Specimen Series P Convertible Promissory Note



 Exhibit 4.5 
  
 Note #             
  
 THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS. 
  
 PHAGE BIOTECHNOLOGY CORPORATION 
  
 CONVERTIBLE PROMISSORY NOTE 
  
 Series
“P” 
  

			
	$____________	  	Effective Date (Date)
		
	 	  	Issue Date [date]

  
 FOR VALUE RECEIVED,
the undersigned, PHAGE BIOTECHNOLOGY CORPORATION, a company organized under the laws of the State of Delaware (the “Company”), promises to pay
to                                     or its registered
assigns (the “Holder”), the principal sum
of                                        
($            ) [minimum $20,000 and additional $10,000 increments thereafter], with interest from the date hereof at the rate of 7% per annum on the unpaid balance hereof until
paid. 
  
 1. Principal. The principal of this Note shall be
payable in one installment on January 31, 2006 (the “Maturity Date”). This Note is subject to automatic conversion upon the occurrence of the Conversion Events described in Paragraphs 3(a) and conversion at the option of the Holder
pursuant to Paragraph 3(b). 
  
 2. Interest. Interest on
the unpaid principal balance of this Note shall accrue at the rate of 7% per annum compounded annually (computed on the basis of a 365-3 66 day year (as applicable) based on actual days elapsed) commencing on the Effective Date of
this agreement as noted above. The Company agrees to pay interest after the occurrence of an Event of Default, at a rate per annum equal to the lesser of (a) the highest rate of interest per annum permitted by applicable law or
(b) 14% per annum (the “Default Rate”) until all amounts outstanding under the Note payable to Holder have been paid in full. For purposes herein, an “Event of Default” exists in the event the Company fails to make a
payment required by Paragraph 1 hereof, and such failure is not cured within 10 days following written notice from the Holder. 
  

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 3. Conversion Events and Mechanics of Conversion. 
  
 (a) Automatic Conversion. Upon the occurrence of a
Conversion Event (as hereinafter defined), the entire unpaid principal balance of this Note will automatically convert into Common Stock of the Company at a price equal to the Conversion Price (as hereinafter defined). For purposes herein,
“Conversion Event” shall mean (i) the consummation of a merger or sale of the Company in which the Company is not a surviving entity, or (ii) the successful completion of the Company’s initial public offering in the United
States (an “IPO”). For purposes herein “Conversion Price” shall be $10 per share; provided however, if the purchase price for shares at the completion of the Company’s IPO (the “IPO Price”) is less than $20
per share, the Conversion Price shall be adjusted to equal 50% of the IPO Price. 
  
 (b) At Holder’s Option. The Holder has the option to convert all, but not less than all, of this Note into Common Stock at any
time prior to the Maturity Date or Automatic Conversion, for the Conversion Price set forth in Paragraph 3(a) above. The Holder may exercise this option only in accordance with Paragraph 3(c) below. 
  
 (c) Mechanics of Conversion. The equity securities
that are issuable to the Holder upon any conversion of this Note shall be referred to as the “Conversion Shares.” To exercise the Holder’s right of conversion, the Holder shall surrender this Note to the Company at its registered
office, accompanied by a written notice in the form annexed hereto as Exhibit A, properly completed (the “Conversion Notice”). Within ten business days after its receipt of this Note and the Conversion Notice, the Company shall
issue and deliver a certificate or certificates for the number of full Conversion Shares issuable, registered in the Holder’s name and bearing the restrictive legend stated herein. Such conversion shall be deemed to have been effected and the
number of the Conversion Shares issuable in connection with such conversion shall be determined as of the close of business on the date on which this Note and the Conversion Notice shall have been received by the Company and, at such time, the
Holder’s rights as holder of such Note shall cease, and the Holder shall be deemed to have become the holder of record of the shares or interest represented thereby. 
  
 4. Antidilution. In the event the Company declares or pays any dividend on the Common Stock payable in shares of
Common Stock or in the event that the outstanding shares of Common Stock is subdivided, by reclassification, stock split or otherwise, into a greater number of shares of Common Stock prior to the Maturity Date or Automatic Conversion, this Note
shall, after such dividend or subdivision, entitle the Holder to receive upon conversion the number of shares of Common Stock to which the Holder would be entitled had the Holder converted this Note immediately prior to such dividend or subdivision.

  
 5. Transfer Restrictions. The Holder may only
transfer the Note or the Conversion Shares by surrendering the Note or Conversion Shares to the Company with (a) a written request to the Company, describing briefly the manner of any such proposed transfer (for example, to its own affiliate,
subsidiary, or shareholders); and (b) (i) an opinion from the Holder’s counsel that such transfer can be made without compliance with the registration requirements of the Securities Act of 1933 and applicable state securities laws, or
(ii) an applicable registration statement is filed by the Company under the Securities Act of 1933 and applicable state securities laws is declared effective by the Securities and Exchange Commission and state securities commissions having
jurisdiction and receiving approval from the Company. After reviewing the request, and collaborating with appropriate counsel, the Company shall respond with its written approval, an explanation as to why the transfer may not occur, or a request for
further documentation. If 

  

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the Company approves the transfer, the Company shall reissue the Note or Conversion Shares as indicated in the request, or as modified if required by the
Company or applicable law, and register such on the Company’s books. 
  
 6. Currency: Payments. All references herein to “dollars” or “$” are to U.S. dollars, and all payments of principal of and interest on this Note shall be made in lawful money of the United
States of America in immediately available funds. If the date on which any such payment is required to be made pursuant to the provisions of this Note occurs on a Saturday or Sunday or legal holiday observed in the State of California, such payments
shall be due and payable on the immediately succeeding date which is not a Saturday or Sunday or legal holiday so observed. 
  
 7. Waiver. The Company expressly waives presentment, protest, demand, notice of dishonor, notice of nonpayment, notice of maturity, notice of
protest, presentment for the purpose of accelerating maturity, and diligence in collection. 
  
 8. Jurisdiction. The Company consents to the exclusive jurisdiction of the state and federal courts of California for any legal action, suit or proceeding arising out of or in connection with this Note, and
agrees that any such action, suit, or proceeding may be brought only in such courts. The Company further waives any objection to the laying of venue for any suit, action or proceeding in such courts. The Company agrees to accept and acknowledge
service of any and all process that may be served in any suit, action or proceeding. The Company agrees that any service of process mailed by registered or certified mail, return receipt requested to the Company at the address set forth below shall
be deemed in every respect effective service of process upon such party in any such suit, action or proceeding. 
  
 9. Attorneys’ Fees and Costs. In the event of any legal proceedings in connection with this Note, all expenses in connection with such legal
proceedings of the prevailing party, including reasonable legal fees and applicable costs and expenses, shall be reimbursed by the non-prevailing party upon demand. This provision shall not merge with any enforcement order or judgment on this Note
and shall be applicable to any proceeding to enforce or appeal any judgment relating to the Note. 
  
 10. Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof. 
  
 11. Successors
and Assigns. This Note shall inure to the benefit of the Holder and its successors and permitted assigns and shall be binding upon the undersigned and its successors and permitted assigns. As used herein, the term “Holder” shall mean
and include the successors and permitted assigns of the Holder. 
  
 12. Governing Law. The parties acknowledge and agree that this Note and the rights and obligations of all parties hereunder shall be governed by and construed under the laws of the State of California, without regard to conflict of
laws principles. 
  

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 13. Headings. The headings in this Note are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof. 
  
 14.
Modification. This Note may not be modified or amended orally, but only by an agreement in writing signed by the party against whom such agreement is sought to be enforced. 
  

			
	 PHAGE BIOTECHNOLOGY CORPORATION,
 a Delaware corporation

		
	 	 	 
	 By:
	 	Daniel C. Montano
	 Its:
	 	President & CEO
	 Address:
	 	101 Academy, Ste. 120 Irvine, CA 92617


  

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 Exhibit A 
  

NOTICE OF CONVERSION 
  

	 	TO:	Phage Biotechnology Corporation 

  
 Pursuant to Paragraph 3(b) of that certain Series “P” Convertible Promissory Note (the “Note”), the undersigned Holder of the Note
hereby: (i) irrevocably exercises the option to convert the entire unpaid principal balance of the Note for that number of shares of Common Stock of Phage Biotechnology Corporation equal to the aggregate principal amount of the Note divided by
the Conversion Price (as defined in Paragraph 3(a) of the Note) (the “Conversion Shares”) in accordance with the terms of the Note and (ii) directs that such Conversion Shares deliverable upon the conversion, together with any check
in payment for fractional shares, be issued and delivered to the registered holder of the Note unless a different name has been indicated below. If Conversion Shares are to be delivered or registered in the name of a person other than the
undersigned the person in whose name the Conversion Shares will be issued represents and warrants that he or she is such person and that the representations and warranties made in the Note are true and correct as of the date of conversion.

  

					
			
	 Dated: ______________
	 	 	 	  
	 	 	 	 	Signature

  
 Please complete all information
below. Provide the name exactly as it is to appear on the Conversion Shares (if different from the “Holder” name as it appears on the front of the Note). Provide the exact mailing address to deliver the Conversion Shares. Please use
the space below to provide any further instructions necessary to facilitate the conversion or delivery. 
  
 PLEASE PRINT 
  

	
	
	 
	 Social Security or Other
 Taxpayer Identifying Number



  

	
	
	  
	(Name)
	
	  
	(Street Address)
	
	  
	(City, State and Zip Code)
	
	  
	(Country)
	
	  
	(Telephone)

  

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