Secured Promissory Note



 Exhibit 10.1 
 NEITHER THE ISSUANCE NOR SALE OF THE SECURITIES REPRESENTED BY THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
(B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. 

SECURED PROMISSORY NOTE 

 

			
	$1,500,000.00	  	 June 1, 2012
 Tampa, Florida


 FOR VALUE RECEIVED, the undersigned, ACCENTIA BIOPHARMACEUTICALS, INC., a Florida corporation (the
“Borrower”), with a mailing address of 324 South Hyde Park Avenue, Suite 350, Tampa, Florida 33606, hereby promises to pay to the order of PABETI, INC, an Illinois corporation (the “Lender”), with a mailing address
of 1602 W. Kimmel Street, Marion, Illinois 62929, up to the maximum principal amount of One Million Five-Hundred Thousand Dollars ($1,500,000.00) based on the amount advanced by Lender to borrower under this Secured Promissory Note (the
“Principal Amount”), together with interest on the unpaid Principal Amount outstanding from time to time at the rate or rates hereafter specified and on any and all other sums which may be owing to the Lender by the Borrower
hereunder. 
 Lender agrees to fund this Note on the following schedule: 

 

	 	A.	June 4, 2012 - $300,000 

  

	 	B.	June 18, 2012 - $200,000 

  

	 	C.	July 2, 2012 - $200,000 

  

	 	D.	July 16, 2012 - $200,000 

  

	 	E.	July 30, 2012 - $200,000 

  

	 	F.	August 13, 2012 - $200,000 

  

	 	G.	August 27, 2012 - $200,000 








 The following terms shall apply to this Note: 

1. Security and Priority. As security for payment of the Obligations (as defined below) under this Note, the Borrower and the
Lender have entered into that certain Security Agreement of even date herewith (the “Security Agreement”). The Security Agreement and this Note are sometimes hereinafter referred to as the “Loan Documents”. The
Borrower and the Lender have agreed that all Obligations under this Note will be secured by a first security interest in the Collateral (as that term is defined in the Security Agreement) of the Borrower, and the liens and security interests granted
to the Lender will be senior to all liens and security interests of all other parties in the Collateral. 
 2. Interest
Rate. Interest shall accrue and be payable on the outstanding Principal Amount at a fixed rate of interest equal to ten percent (10%) per annum. Interest shall be calculated on the basis of a year of 360 days applied to the actual days on
which there exists an unpaid balance under this Note. Interest shall begin accruing on the date of this Note, and shall be payable on the Conversion Date (as to that principal amount then being converted), and accrued but unpaid interest shall be
paid commencing on June 30, 2013, and thereafter on a quarterly basis in arrears (as to that principal amount then outstanding) (each such date a “Quarterly Interest Payment Date”) and on the Maturity Date (each such date, an
“Interest Payment Date”) (if any Interest Payment Date is not a business day, then the applicable payment shall be due on the next succeeding business day). Any interest payment due on any Interest Payment Date shall be paid in
cash, or, at the election of the Borrower, shall be paid in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock determined by dividing the amount of interest then due under this Note by the average market price
(volume weighted average price) for the ten trading days immediately preceding the end of the interest period. 
 3. Term;
Maturity Date. For purposes of this Note and the Security Agreement, the “Maturity Date” shall be June 1, 2015. For the avoidance of doubt, this Note is a balloon promissory note that requires that all indebtedness be paid
in full on the Maturity Date. 
 4. Repayment Extension. If any payment of principal or interest shall be due on a
Saturday, Sunday or any other day on which banking institutions in the State of Florida are required or permitted to be closed, such payment shall be made on the next succeeding business day and such extension of time shall be included in computing
interest under this Note. 
 5. Manner and Application of Payments. All payments due hereunder shall be paid in lawful
money of the United States of America which shall be legal tender in payment of all debts and dues, public and private, in immediately available funds, without offset, deduction or recoupment. Any payment by check or draft shall be subject to the
condition that any receipt issued therefore shall be ineffective unless the amount due is actually received by the Lender. Each payment shall be applied first, to the payment of any and all costs, fees and expenses incurred by or payable to the
Lender in connection with the collection or enforcement of this Note; second, to the payment of all accrued and unpaid interest hereunder; and third, to the payment of the unpaid Principal Amount, or in any other manner which the Lender may, in its
sole discretion, elect from time to time. 

  
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 6. A. Option to Convert. At the option of the Lender, at any time prior to the
earlier to occur of (a) the date of the prepayment of this Note in full or (b) the Maturity Date of this Note, the Lender, in its discretion, may convert all or a portion of the outstanding balance of this Note (including any accrued and
unpaid interest under this Note) into shares of the common stock, par value $.001 per share (the “Common Stock”), of the Borrower at a conversion rate equal to $0.25 per share (the “Conversion Price”). If the
Lender wishes to make a conversion, the Lender shall give notice of such election by delivering a written notice (the “Conversion Notice”) to the Borrower and such Conversion Notice shall provide a breakdown in reasonable detail of
the principal and accrued and unpaid interest thereon outstanding under this Note that are being converted and the calculation of the number of shares of Common Stock issuable to the Lender on conversion. The number of shares of Common Stock
issuable to the Lender upon any conversion (the “Conversion Shares”) shall be equal to (a) an amount equal to the aggregate portion of the principal and accrued and unpaid interest thereon outstanding under this Note being
converted, divided by (b) the Conversion Price. In the case of the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised and the Conversion Shares issuable upon such conversion shall
be deemed to have been issued upon the date of receipt by the Borrower of the Conversion Notice. If the Lender has delivered a Conversion Notice, the Borrower shall make the appropriate reduction to the Principal Amount and accrued and unpaid
interest thereon outstanding under this Note as entered in its register and its records. The kind of shares or other securities to be issued upon conversion as determined pursuant to this Section 6 shall be subject to adjustment from time to
time upon the occurrence of certain events during the period that this conversion right remains outstanding, as follows: if the Borrower at any time shall, by reclassification or otherwise, change the Common Stock into the same or a different number
of securities of any class or classes, this Note, as to the unpaid Principal Amount and the accrued and unpaid interest thereon, shall thereafter be deemed to evidence the right to purchase an adjusted number of such securities and kind of
securities as would have been issuable as the result of such change with respect to the Common Stock (i) immediately prior to or (ii) immediately after such reclassification or other change at the sole election of the Lender. The
Conversion Shares shall be subject to the provisions of Rule 144. 
 B. Follow-on Financings. No follow-on equity
linked financing (excluding strategic relationships involving the sale of equity or equity-linked securities to a business entity engaged in the pharmaceutical, biotech or related business, registered public offerings, options under the Incentive
Stock Option Plans or stock acquisition rights outstanding on the date hereof) will be completed during the 12 month period following the Date hereof at a price per share that is less than the Conversion Price hereunder without Lender being offered
the first right of refusal to provide or to participate in such equity linked financing. 

  
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 C. Exercise Limitations. The Holder shall not have the
right to exercise any portion of this Note to the extent that after giving effect to such issuance after conversion as set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other person or
entity acting as a group together with the Holder or any of the Holder’s Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares
of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of
shares of Common Stock which would be issuable upon (A) conversion of the remaining, balance of this Note beneficially owned by the Holder or any of its Affiliates and (B) conversion of the unexercised or nonconverted portion of any other
securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
affiliates. Except as set forth in the preceding sentence, for purposes of this Section, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it
being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained in this Section applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates) and of which portion
of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note is convertible (in relation to other securities owned
by the Holder together with any Affiliates) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such
determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this
Section, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent periodic or annual report, as the case may be,
(y) a more recent public announcement by the Company or (z) any other notice by the Company or the Company’s Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a
Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership
Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note. The Holder, upon not less than 61 days’
prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the provisions of this Section shall continue to apply. Any such increase or decrease will not be effective until the
61st day after such notice is delivered to the Company.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the
intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this
Note. 
 7. Prepayment. The Borrower may not prepay this Note in part or in full at any time prior to the Maturity date
unless the Lender provides written Consent to such prepayment. 

  
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 8. Obligations. The term “Obligations” shall mean the full and
punctual observance and performance of all duties, covenants and responsibilities due to the Lender by the Borrower under this Note, including all indebtedness and liabilities of the Borrower to the Lender for the payment of money extending to the
Principal Amount and all interest, fees, late charges, expense payments, liquidation costs, and expenses provided in this Note. The Lender and the Borrower acknowledge and agree that the Principal Amount under this Note shall equal the amount of
actual advances made by the Lender to the Borrower hereunder. 
 9. Events of Default. The occurrence of any one or more
of the following events shall constitute an “Event of Default” under this Note: 
  

	 	(a)	the failure of the Borrower to pay any sum due under this Note when due, whether by demand or otherwise, and such sum remains unpaid for five (5) business days
after the due date; and 

  

	 	(b)	any other Event of Default described in the Security Agreement. 

 10. Rights and Remedies Upon Default. Upon the occurrence of an Event of Default hereunder, the Lender, in the Lender’s sole discretion and with prior written notice to the Borrower, may:
(a) declare the entire outstanding Principal Amount, together with all accrued interest and all other sums due under this Note, to be immediately due and payable, and the same shall thereupon become immediately due and payable without protest,
presentment, demand or notice, which are hereby expressly waived; (b) exercise its right of setoff against any money, funds, or credits of the Borrower now or at any time hereafter in the possession of, in transit to or from, under the control
or custody of or on deposit with, the Lender or any affiliate of the Lender in any capacity whatsoever; and (c) exercise any or all rights, powers and remedies provided for in the Loan Documents or now or hereafter existing at law, in equity,
by statute or otherwise. 
 11. Remedies Cumulative. Each right, power and remedy of the Lender hereunder, under the Loan
Documents or now or hereafter existing at law, in equity, by statute or otherwise shall be cumulative and concurrent, and the exercise or beginning of the exercise of any one or more of them shall not preclude the simultaneous or later exercise by
the Lender of any or all such other rights, powers or remedies. No failure or delay by the Lender to insist upon the strict performance of any one or more provisions of this Note or of the Loan Documents or to exercise any right, power or remedy
consequent upon a default hereunder shall constitute a waiver thereof or preclude the Lender from exercising any such right, power or remedy. By accepting full or partial payment after the due date of any amount of principal of or interest on this
Note, or other amounts payable on demand, the Lender shall not be deemed to have waived the right either to require prompt payment when due and payable of all other amounts of principal of or interest on this Note or other amounts payable on demand,
or to exercise any rights and remedies available to it in order to collect all such other amounts due and payable under this Note. 

  
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 12. Collection Expenses. The Borrower shall pay any and all issue taxes, documentary
stamp taxes, and other taxes that may be payable in respect of the issuance or delivery of this Note. If this Note is placed in the hands of an attorney for collection following the occurrence of an Event of Default hereunder, the Borrower agrees to
pay to the Lender upon demand all costs and expenses, including, without limitation, all attorneys’ fees and court costs incurred by the Lender in connection with the enforcement or collection of this Note (whether or not any action has been
commenced by the Lender to enforce or collect this Note). The obligation of the Borrower to pay all such costs and expenses shall not be merged into any judgment by confession against the Borrower. All of such costs and expenses shall bear interest
at the rate of interest provided herein, from the date of payment by the Lender until repaid in full. 
 13. Maximum Rate of
Interest. Notwithstanding any provision of this Note or the Loan Documents to the contrary, the Borrower shall not be obligated to pay interest pursuant to this Note in excess of the maximum rate of interest permitted by the laws of any state
determined to govern this Note or the laws of the United States applicable to loans in such state. If any provisions of this Note shall ever be construed to require the payment of any amount of interest in excess of that permitted by applicable law,
then the interest to be paid pursuant to this Note shall be held subject to reduction to the amount allowed under applicable law and any sums paid in excess of the interest rate allowed by law shall be applied in reduction of the principal balance
outstanding pursuant to this Note. The Borrower acknowledges that it has been contemplated at all times by the Borrower that the laws of the State of Illinois will govern the maximum rate of interest that it is permissible for the Lender to charge
the Borrower pursuant to this Note. 
 14. Choice of Law. This Note shall be governed by and construed in accordance with
the laws of the State Illinois without reference to principles of choice of law or conflict of law thereunder. Whenever possible, each provision of this Note shall be interpreted to be effective and valid under applicable law. If any provision of
this Note is prohibited by or invalid under applicable law, the provision shall be ineffective only to the extent of the prohibition or invalidity, without invalidating the remainder of the provision or the other remaining provisions of this Note.

 15. Notices. All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any
notice, request, demand, claim, or other communication hereunder shall be deemed duly given if (and then two business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the addresses
set forth in the first paragraph of this Note. Any party may send any notice, request, demand, claim, or other communication hereunder to the intended recipient at the address set forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the
intended recipient. Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth. 

  
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 16. Jurisdiction. THE BORROWER HEREBY CONSENTS AND AGREES THAT THE STATE AND/OR
FEDERAL COURTS LOCATED IN THE STATE OF ILLINOIS SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE BORROWER, ON THE ONE HAND, AND THE LENDER, ON THE OTHER HAND, PERTAINING TO THIS NOTE OR TO ANY MATTER ARISING
OUT OF OR RELATED TO THIS NOTE; PROVIDED, THAT THE BORROWER ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE STATE OF ILLINOIS; AND FURTHER PROVIDED, THAT NOTHING IN THIS
NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. THE BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE BORROWER HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. THE BORROWER AND THE LENDER HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREE THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE BORROWER OR THE LENDER, AS APPLICABLE, AT THE ADDRESS SET FORTH IN THE FIRST PARAGRAPH OF THIS NOTE AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF THE BORROWER’S OR THE LENDER’S, AS APPLICABLE, ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID. 

17. Lender’s Expenses. Borrower shall make payment to Lender in the amount of Three thousand dollars ($3,000.00) to reimburse
Lender for legal and administrative expenses incurred in connection with entry into and performance of this Note and related documents. 
 18. Miscellaneous. The section headings of this Note are for convenience only, and shall not limit or otherwise affect any of the terms hereof. This Note constitutes the entire agreement between
the parties with respect to its subject matter and supersedes all prior letters, representations or agreements, oral or written, with respect thereto. No modification, release or waiver of this Note shall be deemed to be made by the Lender unless in
writing signed by the Lender, and each such waiver, if any, shall apply only with respect to the specific instance involved. This Note shall inure to the benefit of and be enforceable by the Lender and shall be binding upon and enforceable against
the Borrower and the Borrower’s successors and assigns. Whenever used herein, the singular number shall include the plural, the plural the singular, and the use of the masculine, feminine or neuter gender shall include all genders. In the event
any one or more of the provisions of this Note shall for any reason be held to be invalid, illegal, or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of this Note operates or would
prospectively operate to invalidate this Note, then and in any of those events, only such provision or provisions shall be deemed void and shall not affect any other provision of this Note and the remaining provisions of this Note shall remain
operative and in full force and effect and shall in no way be affected, prejudiced, or disturbed thereby. 
 [Signature Page
to Follow] 

  
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 IN WITNESS WHEREOF, the Borrower has duly executed this Note as of the day and year
first hereinabove set forth. 
  

			
	ACCENTIA BIOPHARMACEUTICALS, INC.,
	a Florida corporation
		
	By:	 	 /s/ Samuel S. Duffey

	Name:	 	Samuel S. Duffey, Esq.
	Title:	 	President and CEO


  

			
	ACKNOWLEDGED AND AGREED
	
	PABETI, INC.
		
	By:	 	 /s/ Ronald E. Osman

	Name:	 	Ronald E. Osman, Esq.
	Title:	 	President


  
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