Exhibit 10.9


 


NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO BORROWER. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR
OTHER LOAN SECURED BY SUCH SECURITIES. 


 


Original Issue Date: August 23, 2022 


 


Principal Amount: $950,000.00 


 


CONVERTIBLE PROMISSORY NOTE 


 


FOR
VALUE RECEIVED, PishPosh, Inc., a Delaware corporation (the “Borrower”),
promises to pay to Dov Kurlander, an individual with an address at 601 Brower Ave., Toms River, NJ 08755, or his registered assigns
(the “Holder”),
or shall have paid pursuant to the terms hereunder, the principal sum of Nine Hundred and Fifty Thousand Dollars ($950,000.00) (the “Principal
Amount”), together with interest thereon accruing as set forth
in Section 2(a) of this convertible promissory note (this “Note”),
from the date of this Note (the “Original Issue Date”).
Unless earlier (i) converted into shares of Common Stock, $0.000001 par value per share (“Common
Stock”), of the Borrower pursuant to Section 4 of this Note,
or (ii) prepaid by the Borrower, the aggregate outstanding Principal Amount and accrued and unpaid interest thereon shall be due and
payable by the Borrower on the Maturity Date (as defined below). 


 


Other than certain outstanding
credit card receivable balances payable to Holder which as of the date of this Note equal $874,894, the Holder hereby acknowledges that
this Note represents the total outstanding balance owed to Holder by Borrower in connection with outstanding liabilities due and payable
to Holder. Holder further acknowledges that an aggregate of $750,000 has been paid to Holder as of the issuance date of the Note hereof
of which (i) $500,000 was paid in cash and (ii) $250,000.00 in the form of securities.


 


This Note is subject to the following
additional provisions:


 


Section 1.        Amortization
Payments. 


 


          Starting
on September 1, 2022 and continuing on the first and fifteenth day of each of the following nine (9) successive months thereafter, Borrower
shall make payments in cash (each, an “Amortization Payment”),
in the amount and on the date set forth on the Amortization Schedule attached hereto as Exhibit A under the column entitled “Total.”
The date of the final payment in the aggregate amount of the entire unpaid Principal
Amount hereof, together with all accrued and unpaid interest thereon, and all costs, charges and other expenses due or assessable under
this Note shall be referred to herein as the “Maturity Date”.





 



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 Section 2.       Interest, Conversion/Exchange
and General Provisions.


 


(a)
   Interest Rate. The unpaid Principal Amount of
this Note shall bear interest at the rate of five percent (5%) per annum, simple interest (the “Interest
Rate”), from the Original Issue Date through the Maturity Date.
Interest shall be paid in arrears and shall be calculated on the basis of a 360-day year and the actual number of days elapsed. 


 


(b)
   Payment Grace Period. The Borrower shall not have any grace period to pay any
monetary amounts due under this Note.


 


(c)
   Application of Payments. Payments made in connection with this Note shall be applied
first to payment of all late fees, charges, premiums and costs and expenses due but unpaid under this Note, then to accrued but unpaid
interest and finally to principal, in the inverse order of the payment dates therefore, unless Holder determines to apply payments in
a different order or applicable law requires a different application of payments.


 


(d)
   Manner and Place of Payment.
Principal and interest on this Note and other payments in connection with this Note shall be payable at the Holder’s
address as designated above in lawful money of the United States of America in immediately available funds without set-off, deduction
or counterclaim. Upon assignment of the interest of Holder in this Note, Borrower shall instead make its payment pursuant to the assignee’s
instructions upon receipt of written notice thereof. 


 


 Section 3.       Registration of
Transfers and Exchanges.


 


(a)
   Different Denominations. This Note is exchangeable for an equal aggregate principal amount of Notes of
different authorized denominations, as requested by the Holder surrendering the same. No service charge will be payable for such registration
of transfer or exchange.


 


(b)
    Reliance on Note Register.
Prior to due presentment for transfer to Borrower of this Note, Borrower and any agent of Borrower may treat the Person in whose name
this Note is duly registered on the note register as the owner hereof for the purpose of receiving payment as herein provided and for
all other purposes, whether or not this Note is overdue, and neither Borrower nor any such agent shall be affected by notice to the contrary.
For purposes of this Note, the term “Person” shall
mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability
company, an unincorporated association, a joint venture or other entity or a governmental authority. 


 


  Section 4.       Conversion.


 


(a)
   Conversion. Subject to applicable stock exchange
listing rule limitations (including, if applicable, approval by the Borrower’s
stockholders), at any time or times on or after the date of the consummation of the Borrower’s
initial public offering and listing of its Common Stock on a national securities exchange (the “IPO
Date”), the Holder shall be entitled, at the Holder’s
election, to convert all or any portion of the outstanding Principal Amount and accrued but unpaid interest under this Note into validly
issued, fully paid and non-assessable shares of Common Stock at the Conversion Price (as defined below) upon written notice to the Borrower
(the “Conversion Notice”),
which Conversion Notice shall state the portion of this Note being converted. “Conversion
Price” means 110% of the price at which the Borrower consummates
its initial public offering of its Common Stock on the IPO Date. On or before the third (3rd) trading day following the date on which
the Borrower has received a Conversion Notice, Borrower shall credit such aggregate number of shares of Common Stock to which the Holder
shall be entitled pursuant to such conversion to the Holder’s or
its designee’s balance account with DTC through its Deposit/Withdrawal
at Custodian system. Upon such conversion of this Note, Holder hereby agrees to execute and deliver to the Borrower the original of this
Note (or a notice to the effect that the original Note has been lost, stolen or destroyed and an agreement acceptable to the Borrower
whereby the Holder agrees to indemnify the Borrower from any loss incurred by it in connection with this Note) for cancellation; provided,
however, that upon delivery of the Conversion Notice, this Note shall be deemed converted and of no further force and effect, whether
or not it is delivered for cancellation as set forth in this sentence. 


 




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(b)    Holder’s
Conversion Limitations. Borrower shall not effect any conversion/exchange
of this Note, and Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion/exchange,
the Holder (together with the Holder’s affiliates, and any Persons
acting as a group together with the Holder or any of the Holder’s
affiliates) would beneficially own in excess of the shares exceeding 4.99% of the number of shares of Common Stock outstanding on such
date. 


 


 Section 5.       Prepayment
and Redemption. The outstanding Principal Amount, accrued but unpaid interest, fees and penalties may be prepaid by Borrower at any
time for cash prior to the Maturity Date.


 


 Section 6.       Events of Default.


 


             (a)      
“Event of Default” means,
wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary
or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative
or governmental body): 


 


i.
       Borrower’s failure to
pay (A) an Amortization Payment, Principal Amount or accrued and unpaid interest thereon under this Note or (B) damages and other amounts
owing to Holder under this Note, as and when the same shall become due and payable (whether on the Maturity Date, by acceleration or otherwise),
which failure is not cured within the earlier to occur of (A) five (5) business days after notice of such failure sent by the Holder to
Borrower and (B) ten (10) business days after Borrower has become or should have become aware of such failure; 


 


ii.        Borrower
shall default on any of its obligations under any mortgage, credit agreement or other facility, indenture agreement, factoring agreement
or other instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness for borrowed money
or money due under any long term leasing or factoring arrangement that (a) involves an obligation greater than $50,000, whether such indebtedness
now exists or shall hereafter be created, and (b) results in such indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable;


 


iii.        Borrower
shall agree to sell or dispose of all or in excess of 51% of its assets in one transaction or a series of related transactions other than
in the ordinary course;


 


iv.        any
monetary judgment, writ or similar final process shall be entered or filed against Borrower, any subsidiary or any of their respective
property or other assets for more than $50,000, and such judgment, writ or similar final process shall remain unvacated, unbonded or unstayed
for a period of forty-five (45) calendar days;


 




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                v.           any
dissolution, liquidation or winding up by Borrower;


 


               vi.          cessation
of operations by Borrower;


 


               vii.        the
failure by Borrower or any material Subsidiary to maintain any material intellectual property rights, personal, real property, equipment,
leases or other assets which are necessary to conduct its business (whether now or in the future) and such breach is not cured with seven
(7) calendar days after written notice to the Borrower from the Holder;


 


                viii.        Borrower
shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial
part of its property, (ii) be unable, or admit in writing its inability, to pay its debts generally as they mature, (iii) make a general
assignment for the benefit of its or any of its creditors, (iv) be dissolved or liquidated, (v) become insolvent (as such term may be
defined or interpreted under any applicable statute), (vi) commence a voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other
proceeding commenced against it, or (vii) take any action for the purpose of effecting any of the foregoing; or


 


                ix.         Proceedings
for the appointment of a receiver, trustee, liquidator or custodian of the Borrower or of all or a substantial part of the property thereof,
or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Borrower or the debts
thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered
or such proceeding shall not be dismissed or discharged within thirty (30) days of commencement.


 


      In the event more than one
grace, cure or notice period is applicable to an Event of Default, then the shortest grace, cure or notice period shall be applicable
thereto.


 


(b)
         Remedies Upon Event of Default, Fundamental Transaction and Change of Control
Transaction. If any Event of Default occurs, the outstanding Principal Amount of this Note, accrued and unpaid interest, liquidated
damages and other amounts owing in respect thereof through the date of acceleration, shall become, at the Holder’s
election, immediately due and payable in cash. Commencing on the Maturity Date and also five (5) days after the occurrence of any Event
of Default interest on this Note shall accrue at an interest rate equal to the lesser of 18% per annum or the maximum rate permitted
under applicable law (together with the outstanding Principal Amount of this Note, accrued and unpaid interest, liquidated damages and
other amounts owing in respect thereof, the “Mandatory Default
Amount”). Upon the payment in full of the Mandatory Default
Amount, the Holder shall promptly surrender this Note to or as directed by Borrower. In connection with such acceleration described herein,
the Holder need not provide, and Borrower hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder
may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies
available to it under applicable law. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder
and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to
this Section 6(b). No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.



 




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                  Section
7.            Miscellaneous.


 


(a)
         Notices. All notices, demands, requests, consents, approvals, and
other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable
air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, facsimile, or electronic mail, addressed as
set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication
required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be received), or (b) upon receipt, when sent by electronic
mail (provided confirmation of transmission is electronically generated and keep on file by the sending party), or (c) on the second
business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt
of such mailing, whichever shall first occur. The addresses for such communications shall be:


 


(i) if to Borrower, to:


 


PishPosh, Inc.


Attn: Jesse Sutton, CEO


1915 Swarthmore
Avenue


Lakewood, New Jersey 08701


Email: Jesse@pishposhbaby.com


 


with a copy to (which shall not constitute
notice):


 


Meister Seelig & Fein LLP


125 Park Avenue, 7th Fl.


New York, NY 10017


Attn: Louis Lombardo


Email: ll@msf-law.com


 


and (ii) if to the Holder, to the address
indicated on the front page of this Note.


 


(b)
         Absolute Obligation. Except as expressly provided herein, no provision of this
Note shall alter or impair the obligation of Borrower, which is absolute and unconditional, to pay the principal of, liquidated damages
and accrued interest, as applicable, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note
is a direct debt obligation of Borrower.


 


(c)
         Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed,
Borrower shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution
for a lost, stolen or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only
upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to Borrower.


 


(d)
         Governing Law. All questions
concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without regard to the principles of conflict of laws thereof. Each party agrees
that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction
Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents)
shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New
York Courts”). Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it
under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Note or the transactions contemplated hereby. If any party shall commence an action or proceeding to
enforce any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.



This
Note shall be deemed an unconditional obligation of Borrower for the payment of money and, without limitation to any other remedies of
Holder, may be enforced against Borrower by summary proceeding pursuant to New York Civil Procedure Law and Rules Section 3213 or any
similar rule or statute in the jurisdiction where enforcement is sought. For purposes of such rule or statute, any other document or agreement
to which Holder and Borrower are parties or which Borrower delivered to Holder, which may be convenient or necessary to determine Holder’s
rights hereunder or Borrower’s obligations to Holder are deemed
a part of this Note, whether or not such other document or agreement was delivered together herewith or was executed apart from this Note.


 




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(e)
          Waiver. Any waiver by Borrower or the Holder of a breach of any provision of this
Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision
of this Note. The failure of Borrower or the Holder to insist upon strict adherence to any term of this Note on one or more occasions
shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other
term of this Note on any other occasion. Any waiver by Borrower or the Holder must be in writing.


 


(f)
          Severability. If any provision of this Note is invalid, illegal or unenforceable,
the balance of this Note shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless
remain applicable to all other Persons and circumstances.


 


(g)
         Usury. If it shall be found that any interest or other amount deemed interest
due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered
to equal the maximum rate of interest permitted under applicable law. Borrower covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law or other law which would prohibit or forgive Borrower from paying all or any portion of the principal of or interest on this
Note as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance
of this Note, and Borrower (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holder,
but will suffer and permit the execution of every such as though no such law has been enacted.


 




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(h)
          Next Business Day. Whenever any payment or other obligation hereunder shall be
due on a day other than a business day, such payment shall be made on the next succeeding business day.


 


(i)
           Headings. The headings contained herein are for convenience only, do not constitute
a part of this Note and shall not be deemed to limit or affect any of the provisions hereof.


 


(j)
           Amendment. Unless otherwise provided for hereunder, this Note may not be modified
or amended or the provisions hereof waived without the written consent of Borrower and the Holder.


 


(k)
        Facsimile Signature.
In the event that the Borrower’s signature is delivered by facsimile
transmission, PDF, electronic signature or other similar electronic means, such signature shall create a valid and binding obligation
of the Borrower with the same force and effect as if such signature page were an original thereof. 


 


*********************


(Signature Pages Follow)


 







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IN WITNESS WHEREOF,Borrower
has caused this Note to be signed in its name by an authorized officer as of the 23rd day of August 2022.


 


	 	PishPosh, Inc.
	 	 	 
	 	By:	/s/ Jesse Sutton
	 	Name:	Jesse Sutton
	 	Title:	CEO


 


	WITNESS	 
	 	 	 
	By:	/s/ Charlie Birnbaum	 
	Name:	Charlie Birnbaum	 
	 	 	 


 




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EXHIBIT A


 


Amortization Schedule


 



	Amort Date	 	Amortization	 	 	Accrued Interest	 	 	Total	 
	 	 	 	 	 	 	 	 	 	 
	9/1/2022	 	$	19,444.44	 	 	$	-	 	 	$	19,444.44	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	9/15/2022	 	$	19,444.44	 	 	$	37.81	 	 	$	19,482.25	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	10/1/2022	 	$	19,444.44	 	 	$	81.02	 	 	$	19,525.46	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	10/15/2022	 	$	19,444.44	 	 	$	118.83	 	 	$	19,563.27	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	11/1/2022	 	$	19,444.44	 	 	$	164.74	 	 	$	19,609.18	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	11/15/2022	 	$	19,444.44	 	 	$	202.55	 	 	$	19,646.99	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	12/1/2022	 	$	19,444.44	 	 	$	245.76	 	 	$	19,690.20	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	12/15/2022	 	$	19,444.44	 	 	$	283.56	 	 	$	19,728.01	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	1/1/2023	 	$	19,444.44	 	 	$	329.48	 	 	$	19,773.92	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	1/15/2023	 	$	19,444.44	 	 	$	367.28	 	 	$	19,811.73	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	2/1/2023	 	$	19,444.44	 	 	$	413.19	 	 	$	19,857.64	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	2/15/2023	 	$	19,444.44	 	 	$	451.00	 	 	$	19,895.45	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	3/1/2023	 	$	19,444.44	 	 	$	488.81	 	 	$	19,933.26	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	3/15/2023	 	$	19,444.44	 	 	$	526.62	 	 	$	19,971.06	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	4/1/2023	 	$	19,444.44	 	 	$	572.53	 	 	$	20,016.98	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	4/15/2023	 	$	19,444.44	 	 	$	610.34	 	 	$	20,054.78	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	5/1/2023	 	$	19,444.44	 	 	$	653.55	 	 	$	20,097.99	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	5/15/2023	 	$	19,444.44	 	 	$	691.36	 	 	$	20,135.80	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	$	350,000.00	 	 	 	 	 	 	$	356,238.43	 




 




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