullest extent permitted by law in no circumstances will Apeiron or GIO, or any of their respective subsidiaries, affiliates, shareholders, representatives, partners, directors, officers, employees, advisors or agents, be responsible or liable for any direct, indirect or consequential loss or loss of profit arising from the use of the this communication (including without limitation any projections or models), any omissions, reliance on information contained within it, or on opinions communicated in relation thereto or otherwise arising in connection therewith, which information relating in any way to the operations of GIO has been derived, directly or indirectly, exclusively from GIO and has not been independently verified by Apeiron. Neither the independent auditors of Apeiron nor the independent auditors of or GIO audited, reviewed, compiled or performed any procedures with respect to any projections or models for the purpose of their inclusion in the communication and, accordingly, neither of them expressed any opinion or provided any other form of assurances with respect thereto for the purposes of the communication.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description | |
| 2.1 | Amendment No. 1 to Business Combination Agreement, dated as of March 8, 2023, by and among Apeiron Capital Investment Corp., Apeiron Capital Sponsor, LLC, GIO World Health Limited, Deven Patel, and the Sellers party thereto. | |
| 10.1 | Promissory Note issued to Apeiron Capital Investment Corp., dated April 5, 2023. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
| * | The exhibits and schedules to this Exhibit have been omitted in accordance with Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish supplementally to the SEC a copy of all omitted exhibits and schedules upon its request. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Apeiron Capital Investment Corp. | |||
| By: | /s/ Joel Shulman | ||
| Name: | Joel Shulman | ||
| Title: | Chief Executive Officer | ||
Dated: May 10, 2023
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Exhibit 2.1
AMENDMENT NO. 1 TO BUSINESS COMBINATION AGREEMENT
This Amendment No. 1 (this “Amendment No. 1”) to Business Combination Agreement is made and entered into effective as of May 10, 2023, by and among (i) Apeiron Capital Investment Corp., a Delaware corporation (together with its successors, the “Purchaser”), (ii) Apeiron Capital Sponsor, LLC, a Delaware limited liability company, in the capacity as the representative from and after the Closing for the stockholders of the Purchaser (other than the Sellers and their respective successors and assigns) in accordance with the terms and conditions of the BCA (the “Purchaser Representative”), (iii) GIO World Health, Ltd., a private company formed under the laws of England and Wales (the “Company”), (iv) each of the shareholders of the Company that are named on Annex I hereto that have executed and delivered a copy of this Agreement as of the date hereof (collectively, the “Signing Sellers”), and (vi) Deven Patel, in the capacity as the representative for the Sellers in accordance with the terms and conditions of this Agreement (the “Seller Representative”). Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Original BCA (as defined below).
WHEREAS, Purchaser, Purchaser Representative, the Company, the Signing Sellers and the Seller Representative are parties to that certain Business Combination Agreement made and entered into as of March 8, 2023 (the “Original BCA”).
WHEREAS, the parties desire to amend the Original BCA on the terms and conditions set forth herein (as amended, including by this Amendment, the “BCA”).
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in accordance with the terms of the Original BCA, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. National Exchange; Exchange. The parties hereby agree that
(a) In each and every instance in which the capitalized term “National Exchange” appears in the Original BCA, such term shall be considered amended and replaced by the capitalized term “Exchange,” which shall have the following meaning:
“Exchange” means (i) any United States securities exchange registered with the SEC under Section 6(a) of the Exchange Act, including NYSE, NASDAQ, NYSE American or any equivalent exchange or (ii) a trading marketplace operated by OTC Markets Group Inc.
(b) Section 7.1(i) of the Original BCA shall be amended and restated in its entirety as follows:
Exchange Listing. The Purchaser, immediately after the Closing and after giving effect to the Closing Redemption, the issuance of the Exchange Shares, any Transaction Financing and any of the other transactions contemplated by this Agreement, shall have received evidence reasonably acceptable to the Purchaser and the Company that the shares of Purchaser Class A Common Stock shall be listed on a National Exchange immediately following the Closing, or, to the extent listing on a National Exchange, based on listing qualifications or other factors, is not commercially reasonable or is not possible (as determined by the Purchaser and its legal counsel, in consultation with the Company and its legal counsel), an Exchange.
2. Exchange Consideration. Section 1.2 of the Original BCA is hereby amended and restated in its entirety as follows:
1.2 Exchange Consideration. At the Closing, subject to an upon the terms and conditions of this Agreement, as consideration for the Purchased Shares, the Sellers collectively shall be entitled to have issued to them by the Purchaser, in the aggregate, a number of shares of Purchaser Class A Common Stock (the “Exchange Shares”) with an aggregate value equal to (a) Two Hundred Fifty Million U.S. Dollars ($250,000,000), multiplied by (b) the percentage (the “Purchased Share Percentage”) equal to (i) the total number of Purchased Shares, divided by (ii) the total number of issued and outstanding capital shares of the Company plus the number of capital shares of the Company held in treasury (the “Exchange Consideration”). For each Purchased Share held by a Seller immediately prior to the Closing, such Seller shall receive a number of Exchange Shares equal to (A) such Seller’s Pro Rata Share divided by (B) the Redemption Price, with each Seller’s “Pro Rata Share” to be determined based on the percentage of Purchased Shares owned by such Seller as compared to the total number of issued and outstanding capital shares of the Company plus the number of capital shares of the Company held in treasury. Any capital shares of the company held in treasury immediately after the Closing will be cancelled by the Company. Notwithstanding anything to the contrary contained herein, no fraction of a share of Purchaser Class A Common Stock will be issued by the Purchaser by virtue of this Agreement or the transactions contemplated hereby, and each Person who would otherwise be entitled to a fraction of a share of Purchaser Class A Common Stock (after aggregating all fractional shares of Purchaser Class A Common Stock that would otherwise be received by such Person) shall instead have the number of shares of Purchaser Class A Common Stock issued to such Person rounded down in the aggregate to the nearest whole share of Purchaser Class A Common Stock. Additionally, after the Closing, subject to the terms and conditions set forth in this Agreement, the Earnout Sellers shall have the contingent right to receive Earnout Shares from the Purchaser as additional consideration if the applicable Share Price Targets as set forth in Section 1.3 are satisfied. For the avoidance of doubt, no holder of Company Securities will receive any consideration under or in connection with this Agreement unless they are a Seller hereunder, either as a Signing Seller or a Joining Seller, and then only with respect to the issued and outstanding Company Ordinary Shares that they own.
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3. Company Capitalization.
(a) The parties hereby agree that the first two sentences of Section 4.3(a) are hereby deleted and replaced in their entirety with the following: “The Company is authorized to issue 25,328,400 Company Ordinary Shares, of which 23,828,312 shares are issued and outstanding. 1,520,088 Company Ordinary Shares are held in treasury.”
(b) Annex I to the Original BCA is hereby amended and restated in its entirety as attached hereto as Annex I.
4. Company Restructuring. The parties hereby agree that:
(a) Section 6.20(a) of the Original BCA is hereby amended and restated in its entirety as:
Prior to the Closing, the Company shall, and shall cause its Affiliate GIOSTAR to, negotiate in good faith a supply agreement among the Company and the Purchaser, consistent with the terms set forth on Annex II hereto (the “GIOSTAR Supply Agreement”) to be effective as of the Closing, in form and substance reasonably acceptable to the Purchaser.
(b) Section 6.20(b) of the Original BCA is hereby amended and restated in its entirety as:
As promptly as practicable after the date hereof (and, with respect to any particular action or transaction described in Schedule 6.20(b) hereto (the “Company Restructuring Schedule”), on or before any such date by which such transaction or action is required to be effected or completed in accordance with the Company Restructuring Schedule), the Target Companies and the Sellers shall consummate (and each applicable Seller shall cause the applicable Affiliate(s) of the Target Companies or of such Seller to consummate) a restructuring of the business of the Target Companies and the respective Affiliates of the Target Companies and the Sellers as described on the Company Restructuring Schedule.
(c) Schedule 6.20(b) of the Original BCA is hereby amended and restated in its entirety as attached hereto as Annex II.
(d) Section 7.3(e) of the Original BCA is hereby amended and restated in its entirety as:
The Company, and each Affiliate of any Target Company or any Seller, as applicable, shall have completed or caused to be completed the Company Restructuring in form and substance reasonably acceptable to the Purchaser.
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5. Miscellaneous. Except as expressly provided in this Amendment, all of the terms and provisions in the Original BCA and the Ancillary Documents are and shall remain unchanged and in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Original BCA or any Ancillary Document, or any other right, remedy, power or privilege of any party, except as expressly set forth herein. Any reference to the BCA in the BCA or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Original BCA, as amended by this Amendment (or as the BCA may be further amended or modified after the date hereof in accordance with the terms thereof). The BCA, as amended by this Amendment, and the documents or instruments attached hereto or thereto or referenced herein or therein, constitutes the entire agreement between the parties with respect to the subject matter of the BCA, and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to its subject matter. If any provision of the Original BCA is materially different from or inconsistent with any provision of this Amendment, the provision of this Amendment shall control, and the provision of the Original BCA shall, to the extent of such difference or inconsistency, be disregarded. This Amendment shall be interpreted, construed, governed and enforced in a manner consistent with the Original BCA, and, without limiting the foregoing, Sections 10.1 through 10.12 and 10.13 through 10.18 of the Original BCA are hereby incorporated herein by reference as if fully set forth herein, and such provisions apply to this Amendment as if all references to the “Agreement” contained therein were instead references to this Amendment.
[Remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to Business Combination Agreement as of the date first written above.
| The Purchaser: | ||
| Apeiron Capital Investment Corp. | ||
| By: | /s/ Joel Shulman | |
| Name: Joel Shulman | ||
| Title: Chief Executive Officer | ||
| The Purchaser Representative: | ||
| Apeiron Capital Sponsor LLC, solely in the capacity as the Purchaser Representative hereunder | ||
| By: | /s/ Joel Shulman | |
| Name: Joel Shulman | ||
| Title: Managing Member | ||
| The Company: | ||
| GIO World Health, Ltd. | ||
| By: | /s/ Deven Patel | |
| Name: Deven Patel | ||
| Title: Chief Executive Officer | ||
| The Seller Representative: | ||
| /s/ Deven Patel | ||
| Deven Patel, solely in the capacity as the Seller Representative hereunder | ||
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Annex I
The contents of this Annex I amend and replace, in their entirety, the contents of Annex I to the Original BCA.
ANNEX I
List of Sellers
| Seller Name | No. of Company Ordinary Shares Held | Percentage of Total Shares | Current Pro Rata Share | Current Earnout Pro Rata Share |
| Signing Sellers | ||||
| Global Institute of Stem Cell Therapy and Research Inc. | 17,000,000 | 67.118% | 68.000% | 81.731% |
| TAG Partners Ltd. | 2,679,912 | 10.581% | 10.720% | 0.000% |
| Deven Patel | 1,900,000 | 7.501% | 7.600% | 9.135% |
| Dr. Anand Srivastava | 1,900,000 | 7.501% | 7.600% | 9.135% |
| Total Held by Signing Sellers | 23,479,912 | 92.702% | 100.000% | 100.000% |
| Other Company Shareholders | ||||
| Suresh Deopura | 210,000 | 0.829% | 0.000% | 0.000% |
| Anil Aneja | 20,000 | 0.079% | 0.000% | 0.000% |
| Ram Baheti | 20,000 | 0.079% | 0.000% | 0.000% |
| Jesse David Mitchell | 20,000 | 0.079% | 0.000% | 0.000% |
| Nihal Deopura | 13,000 | 0.051% | 0.000% | 0.000% |
| Chandraprakash Namwal | 10,000 | 0.039% | 0.000% | 0.000% |
| Senbo Pillay | 10,000 | 0.039% | 0.000% | 0.000% |
| Priyanka Amreesh Jhanwar | 8,000 | 0.032% | 0.000% | 0.000% |
| Rajesh Gupta | 5,000 | 0.020% | 0.000% | 0.000% |
| Anil Surpur | 4,000 | 0.016% | 0.000% | 0.000% |
| Sangeeta Jhanwar | 2,400 | 0.009% | 0.000% | 0.000% |
| Karthikeyan Venkatraman | 2,000 | 0.008% | 0.000% | 0.000% |
| Lamitra Praveen Dhir | 1,800 | 0.007% | 0.000% | 0.000% |
| Sravanthi Madhadi | 1,200 | 0.005% | 0.000% | 0.000% |
| Inonda Ltd | 1,000 | 0.004% | 0.000% | 0.000% |
| Total Held by Other Company Shareholders | 328,400 | 1.297% | 0.000% | 0.000% |
| Shares Held in Treasury | 1,520,088 | 6.002% | 0.000% | 0.000% |
| TOTAL COMPANY ORDINARY SHARES | 25,328,400 | 100.000% | 100.000% | 100.000% |
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Exhibit 10.1
THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
| Dated as of April 5, 2023 | |
| Principal Amount: $250,000.00 | New York, New York |
Apeiron Capital Investment Corp., a special purpose acquisition company incorporated as a Delaware corporation (the “Maker”), promises to pay to the order of SIA Ventures, LLC or its registered assigns or successors in interest (the “Payee”), the principal sum of $250,000.00 in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Note.
1. Principal. The principal balance of this Note shall be due and payable by the Maker (such date, the “Maturity Date”), subject to Section 11 below, (a) upon the consummation of the Maker’s proposed initial business combination and (b) the date of the liquidation of the Maker.
2. Interest. No interest shall accrue on the unpaid principal balance of this Note.
3. Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including, without limitation, reasonable attorneys’ fees, and then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Note.
4. Events of Default. The following shall constitute an event of default (“Event of Default”):
(a) Failure to Make Required Payments. Failure by the Maker to pay the principal amount due pursuant to this Note within five (5) business days of the Maturity Date.
(b) Voluntary Bankruptcy, Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of the Maker generally to pay its debts as such debts become due, or the taking of corporate action by the Maker in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.
5. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 4(a) hereof, the Payee may, by written notice to the Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Sections 4(b) and 4(c), the unpaid principal balance of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of the Payee.
6. Waivers. The Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to this Note, all errors, defects and imperfections in any proceedings instituted by the Payee under the terms of this Note, and all benefits that might accrue to the Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment, and the Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by the Payee.
7. Unconditional Liability. The Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by the Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to the Maker or affecting the Maker’s liability hereunder.
8. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in writing and delivered: (a) personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (b) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party or (c) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
9. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
10. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11. Trust Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of or from the trust account (the “Trust Account”) established in which the proceeds of the initial public offering (“the “IPO”) conducted by the Maker (including the deferred underwriters’ discounts and commissions) and the proceeds of the sale of the warrants issued in a private placement that occurred prior to the closing of the IPO were deposited, as described in greater detail in the Maker’s Registration Statement on Form S-1 (File No. 333-257369) filed with the Securities and Exchange Commission in connection with the IPO, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
12. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.
13. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by the Maker (by operation of law or otherwise) without the prior written consent of the Payee and any attempted assignment without the required consent shall be void.
[Remainder of page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
|
Apeiron Capital Investment Corp. | |||
| By: | /s/ Joel Shulman | ||
| Name: | Joel Shulman | ||
| Title: | Chief Executive Officer | ||
[Signature Page – Promissory Note]
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