Exhibit 10.4
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "U.S. SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR THE
SECURITIES LAWS OF ANY JURISDICTION. THE HOLDER HEREOF, BY PURCHASING SUCH NOTE,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS NOTE MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION S
UNDER THE U.S. SECURITIES ACT TO A PERSON THAT IS NOT A U.S. PERSON WHO AGREES
TO RESTRICTIONS ON RESALE THAT ARE CONSISTENT WITH THE REQUIREMENTS OF
REGULATION S UNDER THE U.S. SECURITIES ACT, (C) FOLLOWING THE DISTRIBUTION
COMPLIANCE PERIOD REQUIRED UNDER RULE 903 OF REGULATION S UNDER THE SECURITIES
ACT, IN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
OR PERSONS IN THE UNITED STATES PURSUANT TO AN AVAILABLE EXEMPTION UNDER THE
SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS IN A
TRANSACTION THAT IS EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT AND
ANY APPLICABLE STATE SECURITIES LAWS OR OTHER REGULATIONS GOVERNING THE OFFER
AND SALE OF SECURITIES, OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT,
AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF
COUNSEL, OF RECOGNIZED STANDING, OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE,
REASONABLY SATISFACTORY TO THE COMPANY. HEDGING TRANSACTIONS INVOLVING THE
SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
U. S. SECURITIES ACT.
API TECHNOLOGIES CORP.
SECURED PROMISSORY NOTE
USD $
January [20] [22], 2010
FOR VALUE RECEIVED, the undersigned, API TECHNOLOGIES CORP. (the "Company"), a
Delaware corporation, hereby promises to pay to the order of [name of investor,
a
corporation or registered assigns ("Holder"), the
principal sum of
($
) (or
such lesser amounts as may be outstanding from time to time under this Note) on
the Maturity Date, as defined in Section 1 below. Unless otherwise set forth
herein, all references to $ means United States dollars.
This Note is one of a series of Secured Promissory Notes made of even date
herewith or that may be made after the date hereof in each case by the Company
to evidence the Company's indebtedness in connection with a transaction relating
to the purchase of the assets of Kuchera Defense Systems, Inc., KII Inc. and
Kuchera Industries LLC (collectively "Kuchera") by the Company and certain of
its subsidiaries (collectively, the "Buyers") (this Note, together with all such
other Secured Promissory Notes as may be outstanding from time to time, the
"Notes").
1. Maturity. This Note shall be due and payable upon the earlier to occur (the
"Maturity Date") of: (i) March 8, 2010, in the event the Buyers do not purchase
substantially all of the assets of Kuchera from Kuchera by February 26, 2010,
and (b) January [20] [22], 2013.
2. Interest. Interest shall accrue on the unpaid principal balance hereof and