Exhibit 10.1


 


SECOND AMENDED & RESTATED


PROMISSORY NOTE


 


THIS SECOND
AMENDED AND RESTATED PROMISSORY NOTE (this “Second Amended Note”) made effective as
of the 5th day of January 2009 (the “Effective Date”), by and
between Advanced Life Sciences, Inc., an Illinois corporation (the “Maker”),
and Michael T. Flavin, Ph.D. (the “Payee”).


 


WHEREAS, in September 2001, the Maker
incurred indebtedness under a $2.0 million promissory note with the Payee,
which bears interest at 7.75% and was to mature on September 1, 2006 (the “Original
Note”); and


 


WHEREAS, in July 2005, the Payee agreed to
restructure the Original Note so that all principal and interest due under the
Original Note would mature on December 31, 2007;


 


WHEREAS, in May 2006, the Maker authorized
the payment of accumulated interest on the loan with the Payee and provided for
monthly payments of accumulated interest until the loan matures


 


WHEREAS, in September 2007, the Payee and
the Maker entered into an Amended & Restated Promissory Note under
which all principal due would mature on January 5, 2009;


 


WHEREAS, as of the Effective Date, the Maker had
$2.0 million outstanding under the Original Note (the “Debt”).


 


WHEREAS, the Maker and the Payee desire to enter
into this Second Amended Note to extend the date of upon which the Debt shall
mature.


 


NOW,
THEREFORE, in consideration of the mutual covenants contained
herein, the Maker and the Payee agree as follows:


 


FOR VALUE
RECEIVED, the
Maker hereby unconditionally promises to pay to the order of the Payee, at
Woodridge, Illinois, or at such other place as the holder of this Amended Note
may from time to time designate in writing, in lawful money of the United
States of America, the principal sum of $2,000,000. The principal indebtedness
evidenced hereby shall be payable in one lump sum payment on January 5, 2010,
plus any interest then accrued (provided below) but previously unpaid thereon.


 


Maker further promises to
pay interest at the place provided above on the unpaid principal balance,
provided that the unpaid principal balance shall bear interest at a rate of
7.75% per annum, compounded annually, and such interest shall be due and
payable in advance of or upon maturity. 
Interest shall be calculated on the basis of a 360-day year for the
actual number of days elapsed.  Payments
received by Payee from Maker on this Amended Note shall be applied first to the
payment of interest which is due and payable and only thereafter to the
outstanding principal balance hereof.


 


At the option of the
Maker, this Amended Note may be prepaid in full or in part, at any time or from
time to time, without penalty or premium of any kind.


 


This Amended Note has
been delivered and shall be deemed to have been made at Woodridge, Illinois and
shall be interpreted and the rights and liabilities of the parties hereto
determined in accordance with the internal laws and decisions of the State of
Illinois, without giving affect to the conflict of laws principals
thereof.  Whenever possible, each provision
of this Amended Note shall be interpreted in such a manner as to be effective
and valid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or by the remaining provisions of this Amended Note.


 


	
  MAKER

  	
   

  	
   

  	
  PAYEE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Michael J. Cogan

  	
   

  	
  By:

  	
  /s/ Michael T. Flavin

  
	
  Name:

  	
  Michael J. Cogan

  	
   

  	
   

  	
  Name:   Michael
  T. Flavin, Ph.D.

  
	
  Its:

  	
  Vice President and
  Chief Accounting Officer