Exhibit
10.58


 


SECURED
CONVERTIBLE PROMISSORY NOTE


 


	$2,000,000.00	June 27, 2020




 


FOR
VALUE RECEIVED MATEON THERAPEUTICS, INC., a Delaware
Corporation (“Company”),
promises to pay to Golden
Mountain Partners, LLC, a California Limited Liability Company (“Holder”), in
lawful money of the United States
of America, the principal amount not
to exceed TWO MILLION DOLLARS
($2,000,000), together with interest
on the unpaid
principal balance, in the manner
provided below.


 


1.
Purchase Agreement. This secured convertible promissory note
(the “Note”)
is issued or
issuable pursuant to the terms of that certain Loan, Secured Convertible Note Purchase, and Security Agreement, of even date herewith,
as it may be amended
from time to time (the
“Agreement”),
to the Holder.


 


2. Draws.
Subject to the terms and conditions set forth in this Note and the Agreement, (a) on the date hereof, Holder shall disburse
to the Company an initial disbursement as
set forth in Schedule 3.3
of the Agreement; and
(b) thereafter, upon Company’s satisfaction of the milestones set forth in Schedule 3.3 of
the Agreement, Holder
shall disburse to the Company additional amounts in accordance therewith. For avoidance of doubt, (x) if milestones set forth
in Schedule 3.3 of
the Agreement are not satisfied as
set forth therein or herein, Holder shall have no obligation to make additional disbursements under the Agreement or
this Note; and (y) the total aggregate disbursements made under the
Agreement and this Note shall
not exceed Two Million Dollars ($2,000,000 USO).


 


3. Maturity. Unless
sooner paid or converted in accordance with the terms here
of, the entire unpaid
principal balance and all unpaid accrued interest shall become fully due and
payable (a) on June 27,
2021, (b) early termination
of that certain
clinical trial known as “A Randomized,
Controlled, Multi - Center
Study of OT-101 in
COVID-19 Patients (lnvestigational New Drug (IND) Application
#149299)” (the “Clinical Trial”), or
any termination of the Clinical Trial, or
(c) the acceleration of the maturity of this
Note by Holder upon
occurrence of an Event of Default, pursuant to Sections 8 and 9, below (such earlier date, the “Maturity Date”).


 


4.
Payments.


 


(a)
Form of Payment. All payments
of interest and principal (other than payment by way
of conversion) shall be in lawful
money of the United States of America to Holder, by ACH transfer according
to Receiving Bank and ABA Routing
Number information as may be specified from time to time
by Holder.


 


(b)
Interest Payments. Company
shall pay to Holder accrued but unpaid interest upon
the payment of the full outstanding
principal amount.


 


(c)
Prepayment. Company shall
have the right to prepay any and all mounts owed under
this Note in whole
or in part at any time
subject to Section 6, below,
provided that any such prepayment
amount must
be accompanied by the accrued
and unpaid interest on the principal being prepaid
through the date of prepayment.


 


5. Interest.
Interest shall accrue on the
unpaid principal balance of this Note at the rate of two
percent (2%) per annum.
Interest shall be calculated on the basis of
a year of 365 days, and charged for the actual number of days elapsed. Interest shall
commence with the date hereof
and shall continue on the outstanding principal of this Note until
paid or converted in
accordance with the provisions hereo f.


 




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6.
Conversion Right. At any
time prior to repayment of this
Note, Holder may elect, in lieu
of repayment, to convert all
or a
portion of the
outstanding principal on this
Note into that
number of shares of Common
Stock of the Company
equal to the quotient obtained by dividing
(a) 100.0%
of the principal on this Note
being converted
by (b)
the Conversion Price (as hereinafter
defined). Holder will inform
the Company of such election by
delivering to Company this Note
and a Notice of Conversion, the form of which
is attached hereto
as Schedule A (a
“Notice of
Conversion”). If Holder delivers
the Notice of Conversion to the
Company, the Company may not elect to pay Holder the amount of this Note to be converted without Holder’s written consent.


 


For
purposes of this Note, “Conversion
Price”
means the consolidated closing bid price of the Company’s Common Stock as determined by
applicable OTC rules
(or exchange where the Common
Stock of the Company is then traded),
as of the
date the Company receives a
Notice of Conversion from Holder.


 


Holder
shall effect conversions by delivering to the Company a Notice of Conversion accompanied
by this Note,
specifying therein the principal
amount of this Note to be converted. The
date on
which such conversion shall be
effected (such date, the “Conversion
Date”)
shall be the date of the Company’s
actual receipt of a Notice of
Conversion, accompanied by this Note unless the Company and Holder
agree in writing
to another date. Conversions
hereunder shall have the effect of lowering
the outstanding
principal amount of this Note
in an amount equal to the applicable principal amount converted.
If less than
the entire principal amount of
this Note is converted, the Company will promptly issue
a new Note to
the Holder representing the balance
of this Note. From and after the Conversion Date,
the portion of this Note converted
shall represent and be enforceable
only as to the right to receive the
shares of Common Stock issuable
upon such c·onversi
on.


 


Promptly
after receipt of a Notice of Conver sion,
the Company shall
issue and deliver to Holder,
but only against
delivery of and after receiving the original of this Note (or
a lost note affidavit in the
form and substance reasonably
acceptable to the Company), one or more certificates representing such shares
of Common Stock issued and registered
as set forth in
the Notice of Conversion. Thereupo
n, the
Company shall have
no further
obligation with respect to the principal amount of this Note converted.
ln lieu
of issuing a fraction of a share
of Common Stock upon the conversion of this Note, the Company shall
pay Holder for any fraction
of a share of Common Stock
otherwise issuable upon the conversion
of this Note, cash equal
to the
same fraction
of the then current per
share Conversion Price.


 


7.
[Intentionally omitted.]


 


8.
Events of Default.
For purposes
of this
Note, any of the following events which shall
occur shall constitute an “Event
of Default”:


 


(a)
any indebtedness under this Note
is not paid when and as the same shall be come due
and payable, whether at maturity,
by accele ration, or
otherwise, and any such
amount shall remain unpaid
for a period of five (5)
days after delivery to the Company
of notice of nonpayment; or


 


(b)
any breach or default by Company
in the performance of any term
covenant, agreement,
condition, undertaking or provision
of any Loan Document (as such term is
defined in the Agreement);
or


 







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(c)
Company’s breach of
or failure to observe or comply with Section 5.2.1. of the Agreement;
or


 


(d)
the Company
shall (i) admit in writing its inability to pay its
debts generally as they become
due;
(ii) file a petition in
bankruptcy or a petition to take
advantage of any insolvency act; (iii) make an assignment of
its property for the benefit
of its creditors; (iv) consent to the appointment of a receiver of itself or of the
whole or any
substantial part of its property;
(v) file a petition or answer seeking reorganization or arrangement under
the federal bankruptcy laws or
any other applicable law or
statute of the United States of America or any state thereof; (vi) be
declared insolvent according
to any law; or a receiver or trustee is
appointed for the Company or
its property; or the interest of the Company under this Note is levied on under execution or other legal process; or any petition
is filed by or against the Company to declare the Company bankrupt
or to delay, reduce or modify
the Company’s capital
structure if the Company be a corporation or other entity; (vii) after a petition in bankruptcy is filed against it, be adjudicated
a bankrupt, or if a
court of competent jurisdiction shall enter an order or decree appointing, without the consent of the
Company, as the case may be,
a receiver of the Company or
of the whole or
substantially all of its property, or approving a petition filed against it seeking reorg aniz’ation
or arrangement of the Company under the federal bankruptcy laws or any other applicable law
or statute of the United
States of America or any state
thereof, and
such judgment, order or decree shall not be vacated
or set aside or stayed within
sixty (60) days from the date of the entry thereof; or


 


(e)
At any time there occurs a Change in control transaction (a “Change
in Control
Transaction”).
For purposes of this Note, a
Change in Control Transaction shall mean (i) a sale, lease or other disposition of assets or properties of the Company and its
subsidiaries (calculated on a consolidated basis) having a book value of fifty-one percent (51%) or more of the book value of
all the assets and properties
thereof,
or (ii) any transaction in which
any person or entity shall directly or indirectly acquire from
the holders thereof, by purchase
or in a merger, consolidation or other transfer or exchange of outstanding
capital stock, ownership or control
over capital stock of the Company (or securities exchangeable
for or convertible into such
stock or interests), entitled to elect a majority of the Company’s Board of Directors or representing at least fifty-one
percent (51%) of the number of shares of Common Stock
outstanding; or


 


(f)
Company is liquidated or dissolved
, or
shall begin proceedings toward such
liquidation or dissolut ion,
or shall,
in any manner ,
permit the sale
or divestiture of substantially
all of its assets other
than in connection
with a merger or consolidation of the Company into, or a sale
of substantially
all of Company’s assets
to, another corporation or entity;
or


 


(g)
On or at any time after the date
of this Note any of the Loan Documents for any reason,
other than a partial or full
release in accordance with the
terms thereof, ceases to be in full force and
effect or is declared to be null
and void, and such default is not cured or waived within ten (10) days after
Company receives notice of such
default from Holder, or


 


(h)
Company or any subsidiary
of Company contests the validity
or enforceability of any Loan
Document in writing
or denies that it has further
liability under any Loan Document to which
it is
party, or gives notice to such
effect.


 


9.
Remedies Upon Event
of Default; Acceleration.
In the Event of a Default
shall occur for any reason, whether
voluntary or involuntary, and
be continuing, Holder may, upon notice or demand, declare
the outstanding indebtedness
under this Note to be due and payab le ,
whereupon the outstanding
indebtedness under this Note
shall be and become immediately due and payable, and the Company shall immediately
pay to Holder all such
indebtedness.


 




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10.
Security. This Note is
a direct debt obligation of the
Company and is secured by a first priority perfected security interest in
all of the assets of the
Company for the benefit of the
Holder. The Holder
and the Company have agreed to
and more fully provided the Holder’s
security interest in the Agreement.


 


11.
Governing Law. This Note
shall be governed, construed and interpreted in accordance with the laws
of the State of California, without
giving effect to principles of conflicts of law
or choice of law that would cause
the substantive laws of
any other jurisdiction to apply. Company irrevocab
ly submits
and consents to the jurisdiction
of any California state court
or federal court sitting in the County of Los Angeles, State of California over any action or proceeding arising out of or relating
to this Note, and
the Company hereby irrevocably agrees that all claims in respect of any such action or proceeding may be heard and determined
in such courts.


 


12.
Amendment. Any term of this Note may be amended and the observance of any term of this
Note may be waived (either generally
or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Holder.


 


13.
Notices. Except as may otherwise be provided herein, all notices, requests, waivers
and other
communications made pursuant
to this Note shall be made in accordance with Section 8.4 of the
Agreement.


 


14.
Severability. If any provision of this Note is held invalid or unenforceable by
any court of
competent jurisdiction, the other
provisions of this Note will remain in full force and effect. Any
provision of this Note held invalid
or unenforceable only
in part or degree will remain in full force and effect
to the extent not held invalid
or unenforceable.


 


IN
WITNESS WHEREOF, Company
has executed and delivered this Note as of the date first stated
above.


 


	 	MATEON
    THERAPEUTICS, INC.
    (“COMPANY”)
	 	 	 
	 	By:	/s/
    Vuong Trieu
	 	Name:	Vuong
    Trieu, PhD
	 	Title:	Chief
    Executive Officer


 




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Schedule
A


Notice
of Conversion


 


The
undersigned, the Holder
of the Note issued by Mateon Therapeutics, Inc. (which is attached to this Notice of Conversion), hereby elects to convert the
below stated outstanding
principal portion of this Note into shares of Common Stock
of Mateon
Therapeutics, Inc., effective
as of the date the Company receives this
Notice.


 


Please
send a certificate for the appropriate number of shares of Common Stock and a balance Note (if applicable) to
the following address:


 


	Holder:	Golden
    Mountain, LLC
	 	c/o
    Synergy Healthcare Innovations, LLC
	 	800
    W. Sixth Street, Suite 900
	 	Los
    Angeles, California 90017 


 


Principal
Amount of Note Being Converted:
$_ _ _ _ _ _ _ _ _ _ _ _
_


 


Register
and issue certificates
for shares
of Common
Stock in the following name at
the address set forth above.


 


	 	GOLDEN
    MOUNTAIN PARTNERS,
    LLC
	 	(“HOLDER”)
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title: 	           
	 	Date:	 
	 	 	 
	 	Tax Identification Number: 37-1664077


 






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