Exhibit 10.2


 





THIS NOTE HAS NOT 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 THE COMPANY. THIS NOTE MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY THIS NOTE.


 


	Original Issue Date:	September 8, 2016
	Face Amount:	$720,000
	Purchase Price	$650,000


 


 


10% ORIGINAL ISSUE DISCOUNT SECURED PROMISSORY
NOTE


DUE OCTOBER 15, 2016


 


 


FOR VALUE RECEIVED,
of Protea Biosciences Group, Inc., a Delaware corporation, (the “Company”), having its principal place
of business at 1311 Pineview Drive, Suite 501, Morgantown, WV 26505, promises to pay to ______________________ (“_______)
or his or its registered assigns (together with _____________, the “Holder”), or shall have paid pursuant to
the terms hereunder, the principal sum of $720,000 (the “Face Amount”) on October 15, 2016 (the “Maturity
Date”), or such earlier date as this Note is required or permitted to be repaid, as provided hereunder, and to pay interest
to the Holder on the aggregate unconverted and then outstanding principal amount of this Note in accordance with the provisions
hereof. This Note is subject to the following additional provisions:


 


     Section 1.     Definitions.
For the purposes of this 10% original issue discount secured promissory note (the “Note”), in addition to the
terms defined elsewhere in this Note, (a) capitalized terms not otherwise defined herein shall have the meanings set forth in the
Subscription Agreement and (b) the following terms shall have the following meanings:


 


"Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.


 






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“Bankruptcy
Event” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule
1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or
any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case
or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is
adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the
Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part
of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant
Subsidiary thereof makes a general assignment for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof
calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts or (g) the Company
or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence
in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.


 


“Business
Day” means any day except any Saturday, any Sunday, any day which shall be a federal legal holiday in the United States
or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action
to close.


 


“Change
of Control Transaction” means the occurrence after the date hereof of any of (a) an acquisition after the date hereof
by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of
effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of
in excess of 50% of the voting securities of the Company (other than by means of conversion or exercise of the Note and the Securities
issued together with the Note), (b) the Company merges into or consolidates with any other Person, or any Person merges into or
consolidates with the Company and, after giving effect to such transaction, the stockholder of the Company immediately prior to
such transaction own less than 50% of the aggregate voting power of the Company or the successor entity of such transaction, or
(c) the Company sells or transfers all or substantially all of its assets to another Person and the stockholder of the Company
immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately after
the transaction, (d) a replacement at one time or within a three year period of more than one-half of the members of the Board
of Directors which is not approved by a majority of those individuals who are members of the Board of Directors on the date hereof
(or by those individuals who are serving as members of the Board of Directors on any date whose nomination to the Board of Directors
was approved by a majority of the members of the Board of Directors who are members on the date hereof), or (e) the execution by
the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth
in clauses (a) through (d) above.


 


“Event
of Default” shall have the meaning set forth in Section 5(a).


 


"Interest
Rate" shall mean ten percent (10%) per annum.


 






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“Guaranty
Agreement” means the guaranty agreement between the Holder and the Subsidiary referred to in Section 4(a).


 


“Liens”
means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


“New
York Courts” shall have the meaning set forth in Section 6(d).


 


“Original
Issue Date” means the date of the first issuance of the Note, regardless of any transfers of this Note and regardless
of the number of instruments which may be issued to evidence such Note.


 


“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.


 


“Subscription
Agreement” means the Subscription Agreement, dated as of September 2, 2016 among the Company and the Holder, as amended,
modified or supplemented from time to time in accordance with its terms.


 


“Subsidiary”
means Protea Biosciences, Inc., a Delaware corporation, and a wholly owned subsidiary of the Company.


 


“Security
Agreement” shall have the meaning set forth in Section 4(b).


 


“Transaction
Documents” shall mean collectively, the Subscription Agreement, the Security Agreement and this Note.


 


Section 2.     Payment. On
the Maturity Date, the Company shall pay to the Holder the $720,000 Face Amount of this Note plus simple interest on the then
unpaid principal Face Amount of this Note, at the Interest Rate, calculated, on the basis of a 360-day year consisting of twelve
30 calendar day periods, from the Original Issue Date to the date that the entire Face Amount of this Note is paid in full.


 


Section 3.     
Prepayment. The Company shall have the right at any time or from time to time to prepay all or any portion of the Face Amount
of this Note plus accrued interest herein at the Interest Rate, without any premium or penalty of any kind.


 


Section 4.     
Guaranty and Security.


 


     (a)     The Subsidiary
shall unconditionally and irrevocably guaranty to pay and perform all of the obligations of the Company under this Note pursuant
to the guaranty agreement in the form of Exhibit A annexed hereto and made a part hereof (the “Guaranty Agreement”).


 






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     (b)     Payment
of this Note shall be secured by a first priority Lien and security interest on the accounts receivable and inventories of the
Company and all proceeds thereof in accordance with the security agreement, dated as of the Original Issue Date, between the Company
and its Subsidiaries, as debtors, and the Holder, as secured party, and in the form of Exhibit B annexed hereto and made
a part hereof (the “Security Agreement”).


 


     Section 5.     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)       any
default in the payment of the principal Face Amount of this Note or interest and other amounts owing to a Holder on this Note,
as and when the same shall become due and payable (whether on the Maturity Date or by acceleration or otherwise);


 


(ii)       the
Company shall fail to observe or perform any other covenant or agreement contained in this Note or other Transaction Documents,
which failure is not cured by the earlier of 10 Business Days or the Maturity Date;


 


(iii)       the
Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy
Event;


 


(iv)       the
Company or any Subsidiary 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 $250,000, 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;


 


(v)       the
Company shall be a party to any Change of Control Transaction or Sale of Control or shall agree to sell or dispose of all or in
excess of 40% of its assets in one transaction or a series of related transactions (whether or not such sale would constitute a
Change of Control Transaction);


 


(vi)       any
monetary judgment, writ or similar final process shall be entered or filed against the Company, any subsidiary or any of their
respective property or other assets for more than $250,000, and such judgment, writ or similar final process shall remain unvacated,
unbonded or unstayed for a period of 30 calendar days.


 






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(b)       Remedies
Upon Event of Default. If any Event of Default occurs and shall be continuing, the outstanding principal Face Amount of this
Note, plus accrued but unpaid interest and the Interest Rate 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. The Company 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, including without limitation asserting all of its rights and remedies available
to it under the Security Agreement and 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 5(b). No such rescission or annulment shall affect any subsequent Event of Default or impair
any right consequent thereon.


 


     Section 6.     Miscellaneous.


 


a)    
Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including,
without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, by electronic communication
or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such
other facsimile number or address as the Company may specify for such purpose by notice to the Holder delivered in accordance with
this Section 6(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in
writing and delivered personally, by facsimile, by electronic communication or sent by a nationally recognized overnight courier
service addressed to each Holder at the facsimile number or address of the Holder appearing on the books of the Company, or if
no such facsimile number or address appears, at the principal place of business of the Holder. Any notice or other communication
or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile or electronic communication prior to 5:30 p.m. (New York City time), (ii) the date immediately
following the date of transmission, if such notice or communication is delivered via facsimile or electronic communication between
5:30 p.m. (New York City time) and 11:59 p.m. (New York City time) on any date, (iii) the second Business Day following the date
of mailing, if sent by nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice
is required to be given.


 


b)    
Absolute Obligation. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation
of the Company, 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 the Company. This Note ranks pari passu with all other Note now or hereafter issued under the terms set forth
herein.     


 






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c)    
Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Company 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 the
Company.


 


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, shareholder, 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 either 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.


 


e)    
Waiver. Any waiver by the Company 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 the Company 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.
Any waiver by the Company or the Holder must be in writing.


 






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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. 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. The Company 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 the Company 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 indenture, and the Company (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.


 


g)    
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.


 


h)    
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.


 


i)     
Assumption.  Any successor to the Company or any surviving entity in a Sale of Control shall (i) assume, prior
to such Sale of Control, all of the obligations of the Company under this Note and the other Transaction Documents pursuant to
written agreements in form and substance satisfactory to the Holder (such approval not to be unreasonably withheld or delayed)
and (ii) issue to the Holder a new debenture of such successor entity evidenced by a written instrument substantially similar in
form and substance to this Note, including, without limitation, having a principal amount and interest rate equal to the principal
amount and the interest rate of this Note and having similar ranking to this Note, which shall be satisfactory to the Holder (any
such approval not to be unreasonably withheld or delayed).  The provisions of this Section 9(i) shall apply similarly and
equally to successive Sale of Controls and shall be applied without regard to any limitations of this Note.


 


 


(Signature Pages Follow)


 




     

     


    

 


IN WITNESS WHEREOF,
the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated.


 


 


	 	
        Protea Biosciences
        Group, Inc.

         

         

	 	By:	       	 
	 	 	Name: Stephen Turner
	 	 	Title: Chief Executive Officer
	 	 	Facsimile No. for delivery of Notices: 304-292-7101