Ohr Pharmaceutical, Inc. S-4


 


Exhibit
10.18


 





THIS
NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”),
OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER
THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.


 


NEUBASE
THERAPEUTICS, INC.


 


CONVERTIBLE
PROMISSORY NOTE


 





	$[insert
    principal amount of note]	[insert
    date]




 





FOR
VALUE RECEIVED, NeuBase Therapeutics, Inc., a Delaware corporation (the “Company”) promises to pay to
[____________________], or its registered assigns (“Investor”), in lawful money of the United States
of America the principal sum of [__________] Dollars ($[_________]), or such lesser amount as shall equal the outstanding principal
amount hereof, together with interest from the date of this Convertible Promissory Note (this “Note”)
on the unpaid principal balance at a rate equal to 6% per annum, computed on the basis of the actual number of days elapsed and
a year of 365 days. All unpaid principal, together with any then unpaid and accrued interest and other amounts payable hereunder,
shall be due and payable on the earlier of (i) [_________]1 (the “Maturity Date”), or (ii)
when, upon the occurrence and during the continuance of an Event of Default, such amounts are declared due and payable by Investor
or made automatically due and payable, in each case, in accordance with the terms hereof. This Note is one of the “Notes”
issued pursuant to the Purchase Agreement.


 


The
following is a statement of the rights of Investor and the conditions to which this Note is subject, and to which Investor, by
the acceptance of this Note, agrees:


 


1.       Payments.


 


(a)       Interest.
Accrued interest on this Note shall be payable at maturity.


 


(b)       Voluntary
Prepayment. This Note may not be prepaid.


 


2.       Events
of Default. The occurrence of any of the following shall constitute an “Event of Default” under
this Note and the other Transaction Documents:


 





 



  


1
Two (2) years from date of Note.


  



     


    


    




 


  (a)      Failure
to Pay. The Company shall fail to pay (i) when due any principal payment on the due date hereunder or (ii) any interest
payment or other payment required under the terms of this Note or any other Transaction Document on the date due and such
payment shall not have been made within five (5) business days of the Company’s receipt of written notice to the
Company of such failure to pay;


 


  (b)     Breaches
of Covenants. The Company shall fail to observe or perform any other covenant, obligation, condition or agreement contained
in this Note or the other Transaction Documents (other than those specified in Section 2(a)) and such failure shall continue
for ten (10) business days after the Company’s receipt of written notice to the Company of such failure;


 


  (c)      Representations
and Warranties. Any representation, warranty, certificate, or other statement (financial or otherwise) made or furnished by
or on behalf of the Company to Investor in writing in connection with this Note or any of the other Transaction Documents, or
as an inducement to Investor to enter into this Note and the other Transaction Documents, shall be false, incorrect, incomplete
or misleading in any material respect when made or furnished;


 


  (d)     Voluntary
Bankruptcy or Insolvency Proceedings. The Company 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) 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) 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 (vi) take any action for the purpose of effecting any of the foregoing; or


 


  (e)     Involuntary
Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the
Company, 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 Company or any of its subsidiaries, if any, 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 45 days of commencement.


 


3.       Rights
of Investor upon Default. Upon the occurrence of any Event of Default (other than an Event of Default described in Section
2(d) or 2(e)) and at any time thereafter during the continuance of such Event of Default, Investor may, with the written
consent of Investors holding more than 50% of the aggregate outstanding principal amount of the Notes, by written notice to the
Company, declare all outstanding Obligations payable by the Company hereunder to be immediately due and payable without presentment,
demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the
other Transaction Documents to the contrary notwithstanding. Upon the occurrence of any Event of Default described in Section
2(d) or 2(e), immediately and without notice, all outstanding Obligations payable by the Company hereunder shall automatically
become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in the other Transaction Documents to the contrary notwithstanding. In addition
to the foregoing remedies, upon the occurrence and during the continuance of any Event of Default, Investor may, with the written
consent of Investors holding more than 50% of the aggregate outstanding principal amount of the Notes, exercise any other right,
power or remedy granted to it by the Transaction Documents or otherwise permitted to it by law, either by suit in equity or by
action at law, or both.


 



    -2- 


    


    

 





4.       Conversion.


 


  (a)     Automatic
Conversion. If a Qualified Financing occurs on or prior to the Maturity Date, then the outstanding principal amount of this
Note and all accrued and unpaid interest on this Note shall automatically convert into fully paid and nonassessable shares of
the preferred stock issued in such Qualified Financing at the Conversion Price.


 


  (b)     Conversion
Procedure.


 


(i)       Automatic
Conversion. If this Note is to be automatically converted, written notice shall be delivered to Investor at the address last
shown on the records of the Company for Investor or given by Investor to the Company for the purpose of notice, notifying Investor
of the conversion to be effected, specifying the Conversion Price, the principal amount of the Note to be converted, together
with all accrued and unpaid interest, the date on which such conversion is expected to occur and calling upon such Investor to
surrender to the Company, in the manner and at the place designated, the Note. Upon such conversion of this Note, Investor hereby
agrees to execute and deliver to the Company, and shall be bound upon such conversion by the obligations in, all transaction documents
entered into by other purchasers participating in the Qualified Financing, including a purchase agreement, an investor rights
agreement and other ancillary agreements, with customary representations and warranties and transfer restrictions (including,
without limitation, a 180-day lock-up agreement in connection with an Initial Public Offering). Investor also agrees to deliver
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 Company whereby the holder agrees to indemnify the Company from any loss incurred by it in connection with this
Note) at the closing of the Qualified Financing for cancellation; provided, however, that upon the closing of the Qualified
Financing, 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. The Company shall, as soon as practicable thereafter, issue and deliver to such Investor a certificate
or certificates (or a notice of issuance of uncertificated shares, if applicable) for the number of shares to which Investor shall
be entitled upon such conversion, including a check payable to Investor for any cash amounts payable as described in Section
4(b)(ii). Any conversion of this Note pursuant to Section 4(a) shall be deemed to have been made immediately prior
to the closing of the Qualified Financing and on and after such date the Persons entitled to receive the shares issuable upon
such conversion shall be treated for all purposes as the record holder of such shares.


 


     (ii)       Fractional
Shares; Interest; Effect of Conversion. No fractional shares shall be issued upon conversion of this Note. In lieu
of the Company issuing any fractional shares to the Investor upon the conversion of this Note, the Company shall pay to Investor
an amount equal to the product obtained by multiplying the applicable conversion price by the fraction of a share not issued pursuant
to the previous sentence. In addition, to the extent not converted into shares of capital stock, the Company shall pay to Investor
any interest accrued on the amount converted and on the amount to be paid by the Company pursuant to the previous sentence. Upon
conversion of this Note in full and the payment of the amounts specified in this paragraph, the Company shall be forever released
from all its obligations and liabilities under this Note and this Note shall be deemed of no further force or effect, whether
or not the original of this Note has been delivered to the Company for cancellation.


 


    (c)       Conversion
Preferred Stock. Should all of any series of preferred stock issuable upon conversion of this Note be, at any time prior to
full payment of this Note, redeemed or converted into shares of Company’s common stock in accordance with the Company’s
certificate of incorporation, then, to the extent this Note is convertible into such preferred stock, this Note shall immediately
become convertible into that number of shares of common stock equal to the number of shares of the common stock that would have
been received if this Note had been converted in full and the preferred stock received thereupon had been simultaneously converted
into common stock immediately prior to such event.


 



    -3- 


    


    

 





    (d)       Notices
of Record Date. In the event of:


 


(i)       Any
taking by the Company of a record of the holders of any class of securities of the Company for the purpose of determining the
holders thereof who are entitled to receive any dividend or other distribution or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or property, or to receive any other right;


 


(ii)       Any
capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company or any transfer
of all or substantially all of the assets of the Company to any other Person or any consolidation or merger involving the Company;
or


 


(iii)       Any
voluntary or involuntary dissolution, liquidation or winding-up of the Company,


 


the
Company will mail to Investor at least ten (10) days prior to the earliest date specified therein, a notice specifying (A) the
date on which any such record is to be taken for the purpose of such dividend, distribution or right and the amount and character
of such dividend, distribution or right; or (B) the date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is expected to become effective and the record date for
determining stockholders entitled to vote thereon.


 


5.       Definitions.
As used in this Note, the following capitalized terms have the following meanings:


 


“Conversion
Price” shall mean a price per share equal to 90% of the price per share paid by the other purchasers of the preferred
stock sold in the Qualified Financing.


 


“Event
of Default” has the meaning given in Section 2 hereof.


 


“Initial
Public Offering” shall mean the closing of the Company’s first firm commitment underwritten initial public
offering of the Company’s common stock pursuant to a registration statement filed under the Securities Act.


 


“Investor”
shall mean the Person specified in the introductory paragraph of this Note or any Person who shall at the time be the registered
holder of this Note.


 


“Investors”
shall mean the investors that have purchased Notes.


 


“Notes”
shall mean the convertible promissory notes issued pursuant to the Purchase Agreement.


 


“Obligations”
shall mean and include all loans, advances, debts, liabilities and obligations, howsoever arising, owed by the Company to Investor
of every kind and description, now existing or hereafter arising under or pursuant to the terms of this Note and the other Transaction
Documents, including, all interest, fees, charges, expenses, attorneys’ fees and costs and accountants’ fees and costs
chargeable to and payable by the Company hereunder and thereunder, in each case, whether direct or indirect, absolute or contingent,
due or to become due, and whether or not arising after the commencement of a proceeding under Title 11 of the United States Code
(11 U. S. C. Section 101 et seq.), as amended from time to time (including post-petition interest) and whether or not allowed
or allowable as a claim in any such proceeding.


 



    -4- 


    


    

 





“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.


 


“Purchase
Agreement” shall mean the Note Purchase Agreement, dated as of [_________] (as amended, modified or supplemented),
by and among the Company and the Investors (as defined in the Purchase Agreement) party thereto.


 


“Qualified
Financing” is a transaction or series of transactions pursuant to which the Company issues and sells shares of its
preferred stock for aggregate gross proceeds of at least $[_________] (excluding all proceeds from the incurrence of indebtedness
that is converted into such preferred stock, or otherwise cancelled in consideration for the issuance of such preferred stock)
with the principal purpose of raising capital.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended.


 


“Transaction
Documents” shall mean this Note, each of any other Notes and the Purchase Agreement.


 


6.       Miscellaneous.


 


(a)      Successors
and Assigns; Transfer of this Note or Securities Issuable on Conversion Hereof; No Transfers to Bad Actors; Notice of Bad Actor
Status.


 


(i)       Subject
to the restrictions on transfer described in this Section 6(a), the rights and obligations of the Company and Investor
shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.


 


(ii)      With
respect to any offer, sale or other disposition of this Note or securities into which such Note may be converted, Investor will
give written notice to the Company prior thereto, describing briefly the manner thereof, together with a written opinion of Investor’s
counsel, or other evidence if reasonably satisfactory to the Company, to the effect that such offer, sale or other distribution
may be effected without registration or qualification (under any federal or state law then in effect). Upon receiving such written
notice and reasonably satisfactory opinion, if so requested, or other evidence, the Company, as promptly as practicable, shall
notify Investor that Investor may sell or otherwise dispose of this Note or such securities, all in accordance with the terms
of the notice delivered to the Company. If a determination has been made pursuant to this Section 6(a) that the opinion
of counsel for Investor, or other evidence, is not reasonably satisfactory to the Company, the Company shall so notify Investor
promptly after such determination has been made. Each Note thus transferred and each certificate, instrument or book entry representing
the securities thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance
with the Securities Act, unless in the opinion of counsel for the Company such legend is not required in order to ensure compliance
with the Securities Act. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions.


 


(iii)      Subject
to Section 6(a)(ii), transfers of this Note shall be registered upon registration books maintained for such purpose by
or on behalf of the Company as provided in the Purchase Agreement. Prior to presentation of this Note for registration of transfer,
the Company shall treat the registered holder hereof as the owner and holder of this Note for the purpose of receiving all payments
of principal and interest hereon and for all other purposes whatsoever, whether or not this Note shall be overdue and the Company
shall not be affected by notice to the contrary.


 






    -5- 


    


    

 


(iv)     Neither
this Note nor any of the rights, interests or obligations hereunder may be assigned, by operation of law or otherwise, in whole
or in part, by the Company without the prior written consent of Investors holding more than 50% of the aggregate outstanding principal
amount of the Notes.


 


(v)      Investor
agrees not to sell, assign, transfer, pledge or otherwise dispose of any securities of the Company, or any beneficial interest
therein, to any person (other than the Company) unless and until the proposed transferee confirms to the reasonable satisfaction
of the Company that neither the proposed transferee nor any of its directors, executive officers, other officers that may serve
as a director or officer of any company in which it invests, general partners or managing members nor any person that would be
deemed a beneficial owner of those securities (in accordance with Rule 506(d) of the Securities Act) is subject to any of the
“bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act, except as set
forth in Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed, reasonably in advance of the transfer,
in writing in reasonable detail to the Company. Investor will promptly notify the Company in writing if Investor or, to Investor’s
knowledge, any person specified in Rule 506(d)(1) under the Securities Act becomes subject to any of the “bad actor”
disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act.


 


    (b)       Waiver
and Amendment. Any provision of this Note may be amended, waived or modified upon the written consent of the Company and Investors
holding more than 50% of the aggregate outstanding principal amount of the Notes; provided, however, that no such amendment,
waiver or consent shall: (i) reduce the principal amount of this Note without Investor’s written consent, or (ii) reduce
the rate of interest of this Note without Investor’s written consent.


 


    (c)       Notices.
All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, sent by electronic mail (if to Investor) or otherwise delivered by hand, messenger or courier
service addressed:


 


(i)       if
to Investor, to Investor’s address or electronic mail address as shown in the Company’s records, as may be updated
in accordance with the provisions hereof, or, until such holder so furnishes an address or electronic mail address to the Company,
then to the address or electronic mail address of the last holder of this Note for which the Company has contact information in
its records; or


 


(ii)       if
to the Company, to the attention of the Chief Executive Officer or Chief Financial Officer of the Company at 2730 Sidney Street,
Suite 300, Pittsburgh, PA 15203, or at such other current address as the Company shall have furnished to Investor, with a copy
(which shall not constitute notice) to Mark C. Solakian, Wilson Sonsini Goodrich & Rosati, P.C., 28 State Street, 37th Floor,
Boston, MA 02109.


 


Each
such notice or other communication shall for all purposes of this Note be treated as effective or having been given (i) if delivered
by hand, messenger or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight
prepaid, specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if sent via mail, at
the earlier of its receipt or five days after the same has been deposited in a regularly-maintained receptacle for the deposit
of the United States mail, addressed and mailed as aforesaid, or (iii) if sent via electronic mail, upon confirmation of delivery
when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during
normal business hours of the recipient, then on the recipient’s next business day. In the event of any conflict between
the Company’s books and records and this Note or any notice delivered hereunder, the Company’s books and records will
control absent fraud or error.


 



    -6- 


    


    

 





Subject
to the limitations set forth in Delaware General Corporation Law §232(e), Investor consents to the delivery of any notice
to stockholders given by the Company under the Delaware General Corporation Law or the Company’s certificate of incorporation
or bylaws by (i) facsimile telecommunication to any facsimile number for Investor in the Company’s records, (ii) electronic
mail to any electronic mail address for Investor in the Company’s records, (iii) posting on an electronic network together
with separate notice to Investor of such specific posting or (iv) any other form of electronic transmission (as defined in the
Delaware General Corporation Law) directed to Investor. This consent may be revoked by Investor by written notice to the Company
and may be deemed revoked in the circumstances specified in Delaware General Corporation Law §232.


 


    (d)       Pari
Passu Notes. Investor acknowledges and agrees that the payment of all or any portion of the outstanding principal amount of
this Note and all interest hereon shall be pari passu in right of payment and in all other respects to any other Notes.
In the event Investor receives payments in excess of its pro rata share of the Company’s payments to the holders
of all of the Notes, then Investor shall hold in trust all such excess payments for the benefit of the holders of the other Notes
and shall pay such amounts held in trust to such other holders upon demand by such holders.


 


    (e)       Payment.
Unless converted into the Company’s equity securities pursuant to the terms hereof, payment shall be made in lawful
tender of the United States.


 


    (f)       Usury.
In the event any interest is paid on this Note which is deemed to be in excess of the then legal maximum rate, then that portion
of the interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal
and applied against the principal of this Note.


 


    (g)       Waivers.
The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor
and all other notices or demands relative to this instrument.


 


    (h)       Governing
Law. This Note and all actions arising out of or in connection with this Note shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of law provisions of the State of Delaware, or of any
other state.


 


    (i)       Jurisdiction
and Venue. With respect to any disputes arising out of or related to this Note, each of Investor and the Company consents
to the exclusive jurisdiction of, and venue in, the state courts in Delaware (or in the event of exclusive federal jurisdiction,
the courts of Delaware).


 




    -7- 


    


    

 


    (j)       Tax
Withholding. Notwithstanding any other provision to the contrary, the Company shall be entitled to deduct and withhold from
any amounts payable or otherwise deliverable with respect to this Note such amounts as may be required to be deducted or withheld
therefrom under any provision of applicable law, and to be provided any necessary tax forms and information, including Internal
Revenue Service Form W-9 or appropriate version of IRS Form W-8, as applicable, from each beneficial owner of the Note. To the
extent such amounts are so deducted or withheld and paid over to the appropriate taxing authority, such amounts shall be treated
for all purposes as having been paid to the person to whom such amounts otherwise would have been paid.


 


(signature
page follows)


 






    8


     


    

 



The
Company has caused this Note to be issued as of the date first written above.


 





	 	NEUBASE THERAPEUTICS, INC.,
	 	a Delaware corporation
	 	 	 
	 	By:	 
	 	 	 
	 	Name:	 
	 	 	 
	 	Title:	 




 


(signature
page for Note)