Exhibit 10.1


 


THE
SECURITY REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH FEDERAL AND STATE SECURITIES
LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER.


 


CHIMERIX, INC.


 


PROMISSORY
NOTE


 


		$14,000,000.00	January 7, 2021



 


Chimerix, Inc.,
a Delaware corporation (“Maker”), hereby promises to pay to the Participating Securityholders (“Payee”),
the aggregate principal sum of Fourteen Million and 00/100 Dollars ($14,000,000.00), in the amounts and on the dates set forth
in this Promissory Note (this “Note”), and to pay to Payee interest on the unpaid principal balance of this
Note at the rates and on the dates set forth in this Note.


 


1.            Reference
to Merger Agreement. This Note is being issued by Maker to Payee pursuant to Section 1.11 of that certain Agreement
and Plan of Merger, dated as of the date hereof, by and among Maker, Payee and the other parties thereto (“Merger Agreement”).
Capitalized terms used and not otherwise defined in this Note have the meanings assigned to such terms in the Merger Agreement.


 


2.            Payment
of Principal and Interest. Subject to the terms of Section 4 of this Note, Maker shall pay the outstanding principal
amount of this Note, subject to Sections 1.9(i), 1.9(j), 1.10(c), 1.12 and 8.8 of the Merger Agreement, to Payee in a single payment
on the first anniversary of the date hereof. This Note shall bear interest at the rate of seven percent (7%) per annum (provided
that such rate shall not exceed the highest rate permitted under applicable Laws) with respect to any amounts due thereunder which
have not been paid to the Payment Agent for further distribution to the Participating Securityholders prior to the fifth (5th)
Business Day following the finalization of the Seller Note Consideration Distribution Schedule pursuant to Section 1.9(i) of
the Merger Agreement (such date, the “Payment Date”). For the avoidance of doubt, this Note shall not bear interest
if the Promissory Note is paid in full on, or prior to, the Payment Date.


 


3.            Prepayment.
Maker may prepay in whole or in part, without premium or penalty, the outstanding principal amount of this Note. Any prepayment
shall be applied first to costs and expenses payable to Payee hereunder, and then to outstanding principal.


 


4.            Acceleration
Upon Sale or Change of Control. Maker shall pay to Payee the then outstanding principal amount of this Note, together with
all accrued but unpaid interest thereon, but subject to Sections 1.9(i), 1.9(j), 1.10(c), 1.12 and 8.8 of the Merger Agreement,
immediately upon the occurrence of a Change of Control, it being understood that Parent shall not be obligated to cause the Payment
Agent to further distribute the payments for this Note to Payee until Securityholders’ Representative has delivered the Seller
Note Consideration Distribution Schedule (subject to Section 1.9(i) of the Merger Agreement) to Parent.


 


5.            Default.
Maker shall be deemed in default hereunder upon the occurrence of any of the following: (a) Maker fails to pay any principal
payment required to be made hereunder on or prior to the Payment Date; (b) an involuntary case against Maker under any applicable
bankruptcy or insolvency law commences and is not dismissed on or before the date 60 days after its commencement; (c) a court
with proper jurisdiction enters a decree or order for relief against Maker in an involuntary case under any applicable bankruptcy
or insolvency law; (d) a court with proper jurisdiction appoints a receiver, liquidator, custodian or trustee for Maker or
for any substantial part of Maker’s property with respect to the winding up or liquidation of Maker’s affairs; or (e) Maker
commences a voluntary case under any bankruptcy or insolvency law, makes a general assignment for the benefit of Maker’s
creditors, consents to the appointment of a receiver, liquidator, custodian or trustee for Maker or for any part of Maker’s
property, or consents to the entry of an order for relief in an involuntary case under any applicable bankruptcy law.


 






     


     


    

 


6.            Consequence
of Default. Upon the occurrence of a default under Section 5, but subject to Sections 1.9(i), 1.9(j), 1.10(c),
1.12 and 8.8 of the Merger Agreement, the entire outstanding principal balance of this Note, together with all accrued and unpaid
interest and all other sums payable hereunder shall, at the option of Securityholders’ Representative, become immediately
due and payable, it being understood that Parent shall not be obligated to cause the Payment Agent to further distribute the payments
for this Note to Payee until Securityholders’ Representative has delivered the Seller Note Consideration Distribution Schedule
(subject to Section 1.9(i) of the Merger Agreement) to Parent. From and during the continuation of any default under
Section 5, interest shall continue to accrue on the principal amount of this Note at a rate of seven percent (7%) per
annum (provided that such rate shall not exceed the highest rate permitted under applicable Laws) until such default has been cured
and such interest shall be due and payable solely in cash and not paid in kind. If a default under Section 5 occurs,
Maker shall pay to Payee on demand all reasonable documented costs and expenses of collection.


 


7.            Payments.
Principal and interest due and payable under this Note shall be paid to Payee in lawful money of the United States of America.


 


8.            Waivers
by Maker. Maker hereby waives presentment, protest and demand, notice of protest, demand and dishonor, nonpayment and acceleration
of this Note.


 


9.            Exercise
of Remedies. No delay or omission on the part of Payee in the exercise of any right or remedy under this Note shall operate
as a waiver thereof, and no partial exercise of any right or remedy, acceptance of a past due installment or other indulgences
granted from time to time shall be construed as a novation of this Note or precludes other or further exercise thereof or the exercise
of any other rights or remedy.


 


10.           Governing
Law; Jurisdiction; Entire Agreement. This Note shall be governed by, and construed in accordance with, Section 9.5
of the Merger Agreement. This Note and the Merger Agreement contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings between the parties with respect thereto, and to the
extent of any conflict between this Note and the Merger Agreement, the Merger Agreement shall control.


 


11.          Successors
and Assigns; Other Parties. This Note may not be assigned, transferred, conveyed, sold or otherwise disposed of by either party
without the prior written consent of the other party; provided, that, (a) Maker may assign this Note to any of its Affiliates,
provided such assignment shall not relieve Maker of its obligations hereunder, and (b) Maker may assign this Note as a whole
without such consent in connection with the acquisition (whether by merger, consolidation, sale or otherwise) of Maker of that
part of Maker’s business to which this Note relates, as long as the assignee thereof agrees in writing to assume and be bound
as Maker hereunder. Any attempted assignment in violation of this Section 11 shall be null, void and of no effect,
ab initio.


 


12.          Setoff.     By
Payee’s acceptance of this Note, Payee hereby acknowledges and agrees that Maker shall have the right to withhold and setoff
against any amount due hereunder as provided in Section 8.8 of the Merger Agreement.


 


13.          Notices.
Any notice required or permitted to be given hereunder shall be given in accordance with Section 9.9 of the Merger
Agreement.


 


14.          Modification;
Waivers; Severability. This Note may be amended, modified or supplemented at any time, but only pursuant to an instrument in
writing signed by Maker and Securityholders’ Representative, and any such amendment shall be binding on all parties. If any
term or other provision of this Note is invalid, illegal or incapable of being enforced by any rule of law, or public policy,
all other conditions and provisions of this Note shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith
to modify this Note so as to effect the original intent of the parties to the fullest extent possible.


 


[Signature Page Follows]


 








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		 	CHIMERIX, INC.



 


		By:	/s/
                                         Michael A. Sherman
		Name:	Michael
                                         A. Sherman
		Its:	President
                                         and Chief Executive Officer



 


		 	FORTIS ADVISORS
LLC



 


		By:	/s/ Ryan
                                         Simkin
		Name:	Ryan
                                         Simkin
		Its:	Managing
                                         Director



 


[Signature Page to Promissory Note]