Exhibit 10.1


 


THIS PROMISSORY NOTE (this “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 MAKER THAT SUCH REGISTRATION IS NOT REQUIRED.


 


PROMISSORY NOTE


 


	Principal Amount: $750,000	Dated as of March 14, 2022


 


Avista Public Acquisition
Corp. II, a Cayman Islands exempted company and blank check company (“Maker”), promises to pay to the order of Avista
Acquisition LP II, a Cayman Islands exempted limited partnership, or its registered assigns or successors in interest (“Payee”),
or order, the principal sum of Seven Hundred Fifty Thousand U.S. Dollars ($750,000) or such lesser amount as shall have been advanced
by Payee to Maker and shall remain unpaid under this Note on the Maturity Date (as defined below) 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 wire transfer of immediately available
funds or as otherwise determined by Maker to such account as Payee may from time to time designate by written notice in accordance with
the provisions of this Note.


 


1.            
Principal. The entire unpaid principal balance of this Note shall be payable by Maker on the earlier of: (i) the date on
which Maker consummates an initial business combination (the “Business Combination”) and (ii) the date that the winding
up of Maker is effective (such earlier date, the “Maturity Date”). The principal balance may be prepaid at any time
by Maker, at its election and without premium or penalty. Under no circumstances shall any individual, including but not limited to any
officer, director, employee or shareholder of Maker, be obligated personally for any obligations or liabilities of Maker hereunder.


 


2.            
Interest. No interest shall accrue on the unpaid principal balance of this Note.


 


3.            
Drawdown Requests. Maker and Payee agree that Maker may request, from time to time, up to Seven Hundred Fifty Thousand U.S.
Dollars ($750,000) in drawdowns under this Note to be used for Maker’s working capital needs. The principal of this Note may be
drawn down from time to time prior to the Maturity Date upon written request from Maker to Payee (each, a “Drawdown Request”).
Each Drawdown Request must state the amount to be drawn down, and must not be an amount less than One Thousand Dollars ($1,000). Payee
shall fund each Drawdown Request no later than one (1) business day after receipt of a Drawdown Request; provided, however, that the maximum
amount of drawdowns collectively under this Note may not exceed Seven Hundred Fifty Thousand U.S. Dollars ($750,000). No fees, payments
or other amounts shall be due to Payee in connection with, or as a result of, any Drawdown Request by Maker.


 






     


     


    

 


4.           
 Optional Conversion.


 


(a)          
Upon consummation of the Business Combination and at Payee’s option, Payee may elect, by written notice to Maker, to convert
all or any portion of this Note into that number of warrants (the “Conversion Warrants”) to purchase a number of Class
A ordinary shares, par value $0.0001 per share, of Maker equal to: (i) the portion of the principal amount of this Note being converted
pursuant to this Section 4, divided by (ii) $1.50. The Conversion Warrants shall be identical to the warrants issued by Maker to
Payee in a private placement upon the consummation of Maker’s initial public offering (the “IPO”). The Conversion
Warrants and their underlying securities, and any other equity security of Maker issued or issuable with respect to the foregoing by way
of a share dividend or share split or in connection with a combination of shares recapitalization, amalgamation, consolidation or reorganization,
shall be entitled to registration rights on the same terms as the registration rights with respect to the private placement warrants set
forth in that certain Registration and Shareholder Rights Agreement, dated as of August 9, 2021, by and among Maker, Payee and the other
parties thereto.


 


(b)          
Upon any complete or partial conversion of the principal amount of this Note (i) such principal amount shall be so converted and
such converted portion of this Note shall become fully paid and satisfied, (ii) Payee shall surrender and deliver this Note, duly endorsed,
to Maker or such other address which Maker shall designate against delivery of the Conversion Warrants, (iii) Maker shall promptly deliver
a new duly executed Note to Payee in the principal amount that remains outstanding, if any, after giving effect to any such conversion
and (iv) in exchange for all or any portion of the surrendered Note described in Section 4(a), Maker shall, at the direction of Payee,
deliver to Payee (or its members or their respective affiliates) (Payee or such other persons, the “Holders”) the Conversion
Warrants, which shall bear such legends as are required, in the opinion of counsel to Maker or by any other agreement between Maker and
Payee and applicable state and federal securities laws.


 


(c)          
The Holders shall pay any and all issue and other taxes that may be payable with respect to any issue or delivery of the Conversion
Warrants upon conversion of this Note pursuant hereto; provided, however, that Payee shall pay any transfer taxes resulting
from any transfer requested by the Holders in connection with any such conversion.


 


(d)          
The Conversion Warrants shall not be issued upon conversion of this Note unless such issuance and such conversion comply with all
applicable provisions of law.


 


5.            
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 attorney’s fees, then to the payment in full of any late
charges and finally to the reduction of the unpaid principal balance of this Note.


 


6.            
Events of Default. The following shall constitute an event of default (“Event of Default”):


 


(a)          
Failure to Make Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note within five (5)
business days of the Maturity Date.


 






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(b)          
Voluntary Bankruptcy, Etc. The commencement by 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 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 Maker generally to pay its debts as such debts become 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 premises in
respect of 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 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 60 consecutive
days.


 


7.            
Remedies.


 


(a)          
Upon the occurrence of an Event of Default specified in Section 6(a) hereof, Payee may, by written notice to Maker, declare
this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable thereunder,
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 6(b) and 6(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 Payee.


 


8.            
Waivers. 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 the Note, all errors, defects and imperfections in any proceedings instituted
by Payee under the terms of this Note, and all benefits that might accrue to 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 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 Payee.


 


9.             Unconditional
Liability. 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 Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by 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 Maker or affecting Maker’s liability hereunder.


 






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10.          
Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing
and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission
to the address designated in writing, (ii) 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 and (iii) 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.


 


11.          
Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAW PROVISIONS THEREOF.


 


12.          
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.


 


13.          
Trust Waiver. Notwithstanding anything herein to the contrary, 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 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; provided however that Maker, may, in its sole discretion, repay the principal balance of
this Note out of proceeds released to Maker from the Trust Account in connection with a Business Combination.


 


14.          
Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent
of Maker and Payee.


 


15.          
Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto
(by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the
required consent shall be void.


 


[Signature page follows]


 






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IN WITNESS WHEREOF,
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.


 


	 	AVISTA PUBLIC ACQUISITION CORP. II
 a Cayman Islands exempted company
	 	 
	 	By:	/s/ Benjamin Silbert
	 	 	Name: Benjamin Silbert
	 	 	Title:   General Counsel



 


Acknowledged and Agreed to


as of the date first written above.


 


AVISTA ACQUISITION LP II

a Cayman Islands exempted limited partnership


By: Avista Acquisition GP LLC II, its general partner


 


	By:	/s/ David Burgstahler	 
	Name:	David Burgstahler	 
	Title:	Manager