Exhibit 4.78

 

**THIS SECURED PROMISSORY NOTE HAS NOTBEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OF THE SECURITIES LAWS OF ANY STATE. NO SALEOR DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH RULE 144 UNDER THE ACT OR AN EFFECTIVE REGISTRATION STATEMENT RELATEDTHERETO OR AN APPLICABLE EXEMPTION THEREFROM.**

 

10% CONVERTIBLE PROMISSORY NOTE

 

 

FOR VALUE RECEIVED,Prime Acquisition Corp. a Cayman Islands company (“Maker”) promises to pay to the order of Diana Chia-HueiLiu (“Payee”), or her permitted assigns, the principal sum of Eighty Thousand Dollars and No Cents ($80,000.00) withinterest on the outstanding principal amount at the rate of ten percent (10.0%) per annum (the “Interest Rate”),in lawful money of the United States of America, on the terms and conditions described below.

 

A.       MaturityDate. Unless converted pursuant to Section 5 hereof, the principal amount of this Note and all accrued and unpaid interestthereon shall be due and payable in full on the date (the “Maturity Date”) that is the earliest to occur of:(i) the date on which Maker liquidates and winds-up its affairs, or (ii) September 30, 2015.

 

B.       Interest.This Note shall bear interest on the unpaid principal balance of this Note at the Interest Rate, and shall be computed on the basisof a 365-day year for the actual number of days elapsed. Interest shall accrue, and be compounded annually, until all amounts owedunder this Note shall be fully repaid, or until converted pursuant to Section 5 hereof.

 

C.       Optional Pre-Payment.This Note may be pre-paid in whole or in part at any time prior to the Maturity Date without penalty.

 

D.       Applicationof Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum dueunder this Note, including (without limitation) reasonable attorneys’ fees and then to the reduction of the principal balanceof this Note.

 

E.       ConversionFeature. Payee has the option to convert the principal sum and any unpaid interest, either in their entirely or partially,to common shares of Maker according to the following formula:

 

(i)     The lower of $1.75 per shares; or

 

(ii)     The price per share of the next roundof financing.

 

F.       Events of Default. The following shall constituteEvents of Default:

 

 

 

(a)            Failure to Make Required Payments. The Company fails to make a payment, when due, of any principal or interest dueon this Note, and such default continues for a period of five (5) days.

 

(b)            Voluntary Bankruptcy, Etc. The commencement by Maker of a voluntary case under the federal bankruptcy code (the “BankruptcyCode”), as now constituted or hereafter amended, or any other applicable federal or state 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 Maker or for any substantial part of its property, orthe making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debtsbecome due, or the taking of corporate action by 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 premisesin respect of maker in an involuntary case under the Bankruptcy Code, as now or hereafter constituted, or any other applicablefederal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee,sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidationof its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days.

 

(d)           Adjustment of Interest Rate. The interest rate will automatically be adjusted to twenty-four percent (24%) per annumon all unpaid principal amount.

 

(e)            Conversion Discount. At the option of the Payee the amount owe can be converted to Common Shares of Maker at a thirtypercent (30%) discount to the then price.

 

G.       Remedies.

 

(a)            Upon the occurrence of an Event of Default specified in Section 6(a), Payee may, by written notice to Maker, declare thisNote to be due and payable, whereupon the principal balance of, and all other sums payable with regard to, this Note shall becomeimmediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expresslywaived, 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 6(b) and 6(c), the principal balance of, and all othersums payable with regard to, this Note shall automatically and immediately become due and payable, in all cases without any actionon the part of Payee.

 

H.       Waivers.Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice ofdishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedingsinstituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present orfuture 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, orextension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtainedby virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any orderdesired by Payee.

 

 

I.       UnconditionalLiability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, orenforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to theliability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiveror modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, ormodifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agree thatadditional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting theirliability hereunder.

 

J.       Notices.Any notice called for hereunder shall be deemed properly given if (i) sent by certified mail, return receipt requested, (ii) personallydelivered, (iii) dispatched by any form of private or governmental express mail or delivery service providing receipted delivery,(iv) sent by telefacsimile or (v) sent by e-mail, to the following addresses or to such other address as either party may designateby notice in accordance with this Section:

 

If to Maker:

 

Prime Acquisition Corp.

No. 322, Zhongshan East Road

Shijiazhuang

Hebei Province, 050011

People’s Republic of China

Attention: Chief Executive Officer

 

If to Payee:

 

Diana Liu

c/o 15F, 300 ChangChun Road,

Taipei, Taiwan

104-87

 

Notice shall be deemed given on the earlierof (i) actual receipt by the receiving party, (ii) the date shown on a telefacsimile transmission confirmation, (iii) the dateon which an e-mail transmission was received by the receiving party’s on-line access provider (iv) the date reflected ona signed delivery receipt, or (vi) two (2) Business Days following tender of delivery or dispatch by express mail or delivery service.

 

K.       Restriction on Transferability. Payee shall not offer, sale, transfer or otherwise dispose of this Note without the writtenconsent of Maker, and any such offer, sale, transfer or disposition made without the written consent of Maker shall be void andof no effect, and Maker shall not unreasonably withheld such consent.

 

 

L.       Construction.This Note shall be construed and enforced in accordance with the domestic, internal law, but not the law of conflict oflaws, of the State of New York.

 

M.       JURISDICTION;SERVICE; WAIVERS.     ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS NOTE MAY BE BROUGHT IN A COURT OF RECORD OF THESTATE OF NEW YORK IN THE COUNTY OF NEW YORK. THE PARTIES TO THIS AGREEMENT HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OFSUCH COURTS OF THE STATE OF NEW YORK, AND SERVICE OF PROCESS MAY BE MADE UPON THE PARTIES TO THIS NOTE BY MAILING A COPY OFTHE SUMMONS AND ANY COMPLAINT TO SUCH PERSON, BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS TO BEUSED FOR THE GIVING OF NOTICES UNDER THIS NOTE. BY ACCEPTANCE HEREOF, THE PARTIES HERETO EACH HEREBY IRREVOCABLY ANDUNCONDITIONALLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THEGROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OR MAINTAINING OF ANY SUCH ACTION ORPROCEEDING IN SUCH JURISDICTION.

 

N.       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, andany such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in anyother jurisdiction.

 

 

 

 

 

 

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IN WITNESS WHEREOF, Maker,intending to be legally bound hereby, has caused this Note to be issued as of the day and year first above written.