Exhibit
10.2







 


THIS
SECURED PROMISSORY NOTE (THIS “NOTE”) HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION 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.


 


SECURED
PROMISSORY NOTE 


 


	Effective
    Date: August 5, 2019	U.S.
    $2,635,000.00


 


FOR
VALUE RECEIVED, Hemispherx Biopharma, Inc., a Delaware corporation (“Borrower”),
promises to pay to Chicago Venture Partners, L.P., a Utah limited partnership, or
its successors or assigns (“Lender”), $2,635,000.00 and any interest, fees, charges, and late fees accrued
hereunder on the date that is twenty-four (24) months after the Purchase Price Date (the “Maturity Date”) in
accordance with the terms set forth herein and to pay interest on the Outstanding Balance at the rate of ten percent (10%) per
annum from the Purchase Price Date until the same is paid in full. All interest calculations hereunder shall be computed on the
basis of a 360-day year comprised of twelve (12) thirty (30) day months, shall compound daily and shall be payable in accordance
with the terms of this Note. This Secured Promissory Note (this “Note”) is issued and made effective as of
August 5, 2019 (the “Effective Date”). This Note is issued pursuant to that certain Note Purchase Agreement
dated August 5, 2019, as the same may be amended from time to time, by and between Borrower and Lender (the “Purchase
Agreement”). Certain capitalized terms used herein are defined in Attachment 1 attached hereto and incorporated
herein by this reference.


 


This
Note carries an OID of $625,000.00. In addition, Borrower agrees to pay $10,000.00 to Lender to cover Lender’s legal fees,
accounting costs, due diligence, monitoring and other transaction costs incurred in connection with the purchase and sale of this
Note (the “Transaction Expense Amount”), all of which amount is fully earned and included in the initial principal
balance of this Note. The purchase price for this Note shall be $2,000,000.00 (the “Purchase Price”), computed
as follows: $2,635,000.00 original principal balance, less the OID, less the Transaction Expense Amount. The Purchase Price shall
be payable by Lender by wire transfer of immediately available funds.


 


 1. Payment; Prepayment.




 


1.1.
Payment. All payments owing hereunder shall be in lawful money of the United States of America and delivered to Lender
at the address or bank account furnished to Borrower for that purpose. All payments shall be applied first to (a) costs of collection,
if any, then to (b) fees and charges, if any, then to (c) accrued and unpaid interest, and thereafter, to (d) principal.


 


1.2.
Prepayment. Borrower may pay all or any portion of the amount owed earlier than it is due; provided that in the
event Borrower elects to prepay all or any portion of the outstanding balance on or before the date that is twelve (12) months
from the date hereof, the Outstanding Balance shall be reduced by an amount equal to the amount Borrower elects to prepay divided
by 80% (for illustration purposes only, if Borrower elects to prepay $100,000.00 on the date that is six (6) months from the date
hereof, it shall receive a $125,000.00 reduction of the Outstanding Balance). The foregoing prepayment credit shall not apply
to any prepayments received by Lender after the date that is twelve (12) months from the date of this Note. Early payments of
less than all principal, fees and interest outstanding will not, unless agreed to by Lender in writing, relieve Borrower of Borrower’s
remaining obligations hereunder.


 




    	 	 	 



    	 	 	 



    

 


2.
Security. This Note is secured by the Security Agreement (as defined in the Purchase Agreement), executed by Borrower in
favor of Lender encumbering the collateral set forth therein, as more specifically set forth in the Security Agreement, all the
terms and conditions of which are hereby incorporated into and made a part of this Note.


 


3.
Redemption; Minimum Payment.


 


3.1.
Redemption. Beginning on the date that is six (6) months after the Purchase Price Date, Lender shall have the right, exercisable
at any time in its sole and absolute discretion, to redeem any amount of this Note up to $325,000.00 (such amount, the “Redemption
Amount”) per calendar month by providing written notice to Borrower (each, a “Redemption Notice”).
For the avoidance of doubt, Lender may submit to Borrower one (1) or more Redemption Notices in any given calendar month so long
as the aggregate amount being redeemed in such month does not exceed $325,000.00. Upon receipt of any Redemption Notice, Borrower
shall pay the applicable Redemption Amount in cash to Lender within three (3) Business Days of Borrower’s receipt of such
Redemption Notice.


 


3.2.
Minimum Payment. Beginning on the last day of each calendar month following the date that is twelve (12) months from the
Purchase Price Date and on the last day of each calendar month thereafter, if the total amount redeemed during such calendar month
is less than the Minimum Monthly Redemption Amount, then Borrower shall make a cash payment (unless otherwise negotiated) to Lender
in an amount equal to the Minimum Monthly Redemption Amount less the amount redeemed in such calendar month (the “Minimum
Payment”). In the event Borrower fails to timely make the Minimum Payment, the Outstanding Balance will automatically
be increased by three percent (3%) (without the need for Lender to provide any notice to Borrower of such increase). For the avoidance
of doubt, such increase to the Outstanding Balance shall be in addition to all other rights and remedies available to Lender under
this Note and the other Transaction Documents and shall not be in lieu of, nor deemed to be a waiver of any other rights or remedies
available to Lender under this Note or any of the other Transaction Documents, including without limitation calling an Event of
Default if Borrower fails to make the Minimum Payment.


 


4.
Defaults and Remedies.


 


4.1.
Defaults. The following are events of default under this Note (each, an “Event of Default”): (a) Borrower
fails to pay any principal, interest, fees, charges, or any other amount when due and payable hereunder; (b) a receiver, trustee
or other similar official shall be appointed over Borrower or a material part of its assets and such appointment shall remain
uncontested for twenty (20) days or shall not be dismissed or discharged within sixty (60) days; (c) Borrower becomes insolvent
or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace
periods, if any; (d) Borrower makes a general assignment for the benefit of creditors; (e) Borrower files a petition for relief
under any bankruptcy, insolvency or similar law (domestic or foreign); (f) an involuntary bankruptcy proceeding is commenced or
filed against Borrower and is not dismissed within sixty (60) days; (g) Borrower or any pledgor, trustor, or guarantor of this
Note defaults or otherwise fails to observe or perform any covenant, obligation, condition or agreement of Borrower or such pledgor,
trustor, or guarantor contained herein or in any other Transaction Document (as defined in the Purchase Agreement), other than
those specifically set forth in this Section 4.1 and Section 4 of the Purchase Agreement and such default or failure remains uncured
for a period of ten (10) days after written notice to Company by Lender of such default or failure; (h) any representation, warranty
or other statement made or furnished by or on behalf of Borrower or any pledgor, trustor, or guarantor of this Note to Lender
herein, in any Transaction Document, or otherwise in connection with the issuance of this Note is false, incorrect, incomplete
or misleading in any material respect when made or furnished; (i) the occurrence of a Fundamental Transaction without Lender’s
prior written consent; (j) any United States money judgment, writ or similar process is entered or filed against Borrower or any
subsidiary of Borrower or any of its property or other assets for more than $1,000,000.00, and shall remain unvacated, unbonded
or unstayed for a period of twenty (20) calendar days unless otherwise consented to by Lender; (k) Borrower fails to be DWAC Eligible;
(l) Borrower fails to observe or perform any covenant set forth in Section 4 of the Purchase Agreement (other than the covenant
with respect to Unapproved Restricted Issuances); (m) Borrower makes any Unapproved Restricted Issuance; or (n) Borrower, any
affiliate of Borrower, or any pledgor, trustor, or guarantor of this Note breaches any covenant or other term or condition contained
in any Other Agreements.


 




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4.2.
Remedies. At any time and from time to time after Lender becomes aware of the occurrence of any Event of Default, Lender
may accelerate this Note by written notice to Borrower, with the Outstanding Balance becoming immediately due and payable in cash
at the Mandatory Default Amount. Notwithstanding the foregoing, at any time following the occurrence of any Event of Default,
Lender may, at its option, elect to increase the Outstanding Balance by applying the Default Effect (subject to the limitation
set forth below) via written notice to Borrower without accelerating the Outstanding Balance, in which event the Outstanding Balance
shall be increased as of the date of the occurrence of the applicable Event of Default pursuant to the Default Effect, but the
Outstanding Balance shall not be immediately due and payable unless so declared by Lender (for the avoidance of doubt, if Lender
elects to apply the Default Effect pursuant to this sentence, it shall reserve the right to declare the Outstanding Balance immediately
due and payable at any time and no such election by Lender shall be deemed to be a waiver of its right to declare the Outstanding
Balance immediately due and payable as set forth herein unless otherwise agreed to by Lender in writing). Notwithstanding the
foregoing, upon the occurrence of any Event of Default described in clauses (b), (c), (d), (e) or (f) of Section 4.1, the Outstanding
Balance as of the date of acceleration shall become immediately and automatically due and payable in cash at the Mandatory Default
Amount, without any written notice required by Lender. At any time following the occurrence of any Event of Default, upon written
notice given by Lender to Borrower, interest shall accrue on the Outstanding Balance beginning on the date the applicable Event
of Default occurred at an interest rate equal to the lesser of twenty-two percent (22%) per annum or the maximum rate permitted
under applicable law (“Default Interest”). In connection with acceleration described herein, Lender need not
provide, and Borrower hereby waives, any presentment, demand, protest or other notice of any kind, and Lender 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 Lender at any time prior to payment hereunder and
Lender shall have all rights as a holder of the Note until such time, if any, as Lender receives full payment pursuant to this
Section 4.2. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
Nothing herein shall limit Lender’s right to pursue any other remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief.


 


5.
Unconditional Obligation; No Offset. Borrower acknowledges that this Note is an unconditional, valid, binding and enforceable
obligation of Borrower not subject to offset, deduction or counterclaim of any kind. Borrower hereby waives any rights of offset
it now has or may have hereafter against Lender, its successors and assigns, and agrees to make the payments called for herein
in accordance with the terms of this Note.


 


6.
Waiver. No waiver of any provision of this Note shall be effective unless it is in the form of a writing signed by the
party granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other
provision or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing
waiver or consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in
writing.


 




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7.
Approved Restricted Issuance. The Outstanding Balance will automatically be increased by three percent (3%) for each Approved
Restricted Issuance made by Borrower (without the need for Lender to provide any notice to Borrower of such increase), which increase
will be effective as of the date of each applicable Approved Restricted Issuance.


 


8.
Opinion of Counsel. In the event that an opinion of counsel is needed for any matter related to this Note, Lender has the
right to have any such opinion provided by its counsel.


 


9.
Governing Law; Venue. This Note shall be construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of Utah, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State of Utah. The provisions set forth in the Purchase
Agreement to determine the proper venue for any disputes are incorporated herein by this reference.


 


10.
Arbitration of Disputes. By its issuance or acceptance of this Note, each party agrees to be bound by the Arbitration Provisions
(as defined in the Purchase Agreement) set forth as an exhibit to the Purchase Agreement.


 


11.
Cancellation. After repayment of the entire Outstanding Balance, this Note shall be deemed paid in full, shall automatically
be deemed canceled, and shall not be reissued.


 


12.
Amendments. The prior written consent of both parties hereto shall be required for any change or amendment to this Note.


 


13.
Assignments. Borrower may not assign this Note without the prior written consent of Lender. This Note may be offered, sold,
assigned or transferred by Lender without the consent of Borrower, so long as such transfer is in accordance with applicable federal
and state securities laws.


 


14.
Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be
given in accordance with the subsection of the Purchase Agreement titled “Notices.”


 


15.
Liquidated Damages. Lender and Borrower agree that in the event Borrower fails to comply with any of the terms or provisions
of this Note, Lender’s damages would be uncertain and difficult (if not impossible) to accurately estimate because of the
parties’ inability to predict future interest rates, future share prices, future trading volumes and other relevant factors.
Accordingly, Lender and Borrower agree that any fees, balance adjustments, Default Interest or other charges assessed under this
Note are not penalties but instead are intended by the parties to be, and shall be deemed, liquidated damages.


 


16.
Severability. If any part of this Note is construed to be in violation of any law, such part shall be modified to achieve
the objective of Borrower and Lender to the fullest extent permitted by law and the balance of this Note shall remain in full
force and effect.


 


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IN
WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of the Effective Date.


 


	 	BORROWER:
	 	 
	 	Hemispherx Biopharma, Inc.
	 	 	 
	 	By:
    	/s/
    Tom Equels
	 	Name:
    	Tom
    Equels
	 	Title:
    	CEO/PRES


 


	ACKNOWLEDGED,
    ACCEPTED AND AGREED:	 
	 	 	 
	LENDER:	 
	 	 	 
	Chicago Venture Partners, L.P.	 
	 	 	 
	By:
    	Chicago
    Venture Management, L.L.C., its General Partner	 


 


	By:
	CVM,
    Inc., its Manager	 
	 	 	 
	By:	/s/
    John M. Fife	 
	 	John
M. Fife, President	 


 





[Signature
Page to Secured Promissory Note]







 




    	 	 	 



    	 	 	 



    

 


ATTACHMENT
1


DEFINITIONS


 


For
purposes of this Note, the following terms shall have the following meanings:


 


A1.
“Approved Restricted Issuance” means a Restricted Issuance (as defined in the Purchase Agreement) for which
Borrower received Lender’s written consent prior to the applicable issuance.


 


A2.
“Business Day” means any day other than weekend days and dates which are official government holidays in the
state of Utah.


 


A3.
“Default Effect” means multiplying the Outstanding Balance as of the date the applicable Event of Default occurred
by (a) fifteen percent (15%) for each occurrence of any Major Default, (b) ten percent (10%) for each occurrence of an Unapproved
Restricted Issuance Default, or (c) five percent (5%) for each occurrence of any Minor Default, and then adding the resulting
product to the Outstanding Balance as of the date the applicable Event of Default occurred, with the sum of the foregoing then
becoming the Outstanding Balance under this Note as of the date the applicable Event of Default occurred; provided that the Default
Effect may only be applied three (3) times hereunder with respect to Major Defaults and three (3) times hereunder with respect
to Minor Defaults; provided that the aggregate amount of the Default Effect for all Major Defaults and Minor Defaults shall not
exceed twenty-five percent (25%). There shall be no limit on the number of times the Default Effect may be applied with respect
to Unapproved Restricted Issuance Defaults.


 


A4.
“DTC” means the Depository Trust Company or any successor thereto.


 


A5.
“DTC/FAST Program” means the DTC’s Fast Automated Securities Transfer program.


 


A6.
“DWAC” means the DTC’s Deposit/Withdrawal at Custodian system.


 


A7.
“DWAC Eligible” means that (a) Borrower’s Common Stock is eligible at DTC for full services pursuant
to DTC’s operational arrangements, including without limitation transfer through DTC’s DWAC system; (b) Borrower has
been approved (without revocation) by DTC’s underwriting department; (c) Borrower’s transfer agent is approved as
an agent in the DTC/FAST Program; and (d) Borrower’s transfer agent does not have a policy prohibiting or limiting delivery
of Common Stock via DWAC.


 


A8.
“Fundamental Transaction” means that (a) (i) Borrower or any of its subsidiaries shall, directly or indirectly,
in one or more related transactions, consolidate or merge with or into (whether or not Borrower or any of its subsidiaries is
the surviving corporation) any other person or entity, or (ii) Borrower or any of its subsidiaries shall, directly or indirectly,
in one or more related transactions, sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially
all of its respective properties or assets to any other person or entity, or (iii) Borrower or any of its subsidiaries shall,
directly or indirectly, in one or more related transactions, allow any other person or entity to make a purchase, tender or exchange
offer that is accepted by the holders of more than 50% of the outstanding shares of voting stock of Borrower (not including any
shares of voting stock of Borrower held by the person or persons making or party to, or associated or affiliated with the persons
or entities making or party to, such purchase, tender or exchange offer), or (iv) Borrower or any of its subsidiaries shall, directly
or indirectly, in one or more related transactions, consummate a stock or share purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other person or
entity whereby such other person or entity acquires more than 50% of the outstanding shares of voting stock of Borrower (not including
any shares of voting stock of Borrower held by the other persons or entities making or party to, or associated or affiliated with
the other persons or entities making or party to, such stock or share purchase agreement or other business combination), or (v)
Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, reorganize, recapitalize
or reclassify the Common Stock, other than an increase in the number of authorized shares of Borrower’s Common Stock, or
reverse splits of its outstanding and authorized shares of Common Stock to meet NYSE American continued listing requirements or
(b) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934
Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined in
Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and
outstanding voting stock of Borrower.


 




    	 	 	 



    	 	 	 



    




 


A9.
“Major Default” means any Event of Default occurring under Sections 4.1(a) or 4.1(l).


 


A10.
“Mandatory Default Amount” means the Outstanding Balance following the application of the Default Effect.


 


A11.
“Minimum Monthly Redemption Amount” means $50,000.00.


 


A12.
“Minor Default” means any Event of Default that is not a Major Default or an Unapproved Restricted Issuance
Default.


 


A13.
“OID” means an original issue discount.


 


A14.
“Other Agreements” means, collectively, (a) all existing and future agreements and instruments between, among
or by Borrower (or an affiliate), on the one hand, and Lender (or an affiliate), on the other hand, and (b) any financing agreement
or a material agreement that affects Borrower’s ongoing business operations.


 


A15.
“Outstanding Balance” means as of any date of determination, the Purchase Price, as reduced or increased, as
the case may be, pursuant to the terms hereof for payment, offset, or otherwise, plus the OID, the Transaction Expense Amount,
accrued but unpaid interest, collection and enforcements costs (including attorneys’ fees) incurred by Lender, transfer,
stamp, issuance and similar taxes and fees incurred under this Note.


 


A16.
“Purchase Price Date” means the date the Purchase Price is delivered by Lender to Borrower.


 


A17.
“Unapproved Restricted Issuance” means a Restricted Issuance for which Borrower did not receive Lender’s
written consent prior to the applicable issuance.


 


A18.
“Unapproved Restricted Issuance Default” means an Event of Default occurring under Section 4.1(m) of this Note.


 


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