UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): June 19,
2020
GT Biopharma, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-08092
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94-1620407
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(State
or other jurisdiction of incorporation or
organization)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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9350 Wilshire Blvd. Suite 203
Beverly Hills, CA 90212
Phone: (800) 304-9888
(Address,
including zip code, and telephone number, including area code,
of
registrant’s
principal executive offices)
N/A
(Former
name, former address and former fiscal year, if changed since last
report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2.
below):
☐ Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule l 4a- l 2 under
the Exchange Act ( 17 CFR 240. l 4a- l 2)
☐ Pre-commencement communications pursuant to Rule l
4d-2(b) under the Exchange Act (17 CFR 240. l 4d-2(b))
☐ Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240. l
3e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol
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Name of exchangeon which registered
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N/A
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N/A
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N/A
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of
1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
☐
Item 1.01.
Entry into a Material Definitive Agreement.
Settlement Agreement
On June 19, 2020, GT Biopharma, Inc. (the
“Company”)
entered into a settlement agreement (the “Settlement
Agreement”) with Empery
Asset Master Ltd., Empery Tax Efficient, LP and Empery Tax
Efficient II, LP (collectively, the “Empery
Funds”), Anthony Cataldo
and Paul Kessler resolving all remaining disputes between the
parties pertaining to certain convertible notes (the
“Original
Notes”) and warrants to
purchase common stock, par value $0.001 per share, of the Company
(the “common
stock”) (the
“Original
Warrants” and, together
with the Original Notes, the “Original
Securities”) issued by
the Company to the Empery Funds in January 2018. As previously
disclosed, the Empery Funds made various allegations regarding
failures by the Company to take certain actions required by the
terms of the Original Securities.
As a result of the Settlement Agreement, the Company has agreed to
pay the Empery Funds cash payments in an aggregate amount of
$200,000. In addition, pursuant to the Settlement Agreement, the
Company has agreed to issue the Empery Funds, solely in exchange
for the outstanding Original Securities, (i) an aggregate of
3,500,000 shares of common stock (the “Settlement
Shares”), (ii) pre-funded
warrants to purchase an aggregate of 5,500,000 shares of common
stock (the “Settlement
Warrants”) and (iii)
senior convertible notes in an aggregate principal amount of
$450,000 (the “Settlement
Notes” and, together with
the Settlement Shares and the Settlement Notes, the
“Settlement
Securities”). In
connection with the exchange, the Original Securities will be
cancelled and extinguished.
The Settlement Agreement also contains certain representations and
warranties and covenants, including rights of participation for the
Empery Funds to participate in certain future financing
transactions of the Company and limitations on future variable rate
transactions and “at-the-market
offerings.”
Settlement Notes
The Settlement Notes are convertible, at the option of the
applicable Empery Fund, at any time into shares of common stock at
an initial conversion rate of $0.20 per share, subject to certain
beneficial ownership limitations. The conversion price is also
subject to adjustment due to certain events, including stock
dividends, stock splits and in connection with the issuance by the
Company of common stock or common stock equivalents at an effective
price per share lower than the conversion rate then in effect. The
Settlement Notes have a term of six months, maturing on December
19, 2020, and bear interest at a rate of 10% per annum, subject to
increase to 18% per annum upon and during the occurrence of an
event of default. Interest is payable in cash or, at the
holder’s option, in shares of common stock based on the
conversion price then in effect.
Pursuant to the terms of the Settlement Notes, the Company is
required to make an offer to repurchase, at the option of each
Empery Fund, the Settlement Notes at price in cash equal to 100% of
the aggregate principal amount of the Note plus accrued and unpaid
interest, if any, to, but excluding, the date of repurchase
following the consummation by the Company of a capital raising
transactions, or a series of transactions, resulting in aggregate
gross proceeds to the Company in excess of $7.5 million. The
Company may not otherwise prepay the Settlement Notes without the
prior written consent of the applicable Empery Funds.
The Settlement Notes contain a number of other affirmative and
negative covenants and events of default (including events of
default related to certain change of control and other fundamental
change transactions). Following an event of default, the Settlement
Notes will become immediately due and payable in cash at a
mandatory default amount equal to 130% of the outstanding
principal amount of the Settlement Notes plus all other amounts,
costs and expenses due in respect of the Settlement
Notes.
Settlement Warrants
The Settlement Warrants expire on June 19, 2025 and provide for the
purchase of up to an aggregate of 5,500,000 shares of common stock
at an exercise price of $0.20 per share, subject to adjustment in
certain circumstances. The aggregate exercise price of the
Settlement Warrants was deemed to be pre-funded to the Company in
conjunction with each Empery Fund’s exchange of the Original
Securities pursuant to the Settlement Agreement. Exercise of the
warrant is subject to certain additional terms and conditions,
including certain beneficial ownership limitations.
The foregoing descriptions of the Settlement Agreement, Settlement
Notes and Settlement Warrants do not purport to be complete and are
qualified in their entirety by reference to the full text of the
Settlement Agreement, form of Settlement Note and form of
Settlement Warrant attached to this Current Report on Form 8-K as
Exhibits 10.1, 10.2 and 10.3, respectively, and incorporated by
reference into this Item 1.01. Each Empery Fund was issued a
Settlement Note and Settlement Warrant in the amounts set forth on
Schedule I to the Settlement Agreement.
Item 2.03. Creation of a Direct
Financial Obligation or an Obligation under an Off Balance Sheet
Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on
Form 8-K is incorporated by reference into this Item
2.03.
Item 3.02. Unregistered Sales
of Equity Securities.
The information set forth in Item 1.01 of this Current Report on
Form 8-K is incorporated by reference into this Item
3.02.
The issuance of the Settlement Securities in exchange for the
Original Securities is being made in reliance in reliance upon the
exemption from registration provided by Section 3(a)(9) of the
Securities Act of 1933, as amended.
Item 9.01. Financial Statements
and Exhibits.
(d) Exhibits
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Settlement
Agreement, dated as of June 19, 2020, among GT Biopharma, Inc.,
Empery Asset Master Ltd., Empery Tax Efficient, LP and Empery Tax
Efficient II, LP, Anthony Cataldo and Paul Kessler.
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Form
of Convertible Note, dated June 19, 2020 (included in Exhibit
10.1).
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Form
of Pre-Funded Warrant to Purchase Common Stock, dated June 19, 2020
(included in Exhibit 10.1).
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SIGNATURE PAGE
Pursuant
to the requirement of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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GT Biopharma, Inc.
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Dated:
June 19, 2020
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By:
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/s/
Steven Weldon
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Steven
Weldon
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Chief
Financial Officer
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SETTLEMENT AGREEMENT
This
Settlement Agreement (the “Agreement”) is made and
entered into by and among Empery Asset Master Ltd., Empery Tax
Efficient, LP and Empery Tax Efficient II, LP (collectively, the
“Empery
Funds”), GT Biopharma Inc. (“GT Biopharma”), Anthony
Cataldo (“Cataldo”) and Paul
Kessler (“Kessler”). The Empery
Funds, GT Biopharma, Cataldo and Kessler are each referred to as a
“Party”
and, collectively, as “Parties.”
WHEREAS, on January 22, 2018, the Empery
Funds and GT Biopharma executed a Securities Purchase Agreement
(the “SPA”) pursuant to which
the Empery Funds purchased from GT Biopharma senior convertible
notes (the “Original
Notes”) and warrants (the “Original Warrants”) to
purchase shares of GT Biopharma’s common stock, par value
$0.001 per share (the “Common
Stock”);
WHEREAS, Anthony Cataldo was during
certain relevant times Chairman of GT Biopharma’s Board of
Directors, and Paul Kessler was and is a shareholder of GT
Biopharma;
WHEREAS, a dispute arose between GT
Biopharma and the Empery Funds regarding GT Biopharma’s
obligations under the terms of the SPA and the Original Notes and
Original Warrants issued thereunder;
WHEREAS, on August 1, 2018, GT Biopharma
commenced an action against the Empery Funds captioned GT Biopharma Inc., v. Empery Asset Master
LTD., et al., Case No. 1:18-cv-06970 (GDB) (S.D.N.Y.) (the
“SDNY
Action”), alleging, inter alia, that the Empery Funds had
improperly sold short GT Biopharma securities;
WHEREAS, on August 27, 2018, Cataldo
commenced an action against the Empery Funds captioned Anthony Cataldo v. Empery Asset Master LTD.,
et al., Case No. SC129731 (Sup. Ct. Cal.) (the
“California
Action”), alleging, inter alia, that the Empery Funds had
tortuously interfered with Cataldo’s employment agreement by
suggesting to GT Biopharma’s placement agent that GT
Biopharma should “bolster” its management, and by
engaging in the short selling alleged in the SDNY
Action;
WHEREAS, the Empery Funds promptly
provided GT Biopharma with trading records and third-party
affidavits, demonstrating that the Empery Funds had not engaged in
any of the trading alleged in either of the SDNY Action or
California Action;
WHEREAS, on October 3, 2018, GT
Biopharma voluntarily dismissed the SDNY Action against the Empery
Funds without prejudice;
WHEREAS, on December 24, 2018, the
Empery Funds commenced an action against GT Biopharma captioned
Empery Asset Master LTD., et al.,
v. GT Biopharma, Inc., Index No. 656408/2018 (Sup. Ct. N.Y.
Cnty.) (as amended, the “New York Action”),
alleging, inter alia, that
GT Biopharma was in breach of certain of its obligations under the
SPA (the New York Action, together with the SDNY Action and the
California Action, are referred to herein as the
“Litigations”);
WHEREAS, the New York Action was amended
by the Empery Funds to assert claims against Kessler for tortious
interference with the SPA and defamation;
WHEREAS, on February 8, 2019, Cataldo
dismissed the California Action with prejudice against the Empery
Funds;
WHEREAS, the Parties desire to fully
settle and resolve all remaining issues, claims and causes of
action that were raised, or that could have been raised, relating
in every and any way to the Litigations and their relationship to
each other, to avoid further expense and inconvenience of
litigation, without any admission of liability or wrongdoing on the
part of GT Biopharma, Cataldo or Kessler;
WHEREAS, GT Biopharma, Cataldo, and
Kessler deny each and every one of the Empery Funds’
allegations of wrongful conduct, and deny that any conduct
challenged by the Empery Funds caused any damage whatsoever, and
have asserted a number of defenses to the Empery Funds’
claims;
WHEREAS, the Parties agree that this
Agreement shall not be deemed or construed to be an admission or
evidence of any violation of any statute or law or of any liability
or wrongdoing by GT Biopharma, Cataldo or Kessler, or of the truth
of any claim or allegation or a waiver of any defenses
thereto;
AND WHEREAS, the Parties, each acting on
his, her or its own behalf, have approved of the settlement terms
described below.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, including in return for the promises and covenants
undertaken by the Parties herein and the releases given herein, the
Parties agree as follows:
1. Settlement
Exchange:
a. Settlement Payment: Within
three (3) Business Days of the date on which this Agreement is
fully executed, GT Biopharma shall pay to each Empery Fund a cash
payment in the amount set forth opposite such Empery Fund’s
name in column (2) of Schedule 1 attached hereto, for
an aggregate amount of $200,000 (the “Settlement Payment”). The
Settlement Payment will be made to each Empery Fund via wire
transfer of immediately available funds in accordance with the wire
transfer information set forth opposite such Empery Fund’s
name in column (3) of Schedule I attached
hereto.
b. Settlement Shares, Settlement Warrants
and Settlement Notes: Within three (3) Business Days of the
date on which this Agreement is fully executed, GT Biopharma shall:
(x) credit the number of shares of Common Stock as set forth
opposite each Empery Fund’s name in column (4) of
Schedule 1 attached
hereto (the “Settlement Shares”) to
the balance account of such Empery Fund with The Depository Trust
Company through its Deposit / Withdrawal at Custodian system in
accordance with the DWAC Instructions set forth opposite such
Empery Fund’s name in column (5) of Schedule 1 attached hereto; (y)
issue and deliver to each Empery Fund pre-funded warrants to
purchase a number of shares of Common Stock as set forth opposite
such Empery Fund’s name in column (6) of Schedule 1 attached hereto,
each in the form attached hereto as Exhibit A (each, a
“Settlement
Warrant” and collectively, the “Settlement Warrants”) to
the address set forth opposite such Empery Fund’s name in
column (8) of Schedule
1 attached hereto, and the aggregate exercise price of such
Settlement Warrants is hereby deemed to be pre-funded to the
Company on a cashless basis in conjunction with each Empery
Fund’s exchange of Original Notes and Original Warrants
pursuant to this Agreement in full payment for the Settlement
Warrant Shares (as defined below) (including, for the avoidance of
doubt, the par value thereof); and (z) issue and deliver to each
Empery Fund an aggregate principal amount of senior convertible
notes as set forth opposite such Empery Fund’s name in column
(7) of Schedule 1
attached hereto, each in the form attached hereto as Exhibit B (each, a
“Settlement
Note” and collectively, the “Settlement Notes” and,
together with the Settlement Shares and Settlement Warrants, the
“Settlement
Securities”) to the address set forth opposite such
Empery Fund’s name in column (8) of Schedule 1 attached hereto,
solely in exchange for the Original Notes and Original Warrants
held by such Empery Fund. The date on which the Settlement Shares,
the Settlement Warrants and the Settlement Notes are delivered to
the Empery Funds is hereinafter referred to as the
“Exchange
Date.” As used herein, “Business Day” means any
day other than a Saturday, Sunday or other day on which commercial
banks in The City of New York are authorized or required to remain
closed.
c. Original Notes and Original
Warrants: Effective upon receipt of, and solely in exchange
for, the Settlement Shares, the Settlement Warrants and Settlement
Notes, the Original Notes and Original Warrants held by the Empery
Funds, and the SPA, will be deemed cancelled and extinguished and
all rights of the Empery Funds thereunder will terminate. Promptly
following the Exchange Date, but in any event within ten (10)
Business Days thereafter, the Empery Funds shall return the
Original Notes and Original Warrants to GT Biopharma for
cancellation. The Parties acknowledge and agree that the exchange
of the Original Notes and Original Warrants for the Settlement
Shares, Settlement Notes and Settlement Warrants is being made in
reliance upon the exemption from registration provided by Section
3(a)(9) of the Securities Act of 1933, as amended (the
“1933
Act”).
2. Dismissal of New York Action With
Prejudice: No later than three (3) Business Days following
the Exchange Date, and in consideration for the Settlement Payment,
the Empery Funds shall provide to GT Biopharma and Kessler a fully
executed stipulation for the dismissal of the New York Action, with
prejudice and on the merits, in the form attached hereto as
Exhibit C (the
“Stipulation”). No later
than two (2) Business Days following GT Biopharma’s and
Kessler’s receipt of the fully executed Stipulation from the
Empery Funds, the Empery Funds shall file the fully executed
Stipulation with the Court.
3. Releases
and Covenant Not to Sue:
a. Empery Funds Releases: The
Empery Funds on their own behalf and for and on behalf of each of
their parent companies, subsidiaries, and direct or indirect
affiliates, and any and all of their respective present, former,
and future general partners, limited partners, officers, directors,
shareholders, managers, members, trustees, employees, consultants,
attorneys, and other agents in their respective capacities as such,
and the heirs, executors, administrators, successors, and assigns
of each of them (collectively, the “Empery Funds Releasors”),
hereby completely and irrevocably releases and forever and finally
discharges any and all claims, rights, demands, obligations, causes
of action, counterclaims, defenses, rights of setoff, rights of
rescission, liens, disputes, damages, liabilities, debts, costs,
expenses (including attorneys’ fees), payments, capital
contributions, fees, bonds, covenants, contracts, agreements,
judgments, charges, or losses of any kind or character whatsoever,
in law or equity, whether presently known or unknown, asserted or
unasserted, fixed or contingent, in contract, tort, or otherwise,
that any of the Empery Funds Releasors had, presently may have or
may have in the future against GT Biopharma, Cataldo, or Kessler,
as well as, to the extent applicable, each of their respective
parent companies, subsidiaries, direct and indirect affiliates, and
any and all of their respective present, former and future
officers, directors, shareholders, managers, members, partners,
employees, consultants, attorneys, and other agents in their
respective capacities as such (collectively, the
“GT Biopharma and
Individual Released Parties”), arising out of or by
reason of any cause, matter, or thing relating to the Litigations.
The release shall apply to Claims whether arising under any
statute, rule or regulation, or under the law of any country,
state, province, territory, or any other jurisdiction, or under
principles of contract law, common law, or equity; provided that,
and consistent with Section 3(f) of this Agreement, nothing herein
shall release claims arising out of this Agreement.
b. GT Biopharma’s Releases.
GT Biopharma on its own behalf and for and on behalf of its parent
companies, subsidiaries, and direct or indirect affiliates, and any
and all of their respective present, former, and future general
partners, limited partners, officers, directors, shareholders,
managers, members, trustees, employees, consultants, attorneys, and
other agents in their respective capacities as such, and the heirs,
executors, administrators, successors, and assigns of each of them
(collectively, the “GT Biopharma Releasors”),
hereby completely and irrevocably releases and forever and finally
discharges any and all claims, rights, demands, obligations, causes
of action, counterclaims, defenses, rights of setoff, rights of
rescission, liens, disputes, damages, liabilities, debts, costs,
expenses (including attorneys’ fees), payments, capital
contributions, fees, bonds, covenants, contracts, agreements,
judgments, charges, or losses of any kind or character whatsoever,
in law or equity, whether presently known or unknown, asserted or
unasserted, fixed or contingent, in contract, tort, or otherwise,
that any of the GT Biopharma Releasors had, presently may have or
may have in the future against the Empery Funds, as well as each of
the Empery Funds’ investment managers, subsidiaries, and
direct or indirect affiliates, and any and all of their respective
direct or indirect present, former and future officers, directors,
shareholders, managers, members, partners, employees, consultants,
attorneys, and other agents in their respective capacities as such
(collectively, the “Empery Funds Released
Parties”), arising out of or by reason of any cause,
matter, or thing relating or ancillary to: (i) the Litigations
(including each of the Empery Funds’ status as holder of the
Original Notes and/or the Original Warrants), (ii) the status of
each of the Empery Funds as a holder of the Settlement Shares,
Settlement Warrants and/or the Settlement Notes, or (iii) the
status of each of the Empery Funds as a party to this Agreement
and/or the SPA. The releases shall apply to Claims whether arising
under any statute, rule or regulation, or under the law of any
country, state, province, territory, or any other jurisdiction, or
under principles of contract law, common law, or equity; provided
that, consistent with Section 3(f) of this Agreement, nothing in
this release shall release claims arising out of this Agreement or
any Settlement Documents (as defined in Section 6(a) of this
Agreement). For the avoidance of doubt, with respect to the SDNY
Action, the release in this Section 3(b) shall have the same effect
as a dismissal of the SDNY Action with prejudice.
c. Cataldo and Kessler Releases.
Cataldo and Kessler on their own behalf and for and on behalf of
each of their respective present, former, and future general
partners, limited partners, employees, consultants, attorneys, and
other agents in their respective capacities as such, and the heirs,
executors, administrators, successors, and assigns of each of them
(collectively, the “Individual Releasors”),
hereby completely and irrevocably release and forever and finally
discharge any and all claims, rights, demands, obligations, causes
of action, counterclaims, defenses, rights of setoff, rights of
rescission, liens, disputes, damages, liabilities, debts, costs,
expenses (including attorneys’ fees), payments, capital
contributions, fees, bonds, covenants, contracts, agreements,
judgments, charges, or losses of any kind or character whatsoever,
in law or equity, whether presently known or unknown, asserted or
unasserted, fixed or contingent, in contract, tort, or otherwise,
that any of the Individual Releasors had, presently may have or may
have in the future against Empery Funds Released Parties, arising
out of or by reason of any cause, matter, or thing relating or
ancillary to: (i) the Litigations (including each of the Empery
Funds’ status as a holder of the Original Notes and/or
Original Warrants), (ii) the status of each of the Empery Funds as
a holder of the Settlement Shares, the Settlement Warrants and/or
the Settlement Notes, or (iii) the status of each of the Empery
Funds as a party to this Agreement and/or the SPA. The releases
shall apply to Claims whether arising under any statute, rule or
regulation, or under the law of any country, state, province,
territory, or any other jurisdiction, or under principles of
contract law, common law, or equity; provided that nothing in this
release shall release claims arising out of this
Agreement.
d. Covenant Not to Sue; Defense:
Except as necessary to enforce this Agreement and the Settlement
Documents, each Party on its own behalf and on behalf of any other
Person purporting to act by, through or on behalf of such Party,
hereby covenants, represents, and warrants that it will forever
refrain from suing to enforce or to recover, directly or
indirectly, under any claims released by this Agreement, to the
extent such releases become effective. This Agreement may be
pleaded as a full and complete defense to, and may be used as the
basis for an injunction against any action, suit or other
proceeding which may be instituted, prosecuted or attempted in
breach of the undertakings contained here. As used herein,
“Person” means an
individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization,
any other entity and any government or any department or agency
thereof.
e. Unknown Claims: The Parties
each acknowledge that he, she or it may discover facts in addition
to or different from those that he, she or it now knows or believes
to be true with respect to the matters released herein, but that it
is the express intention of the Parties, except as necessary to
enforce this Agreement and the Settlement Documents, to fully,
finally and forever settle and release any and all claims released
hereby, known or unknown, suspected or unsuspected, which now
exists, heretofore existed, or may hereafter exist, and without
regard to the subsequent discovery or existence of such additional
or different facts. Except that Bristol Investment Fund, Ltd., and
its affiliated entities, do not release or discharge any claims
they may have, now or in the future, as to GT Biopharma and
unrelated to the Litigations. In furtherance of this intention, the
Parties each acknowledge that they have been advised of and
expressly waive any and all provisions, rights and benefits of
California Civil Code Section 1542, which provides:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY
HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.
The
Parties shall also be deemed expressly to have waived any and all
provisions, rights and benefits conferred by any law of any state
or territory of the United States, or principle of common law,
which is similar, comparable, or equivalent to California Civil
Code Section 1542 or that would otherwise limit the releases and
waivers contained in this Agreement.
The
Parties each acknowledge that the foregoing waiver was separately
bargained for and an integral aspect of the settlement of which
this release is a part.
f. Enforcement of This Agreement:
For the avoidance of doubt, notwithstanding the foregoing or any
other provisions of this Agreement, the releases and covenants not
to sue in this Section 3 shall not apply to any disputes or claims
that may arise in the future relating to the enforcement of the
terms of this Agreement or the Settlement Documents issued pursuant
thereto.
4. Acknowledgment of Empery Funds’
Alleged Trading: GT Biopharma, Cataldo and Kessler each
hereby acknowledge that the Empery Funds did not engage in short
selling alleged in the SDNY Action or the California
Action.
5. No Admission: It is understood
and agreed that this Agreement is a compromise and settlement of
the claims released herein, and it shall not be construed as an
admission, concession, or indication of the validity of any claim,
defense, liability, obligation, or wrongdoing. For the avoidance of
doubt, the Acknowledgment of Empery Funds’ Alleged Trading in
Section 4 of this Agreement does not modify in any way the releases
and covenants not to sue in Section 3 of this Agreement, and,
accordingly, the acknowledgment in Section 4 of this Agreement
shall not serve as the basis for any future claim. Nor will the
Parties argue in or before any court, administrative agency,
tribunal, or make any public statement whatsoever, that this
Agreement or the acknowledgment in Section 4 of this Agreement is
or may be construed as an admission by GT Biopharma, Cataldo, or
Kessler of any wrongdoing or liability.
6. Representations
and Covenants of GT Biopharma
a. Authorization; Enforcement;
Validity. GT Biopharma has the requisite power and authority
to enter into and perform its obligations under this Agreement, the
Settlement Notes, the Settlement Warrants and each of the other
agreements, instruments, certificates or documents entered into by
the parties hereto in connection with the transactions contemplated
by this Agreement (collectively, the “Settlement Documents”)
and to issue the Settlement Shares, the Settlement Warrants and
Settlement Notes in exchange for the Original Notes and Original
Warrants, all in accordance with the terms hereof and thereof. The
execution and delivery of this Agreement and the other Settlement
Documents by GT Biopharma and the consummation by GT Biopharma of
the transactions contemplated hereby and thereby, including,
without limitation, the issuance of the Settlement Shares, the
Settlement Warrants and Settlement Notes, have been duly authorized
by GT Biopharma’s Board of Directors, and no further filing,
consent, or authorization is required by GT Biopharma, its Board of
Directors or its stockholders. This Agreement and the other
Settlement Documents are duly executed and delivered by GT
Biopharma, and constitute the legal, valid and binding obligations
of GT Biopharma, enforceable against GT Biopharma in accordance
with their respective terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
b. Issuance of Securities. In each
case subject to the terms of the Settlement Documents, the issuance
of the Settlement Shares, the Settlement Warrants and the
Settlement Notes are duly authorized and, upon issuance in
accordance with the terms hereof, shall be validly issued, fully
paid and free from all preemptive or similar rights, taxes, liens
and charges and other encumbrances with respect to the issue
thereof and the Common Stock issued pursuant to the Settlement
Warrants and the Settlement Notes shall be validly issued, fully
paid and non-assessable and free from all preemptive or similar
rights, taxes, liens, charges and other encumbrances with respect
to the issue thereof, with the holder of the Settlement Shares, the
Settlement Warrant Shares and the Settlement Conversion Shares (as
defined below) being entitled to all rights accorded to a holder of
Common Stock. The Settlement Shares, the Settlement Warrants and
the Settlement Notes and the Common Stock issued pursuant to the
Settlement Warrants and the Settlement Notes will not bear any
restrictive legend under applicable securities laws, rules and
regulations. For the purposes of Rule 144 promulgated under the
1933 Act, GT Biopharma acknowledges that the holding period of the
Settlement Shares, the Settlement Warrants and the Settlement Notes
may be tacked onto the holding period of the Original Notes and the
Original Warrants and GT Biopharma agrees not to take a position
contrary to this Section 6(b). As of the Exchange Date, a number of
shares of Common Stock shall have been duly authorized and reserved
for issuance which equals or exceeds (the “Required Reserved
Amount”) the sum of (i) 150% of the maximum number of
shares of Common Stock issuable pursuant to the terms of the
Settlement Notes (the “Settlement Conversion
Shares”) based on the initial Conversion Price (as
defined in the Settlement Notes) (without taking into account any
limitations on the issuance thereof pursuant to the terms of the
Settlement Notes) and (ii) the maximum number of shares of Common
Stock issuable upon exercise of the Settlement Warrants (the
“Settlement Warrant
Shares”) (without taking into account any limitations
on the exercise of the Warrants set forth in the Warrants). As of
the date hereof, there are 679,300,567 shares of Common Stock
authorized and unissued. So long as any Empery Funds owns any
Settlement Warrants and/or Settlement Notes, GT Biopharma shall
take all action necessary to at all times have authorized, and
reserved for the purpose of issuance, no less than the Required
Reserve Amount. If at any time the number of shares of Common
Stock authorized and reserved for issuance is not sufficient
to meet the Required Reserved Amount, GT Biopharma will promptly
take all corporate action necessary to authorize and reserve a
sufficient number of shares, including, without limitation, calling
a special meeting of stockholders to authorize the
reservation of additional shares to meet the GT Biopharma’s
obligations under this Section 6(b), and, in the case of an
insufficient number of authorized shares,
obtain stockholder approval of an increase in such
authorized number of shares, and voting the management shares of GT
Biopharma in favor of an increase in the authorized shares of GT
Biopharma to ensure that the number of authorized shares is
sufficient to meet the Required Reserved Amount.
c. No Conflicts. The execution,
delivery and performance of the Settlement Documents by GT
Biopharma and the consummation by GT Biopharma of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance of the Settlement Shares, the Settlement Warrants and/or
Settlement Notes) will not (i) result in a violation of the
certificate of incorporation of GT Biopharma or its bylaws, any
memorandum of association, certificate of incorporation,
certificate of formation, any certificate of designations or other
constituent documents of GT Biopharma or any of its Subsidiaries
(as defined in the Settlement Notes), any capital stock of GT
Biopharma or any of its Subsidiaries or the articles of association
or bylaws of GT Biopharma or any of its Subsidiaries, (ii) conflict
with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) in any respect under,
or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or
instrument to which GT Biopharma or any of its Subsidiaries is a
party, or (iii) result in a violation of any law, rule, regulation,
order, judgment or decree (including other foreign, federal and
state securities laws and regulations and the rules and regulations
of the OTC QB (the “Principal Market”) and
including all applicable laws of the State of Delaware and any
foreign, federal and state laws, rules and regulations) applicable
to GT Biopharma or any of its Subsidiaries or by which any property
or asset of GT Biopharma or any of its Subsidiaries is bound or
affected, except, in the case of clauses (ii) and (iii) above,
where such conflict, violation or default would not result,
individually or in the aggregate, in a Material Adverse Effect (as
defined below).
d. Consents. GT Biopharma is not
required to obtain any consent, authorization or order of, or make
any filing or registration with, any court, governmental agency or
any regulatory or self-regulatory agency or any other Person in
order for it to execute, deliver or perform any of its obligations
under or contemplated by the Settlement Documents, in each case in
accordance with the terms hereof or thereof, other than (i) the
filings required pursuant to Section 6(j) of this Agreement, (ii)
the notice and/or application(s), if any, required to be delivered
pursuant to Section 6(k) of this Agreement and (iii) those already
obtained or effected on or prior to the date hereof. GT Biopharma
is not in violation of the listing requirements of the Principal
Market and has no knowledge of any facts or circumstances that
would reasonably lead to delisting or suspension of the Common
Stock on the Principal Market in the foreseeable future. The
issuance by GT Biopharma of the Settlement Shares, the Settlement
Warrants or Settlement Notes shall not have the effect of delisting
or suspending the Common Stock from the Principal
Market.
e. FAST Compliance. While any
Settlement Shares, Settlement Warrants or Settlement Notes are
outstanding, GT Biopharma shall maintain a transfer agent that
participates in the DTC Fast Automated Securities Transfer
Program.
f. Right of
Participation.
i. (a) Until the
first date that (i) less than 10% of the aggregate amount of
the Settlement Notes are outstanding and (ii) no Event of Default
(as defined in the Settlement Notes) nor an event which with the
passage of time or the giving of notice could become an Event of
Default is pending, upon any proposed financing through the
issuance by GT Biopharma or any of its Subsidiaries of Common
Stock, Common Stock Equivalents (as defined below), Indebtedness
(as defined below) or a combination thereof, other than (i) a
rights offering to all holders of Common Stock which does not
include extending such rights offering to holders of Settlement
Notes or (ii) an Exempt Issuance (each a “Subsequent Financing”),
the Empery Funds shall have the right to participate in up to an
amount of the Subsequent Financing equal to 100% of the Subsequent
Financing (the “Participation Maximum”),
pro rata (i) to each other in proportion to the aggregate principal
amount of Settlement Notes issued to them pursuant to this
Agreement and (ii) to each other Person holding Permitted
Indebtedness (as defined in the Settlement Notes) and having a
similar right of participation in such Subsequent Financing, on the
conditions and price provided for in the Subsequent Financing,
unless the Subsequent Financing is an underwritten public offering,
in which case GT Biopharma shall notify each Empery Fund of such
public offering when it is lawful for GT Biopharma to do so, but no
Empery Fund shall be entitled to purchase any particular amount of
such public offering without the approval of the lead underwriter
of such underwritten public offering.
ii. At least ten (10)
Trading Days (as defined in the Settlement Notes) prior to the
closing of the Subsequent Financing, GT Biopharma shall deliver to
each Empery Fund a written notice of its intention to effect a
Subsequent Financing (“Pre-Notice”), which
Pre-Notice shall ask such Empery Fund if it wants to review the
details of such financing (such additional notice, a
“Subsequent
Financing Notice”). Upon the request of an Empery
Fund, and only upon a request by such Empery Fund, for a Subsequent
Financing Notice, GT Biopharma shall promptly, but no later than
one (1) Trading Day after such request, deliver a Subsequent
Financing Notice to such Empery Fund. The requesting Empery Fund
shall be deemed to have acknowledged that the Subsequent Financing
Notice may contain material non-public information. The Subsequent
Financing Notice shall describe in reasonable detail the proposed
terms of such Subsequent Financing, the amount of proceeds intended
to be raised thereunder and the Person or Persons through or with
whom such Subsequent Financing is proposed to be effected and shall
include a term sheet or similar document relating thereto as an
attachment.
iii. Any
Empery Fund desiring to participate in such Subsequent Financing
must provide written notice to GT Biopharma by not later than 5:30
p.m. (New York City time) on the tenth (10th) Trading Day after all
of the Empery Funds have received the Pre-Notice that such Empery
Fund is willing to participate in the Subsequent Financing, the
amount of such Empery Fund’s participation, and representing
and warranting that such Empery Fund has such funds ready, willing,
and available for investment on the terms set forth in the
Subsequent Financing Notice. If GT Biopharma receives no such
notice from an Empery Fund as of such tenth (10th) Trading Day,
such Empery Fund shall be deemed to have notified GT Biopharma that
it does not elect to participate.
iv. If by 5:30 p.m.
(New York City time) on the fifteenth (15th) Trading Day after all
of the Empery Funds have received the Pre-Notice, notifications by
the Empery Funds of their willingness to participate in the
Subsequent Financing (or to cause their designees to participate)
is, in the aggregate with similar notifications from all other
Persons holding Permitted Indebtedness and having similar rights of
participation in the Subsequent Financing, less than the total
amount of the Participation Maximum of the Subsequent Financing,
then GT Biopharma may affect the remaining portion of such
Subsequent Financing on the terms and with the Persons set forth in
the Subsequent Financing Notice and the Empery Funds shall
simultaneously affect their portion of such Subsequent Financing as
set forth in their notifications to GT Biopharma consistent with
the terms set forth in the Subsequent Financing
Notice.
v. If by 5:30 p.m.
(New York City time) on the fifth (5th) Trading Day after all of
the Empery Funds have received the Pre-Notice, GT Biopharma
receives responses to a Subsequent Financing Notice from Empery
Funds, seeking to purchase more than the aggregate amount of the
Participation Maximum, each such Empery Funds shall have the right
to purchase its Pro Rata Portion (as defined below) of the
Participation Maximum. “Pro Rata Portion” means the
ratio of (x) the principal amount of the Settlement Notes issued
hereunder to an Empery Fund participating under this Section 6(f)
and (y) the sum of the aggregate principal amounts of Settlement
Notes issued hereunder to all Empery Funds participating under this
Section 6(f) plus
the sum of the aggregate principal amount of Permitted Indebtedness
held by other Persons who have elected to participate in the
Subsequent Financing under rights of participation similar to this
Section 6(f).
vi. GT Biopharma must
provide the Empery Funds with a second Subsequent Financing Notice,
and the Empery Funds will again have the right of participation set
forth above in this Section 6(f), if the Subsequent Financing
subject to the initial Subsequent Financing Notice is not
consummated for any reason on the terms set forth in such
Subsequent Financing Notice within sixty (60) Trading Days after
the date of the initial Subsequent Financing Notice.
vii. GT
Biopharma and each Empery Funds agree that if any Empery Fund
elects to participate in the Subsequent Financing, the transaction
documents related to the Subsequent Financing shall not include any
term or provision whereby such Empery Fund shall be required to
agree to any restrictions on trading as to any of the securities
issued hereunder (for avoidance of doubt, the securities purchased
in the Subsequent Financing shall not be considered securities
purchased hereunder) or be required to consent to any amendment to
or termination of, or grant any waiver, release or the like under
or in connection with, this Agreement, without the prior written
consent of such Empery Fund.
viii. Notwithstanding
anything to the contrary in this Section 6(f) and unless otherwise
agreed to by such Empery Fund, GT Biopharma shall either confirm in
writing to such Empery Fund that the transaction with respect to
the Subsequent Financing has been abandoned or shall publicly
disclose its intention to issue the securities in the Subsequent
Financing, in either case in such a manner such that such Empery
Fund will not be in possession of any material, non-public
information, by the seventeenth (17th) Trading Day following
delivery of the Subsequent Financing Notice. If by such seventeenth
(17th) Trading Day, no public disclosure regarding a transaction
with respect to the Subsequent Financing has been made, and no
notice regarding the abandonment of such transaction has been
received by such Empery Funds, such transaction shall be deemed to
have been abandoned and such Empery Funds shall not be deemed to be
in possession of any material, non-public information with respect
to GT Biopharma or any of its Subsidiaries.
ix. For the purposes of
this Section 6(f): (x) “Common Stock Equivalents”
means any securities of GT Biopharma or its Subsidiaries which
would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock,
right, option, warrant or other instrument that is at any time
convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Stock;
(y)”Exempt
Issuance” means the issuance of (A) shares of Common
Stock or options to employees, officers or directors of GT
Biopharma pursuant to any stock or option plan duly adopted for
such purpose, by a majority of the non-employee members of the
Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (B) securities
exercisable or exchangeable for or convertible into shares of
Common Stock issued and outstanding on the date of this Agreement,
provided that such securities and any term thereof have not been
amended since the date of this Agreement to increase the number of
such securities or to decrease the issue price, exercise price,
exchange price or conversion price of such securities and which
securities and the principal terms thereof are described in the SEC
Documents (as defined below), (C) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of
the disinterested directors of GT Biopharma, provided that any such
issuance shall only be to a Person (or to the equity holders of a
Person) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the
business of GT Biopharma and shall be intended to provide to GT
Biopharma substantial additional benefits in addition to the
investment of funds, but shall not include a transaction in which
GT Biopharma is issuing securities primarily for the purpose of
raising capital or to an entity whose primary business is investing
in securities, (D) as set forth on Schedule 6(f), and (e)
securities issued or issuable to the Empery Funds and their assigns
pursuant to the Settlement Documents including without limitation,
this Section 6(f), or upon exercise, conversion or exchange of any
such securities.
g. Solvency. As of the date
hereof, neither GT Biopharma nor any of its Subsidiaries has taken
any steps to seek protection pursuant to any bankruptcy law nor
does GT Biopharma have knowledge that its creditors or its
Subsidiaries’ creditors intend to initiate involuntary
bankruptcy proceedings or knowledge of any fact which would
reasonably lead a creditor to do so. GT Biopharma,
individually, and GT Biopharma and its subsidiaries, on a
consolidated basis, are not as of the date hereof, and after giving
effect to the transactions contemplated hereby will not be,
Insolvent. As used herein,
“Insolvent”
means, with respect to any Person, (i) the present fair saleable
value of such Person’s assets is less than the amount
required to pay such Person’s total Indebtedness (as defined
in Section 6(o)), (ii) such Person is unable to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured, (iii) such Person
intends to incur or believes that it will incur debts that would be
beyond its ability to pay as such debts mature or (iv) such Person
has unreasonably small capital with which to conduct the business
in which it is engaged as such business is now conducted and is
proposed to be conducted.
h. Shell
Company Status. GT
Biopharma is not, and has never been,
an issuer identified in Rule 144(i)(1) of the 1933
Act.
i. SEC Filings. As of their
respective filing dates, GT Biopharma’s filings with the
United States Securities and Exchange Commission (the
“SEC”)
under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”) since January 23, 2018 (the “SEC Documents”), complied
in all material respects with the requirements of the Exchange Act
and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at
the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. GT Biopharma represents that,
as of the date hereof, no material event or circumstance has
occurred which would be required to be publicly disclosed or
announced on a Current Report on Form 8-K, either as of the date
hereof or solely with the passage of time by GT Biopharma but which
has not been so publicly announced or disclosed.
j. Disclosure of Transactions and Other
Material Information. GT Biopharma shall file a
current report on Form 8-K reasonably acceptable to the Empery
Funds (the “8-K
Filing”) on or before 8:30 a.m., New York City time,
on the first Business Day after this Agreement has been duly
executed and delivered, in the form required by the 1934 Act,
relating to the transactions contemplated by this Agreement and
attaching a form of this Agreement, the form of the Settlement
Warrant and the form of the Settlement Note (including, without
limitation, all schedules and exhibits to such agreement, if any)
as an exhibit to such filing. From and after the filing of
the 8-K Filing with the SEC, no Empery Fund shall be in possession
of any material, nonpublic information received from GT Biopharma,
any of its Subsidiaries or any of their respective officers,
directors, employees or agents that is not disclosed in the 8-K
Filing. In addition, effective upon the filing of the 8-K Filing,
GT Biopharma acknowledges and agrees that any and all
confidentiality or similar obligations under any agreement, whether
written or oral, between GT Biopharma, any of its Subsidiaries or
any of their respective officers, directors, employees or agents,
on the one hand, and any Empery Fund or any of their respective
affiliates, on the other hand, shall terminate and be of no further
force or effect. GT Biopharma shall not, and shall cause each of
its subsidiaries and its and each of their respective officers,
directors, employees and agents, not to, provide any Empery Fund
with any material, nonpublic information regarding GT Biopharma or
any of its subsidiaries from and after the date hereof without the
express prior written consent of such Empery Fund or as otherwise
contemplated hereby. To the extent that GT Biopharma, any of
its subsidiaries or any of their respective officers, directors,
affiliates employees or agents delivers any material, non-public
information to any Empery Fund without such Empery Fund’s
consent, GT Biopharma hereby covenants and agrees that no Empery
Fund shall have any duty of confidentiality to GT Biopharma, any of
its Subsidiaries or any of their respective officers, directors,
employees or agents with respect to, or a duty to GT Biopharma, any
of its Subsidiaries or any of their respective officers, directors,
employees or agents not to trade on the basis of, such material,
non-public information. GT Biopharma understands and confirms
that the Empery Funds will rely on the foregoing representations in
effecting transactions in securities of GT
Biopharma.
k. Listing. GT Biopharma
shall, if applicable, take all steps necessary to promptly secure
the listing or quotation of all of (i) Settlement Shares,
Settlement Conversion Shares and Settlement Warrant Shares without
regard to any limitation on the conversion of the Settlement Notes
or exercise of the Settlement Warrants and (ii) any capital stock
of GT Biopharma issued or issuable with respect to the Settlement
Shares, the Settlement Warrants, the Settlement Warrant Shares, the
Settlement Notes or the Settlement Conversion Shares, as
applicable, as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise (the
“Listed
Securities”) upon the Principal Market or any other
national securities exchange or automated quotation system, if any,
upon which the Common Stock is then listed and shall maintain such
listing of all Listed Securities. GT Biopharma shall pay all
fees and expenses in connection with satisfying its obligations
under this Section 6(k).
l. No Integration Actions. None of
GT Biopharma, any of its affiliates or any Person acting on behalf
of GT Biopharma or such affiliate will sell, offer for sale or
solicit offers to buy in respect of any security (as defined in the
1933 Act) that would be integrated with the issuance of the
Settlement Shares, the Settlement Warrants and Settlement Notes in
a manner that would require the registration under the 1933 Act of
the issuance to the Empery Funds or require shareholder approval
under the rules and regulations of the Principal Market, and GT
Biopharma will take all action that is appropriate or necessary to
assure that its offerings of other securities will not be
integrated for purposes of the 1933 Act or the rules and
regulations of the Principal Market with the issuance of the
Settlement Shares, the Settlement Warrants and Settlement Notes
contemplated hereby.
m. Additional Settlement Notes; Variable
Securities. For so long as any Settlement Notes remain
outstanding, GT Biopharma shall not, in any manner, (i) issue or
sell any rights, warrants or options to subscribe for or purchase
Common Stock or directly or indirectly convertible into or
exchangeable or exercisable for Common Stock at a price which
varies or may vary with the market price of the Common Stock,
including by way of one or more reset(s) to any fixed price unless
the conversion, exchange or exercise price of any such security
cannot be less than the then applicable Conversion Price with
respect to the Common Stock into which any Settlement Note is
convertible (collectively, “Variable Rate
Transactions”) or (ii) enter into any agreement, or
issue any securities pursuant to any agreement, including, without
limitation, an equity line of credit, at-the-market offering or
similar agreement, whereby GT Biopharma may issue securities at a
future determined price.
n. Corporate Existence. So long as
any Empery Fund beneficially owns any Settlement Warrants and/or
Settlement Notes, GT Biopharma shall (i) maintain its corporate
existence and (ii) not be party to any Fundamental Transaction (as
defined in the Settlement Warrants and the Settlement Notes) unless
GT Biopharma is in compliance with the applicable provisions
governing Fundamental Transactions set forth in the Settlement
Warrants and the Settlement Notes.
o. Indebtedness and Other
Contracts. Neither GT Biopharma nor any of its Subsidiaries
(i) except as disclosed in Schedule 6(o)(i) attached
hereto, has any outstanding Indebtedness as of the date hereof,
(ii) except as disclosed in Schedule 6(o)(ii) attached
hereto, is a party to any contract, agreement or instrument as of
the date hereof, the violation of which, or default under which, by
the other party(ies) to such contract, agreement or instrument
could reasonably be expected to result in a Material Adverse Effect
(as defined below), (iii) except as disclosed in Schedule 6(o)(iii) attached
hereto, is in violation of any term of or in default under any
contract, agreement or instrument relating to any Indebtedness as
of the date hereof, except where such violations and defaults would
not result, individually or in the aggregate, in a Material Adverse
Effect, or (iv) except as disclosed in Schedule 6(o)(iv) attached
hereto, is a party to any contract, agreement or instrument
relating to any Indebtedness as of the date hereof, the performance
of which, in the judgment of GT Biopharma’s officers, has or
is expected to have a Material Adverse Effect. Schedule 6(o) provides a
detailed description of the material terms of any such outstanding
Indebtedness as of the date hereof. For purposes of this Agreement:
(x) “Indebtedness” of any
Person means, without duplication (A) all indebtedness for borrowed
money, (B) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services, including, without
limitation, “capital leases” in accordance
with generally accepted
accounting principles, consistently applied, during the periods
involved (“GAAP”) (other than trade
payables entered into in the ordinary course of business consistent
with past practice), (C) all reimbursement or payment obligations
with respect to letters of credit, surety bonds and other similar
instruments, (D) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property,
assets or businesses, (E) all indebtedness created or arising under
any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to any property
or assets acquired with the proceeds of such indebtedness (even
though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or
sale of such property), (F) all monetary obligations under any
leasing or similar arrangement which, in connection with GAAP,
consistently applied for the periods covered thereby, is classified
as a capital lease, (G) all indebtedness referred to in clauses (A)
through (F) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any mortgage, deed of trust, lien, pledge, charge,
security interest or other encumbrance of any nature whatsoever in
or upon any property or assets (including accounts and contract
rights) with respect to any asset or property owned by any Person,
even though the Person which owns such assets or property has not
assumed or become liable for the payment of such indebtedness, and
(H) all Contingent Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses (A)
through (G) above; (y) “Contingent Obligation”
means, as to any Person, any direct or indirect liability,
contingent or otherwise, of that Person with respect to any
Indebtedness, lease, dividend or other obligation of another Person
if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid
or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such liability will be
protected (in whole or in part) against loss with respect thereto;
and (z) “Material
Adverse Effect” means any material adverse effect on
the business, properties, assets, liabilities, operations, results
of operations, condition (financial or otherwise) or prospects of
GT Biopharma and its Subsidiaries, taken as a whole, or on the
transactions contemplated hereby or on the other Settlement
Documents or by the agreements and instruments to be entered into
in connection herewith or therewith, or on the authority or ability
of GT Biopharma to perform any of its obligations under any of the
Settlement Documents.
p. Indemnification: To the fullest
extent permitted by law, GT Biopharma will, and hereby does,
indemnify, hold harmless and defend each of the Empery Funds, the
directors, officers, partners, members, employees, agents,
representatives of, and each Person, if any, who controls any
Investor within the meaning of the 1933 Act or the 1934 Act (each,
an “Indemnified
Person”), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs,
reasonable attorneys’ fees, amounts paid in settlement or
expenses, joint or several (collectively, “Claims”), incurred in
investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or
other regulatory agency, body or the SEC, whether pending or
threatened, whether or not an indemnified party is or may be a
party thereto (“Indemnified Damages”), to
which any of them may become subject insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of, relate to, or are based upon: (a) any
misrepresentation or breach of any representation or warranty made
by GT Biopharma in the Settlement Documents, (b) any breach of any
covenant, agreement or obligation of GT Biopharma contained in the
Settlement Documents or (c) any cause of action, suit or claim
brought or made against such Indemnified Person by a third party
(including for these purposes a derivative action brought on behalf
of GT Biopharma) and arising out of, resulting from, or ancillary
to: (i) the status of each of the Empery Funds as a holder of the
Original Notes and/or the Original Warrants; (ii) the execution,
delivery, performance or enforcement of the Settlement Documents,
(iii) the status of each of the Empery Funds as a holder of the
Settlement Shares, the Settlement Warrants and/or the Settlement
Notes, or (iv) the status of each of the Empery Funds as a party to
this Agreement and/or the SPA. For the avoidance of doubt, the
violations set forth in this Section 6(p) are intended to apply,
and shall apply, to direct claims between asserted by or against
any Indemnified Person, on the one hand, and GT Biopharma, on the
other, as well as any third party claims asserted by or against an
Indemnified Person. GT Biopharma shall reimburse the Indemnified
Persons, promptly as such expenses are incurred and are due and
payable, for any reasonable and invoiced legal fees or other
reasonable and invoiced expenses incurred by them in connection
with investigating or defending any such Claim.
7. Representations and Covenants of
Cataldo and Kessler:
a. Authorization; Enforcement;
Validity. Each of Cataldo and Kessler has the legal capacity
and right to execute, deliver, enter into and perform his
obligations under this Agreement and each of the other Settlement
Documents in accordance with the terms hereof and thereof. This
Agreement and the other Settlement Documents are duly executed and
delivered by each of Cataldo and Kessler, and constitute the legal,
valid and binding obligations of each of Cataldo and Kessler,
enforceable against Cataldo and Kessler in accordance with their
respective terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
8. Non Disparagement. Each of the
Empery Funds, GT Biopharma, Cataldo, and Kessler, severally and not
jointly, agrees that, from and after the execution of this
Agreement, each of them shall not make, publish or communicate, or
encourage any other Person to make, publish or communicate, any
Disparaging (as defined below) remarks, comments, or statements
concerning any other Person that is subject to, or a signatory of,
this Agreement. As used herein, “Disparaging” remarks,
comments or statements are those that impugn the character,
honesty, integrity, morality, or business acumen or abilities in
connection with any aspect of the operation of business of, or
reflect negatively upon, the individual or entity being disparaged.
Each of the Empery Funds, GT Biopharma, Cataldo, and Kessler,
severally and not jointly, further agrees that, from the execution
of this Agreement, they shall not encourage any other Person to
consider, threaten, or file any action, claim, suit, inquiry, or
proceeding against any Person that is subject to, or a signatory
of, this Agreement. This provision shall in no way limit the
ability of any party to enforce the Settlement Documents.
.
9. Confidentiality: The Parties
agree that the negotiations that resulted in this Agreement, are
confidential and they will not disclose them to any third party
except: (i) to their respective attorneys, accountants and
insurers; (ii) as required by, or for use in, any court of
competent jurisdiction or regulatory body or agency; (iii) as
required by any federal, state or municipal rule, regulation or
law; (iv) to any tax preparation professional and to the extent
necessary to accurately file city, state and federal taxes; and,
(v) with respect to the Empery Funds only, to any limited partner,
potential investor or any other Person if, in the Empery
Funds’ own judgment, disclosure is necessary to explain, for
any business purpose, the background, circumstances, and/or results
of the Litigations.
10. Entire Agreement; Amendments:
This Agreement and any schedules and exhibits hereto constitute the
entire agreement among the Parties as to the settlement and
supersede any prior agreements among the Parties with respect to
the subject matter of this Agreement. No representations,
warranties or inducements have been made or relied upon by any
Party concerning this Agreement or its exhibits, other than the
representations, warranties and covenants expressly set forth in
such documents. This Agreement shall not be modified or amended in
any way except in writing executed by or on behalf of each Party to
be bound thereby or by their respective successors-in-interest.
11. Voluntary and Informed Assent:
Each Party to this Agreement represent and agree that the Party has
read and fully understood the provisions of this Agreement, that
they are fully competent to enter into and sign this Agreement, and
that they are executing this Agreement voluntarily, free of any
duress or coercion.
12. Construction: The language of
all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or
against any Party. This Agreement was prepared jointly by the
Parties, and no presumptions or rules of interpretation based upon
the identity of the Party preparing or drafting the Agreement, or
any part thereof, shall be applicable or invoked.
13. Headings: The section headings
contained in each section of this Agreement are intended solely for
convenience of reference and shall not limit or expand the express
terms of this Agreement or otherwise be used in its
construction.
14. Choice of Law: This Agreement
shall be considered to have been negotiated, executed and
delivered, and to be wholly performed in the State of New York, and
the rights and obligations of the Parties to the Agreement shall be
construed and enforced in accordance with, and governed by, the
internal, substantive laws of the State of New York without giving
effect to that State’s choice of law principles.
15. Dispute Resolution: The Parties
agree that the exclusive jurisdiction for any legal proceeding
arising out of or relating to this Agreement shall be the Supreme
Court of the State of New York, New York County, and all Parties
hereby waive any challenge to personal jurisdiction or venue in
that court.
16. Waiver: The waiver by any Party
of any breach of this Agreement by the other shall not be deemed a
waiver of that or any other prior or subsequent breach of any
provision of this Agreement by any other Party.
17. Severability: If any provision
or provisions of this Agreement or the settlement shall be held to
contravene or be invalid under any applicable law, such
contravention or invalidity shall not invalidate the whole
Agreement, but the Agreement shall be construed as not containing
the particular provision or provisions held to be illegal, invalid
or unenforceable, and the remaining rights and obligations of the
Parties shall remain in full force and effect and construed and
enforced accordingly so long as this Agreement as so modified
continues to express, without material change, the original
intentions of the Parties as to the subject matter hereof and the
prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the
respective expectations or reciprocal obligations of the Parties or
the practical realization of the benefits that would otherwise be
conferred upon the Parties. The Parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes
as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
18. Effect of Cancellation or
Termination: If the settlement set forth in this Agreement
does not become effective, or is terminated, reversed or vacated by
a court of competent jurisdiction for any reason, then,
notwithstanding anything herein to the contrary, the settlement set
forth in this Agreement shall be null and void and of no further
force or effect, and each Party shall be restored to his, her or
its respective position as it existed prior to the execution of
this Agreement, including for statute of limitations purposes.
Neither the existence of this Agreement, the facts of its
existence, the terms hereof or any statements or negotiations
between the Parties relating hereto shall be admissible in evidence
or shall be referred to for any purpose in any subsequent
litigation, action or proceeding, except in a proceeding to enforce
its terms.
19. Binding Effect: This Agreement
binds and inures to the benefit of the Parties and their respective
past and present agents, employees, attorneys, representatives,
officers, directors, shareholders, successors, assigns,
transferees, insurers and sureties, and all of their subsidiaries,
parents, predecessors, successors and controlled or affiliated
companies.
20. Authority: Each Person signing
this Agreement on behalf of any Party represents and warrants that
such Person has full authority to enter into this Agreement and to
lawfully and effectively release each other party to this Agreement
as set forth herein, free of any rights of settlement, approval,
subrogation, or other condition or impediment.
21. Notices. Any notices, consents,
waivers or other communications required or permitted to be given
under the terms of this Agreement or the Settlement Shares, the
Settlement Warrants or Settlement Notes issued hereunder must be in
writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon delivery, when sent
by facsimile (provided confirmation of transmission is mechanically
or electronically generated and kept on file by the sending party),
(iii) upon delivery, when sent by electronic mail (provided that
the sending party does not receive an automated rejection notice);
or (iv) one Business Day after deposit with an overnight courier
service, in each case properly addressed to the party to receive
the same. The addresses, facsimile numbers and e-mail addresses for
such communications shall be:
If to
GT Biopharma:
GT
Biopharma, Inc.
9350
Wilshire Blvd, Suite 203
Beverly
Hills, CA 90212
Email:
sww@gtbiopharma.com; ajc@gtbiopharma.com
With a
copy to (for informational purposes only):
Perrie
Weiner
Baker
McKenzie
1901
Avenue of the Stars Suite 950
Telephone: (310)
201-4709
Facsimile: (310)
201-4721
E-mail:
perrie.weiner@bakermckenzie.com
If to
Cataldo:
c/o GT
Biopharma, Inc.
9350
Wilshire Blvd, Suite 203
Beverly
Hills, CA 90212
Email:
ajc@gtbiopharma.com
With a
copy to (for informational purposes only):
Perrie
Weiner
Baker
McKenzie
1901
Avenue of the Stars Suite 950
Telephone: (310)
201-4709
Facsimile: (310)
201-4721
E-mail:
perrie.weiner@bakermckenzie.com
If to
Kessler:
Amy
Wang
Bristol
Capital Advisors, LLC
662 N.
Sepulveda Blvd., Suite 300
Los
Angeles, California 90049
Main Line:
(310) 331-8480
Direct
Line: (310) 331-8485
Facsimile: (310)
331-8490
E-mail:
amy@bristolcompanies.net
With a
copy to (for informational purposes only):
Perrie
Weiner
Baker
McKenzie
1901
Avenue of the Stars Suite 950
Telephone: (310)
201-4709
Facsimile: (310)
201-4721
E-mail:
perrie.weiner@bakermckenzie.com
If to
the Empery Funds:
c/o
Empery Asset Management, LP
1
Rockefeller Plaza, Suite 1205
Attention: Ryan M.
Lane
Facsimile: 1 212
608 3307
Telephone: 1 212
608 3300
Email:
notices@emperyam.com
With a
copy (for informational purposes only) to:
Andrew
Gladstein
Schulte
Roth & Zabel LLP
919
Third Avenue
New
York, New York 10022
Telephone: (212)
756-2000
Facsimile: (212)
593-5955
E-mail:
andrew.gladstein@srz.com
22. Specific Performance. Each
Party hereto acknowledges and agrees, on behalf of itself, herself
or himself and its, her or his affiliates, that irreparable harm
would occur in the event any of the provisions of this Agreement or
any of the other Settlement Documents were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the Parties will be entitled to specific
relief hereunder, including, without limitation, an injunction or
injunctions to prevent and enjoin breaches of the provisions of
this Agreement and/or the other Settlement Documents and to enforce
specifically the terms and provisions hereof and thereof, in
addition to any other remedy to which they may be entitled at law
or in equity.
23. Counterpart Signature Pages:
This Agreement may be executed in any number of counterparts, and
each counterpart shall have the same force and effect as an
original and shall constitute an effective, binding agreement on
the part of each of the undersigned, all counterparts when taken
together shall constitute the entire Agreement.
IN WITNESS WHEREOF, the Parties have
caused this Agreement to be executed by themselves or their duly
authorized representatives on the respective dates set forth
below.
|
Dated:
June 19, 2020
GT BIOPHARMA, INC.
/s/ Steven Weldon
Name:
Steven Weldon
Title:
Chief Financial Officer
|
Dated:
June 18, 2020
EMPERY ASSET MASTER LTD., EMPERY TAX EFFICIENT, LP, EMPERY TAX
EFFICIENT II, LP
By:
Empery Asset Management, LP, its authorized agent
/s/ Brett Director
Name:
Brett Director
Title:
General Counsel
|
|
Dated:
June 19, 2020
/s/ Anthony Cataldo
Anthony
Cataldo
|
Dated:
June 18, 2020
/s/ Paul Kessler
Paul
Kessler
|
[Signature
Page—Settlement Agreement]
18
EXHIBIT A
FORM OF SETTLEMENT WARRANT
EXHIBIT B
FORM OF SETTLEMENT NOTE
EXHIBIT C
SUPREME
COURT OF THE STATE OF NEW YORK
COUNTY
OF NEW YORK
|
Empery
Asset Master, Ltd., Empery Tax Efficient, LP and Empery Tax
Efficient II, LP
Plaintiffs,
vs.
GT
Biopharma Inc. and Paul Kessler
Defendants.
|
::::::::::::::::
|
Index
No.:
STIPULATION OF VOLUNTARYDISCONTINUANCE WITH PREJUDICE
|
IT IS HEREBY STIPULATED AND AGREED, by
and between the undersigned, that the above-captioned action (the
“Action”) and all claims that were asserted or could
have been asserted in the Action are hereby voluntarily dismissed
with prejudice, with each party bearings its own legal costs,
attorney’s fees and expenses.
IT IS HEREBY FURTHER STIPULATED AND
AGREED, that this stipulation may be filed, without further
notice, with the Clerk of the Court and may be executed by
facsimile and in counterparts.
Dated: June __, 2020
New
York, New York
|
________________________________
Andrew
Gladstein
Schulte
Roth & Zabel LLP
919
Third Ave
New
York, NY 10022
Attorneys for the Empery Funds
|
________________________________
Perrie
Weiner
Baker
McKenzie
1901
Avenue of the Stars
Suite
950
Los
Angeles, CA 90067
Attorneys for GT Biopharma Inc. and Paul Kessler
SO
ORDERED:
|
____________________________________
SCHEDULE
1
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
(7)
|
(8)
|
|
Buyer
|
Amount of Settlement Payment
|
Wire Instructions for Delivery of Settlement Payment
|
Number of Settlement Shares
|
DWAC Instructions for Delivery of Settlement Shares
|
Number of Warrant Shares
|
Aggregate Principal Amount of Settlement Notes
|
Address for Delivery of Settlement Warrants and Settlement
Notes
|
|
Empery Asset Master Ltd.
|
$87,599.93
|
Wire
instructions previously provided to GT Biopharma
|
1,532,999
|
DWAC
instructions previously provided to GT Biopharma
|
2,408,998
|
$197,099.84
|
c/o
Empery Asset Management, LP1 Rockefeller Plaza, Suite 1205New York,
NY 10020Attention: Ryan M. LaneTelephone: 212 608 3300Email:
notices@emperyam.com
|
|
Empery Tax Efficient, LP
|
$9,488.87
|
Wire
instructions previously provided to GT Biopharma
|
166,055
|
DWAC
instructions previously provided to GT Biopharma
|
260,944
|
$21,349.97
|
c/o
Empery Asset Management, LP1 Rockefeller Plaza, Suite 1205New York,
NY 10020Attention: Ryan M. LaneTelephone: 212 608 3300Email:
notices@emperyam.com
|
|
Empery Tax Efficient, LP
|
$23,811.29
|
Wire
instructions previously provided to GT Biopharma
|
416,698
|
DWAC
instructions previously provided to GT Biopharma
|
654,810
|
$53,575.40
|
c/o
Empery Asset Management, LP1 Rockefeller Plaza, Suite 1205New York,
NY 10020Attention: Ryan M. LaneTelephone: 212 608 3300Email:
notices@emperyam.com
|
|
Empery
Tax Efficient II, LP
|
$79,099.91
|
Wire
instructions previously provided to GT Biopharma
|
1,384,248
|
DWAC
instructions previously provided to GT Biopharma
|
2,175,248
|
$177,974.80
|
c/o
Empery Asset Management, LP1 Rockefeller Plaza, Suite 1205New York,
NY 10020Attention: Ryan M. LaneTelephone: 212 608 3300Email:
notices@emperyam.com
|
|
TOTAL
|
$200,000.00
|
|
3,500,000
|
|
5,500,000
|
$450,000.00
|
|
SCHEDULE 6(f)
1.
The issuance of up to an additional $4,500,000 aggregate principal
amount of senior convertible notes to individuals or entities other
than the Empery Funds.
The issuance of Common Stock in connection with exercise or
conversion of Permitted Indebtedness, warrants or convertible
preferred stock, in each case, in accordance with their
terms.
SCHEDULE 6(o)
Schedule 6(o)(i)
Convertible Notes / Debentures
As of the date of the Agreement, there were $15,294,365.74
aggregate principal amount of convertible notes and 10% senior
convertible debentures outstanding which were issued pursuant to
securities purchase agreements entered into with numerous investors
(collectively, the “Existing
Notes”).
The Existing Notes are convertible, at the holder’s option,
at any time into shares of the Common Stock at a conversion rate
that is subject to adjustment due to certain events, including
stock dividends, stock splits and in connection with the issuance
by the Company of Common Stock or common stock equivalents at an
effective price per share lower than the conversion rate then in
effect. The conversion price for the Existing Notes is currently
$0.20 per share. In addition, certain of the outstanding Existing
Notes will be subject to mandatory conversion in connection with
the completion of a subsequent financing in the amount of $15
million, subject to certain beneficial ownership
limitations.
The Existing Notes generally have terms of six months to one year.
The Existing Notes each accrue interest at a rate of 10% per annum,
subject to increase to 18% per annum upon and during the occurrence
of an event of default. Interest is payable in cash or, at the
holder’s option, in shares of Common Stock based on the
conversion price then in effect.
Office Lease Agreement
On October 1, 2018, the Company entered into a three-year lease
agreement for its principal office in Westlake Village, California
with Sheffield Properties of Illinois, Inc. (the
“Office
Lease”). The Office
Lease is classified as a capital lease under
GAAP.
Gemini Pharmaceuticals Line of Credit Facility
On November 8, 2010, the Company entered into a financing
arrangement with Gemini Pharmaceuticals, Inc.
(“Gemini”),
a product development and manufacturing partner of the Company,
pursuant to which Gemini made a $250,000 strategic equity
investment in the Company and agreed to make a $750,000 purchase
order line of credit facility available to the Company (the
“Gemini
Line of Credit”). The
outstanding principal of all advances under the Gemini Line of
Credit will bear interest at the rate of interest of prime plus 2%
per annum. As of the date of the Agreement, there is $31,000
outstanding under the Gemini Line of Credit.
Schedule 6(o)(ii)
Clinical Trial Agreement, dated as of September 6, 2019, between
the Company and the University of Minnesota.
Schedule 6(o)(iii)
1.
$13,277,365.74 aggregate principal amount of the Existing
Notes
Schedule 6(o)(iv)
$15,294,365.74 aggregate principal amount of Existing
Notes
[FORM OF SETTLEMENT NOTE]
Original
Issue Date: June 19,
2020
Principal Amount: ______________
Original Conversion Price (subject to adjustment herein):
$0.20
CONVERTIBLE NOTE
DUE DECEMBER 19, 2020
THIS
CONVERTIBLE NOTE is one of a series of duly authorized and validly
issued Notes of GT BIOPHARMA,
INC., a Delaware corporation, (“Borrower”), having its
principal place of business at 9350 Wilshire Blvd, Suite 203,
Beverly Hills, CA 90212, due
December 19, 2020 (the
“Maturity
Date”) (this note, the “Note” and, collectively
with the other notes of such series, the “Notes”).
FOR
VALUE RECEIVED, Borrower promises to pay to ______________ or its registered assigns
(the “Holder”), with an address
at: _________________________, or shall have paid pursuant to the
terms hereunder, the principal sum of ________________________ (______________) on the Maturity Date or
such earlier date as this Note is required or permitted to be
repaid as provided hereunder, and to pay interest, if any, 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 hereof, 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 Settlement Agreement and
(b) the following terms shall have the following
meanings:
“Affiliate” of any
specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this
definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled
by” and “under common control with”), as used
with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the
ownership of voting securities, by agreement or
otherwise.
“Alternate Consideration”
shall have the meaning set forth in Section 5(e).
“Bankruptcy Event” means
any of the following events: (a) Borrower or any Subsidiary 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 Borrower or any Subsidiary thereof, (b)
there is commenced against Borrower or any Subsidiary thereof any
such case or proceeding that is not dismissed within 60 days after
commencement, (c) Borrower or any Subsidiary thereof is adjudicated
insolvent or bankrupt or any order of relief or other order
approving any such case or proceeding is entered, (d) Borrower or
any 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) Borrower or any Subsidiary thereof makes a general
assignment for the benefit of creditors, (f) Borrower or any
Subsidiary thereof calls a meeting of its creditors with a view to
arranging a composition, adjustment or restructuring of its debts,
(g) Borrower or any Subsidiary thereof admits in writing that it is
generally unable to pay its debts as they become due, or (h)
Borrower or any 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.
“Beneficial Ownership
Limitation” shall have the meaning set forth in
Section 4(e).
“Business Day” means any
day except any Saturday, any Sunday, any day which is a federal
legal holiday in the United States or any day on which banking
institutions in the State of New York are required by law or other
governmental action to close.
“Buy-In” shall have the
meaning set forth in Section 4(d)(v).
“Change of Control
Transaction” means, other than by means of conversion
or exercise of the Notes and the securities issued together with
the Notes, the occurrence after the date hereof of any of (a) an
acquisition 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 Borrower, by contract or otherwise)
of in excess of 50% of the voting securities of Borrower, (b)
Borrower merges into or consolidates with any other Person, or any
Person merges into or consolidates with Borrower and, after giving
effect to such transaction, the stockholders of Borrower
immediately prior to such transaction own less than 50% of the
aggregate voting power of Borrower or the successor entity of such
transaction, (c) Borrower sells or transfers all or substantially
all of its assets to another Person and the stockholders of
Borrower 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
Original Issue Date (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 Borrower of an agreement to which Borrower is a
party or by which it is bound, providing for any of the events set
forth in clauses (a) through (d) above.
“Conversion”
shall have the meaning ascribed to such term in Section
4.
“Conversion Date” shall
have the meaning set forth in Section 4(a).
“Conversion Price” shall
have the meaning set forth in Section 4(c).
“Conversion Shares” means,
collectively, the shares of Common Stock issuable upon conversion
of this Note in accordance with the terms hereof.
“Dilutive Issuance” shall
have the meaning set forth in Section 5(b).
“Event of Default” shall
have the meaning set forth in Section 8(a).
“Fundamental Transaction”
shall have the meaning set forth in Section 5(e).
“Interest Payment Date”
shall have the meaning set forth in Section 2(a).
“Liens” means a lien,
charge, pledge, security interest, encumbrance, right of first
refusal, preemptive right or other restriction.
“Majority in Interest”
means, at any given time, the Holders then holding at least 51% in
principal amount of the then outstanding Notes and Other
Notes.
“Mandatory Default Amount”
means the sum of (a) 130% of the outstanding principal amount of
this Note and (b) all other amounts, costs, and expenses due in
respect of this Note.
"Material Adverse Effect" shall
have the meaning ascribed to such term in the Settlement
Agreement.
“New York Courts” shall
have the meaning set forth in Section 9(d).
“Note Register” shall have
the meaning set forth in Section 3(c).
“Notice of Conversion”
shall have the meaning set forth in Section 4(a).
“Option of Holder to Elect
Purchase” shall have the meaning set forth in Section
2(h).
“Original Issue Date”
means the date of the first issuance of the Notes, regardless of
any transfers of any Note and regardless of the number of
instruments which may be issued to evidence such
Notes.
“Other Holders” means
holders of Other Notes.
“Other Notes” means Notes
nearly identical to this Note issued to other Holders pursuant to
the Settlement Agreement.
“Permitted Indebtedness”
means (a) the Indebtedness set forth on Schedule A attached hereto;
(b) any liabilities for borrowed money or amounts owed not in
excess of $10,000 in the aggregate (other than trade accounts
payable incurred in the ordinary course of business); (c) all
guaranties, endorsements and other contingent obligations in
respect of Indebtedness of others, whether or not the same are or
should be reflected in Borrower's consolidated balance sheet (or
the notes thereto) not affecting more than $10,000 in the
aggregate, except guaranties by endorsement of negotiable
instruments for deposit or collection or similar transactions in
the ordinary course of business; (d) the present value of any lease
payments not in excess of $100,000 due under leases required to be
capitalized in accordance with United States generally accepted
accounting principles applied on a consistent basis during the
periods involved ("GAAP"); (e) any liabilities for
borrowed money that are junior to this Note pursuant to an
intercreditor agreement acceptable to Majority in Interest, and the
holders of which are not granted any security interest; (f) up to
$7,500,000 aggregate principal amount of liability for borrowed
money incurred after the Original Issue Date that rank pari passu to this Note and the holders
of which are not granted any security interest; and (g) any other
liability for borrowed money incurred on or after the Repurchase
Offer Trigger Date; provided that Borrower shall comply (or shall
have previously complied) with the requirements of Section
2(h).
“Permitted Lien” means the
individual and collective reference to the following: (a) Liens for
taxes, assessments and other governmental charges or levies not yet
due or Liens for taxes, assessments and other governmental charges
or levies being contested in good faith and by appropriate
proceedings for which adequate reserves (in the good faith judgment
of the management of Borrower) have been established in accordance
with GAAP, (b) Liens imposed by law which were incurred in the
ordinary course of Borrower's business, such as carriers',
warehousemen's and mechanics' Liens, statutory landlords' Liens,
and other similar Liens arising in the ordinary course of
Borrower's business, and which (x) do not individually or in the
aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the
business of Borrower and its consolidated Subsidiaries or (y) are
being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing for the foreseeable
future the forfeiture or sale of the property or asset subject to
such Liens, and (c) Liens in connection with Permitted Indebtedness
under clauses (a), (b), (c) and (g) thereunder.
“Person” means an
individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency
thereof.
“Repurchase Amount” shall
have the meaning set forth in Section 2(h).
“Repurchase Date” has the
meaning set forth in Section 2(h).
“Repurchase Notice” shall
have the meaning set forth in Section 2(h).
“Repurchase Offer” shall
have the meaning set forth in Section 2(h).
“Repurchase Offer Trigger
Date” means the date upon which Borrower consummates a
capital raising transaction, or the last in a series of capital
raising transactions, in each case, consisting of the sale by
Borrower or its Subsidiaries of Common Stock, Common Stock
Equivalents, Indebtedness or a combination thereof, which
transaction, or series of transactions, result in aggregate gross
proceeds to Borrower of $7,500,000 or more.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Settlement Agreement”
means that certain Settlement Agreement, dated as of June 19, 2020,
by and among Borrower, Empery Asset Master, Ltd., Empery Tax
Efficient, LP and Empery Tax Efficient II, LP, Anthony Cataldo and
Paul Kessler.
“Share Delivery Date”
shall have the meaning set forth in Section 4(d)(ii).
“Subsidiary” means, with
respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business
entity of which more than 50% of the total voting power of shares,
stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the
Person or Persons (whether directors, managers, trustees or other
Persons performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is at
the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a
combination thereof; provided, in determining the
percentage of ownership interests of any Person controlled by
another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed
to be outstanding. Unless the context otherwise requires,
references herein to a “Subsidiary” refer to a
Subsidiary of Borrower.
“Successor Entity” shall
have the meaning set forth in Section 5(e).
“Trading Day” means a day
on which the principal Trading Market is open for
trading.
“Trading Market” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the NYSE
American, the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select Market, the New York Stock Exchange, the OTC
Bulletin Board, the OTCQB, the OTCQX or the OTC Pink Marketplace
(or any successors to any of the foregoing).
“VWAP” means, for any
date, the price determined by the first of the following clauses
that applies: (a) if the Common Stock is then listed or quoted on a
Trading Market, the daily volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the
Trading Market on which the Common Stock is then listed or quoted
as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)),
(b) if any of the Nasdaq markets or exchanges is not a
Trading Market, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on the OTC
Bulletin Board, (c) if the Common Stock is not then listed or
quoted for trading on the OTC Bulletin Board and if prices for the
Common Stock are then reported on the OTCQX, OTCQB or OTC Pink
Marketplace maintained by the OTC Markets Group, Inc. (or a similar
organization or agency succeeding to its functions of reporting
prices), the volume weighted average price of the Common Stock on
the first such facility (or a similar organization or agency
succeeding to its functions of reporting prices), or (d) in
all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by
the Majority in Interest and reasonably acceptable to Borrower, the
fees and expenses of which shall be paid by Borrower.
Section
2.
Interest and General
Provisions.
a) Payment
of Interest in Cash or Kind. Borrower shall pay interest to
the Holder on the aggregate unconverted and then outstanding
principal amount of this Note at the rate of 10% per annum, payable
on each Conversion Date (as to that principal amount then being
converted), on the Repurchase Date and on the Maturity Date (each
such date, an “Interest Payment Date”)
(if any Interest Payment Date is not a Business Day, then the
applicable payment shall be due on the next succeeding Business
Day), in cash or, at the Holder’s option in connection with
an Interest Payment Date occurring on a Conversion Date, the
Repurchase Date or the Maturity Date, in duly authorized, validly
issued, fully paid and non-assessable shares of Common Stock based
on the Conversion Price then in effect. Borrower may not pay any
interest in shares of Common Stock to the extent such payment shall
cause the Holder to exceed the Beneficial Ownership
Limitation. Following
the occurrence and during the continuance of an Event of Default,
then from the first date of such occurrence, the annual interest
rate on this Note shall be eighteen percent (18%). Such interest
shall be due and payable on each Interest Payment Date or upon any
redemption or acceleration of this Note.
b) Payment
Grace Period. Except as described in this Note, Borrower
shall not have any grace period to pay any monetary amounts due
under this Note.
c)
Conversion
Privileges. The Conversion Rights set forth in Section 4
shall remain in full force and effect immediately from the date
hereof and until the Note is paid in full regardless of the
occurrence of an Event of Default. This Note shall be payable in
full on the Repurchase Date, if applicable, or the Maturity Date,
unless previously converted into Common Stock in accordance with
Section 4 hereof.
d)
Application of
Payments. Interest on this Note shall be calculated on the
basis of a 360-day year and the actual number of days elapsed.
Payments made in connection with this Note shall be applied first
to amounts due hereunder other than principal and interest,
thereafter to interest and finally to principal.
e)
Pari Passu. Except
as otherwise set forth herein, all payments made on this Note and
the Other Notes and all actions taken by Borrower with respect to
this Note and the Other Notes, shall be made and taken pari passu with respect to this Note
and the Other Notes. Notwithstanding anything to the contrary
contained herein or in the Settlement Documents (as defined in the
Settlement Agreement), it shall not be considered non-pari passu for a Holder or Other Holder
to elect (i) to receive interest paid in Common Stock or for
Borrower to actually pay interest in Common Stock to such electing
Holder or Other Holder or (ii) to participate in a Repurchase Offer
and for Borrower to consummate such Repurchase Offer on the
Repurchase Date.
f) Manner
and Place of Payment. Principal and interest on this Note
and other payments in connection with this Note shall be payable at
the Holder’s offices as designated above in lawful money of
the United States of America in immediately available funds without
set-off, deduction or counterclaim. Upon assignment of the interest
of Holder in this Note, Borrower shall instead make its payment
pursuant to the assignee’s instructions upon receipt of
written notice thereof. Except as set forth herein, this Note may
not be prepaid without the consent of the Holder.
g) Prepayment.
Except pursuant to Section 2(h) or as otherwise set forth in this
Note, Borrower may not prepay any portion of the principal amount
of this Note without the prior written consent of the
Holder.
h) Mandatory
Repurchase Offer. Within five (5) Trading Days following the
Repurchase Offer Trigger Date, Borrower shall cause to be delivered to the Holder
at its last address as it shall appear upon the Note Register, a
notice (a “Repurchase
Notice”) stating that
such Repurchase Offer Trigger Date has occurred and making an offer
to repurchase the Note (the “Repurchase
Offer”) on a date
(the “Repurchase
Date”) specified by in
the Repurchase Notice, which may be no earlier than ten (10)
Trading Days and no later than Twenty (20) Trading Days after the
date of the Repurchase Notice, at a price in cash equal to 100% of
the aggregate principal amount of the Note plus accrued and unpaid
interest, if any, to, but excluding, the Repurchase Date (the
“Repurchase
Amount”). For a Note to
be repurchased at the option of the Holder pursuant to this Section
2(h), the Holder must deliver to Borrower, prior to the close of
business on the second (2nd)
Trading Day immediately prior to the Repurchase Date, written
notice of such election to participate (an
“Option of
Holder to Elect Purchase”). Following deliver by the
Holder of an Option of Holder to Elect to Purchase, the Repurchase
Amount shall be due and payable to the Holder in the manner set
forth in Section 2(f) on the Repurchase Date. Effective upon
receipt of the Repurchase Amounts by the Holder, the Note will be
deemed cancelled and extinguished and all rights of the Holder
hereunder will terminate. Promptly following the Repurchase Date,
but in any event within ten (10) Trading Days thereafter, the
Holder shall return the original of this Note to
Borrower.
Section
3.
Registration of Transfers and
Exchanges.
a)
Different Denominations. This
Note is exchangeable for an equal aggregate principal amount of
Notes of different authorized denominations, as requested by the
Holder surrendering the same. No service charge will be payable for
such registration of transfer or exchange.
b)
Investment Representations.
This Note has been issued subject to certain representations of the
original Holder set forth in the Settlement Agreement and may be
transferred or exchanged only in compliance with the Settlement
Agreement and applicable federal and state securities laws and
regulations.
c)
Reliance on Note Register.
Prior to due presentment for transfer to Borrower of this Note,
Borrower and any agent of Borrower may treat the Person in whose
name this Note is duly registered on the register of Notes (the
“Note
Register”) as the owner hereof for the purpose of
receiving payment as herein provided and for all other purposes,
whether or not this Note is overdue, and neither Borrower nor any
such agent shall be affected by notice to the
contrary.
Section
4.
Conversion.
a)
Voluntary Conversion. At any
time after the Original Issue Date until this Note is no longer
outstanding, this Note, including interest accrued hereon, shall be
convertible, in whole or in part, into shares of Common Stock at
the option of the Holder, at any time and from time to time
(subject to the conversion limitations set forth in
Section 4(e) hereof). The Holder shall effect conversions by
delivering to Borrower a Notice of Conversion, the form of which is
attached hereto as Annex
A (each, a “Notice of Conversion”),
specifying therein the principal amount of this Note and accrued
interest, if any, to be converted and the date on which such
conversion shall be effected (such date, the “Conversion Date”). If no
Conversion Date is specified in a Notice of Conversion, the
Conversion Date shall be the date that such Notice of Conversion is
deemed delivered hereunder. To effect conversions hereunder, the
Holder shall not be required to physically surrender this Note to
Borrower unless the entire principal amount of this Note has been
so converted, in which case the Holder shall deliver the original
of this Note to Borrower no later than ten (10) Trading Days after
conversion. Conversions hereunder shall have the effect of lowering
the outstanding principal amount of this Note in an amount equal to
the applicable conversion. The Holder and Borrower shall maintain
records showing the principal amount(s) converted and the date of
such conversion(s). Borrower may deliver an objection to any Notice
of Conversion within one (1) Business Day of delivery of such
Notice of Conversion. In the event of any dispute or discrepancy,
the records of the Holder shall be controlling and determinative in
the absence of manifest error. The
Holder, and any assignee by acceptance of this Note, acknowledges
and agrees that, by reason of the provisions of this paragraph,
following conversion of a portion of this Note, the unpaid and
unconverted principal amount of this Note may be less than the
amount stated on the face hereof.
b)
[Reserved].
c) Conversion
Price. The conversion price for the principal and interest,
if any, in connection with voluntary conversions by the Holder
shall be $0.20 per share of
Common Stock, subject to adjustment herein (the “Conversion
Price”).
d)
Mechanics of
Conversion.
i.
Conversion
Shares Issuable Upon Conversion of Principal Amount. The
number of Conversion Shares issuable upon a conversion hereunder
shall be determined by the quotient obtained by dividing (x) the
outstanding principal amount of this Note to be converted plus
interest, if any, elected by the Holder to be converted by (y) the
Conversion Price.
ii. Delivery
of Conversion Shares Upon Conversion. In connection with
sales of the Conversion Shares, not later than two (2) Trading Days
after each Conversion Date (the “Share Delivery Date”),
Borrower shall deliver, or cause to be delivered, to the Holder the
Conversion Shares by crediting the Holder's or its designee's
balance account with The Depository Trust Company's Deposit /
Withdrawal At Custodian system, which Conversion Shares shall be
free of restrictive legends and trading restrictions representing
the number of Conversion Shares being acquired upon the conversion
of this Note.
iii. Failure
to Deliver Conversion Shares. If, in the case of any Notice
of Conversion, such Conversion Shares are not delivered to or as
directed by the applicable Holder by the Share Delivery Date, the
Holder shall be entitled to elect by written notice to Borrower at
any time on or before its receipt of such Conversion Shares, to
rescind such Conversion, in which event Borrower shall promptly
return to the Holder any original Note delivered to Borrower and
the Holder shall promptly return to Borrower the Conversion Shares
issued to such Holder pursuant to the rescinded Conversion
Notice.
iv. Obligation
Absolute. Borrower’s obligations to issue and deliver
the Conversion Shares upon conversion of this Note in accordance
with the terms hereof are absolute and unconditional, irrespective
of any action or inaction by the Holder to enforce the same, any
waiver or consent with respect to any provision hereof, the
recovery of any judgment against any Person or any action to
enforce the same, or any setoff, counterclaim, recoupment,
limitation or termination, or any breach or alleged breach by the
Holder or any other Person of any obligation to Borrower or any
violation or alleged violation of law by the Holder or any other
Person, and irrespective of any other circumstance which might
otherwise limit such obligation of Borrower to the Holder in
connection with the issuance of such Conversion Shares;
provided,
however, that such
delivery shall not operate as a waiver by Borrower of any such
action Borrower may have against the Holder. In the event the
Holder of this Note shall elect to convert any or all of the
outstanding principal amount hereof, Borrower may not refuse
conversion based on any claim that the Holder or anyone associated
or affiliated with the Holder has been engaged in any violation of
law, agreement or for any other reason, unless an injunction from a
court, on notice to Holder, restraining and or enjoining conversion
of all or part of this Note shall have been sought and obtained,
and Borrower posts a surety bond for the benefit of the Holder in
the amount of 150% of the outstanding principal amount of this
Note, which is subject to the injunction, which bond shall remain
in effect until the completion of arbitration/litigation of the
underlying dispute and the proceeds of which shall be payable to
the Holder to the extent it obtains judgment. In the absence of
such injunction, Borrower shall issue Conversion Shares or, if
applicable, cash, upon a properly noticed conversion. Nothing
herein shall limit a Holder’s right to pursue actual damages
or declare an Event of Default pursuant to Section 8 hereof for
Borrower’s failure to deliver Conversion Shares within the
period specified herein and the Holder shall have the right to
pursue all remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance
and/or injunctive relief. The exercise of any such rights shall not
prohibit the Holder from seeking to enforce damages pursuant to any
other Section hereof or under applicable law.
v. Compensation
for Buy-In on Failure to Timely Deliver Conversion Shares Upon
Conversion. In addition to any other rights available to the
Holder, if Borrower fails for any reason to deliver to the Holder
such Conversion Shares by the Share Delivery Date pursuant to
Section 4(d)(ii), and if after such Share Delivery Date the Holder
is required by its brokerage firm to purchase (in an open market
transaction or otherwise), or the Holder or Holder’s
brokerage firm otherwise purchases, shares of Common Stock to
deliver in satisfaction of a sale by the Holder of the Conversion
Shares which the Holder was entitled to receive upon the conversion
relating to such Share Delivery Date (a “Buy-In”), then Borrower
shall (A) pay in cash to the Holder (in addition to any other
remedies available to or elected by the Holder) the amount, if any,
by which (x) the Holder’s total purchase price (including any
brokerage commissions) for the Common Stock so purchased exceeds
(y) the product of (1) the aggregate number of shares of Common
Stock that the Holder was entitled to receive from the conversion
at issue multiplied by (2) the actual sale price at which the sell
order giving rise to such purchase obligation was executed
(including any brokerage commissions) and (B) at the option of the
Holder, either reissue (if surrendered) this Note in a principal
amount equal to the principal amount of the attempted conversion
(in which case such conversion shall be deemed rescinded) or
deliver to the Holder the number of shares of Common Stock that
would have been issued if Borrower had timely complied with its
delivery requirements under Section 4(d)(ii). For example, if the
Holder purchases Common Stock having a total purchase price of
$11,000 to cover a Buy-In with respect to an attempted conversion
of this Note with respect to which the actual sale price of the
Conversion Shares (including any brokerage commissions) giving rise
to such purchase obligation was a total of $10,000 under clause (A)
of the immediately preceding sentence, Borrower shall be required
to pay the Holder $1,000. The Holder shall provide Borrower written
notice indicating the amounts payable to the Holder in respect of
the Buy-In and, upon request of Borrower, evidence of the amount of
such loss. Nothing herein shall limit a Holder’s right to
pursue any other remedies available to it hereunder, at law or in
equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to
Borrower’s failure to timely deliver Conversion Shares upon
conversion of this Note as required pursuant to the terms
hereof.
vi. Reservation
of Shares Issuable Upon Conversion. Borrower covenants that
it will at all times reserve and keep available out of its
authorized and unissued shares of Common Stock for the sole purpose
of issuance upon conversion of this Note as herein provided, free
from preemptive rights or any other actual contingent purchase
rights of Persons other than the Holder (and the other holders of
the Notes), not less than 150% of the aggregate number of shares of
the Common Stock as shall be issuable (taking into account the
adjustments and restrictions of Section 5) upon the conversion of
the then outstanding principal amount of this Note and interest
which has accrued and would accrue on such principal amount
assuming such principal amount was not converted through the
Maturity Date. Borrower covenants that all shares of Common Stock
that shall be so issuable shall, upon issue, be duly authorized,
validly issued, fully paid and non-assessable.
vii. Fractional
Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of this Note.
As to any fraction of a share which the Holder would otherwise be
entitled to purchase upon such conversion, Borrower shall at its
election, either pay a cash adjustment in respect of such final
fraction in an amount equal to such fraction multiplied by the
Conversion Price or round up to the next whole share.
viii. Transfer
Taxes and Expenses. The issuance of Conversion Shares on
conversion of this Note shall be made without charge to the Holder
hereof for any documentary stamp or similar taxes that may be
payable in respect of the issue or delivery of such Conversion
Shares, provided that, Borrower shall not be required to pay any
tax that may be payable in respect of any transfer involved in the
issuance and delivery of any such Conversion Shares upon conversion
in a name other than that of the Holder of this Note so converted
and Borrower shall not be required to issue or deliver such
Conversion Shares unless or until the Person or Persons requesting
the issuance thereof shall have paid to Borrower the amount of such
tax or shall have established to the satisfaction of Borrower that
such tax has been paid. Borrower shall pay all Transfer Agent fees
required for same-day processing of any Notice of
Conversion.
e)
Holder’s
Conversion Limitations. Borrower shall not effect any
conversion of this Note, and a Holder shall not have the right to
convert any portion of this Note, to the extent that after giving
effect to the conversion set forth on the applicable Notice of
Conversion, the Holder (together with the Holder’s
Affiliates, and any Persons acting as a group together with the
Holder or any of the Holder’s Affiliates) would beneficially
own in excess of the Beneficial Ownership Limitation (as defined
below). For purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by the Holder and its
Affiliates shall include the number of shares of Common Stock
issuable upon conversion of this Note with respect to which such
determination is being made, but shall exclude the number of shares
of Common Stock which are issuable upon (i) conversion of the
remaining, unconverted principal amount of this Note beneficially
owned by the Holder or any of its Affiliates and (ii) exercise or
conversion of the unexercised or unconverted portion of any other
securities of Borrower subject to a limitation on conversion or
exercise analogous to the limitation contained herein (including,
without limitation, any other Notes) beneficially owned by the
Holder or any of its Affiliates. Except as set forth in the
preceding sentence, for purposes of this Section 4(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated
thereunder. To the extent that the limitation contained in this
Section 4(e) applies, the determination of whether this Note is
convertible (in relation to other securities owned by the Holder
together with any Affiliates) and of which principal amount of this
Note is convertible shall be in the sole discretion of the Holder,
and the submission of a Notice of Conversion shall be deemed to be
the Holder’s determination of whether this Note may be
converted (in relation to other securities owned by the Holder
together with any Affiliates) and which principal amount of this
Note is convertible, in each case subject to the Beneficial
Ownership Limitation. To ensure compliance with this restriction,
the Holder will be deemed to represent to Borrower each time it
delivers a Notice of Conversion that such Notice of Conversion has
not violated the restrictions set forth in this paragraph and
Borrower shall have no obligation to verify or confirm the accuracy
of such determination. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 4(e), in
determining the number of outstanding shares of Common Stock, the
Holder may rely on the number of outstanding shares of Common Stock
as stated in the most recent of the following: (i) Borrower’s
most recent periodic or annual report filed with the Commission, as
the case may be, (ii) a more recent public announcement by
Borrower, or (iii) a more recent written notice by Borrower or
Borrower’s transfer agent setting forth the number of shares
of Common Stock outstanding. Upon the written or oral request
of a Holder, Borrower shall within one Trading Day confirm orally
and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to
the conversion or exercise of securities of Borrower, including
this Note, by the Holder or its Affiliates since the date as of
which such number of outstanding shares of Common Stock was
reported. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of shares of
the Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon conversion of this
Note held by the Holder. The Holder may decrease the Beneficial
Ownership Limitation at any time upon prior notice to Borrower, and
may increase the Beneficial Ownership Limitation provided that the
Beneficial Ownership Limitation in no event exceeds 9.99% of the
number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock upon
conversion of this Note held by the Holder and the Beneficial
Ownership Limitation provisions of this Section 4(e) shall continue
to apply. Any such increase will not be effective until the
61st day
after such notice is delivered to Borrower. The Beneficial
Ownership Limitation provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 4(e) to correct this
paragraph (or any portion hereof) which may be defective or
inconsistent with the intended Beneficial Ownership Limitation
contained herein or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The
limitations contained in this paragraph shall apply to a successor
holder of this Note.
Section 5.
Certain
Adjustments.
a)
Stock Dividends and Stock
Splits. If Borrower, at any time while this Note is
outstanding: (i) pays a stock dividend or otherwise makes a
distribution or distributions payable in shares of Common Stock on
shares of Common Stock or any Common Stock Equivalents (which, for
avoidance of doubt, shall not include any shares of Common Stock
issued by Borrower upon conversion of the Notes or any other
Permitted Indebtedness that is convertible into Common Stock), (ii)
subdivides outstanding shares of Common Stock into a larger number
of shares, (iii) combines (including by way of a reverse stock
split) outstanding shares of Common Stock into a smaller number of
shares or (iv) issues, in the event of a reclassification of shares
of the Common Stock, any shares of capital stock of Borrower, then
the Conversion Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding
any treasury shares of Borrower) outstanding immediately before
such event, and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event.
Any adjustment made pursuant to this Section shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and
shall become effective immediately after the effective date in the
case of a subdivision, combination or
re-classification.
b) Subsequent
Equity Sales. If, at any time while this Note is
outstanding, Borrower or any Subsidiary, as applicable, otherwise
sells or grants any option to purchase or sells or grants any right
to reprice, or otherwise disposes of or issues (or announces any
sale, grant or any option to purchase or other disposition), any
Common Stock or Common Stock Equivalents entitling any Person to
acquire Common Stock at an effective price per share that is lower
than the then Conversion Price (such lower price, the
“Base Conversion
Price” and such issuances, collectively, a
“Dilutive
Issuance”) (if the holder of the Common Stock or
Common Stock Equivalents so issued shall at any time, whether by
operation of purchase price adjustments, reset provisions, floating
conversion, exercise or exchange prices or otherwise, or due to
warrants, options or rights per share which are issued in
connection with such issuance, be entitled to receive Common Stock
at an effective price per share that is lower than the Conversion
Price, such issuance shall be deemed to have occurred for less than
the Conversion Price on such date of the Dilutive Issuance), then
the Conversion Price shall be reduced to equal the Base Conversion
Price, subject to adjustment for reverse and forward stock splits
and the like. Such adjustment shall be made whenever such Common
Stock or Common Stock Equivalents are issued. Notwithstanding the
foregoing, no adjustment will be made under this Section 5(b) in
respect of an Exempt Issuance. If Borrower enters into a Variable
Rate Transaction, despite the prohibition set forth in the
Settlement Agreement, Borrower shall be deemed to have issued
Common Stock or Common Stock Equivalents at the lowest possible
conversion price at which such securities may be converted or
exercised. Borrower shall notify the Holder in writing, no later
than the Trading Day following the issuance of any Common Stock or
Common Stock Equivalents subject to this Section 5(b), indicating
therein the applicable issuance price, or applicable reset price,
exchange price, conversion price and other pricing terms (such
notice, the “Dilutive Issuance
Notice”). For purposes of clarification, whether or
not Borrower provides a Dilutive Issuance Notice pursuant to this
Section 5(b), upon the occurrence of any Dilutive Issuance, the
Holder is entitled to receive a number of Conversion Shares based
upon the Base Conversion Price on or after the date of such
Dilutive Issuance, regardless of whether the Holder accurately
refers to the Base Conversion Price in the Notice of
Conversion.
c)
Subsequent Rights Offerings.
In addition to any adjustments
pursuant to Sections 5(a) and (b) above, if at any time Borrower
grants, issues or sells any Common Stock Equivalents or rights to
purchase stock, warrants, securities or other property pro rata to
the record holders of any class of shares of Common Stock (the
“Purchase
Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of
Common Stock acquirable upon complete conversion of this Note
(without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation)
immediately before the date on which a record is taken for the
grant, issuance or sale of such Purchase Rights, or, if no such
record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale
of such Purchase Rights (provided, however, to the extent that the
Holder’s right to participate in any such Purchase Right
would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in
such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such
extent) and such Purchase Right to such extent shall be held in
abeyance for the Holder until such time, if ever, as its right
thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
d) Pro
Rata Distributions. During such time as this Note is
outstanding, if Borrower shall declare or make any dividend whether
or not permitted, or makes any other distribution of its assets (or
rights to acquire its assets) to holders of shares of Common Stock,
by way of return of capital or otherwise (including, without
limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off,
reclassification, corporate rearrangement, scheme of arrangement or
other similar transaction) (a “Distribution”), at any
time after the issuance of this Note, then, in each such case, the
Holder shall be entitled to participate in such Distribution to the
same extent that the Holder would have participated therein if the
Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Note (without regard to any
limitations on exercise hereof, including without limitation, the
Beneficial Ownership Limitation) immediately before the date of
which a record is taken for such Distribution, or, if no such
record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the participation in such
Distribution (provided, however, to the extent that the
Holder's right to participate in any such Distribution would result
in the Holder exceeding the Beneficial Ownership Limitation, then
the Holder shall not be entitled to participate in such
Distribution to such extent (or in the beneficial ownership of any
shares of Common Stock as a result of such Distribution to such
extent) and the portion of such Distribution shall be held in
abeyance for the benefit of the Holder until such time, if ever, as
its right thereto would not result in the Holder exceeding the
Beneficial Ownership Limitation).
e)
Fundamental Transaction. If, at
any time while this Note is outstanding, (i) Borrower, directly or
indirectly, in one or more related transactions effects any merger
or consolidation of Borrower with or into another Person, (ii)
Borrower, directly or indirectly, effects any sale, lease, license,
assignment, transfer, conveyance or other disposition of all or
substantially all of its assets in one or a series of related
transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by Borrower or another Person) is
completed pursuant to which holders of Common Stock are permitted
to sell, tender or exchange their shares for other securities, cash
or property and has been accepted by the holders of 50% or more of
the outstanding Common Stock, (iv) Borrower, directly or
indirectly, in one or more related transactions effects any
reclassification, reorganization or recapitalization of the Common
Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other
securities, cash or property, (v) Borrower, directly or indirectly,
in one or more related transactions consummates a stock or share
purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off or
scheme of arrangement) with another Person whereby such other
Person acquires more than 50% of the outstanding shares of Common
Stock (not including any shares of Common Stock held by the other
Person or other Persons making or party to, or associated or
affiliated with the other Persons making or party to, such stock or
share purchase agreement or other business combination) (each a
“Fundamental
Transaction”), then, upon any subsequent conversion of
this Note, the Holder shall have the right to receive, for each
Conversion Share that would have been issuable upon such conversion
immediately prior to the occurrence of such Fundamental Transaction
(without regard to any limitation in Section 4(e) on the conversion
of this Note), the number of shares of Common Stock of the
successor or acquiring corporation or of Borrower, if it is the
surviving corporation, and any additional consideration (the
“Alternate
Consideration”) receivable as a result of such
Fundamental Transaction by a holder of the number of shares of
Common Stock for which this Note is convertible immediately prior
to such Fundamental Transaction (without regard to any limitation
in Section 4(e) on the conversion of this Note). For purposes of
any such conversion, the determination of the Conversion Price
shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration
issuable in respect of one (1) share of Common Stock in such
Fundamental Transaction, and Borrower shall apportion the
Conversion Price among the Alternate Consideration in a reasonable
manner reflecting the relative value of any different components of
the Alternate Consideration. If holders of Common Stock are given
any choice as to the securities, cash or property to be received in
a Fundamental Transaction, then the Holder shall be given the same
choice as to the Alternate Consideration it receives upon any
conversion of this Note following such Fundamental Transaction.
Borrower shall cause any successor entity in a Fundamental
Transaction in which Borrower is not the survivor (the
“Successor
Entity”) to assume in writing all of the obligations
of Borrower under this Note and the other Settlement Documents in
accordance with the provisions of this Section 5(e) pursuant to
written agreements in form and substance reasonably satisfactory to
the Majority in Interest (which approval shall not be unreasonably
withheld, delayed or conditioned) prior to such Fundamental
Transaction and shall, at the option of the holder of this Note,
deliver to the Holder in exchange for this Note a security of the
Successor Entity evidenced by a written instrument substantially
similar in form and substance to this Note which is convertible for
a corresponding number of shares of capital stock of such Successor
Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon conversion of this Note
(without regard to any limitations on the conversion of this Note)
prior to such Fundamental Transaction, and with a conversion price
which applies the conversion price hereunder to such shares of
capital stock (but taking into account the relative value of the
shares of Common Stock pursuant to such Fundamental Transaction and
the value of such shares of capital stock, such number of shares of
capital stock and such conversion price being for the purpose of
protecting the economic value of this Note immediately prior to the
consummation of such Fundamental Transaction), and which is
reasonably satisfactory in form and substance to the Holder. Upon
the occurrence of any such Fundamental Transaction, the Successor
Entity shall succeed to, and be substituted for (so that from and
after the date of such Fundamental Transaction, the provisions of
this Note and the Settlement Agreement referring to the
“Borrower” shall refer instead to the Successor
Entity), and may exercise every right and power of Borrower and
shall assume all of the obligations of Borrower under this Note and
the other Settlement Documents with the same effect as if such
Successor Entity had been named as Borrower herein.
f) Calculations.
All calculations under this Section 5 shall be made to the nearest
cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 5, the number of shares of Common Stock
deemed to be issued and outstanding as of a given date shall be the
sum of the number of shares of Common Stock (excluding any treasury
shares of Borrower) issued and outstanding.
i. Adjustment
to Conversion Price. Whenever the Conversion Price is
adjusted pursuant to any provision of this Section 5, Borrower
shall promptly deliver to each Holder a notice setting forth the
Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
ii.
Notice to
Allow Conversion by Holder. If (A) Borrower shall declare a
dividend (or any other distribution in whatever form) on the Common
Stock, (B) Borrower shall declare a special nonrecurring cash
dividend on or a redemption of the Common Stock, (C) Borrower shall
authorize the granting to all holders of the Common Stock of rights
or warrants to subscribe for or purchase any shares of capital
stock of any class or of any rights, (D) the approval of any
stockholders of Borrower shall be required in connection with any
reclassification of the Common Stock, any consolidation or merger
to which Borrower is a party, any sale or transfer of all or
substantially all of the assets of Borrower, or any compulsory
share exchange whereby the Common Stock is converted into other
securities, cash or property or (E) Borrower shall authorize the voluntary or
involuntary dissolution, liquidation or winding up of the affairs
of Borrower, then, in each case, Borrower shall cause to be filed
at each office or agency maintained for the purpose of conversion
of this Note, and shall cause to be delivered to the Holder at its
last address as it shall appear upon the Note Register, at least
twenty (20) calendar days prior to the applicable record or
effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the
Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined
or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become
effective or close, and the date as of which it is expected that
holders of the Common Stock of record shall be entitled to exchange
their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation,
merger, sale, transfer or share exchange, provided that the failure
to deliver such notice or any defect therein or in the delivery
thereof shall not affect the validity of the corporate action
required to be specified in such notice. To the extent that any
notice provided hereunder constitutes, or contains, material,
non-public information regarding Borrower or any of the
Subsidiaries, Borrower shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K. The Holder
shall remain entitled to convert this Note during the 20-day period
commencing on the date of such notice through the effective date of
the event triggering such notice except as may otherwise be
expressly set forth herein.
Section
6. [Intentionally
Omitted]
Section
7. Negative
Covenants. As long as any portion of this Note remains
outstanding, unless the Majority in Interest shall have otherwise
given prior written consent, Borrower shall not directly or
indirectly:
a) other
than Permitted Indebtedness, enter into, create, incur, assume,
guarantee or suffer to exist any Indebtedness for borrowed money of
any kind, including, but not limited to, a guarantee, on or with
respect to any of its property or assets now owned or hereafter
acquired or any interest therein or any income or profits
therefrom;
b) other
than Permitted Liens, enter into, create, incur, assume or suffer
to exist any Liens of any kind, on or with respect to any of its
property or assets now owned or hereafter acquired or any interest
therein or any income or profits
therefrom;
c) amend
its charter documents, including, without limitation, its
certificate of incorporation and bylaws, in any manner that
materially and adversely affects any rights of the Holder;
provided,
however,
the consent of a Majority in Interest shall not be required in
connection with an increase in the authorized shares by
Borrower;
d) repay,
repurchase or offer to repay, repurchase or otherwise acquire any
shares of its Common Stock or Common Stock Equivalents other than
(i) as to the Conversion Shares or such shares of Common Stock that
may be issued upon conversion of Permitted Indebtedness having
terms similar to the Notes, in each case, in connection with the
payment of cash in lieu of fractional shares or (ii) with respect
to Common Stock Equivalents, to the extent permitted by Section
7(e) below.
e) redeem,
defease, repurchase, repay or make any payments in respect of, by
the payment of cash or cash equivalents (in whole or in part,
whether by way of open market purchases, tender offers, private
transactions or otherwise), all or any portion of any Indebtedness
(other than (i) required payment or prepayment of principal,
premium and interest in respect of Permitted Indebtedness and the
Notes or (ii) other payments with respect to Permitted Indebtedness
or the Notes, if on a pro-rata basis), whether by way of payment in
respect of principal of (or premium, if any) or interest on, such
Indebtedness. The foregoing restriction shall also apply to
Permitted Indebtedness from and after the occurrence of an Event of
Default;
f) declare
or make any dividend or other distribution of its assets or rights
to acquire its assets to holders of shares of Common Stock, by way
of return of capital or otherwise including, without limitation,
any distribution of cash, stock or other securities, property or
options by way of a dividend, spin off, reclassification,
liquidation, distribution, preferential payments in connection with
any securities or debt issuances, corporate rearrangement, scheme
of arrangement or other similar transaction;
g) enter
into any transaction with any Affiliate of Borrower which would be
required to be disclosed by a company subject to the reporting
requirements of Section 12(g) of the Exchange Act in any public
filing with the Commission, unless such transaction is made on
reasonable commercial terms and expressly approved by either (i) a
majority of the disinterested directors of Borrower (even if less
than a quorum otherwise required for board approval) or (ii) all of
the directors; or
h) enter
into any agreement with respect to any of the foregoing.
Section
8.
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 (A) the principal amount of this Note and
(B) interest, and other amounts owing to a Holder of this Note, as
and when the same shall become due and payable (whether on a
Conversion Date, the Repurchase Date or the Maturity Date or by
acceleration or otherwise) which default, solely in the case of a
default under clause (B) above, is not cured within three (3)
Trading Days after Borrower has become aware of such
default;
ii. Borrower
shall fail to observe or perform any other material covenant or
agreement contained in the Notes (other than a breach by Borrower
of its obligations to deliver shares of Common Stock to the Holder
upon conversion, which breach is addressed in clause (viii) below)
which failure is not cured, if possible to cure, within the earlier
to occur of (A) five (5) Trading Days
after notice of such failure sent by the Holder or by any Other
Holder to Borrower and (B) ten (10) Trading Days after Borrower has
become aware of such failure;
iii. a
material default or event of default (subject to any grace or cure
period provided in the applicable agreement, document or
instrument) shall occur under any material agreement, lease,
document or instrument to which Borrower or any Subsidiary is
obligated (and not covered by clause (vi) below), which would
reasonably be expected to have a Material Adverse
Effect;
iv. any
material representation or
warranty made in this Note, any other Settlement Document or any
other report, financial statement or certificate made or delivered
to the Holder or any Other Holder shall be untrue or incorrect in
any material respect as of the date when made or deemed
made;
v. Borrower
or any Subsidiary shall be subject to a Bankruptcy
Event;
vi. Borrower
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 $50,000, 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;
vii. Borrower
shall be a party to any Change of Control Transaction or
Fundamental Transaction or disposition of all or in excess of 30%
of its assets in one transaction or a series of related
transactions (whether or not such sale would constitute a Change of
Control Transaction);
viii.
Borrower shall fail for any reason to deliver Conversion
Shares to a Holder prior to the fifth (5th) Trading Day after
a Conversion Date pursuant to Section 4(d) or Borrower shall
provide at any time notice to the Holder, including by way of
public announcement, of Borrower’s intention to not honor
requests for conversions of any Notes in accordance with the terms
hereof;
ix.
Borrower shall fail to observe or perform any material covenant or
agreement set forth in any other Settlement Document, which breach
is not cured within any allowed cure period;
x.
any monetary judgment, writ or similar final process shall be
entered or filed against Borrower, or any of its respective
property or other assets for more than $50,000, and such judgment,
writ or similar final process shall remain unvacated, unbonded,
unstayed, unsettled, unsatisfied, or unpaid for a period of ninety
(90) calendar days;
xi.
any dissolution, liquidation or winding up by Borrower, of a
substantial portion of its business;
xii.
cessation of operations by Borrower;
xiii.
the failure by Borrower or any material Subsidiary to maintain any
material intellectual property rights, personal, real property,
equipment, leases or other assets which are necessary to conduct
its business (whether now or in the future) and such breach is not
cured with twenty (20) days after written notice to Borrower from
the Holder;
xiv.
the Conversion Shares are no longer listed, quoted or are otherwise
delisted from the then principal Trading Market;
xv.
a Commission or judicial stop trade order or suspension from
Borrower’s then principal Trading Market;
xvi.
the restatement after the date hereof of any financial statements
filed by Borrower with the Commission for any date or period from
the Original Issue Date and until this Note is no longer
outstanding, if the result of such restatement would, by comparison
to the unrestated financial statements, have constituted a Material
Adverse Effect. For the avoidance of doubt, any restatement related
to new accounting pronouncements shall not constitute a default
under this Section;
xvii.
Borrower effectuates a reverse split of its Common Stock without
five (5) days prior written notice to the Holder;
xiii.
the occurrence of an Event of Default
under any Other Note; or
xix. any material
provision of any Settlement Document shall at any time for any
reason (other than pursuant to the express terms thereof) cease to
be valid and binding on or enforceable against Borrower, or the
validity or enforceability thereof shall be contested by Borrower,
or a proceeding shall be commenced by Borrower or any governmental
authority having jurisdiction over Borrower or Holder, seeking to
establish the invalidity or unenforceability thereof, or Borrower
shall deny in writing that it has any liability or obligation
purported to be created under any Settlement Document.
In the
event more than one grace, cure or notice period is applicable to
an Event of Default, then the shortest grace, cure or notice period
shall be applicable thereto.
b)
Remedies Upon Event of Default,
Fundamental Transaction and Change of Control Transaction.
If any Event of Default or a Fundamental Transaction or a Change of
Control Transaction occurs, the outstanding principal amount of
this Note, and other amounts owing in respect thereof through the
date of acceleration, shall become immediately due and payable in
cash at the Mandatory Default Amount, at the Holder’s
election, except that upon an
Event of Default pursuant to Section 8(a)(v), Borrower shall
immediately pay the Mandatory Default Amount to the Holder without
the requirement for any notice or demand or other action by the
Holder or any other Person; provided that the Holder may, in its
sole discretion, waive such right to receive payment upon an Event
of Default pursuant to Section 8(a)(v), in whole or in part, and
any such waiver shall not affect any other rights of the Holder
hereunder, including any other rights in respect of such Event of
Default, any right to conversion, and any right to payment of the
Mandatory Default Amount or any other amount, as applicable.
Commencing on the Maturity Date and also five (5) days after the
occurrence of any Event of Default interest on this Note shall
accrue at an interest rate equal to the lesser of 18% per annum or
the maximum rate permitted under applicable law. Upon the payment
in full of the Mandatory Default Amount, the Holder shall promptly
surrender this Note to or as directed by Borrower. In connection
with such acceleration described herein, the Holder need not
provide, and Borrower 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 and all other remedies available
to it under 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 8(b). No such rescission or annulment shall affect any
subsequent Event of Default or impair any right consequent
thereon.
Section 9. Miscellaneous.
a)
Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder
shall be in writing and, unless otherwise specified herein, shall
be (i) personally served, (ii) deposited in the mail, registered or
certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or
(iv) transmitted by hand delivery, telegram, facsimile, or
electronic mail, addressed as set forth below or to such other
address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to
be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by
the transmitting facsimile machine, at the address or number
designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to
be received), or (b) upon receipt, when sent by electronic mail
(provided confirmation of transmission is electronically generated
and keep on file by the sending party), or (c) on the second
business day following the date of mailing by express courier
service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be: (i) if to Borrower, to: GT
Biopharma, Inc., 9350 Wilshire Blvd, Suite 203, Beverly
Hills, CA 90212, Attn: Chief Executive
Officer (with copies emailed to sww@gtbiopharma.com; ajc@gtbiopharma.com), with a
copy to (which shall not constitute notice): Perrie Weiner at
perrie.weiner@bakermckenzie.com, and (ii) if to the Holder,
to: the address and email indicated on the front page of this
Note.
b)
Absolute Obligation. Except as
expressly provided herein, no provision of this Note shall alter or
impair the obligation of Borrower, which is absolute and
unconditional, to pay (A) the principal amount of this Note and (B)
interest, and other amounts owing to a Holder of this Note, at the
time, place, and rate, and in the coin or currency, herein
prescribed. This Note is a direct debt obligation of Borrower. This
Note ranks pari
passu with all
other Notes now or hereafter issued under the terms set forth
herein.
c)
Lost or Mutilated Note. If this
Note shall be mutilated, lost, stolen or destroyed, Borrower 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
Borrower.
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 Settlement Documents (whether brought
against a party hereto or its respective Affiliates, directors,
officers, shareholders, 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 Settlement 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 any 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 attorney's fees and other costs and
expenses incurred in the investigation, preparation and prosecution
of such action or proceeding. This
Note shall be deemed an unconditional obligation of Borrower for
the payment of money and, without limitation to any other remedies
of Holder, may be enforced against Borrower by summary proceeding
pursuant to New York Civil Procedure Law and Rules Section 3213 or
any similar rule or statute in the jurisdiction where enforcement
is sought. For purposes of such rule or statute, any other document
or agreement to which Holder and Borrower are parties or which
Borrower delivered to Holder, which may be convenient or necessary
to determine Holder’s rights hereunder or Borrower’s
obligations to Holder are deemed a part of this Note, whether or
not such other document or agreement was delivered together
herewith or was executed apart from this Note.
e)
Waiver. Any waiver by Borrower
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 Borrower 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 on any other occasion. Any waiver by
Borrower or the Holder must be in writing.
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.
g)
Usury. 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. Borrower
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 Borrower
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 Note, and Borrower (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.
h)
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.
i) 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.
j) Amendment.
This Note may be amended and any provisions hereof may be waived by
written consent of Borrower and the
Majority in Interest.
k)
Facsimile Signature. In the
event that Borrower’s signature is delivered by facsimile
transmission, PDF, electronic signature or other similar electronic
means, such signature shall create a valid and binding obligation
of Borrower with the same force and effect as if such signature
page were an original thereof.
*********************
(Signature Pages Follow)
IN WITNESS WHEREOF, Borrower has caused
this Note to be signed in its name by an authorized officer as of
the Original Issue Date set out above.
Name:
Steven Weldon
Title:
Chief Financial Officer
[Signature Page—Settlement Note]
19
ANNEX A
NOTICE OF CONVERSION
The
undersigned hereby elects to convert principal under the
Convertible Note Due ______________ of GT Biopharma, Inc., a
Delaware corporation (the “Borrower”), into shares of
common stock (the “Common Stock”), of
Borrower according to the conditions hereof, as of the date written
below. If shares of Common Stock are to be issued in the name of a
person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto and is delivering
herewith such certificates and opinions as reasonably requested by
Borrower in accordance therewith. No fee will be charged to the
holder for any conversion, except for such transfer taxes, if
any.
By the
delivery of this Notice of Conversion the undersigned represents
and warrants to Borrower that its ownership of the Common Stock
does not exceed the amounts specified under Section 4 of this Note,
as determined in accordance with Section 13(d) of the Exchange
Act.
The
undersigned agrees to comply with the prospectus delivery
requirements under the applicable securities laws in connection
with any transfer of the aforesaid shares of Common
Stock.
Conversion
calculations:
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Date to
Effect Conversion: ____________________________
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Principal
Amount of Note to be Converted: $__________________
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Accrued
Interest to be Converted, if any: $______________
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Conversion
Price: $_________________
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Number
of shares of Common Stock to be issued: ______________
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Signature:
_________________________________________
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Name:
____________________________________________
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DWAC
Instructions: _________________________________
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Broker
No:_____________
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Account
No: _______________
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SCHEDULE A (PERMITTED INDEBTEDNESS)
1.
Indebtedness incurred with respect to the $15,294,365.74 aggregate
principal amount of convertible notes and 10% senior convertible
debentures outstanding on the Original Issue Date (including
additional Indebtedness constituting default amounts with respect
to such convertible note and debentures).
2.
Indebtedness incurred with respect the lease agreement, dated
October 1, 2018, between the Company and Sheffield Properties of
Illinois, Inc. relating to the Company’s principal officers
in Westlake Village, California.
3.
Indebtedness incurred with respect to the financing agreement,
dated November 8, 2010, with Gemini Pharmaceuticals, Inc. relating
to a purchase order line of credit facility.
Exhibit 10.3
[FORM OF SETTLEMENT WARRANT]
GT BIOPHARMA, INC.
Pre-Funded Warrant To Purchase Common Stock
Number
of Shares of Common Stock:_____________
Date of
Issuance: June 19, 2020 ("Issuance
Date")
GT
Biopharma, Inc., a Delaware corporation (the "Company"), hereby certifies that, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, [EMPERY FUND], the registered holder
hereof or its permitted assigns (the "Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company, at the
Exercise Price (as defined below) then in effect, at any time or
times on or after the Issuance Date, but not after 11:59 p.m., New
York time, on the Expiration Date, (as defined below),
______________ (_____________)1 fully paid non-assessable shares of
Common Stock, subject to adjustment as provided herein (the "Warrant Shares"). Except as otherwise
defined herein, capitalized terms in this Pre-Funded Warrant to
Purchase Common Stock (including any Pre-Funded Warrants to
Purchase Common Stock issued in exchange, transfer or replacement
hereof, this "Warrant"),
shall have the meanings set forth in Section 17. This Warrant is
one of the Pre-Funded Warrants to purchase Common Stock (the
"Settlement Warrants")
issued pursuant to Section 1(b) of that certain Settlement
Agreement, dated as of June 19, 2020 (the "Settlement Date"), by and among the
Company and the investors and other parties referred to therein
(the "Settlement
Agreement"). Capitalized terms used herein and not otherwise
defined shall have the definitions ascribed to such terms in the
Settlement Agreement.
1. EXERCISE
OF WARRANT.
(a) Mechanics of Exercise. Subject
to the terms and conditions hereof (including, without limitation,
the limitations set forth in Section 1(f)), this Warrant may be
exercised by the Holder at any time or times on or after the
Issuance Date, in whole or in
part, by delivery of a written notice, in the form attached hereto
as Exhibit A (the
"Exercise Notice"), of the
Holder's election to exercise this Warrant. No ink-original Exercise Notice
shall be required, nor shall any medallion guarantee (or other type
of guarantee or notarization) of any Exercise Notice be required.
The Holder shall not be required to deliver the original Warrant in
order to effect an exercise hereunder. Execution and delivery of
the Exercise Notice with respect to less than all of the Warrant
Shares shall have the same effect as cancellation of the original
Warrant and issuance of a new Warrant evidencing the right to
purchase the remaining number of Warrant Shares. On or before the
first (1st) Trading Day
following the date on which the Holder has delivered an Exercise
Notice, the Company shall transmit by electronic mail or facsimile
an acknowledgment of confirmation of receipt of the Exercise Notice
to the Holder and the Company's transfer agent (the "Transfer Agent"). On or before the
earlier of (i) second (2nd) Trading Day and
(ii) the number of Trading Days comprising the Standard Settlement
Period, in each case, following the date on which the Holder has
delivered the Exercise Notice (a "Share Delivery Date"), the Company shall
(X) provided that the Transfer Agent is participating in The
Depository Trust Company ("DTC") Fast Automated Securities Transfer
Program, credit such aggregate number of Warrant Shares to which
the Holder is entitled pursuant to such exercise to the Holder's or
its designee's balance account with DTC through its Deposit /
Withdrawal At Custodian system, or (Y) if the Transfer Agent is not
participating in the DTC Fast Automated Securities Transfer
Program, issue and dispatch by overnight courier to the address as
specified in the Exercise Notice, a certificate, registered in the
Company's share register in the name of the Holder or its designee,
for the number of Warrant Shares to which the Holder is entitled
pursuant to such exercise. The Company shall be responsible for all
fees and expenses of the Transfer Agent and all fees and expenses
with respect to the issuance of Warrant Shares via DTC, if any,
including without limitation for same day processing. Upon delivery
of the Exercise Notice, the Holder shall be deemed for all
corporate purposes to have become the holder of record of the
Warrant Shares with respect to which this Warrant has been
exercised, irrespective of the date such Warrant Shares are
credited to the Holder's DTC account or the date of delivery of the
certificates evidencing such Warrant Shares, as the case may be. If
this Warrant is submitted in connection with any exercise pursuant
to this Section 1(a) and the number of Warrant Shares represented
by this Warrant submitted for exercise is greater than the number
of Warrant Shares being acquired upon an exercise, then the Company
shall as soon as practicable and in no event later than five (5)
Trading Days after any exercise and at its own expense, issue a new
Warrant (in accordance with Section 7(d)) representing the right to
purchase the number of Warrant Shares issuable immediately prior to
such exercise under this Warrant, less the number of Warrant Shares
with respect to which this Warrant is exercised. No fractional
Warrant Shares are to be issued upon the exercise of this Warrant,
but rather the number of Warrant Shares to be issued shall be
rounded up to the nearest whole number. The Company shall pay any
and all taxes which may be payable with respect to the issuance and
delivery of Warrant Shares upon exercise of this Warrant. The
Company's obligations to issue and deliver Warrant Shares in
accordance with the terms and subject to the conditions hereof are
absolute and unconditional, irrespective of any action or inaction
by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment
against any Person or any action to enforce the same, or any
setoff, counterclaim, recoupment, limitation or
termination.
(b) Exercise Price. For purposes of
this Warrant, "Exercise
Price" means $0.20,
subject to adjustment as provided herein. The aggregate Exercise
Price of this Warrant was deemed to be pre-funded to the Company on
a cashless basis in conjunction with the Holder’s exchange
the Original Notes and Original Warrants for the Settlement
Securities pursuant to the Settlement Agreement (and other terms
therein) and, consequently no additional consideration shall be
required to be paid by the Holder to any Person to effect any
exercise of this Warrant. The Holder shall not be entitled to the
return or refund of all, or any portion, of such pre-paid aggregate
Exercise Price under any circumstance or for any reason whatsoever,
including in the event this Warrant shall not have been exercised
prior to the Expiration Date.
(c) Company's Failure to Timely Deliver
Securities. If the Company shall fail for any reason or for
no reason to issue to the Holder on or prior to the applicable
Share Delivery Date either (I) if the Transfer Agent is not
participating in the DTC Fast Automated Securities Transfer
Program, a certificate for the number of shares of Common Stock to
which the Holder is entitled and register such shares of Common
Stock on the Company's share register or (II) if the Transfer Agent
is participating in the DTC Fast Automated Securities Transfer
Program, to credit the Holder's balance account with DTC, for such
number of shares of Common Stock to which the Holder is entitled
upon the Holder's exercise of this Warrant by crediting such
aggregate number of Warrant Shares to which the Holder is entitled
pursuant to such exercise to the Holder's or its designee's balance
account with DTC through its Deposit / Withdrawal At Custodian
system (an "Exercise
Failure"), then, in addition to all other remedies available
to the Holder, (X) the Company shall pay in cash to the Holder on
each day after the applicable Share Delivery Date and during such
Exercise Failure an amount equal to 1.5% of the product of (A) the
sum of the number of shares of Common Stock not issued to the
Holder on or prior to the Share Delivery Date and to which the
Holder is entitled, and (B) any trading price of the Common Stock
selected by the Holder in writing as in effect at any time during
the period beginning on the date of the applicable exercise and
ending on the applicable Share Delivery Date, and (Y) the Holder,
upon written notice to the Company, may void its Exercise Notice
with respect to, and retain or have returned, as the case may be,
any portion of this Warrant that has not been exercised pursuant to
such Exercise Notice; provided that the voiding of an Exercise
Notice shall not affect the Company's obligations to make any
payments which have accrued prior to the date of such notice
pursuant to this Section 1(c) or otherwise. In addition to the
foregoing, if on or prior to the applicable Share Delivery Date,
and if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, the Company shall fail to
issue and deliver a certificate to the Holder and register such
shares of Common Stock on the Company's share register or, if the
Transfer Agent is participating in the DTC Fast Automated
Securities Transfer Program, credit the Holder's balance account
with DTC for the number of shares of Common Stock to which the
Holder is entitled upon the Holder's exercise hereunder or pursuant
to the Company's obligation pursuant to clause (ii) below, and if
on or after such Trading Day the Holder purchases (in an open
market transaction or otherwise) shares of Common Stock to deliver
in satisfaction of a sale by the Holder of shares of Common Stock
issuable upon such exercise that the Holder anticipated receiving
from the Company (a "Buy-In"), then the Company shall, within
three (3) Trading Days after the Holder's request and in the
Holder's discretion, either (i) pay cash to the Holder in an amount
equal to the Holder's total purchase price (including brokerage
commissions and other out-of-pocket expenses, if any) for the
shares of Common Stock so purchased (the "Buy-In Price"), at which point the
Company's obligation to deliver such certificate (and to issue such
shares of Common Stock) or credit such Holder's balance account
with DTC for such shares of Common Stock shall terminate, or (ii)
promptly honor its obligation to deliver to the Holder a
certificate or certificates representing such shares of Common
Stock or credit such Holder's balance account with DTC, as
applicable, and pay cash to the Holder in an amount equal to the
excess (if any) of the Buy-In Price over the product of (A) such
number of shares of Common Stock, times (B) any trading price of
the Common Stock selected by the Holder in writing as in effect at
any time during the period beginning on the date of the applicable
exercise and ending on the applicable Share Delivery Date. Nothing
shall limit the Holder's right to pursue any other remedies
available to it hereunder, at law or in equity, including, without
limitation, a decree of specific performance and/or injunctive
relief with respect to the Company's failure to timely deliver
certificates representing shares of Common Stock (or to
electronically deliver such shares of Common Stock) upon the
exercise of this Warrant as required pursuant to the terms
hereof.
(d) Holding Period of Warrant
Shares. For purposes of Rule 144(d) promulgated under the
1933 Act, as in effect on the date hereof, the Company hereby
acknowledges and agrees that the Warrant Shares issued in an
exercise of this Warrant shall be deemed to have been acquired by
the Holder, and the holding period for the Warrant Shares shall be
deemed to have commenced, on the date the Original Warrants and
Original Notes (each as defined in the Settlement Agreement) were
originally issued pursuant to that certain Securities Purchase
Agreement dated as of January 22, 2018 by and among the Company and
the investors listed on the signature pages attached
thereto.
(e) Disputes. In the case of a
dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall
promptly issue to the Holder the number of Warrant Shares that are
not disputed and resolve such dispute in accordance with Section
12.
(f) Beneficial
Ownership. Notwithstanding
anything to the contrary contained herein, the Company shall not
effect the exercise of any portion of this Warrant, and the Holder
shall not have the right to exercise any portion of this Warrant,
pursuant to the terms and conditions of this Warrant and any such
exercise shall be null and void and treated as if never made, to
the extent that after giving effect to such exercise, the Holder
together with the other Attribution Parties collectively would
beneficially own in excess of 4.99% (the "Maximum
Percentage") of the number of
shares of Common Stock outstanding immediately after giving effect
to such exercise. For purposes of the foregoing sentence, the
aggregate number of shares of Common Stock beneficially owned by
the Holder and the other Attribution Parties shall include the
number of shares of Common Stock held by the Holder and all other
Attribution Parties plus the number of shares of Common Stock
issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude the
number of shares of Common Stock which would be issuable upon (A)
exercise of the remaining, unexercised portion of this Warrant
beneficially owned by the Holder or any of the other Attribution
Parties and (B) exercise or conversion of the unexercised or
unconverted portion of any other securities of the Company
(including, without limitation, any convertible notes or
convertible preferred stock or warrants, including the other
Settlement Warrants) beneficially owned by the Holder or any other
Attribution Party subject to a limitation on conversion or exercise
analogous to the limitation contained in this Section 1(f). For
purposes of this Section 1(f), beneficial ownership shall be
calculated in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"). For purposes of determining the number of
outstanding shares of Common Stock the Holder may acquire upon the
exercise of this Warrant without exceeding the Maximum Percentage,
the Holder may rely on the number of outstanding shares of Common
Stock as reflected in (x) the Company's most recent Annual Report
on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form
8-K or other public filing with the Securities and Exchange
Commission (the "SEC"), as
the case may be, (y) a more recent public announcement by the
Company or (3) any other written notice by the Company or the Transfer Agent
setting forth the number of shares of Common Stock
outstanding (the
"Reported
Outstanding Share Number"). If
the Company receives an Exercise Notice from the Holder at a time
when the actual number of outstanding shares of Common Stock is
less than the Reported Outstanding Share Number, the Company shall
notify the Holder in writing of the number of shares of Common
Stock then outstanding and, to the extent that such Exercise Notice
would otherwise cause the Holder's beneficial ownership, as
determined pursuant to this Section 1(f), to exceed the Maximum
Percentage, the Holder must notify the Company of a reduced number
of Warrant Shares to be purchased pursuant to such Exercise
Notice (the number of shares by
which such purchase is reduced, the "Reduction
Shares"). For any reason
at any time, upon the written or oral request of the Holder,
the Company shall within one (1)
Trading Day confirm orally and
in writing or by electronic mail to the Holder the number of shares
of Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder and any other Attribution
Party since the date as of which the Reported Outstanding Share
Number was reported. In the event that the issuance of shares of
Common Stock to the Holder upon exercise of this Warrant results in
the Holder and the other Attribution Parties being deemed to
beneficially own, in the aggregate, more than the Maximum
Percentage of the number of outstanding shares of Common Stock (as
determined under Section 13(d) of the 1934 Act), the number of
shares so issued by which the Holder's and the other Attribution
Parties' aggregate beneficial ownership exceeds the Maximum
Percentage (the "Excess
Shares") shall be deemed null
and void and shall be cancelled ab initio, and the Holder shall not
have the power to vote or to transfer the Excess Shares.
Upon delivery of a written notice to the Company, the Holder may
from time to time increase or decrease the Maximum Percentage to
any other percentage not in excess of 9.99% as specified in such
notice; provided that (i) any such increase in the Maximum
Percentage will not be effective until the sixty-first
(61st) day
after such notice is delivered to the Company and (ii) any such
increase or decrease will apply only to the Holder and the other
Attribution Parties and not to any other holder of Settlement
Warrants that is not an Attribution Party of the Holder. For
purposes of clarity, the shares of Common Stock issuable pursuant
to the terms of this Warrant in excess of the Maximum Percentage
shall not be deemed to be beneficially owned by the Holder for any
purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1)
of the 1934 Act. No prior inability to exercise this Warrant
pursuant to this paragraph shall have any effect on the
applicability of the provisions of this paragraph with respect to
any subsequent determination of exercisability. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 1(f) to the extent
necessary to correct this paragraph or any portion of this
paragraph which may be defective or inconsistent with the intended
beneficial ownership limitation contained in this Section 1(f) or
to make changes or supplements necessary or desirable to properly give effect to
such limitation. The limitation contained in this paragraph may not
be waived and shall apply to a successor holder of this
Warrant.
(g) Insufficient Authorized Shares.
If at any time while this Warrant remains outstanding the Company
does not have a sufficient number of authorized and unreserved
shares of Common Stock to satisfy its obligation to reserve for
issuance upon exercise of this Warrant at least a number of shares
of Common Stock equal to the number of shares of Common Stock as
shall from time to time be necessary to effect the exercise of all
of this Warrant then outstanding (the "Required Reserve Amount" and the failure
to have such sufficient number of authorized and unreserved shares
of Common Stock, an "Authorized
Share Failure"), then the Company shall immediately take all
action necessary to increase the Company's authorized shares of
Common Stock to an amount sufficient to allow the Company to
reserve the Required Reserve Amount for this Warrant then
outstanding. Without limiting the generality of the foregoing
sentence, as soon as practicable after the date of the occurrence
of an Authorized Share Failure, but in no event later than sixty
(60) days after the occurrence of such Authorized Share Failure,
the Company shall hold a meeting of its stockholders for the
approval of an increase in the number of authorized shares of
Common Stock. In connection with such meeting, the Company shall
provide each stockholder with a proxy statement and shall use its
best efforts to solicit its stockholders' approval of such increase
in authorized shares of Common Stock and to cause its board of
directors to recommend to the stockholders that they approve such
proposal. Notwithstanding the foregoing, if any such time of an
Authorized Share Failure, the Company is able to obtain the written
consent of a majority of the shares of its issued and outstanding
Common Stock to approve the increase in the number of authorized
shares of Common Stock, the Company may satisfy this obligation by
obtaining such consent and submitting for filing with the SEC an
Information Statement on Schedule 14C. In the event that upon any
exercise of this Warrant, the Company does not have sufficient
authorized shares to deliver in satisfaction of such exercise, then
unless the Holder elects to void such attempted exercise, the
Holder may require the Company to pay to the Holder within three
(3) Trading Days of the applicable exercise, cash in an amount
equal to the product of the product of (A) the sum of the number of
shares of Common Stock not issued to the Holder on or prior to the
Share Delivery Date and to which the Holder is entitled, and (B)
any trading price of the Common Stock selected by the Holder in
writing as in effect at any time during the period beginning on the
date of the applicable exercise and ending on the date that the
Company makes the applicable cash payment.
2. ADJUSTMENT OF EXERCISE PRICE AND
NUMBER OF WARRANT SHARES. The Exercise Price and the number
of Warrant Shares shall be adjusted from time to time as
follows:
(h) Adjustment Upon Subdivision or
Combination of Shares of Common Stock. If the Company at any
time on or after the Settlement Date subdivides (by any stock
split, stock dividend, recapitalization or otherwise) one or more
classes of its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to
such subdivision will be proportionately reduced and the number of
Warrant Shares will be proportionately increased such that the
aggregate Exercise Price of this Warrant that was pre-funded to the
Company shall remain unchanged. If the Company at any time on or
after the Settlement Date combines (by combination, reverse stock
split or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price
in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares will be
proportionately decreased such that aggregate Exercise Price of
this Warrant that was pre-funded to the Company shall remain
unchanged.. Any adjustment under this Section 2(a) shall
become effective at the close of business on the date the
subdivision or combination becomes effective.
(i) [Reserved].
3. RIGHTS UPON DISTRIBUTION OF
ASSETS. If the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets)
to any or all holders of shares of Common Stock, by way of return
of capital or otherwise (including, without limitation, any
distribution of cash, stock or other securities, property, options,
evidence of indebtedness or any other assets by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a "Distribution"), at any time after the
issuance of this Warrant, then, in each such case, the Holder shall
be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had
held the number of shares of Common Stock acquirable upon complete
exercise of this Warrant (without regard to any limitations or
restrictions on exercise of this Warrant, including without
limitation, the Maximum Percentage) immediately before the date of
which a record is taken for such Distribution, or, if no such
record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the participation in such
Distribution (provided, however, that to the extent
that the Holder's right to participate in any such Distribution
would result in the Holder and the other Attribution Parties
exceeding the Maximum Percentage, then the Holder shall not be
entitled to participate in such Distribution to such extent (and
shall not be entitled to beneficial ownership of such shares of
Common Stock as a result of such Distribution (and beneficial
ownership) to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such
time or times as its right thereto would not result in the Holder
and the other Attribution Parties exceeding the Maximum Percentage,
at which time or times the Holder shall be granted such
Distribution (and any Distributions declared or made on such
initial Distribution or on any subsequent Distribution held
similarly in abeyance) to the same extent as if there had been no
such limitation).
4. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS.
(j) Purchase Rights. If at any time
on or after the Settlement Date and on or prior to the Expiration
Date the Company grants, issues or sells any Options, Convertible
Securities or rights to purchase stock, warrants, securities or
other property pro rata to the record holders of any class of
Common Stock (the "Purchase
Rights"), then the Holder will be entitled to acquire, upon
the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the Holder could have acquired if the Holder
had held the number of shares of Common Stock acquirable upon
complete exercise of this Warrant (without regard to any
limitations or restrictions on exercise of this Warrant, including
without limitation, the Maximum Percentage) immediately before the
date on which a record is taken for the grant, issuance or sale of
such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of Common Stock are to be determined
for the grant, issuance or sale of such Purchase Rights
(provided,
however, that to
the extent that the Holder's right to participate in any such
Purchase Right would result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, then the Holder shall not
be entitled to participate in such Purchase Right to such extent
(and shall not be entitled to beneficial ownership of such Common
Stock as a result of such Purchase Right (and beneficial ownership)
to such extent) and such Purchase Right to such extent shall be
held in abeyance for the benefit of the Holder until such time or times as its right thereto
would not result in the Holder and the other Attribution
Parties exceeding the Maximum
Percentage, at which time or times the Holder shall be granted such
right (and any Purchase Right granted, issued or sold on
such initial Purchase Right or on any subsequent Purchase Right to
be held similarly in abeyance) to the
same extent as if there had been no such
limitation).
(k) Fundamental Transaction. The
Company shall not enter into or be party to a Fundamental
Transaction unless the Successor Entity assumes in writing all of
the obligations of the Company under this Warrant in accordance
with the provisions of this Section 4(b), including agreements to
deliver to the Holder in exchange for this Warrant a security of
the Successor Entity evidenced by a written instrument
substantially similar in form and substance to this Warrant,
including, without limitation, which is exercisable for a
corresponding number of shares of capital stock equivalent to the
shares of Common Stock acquirable and receivable upon exercise of
this Warrant (without regard to any limitations on the exercise of
this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the Exercise Price hereunder to such
shares of capital stock (but taking into account the relative value
of the shares of Common Stock pursuant to such Fundamental
Transaction and the value of such shares of capital stock, such
adjustments to the number of shares of capital stock and such
exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such
Fundamental Transaction). Upon the consummation of each Fundamental
Transaction, the Successor Entity shall succeed to, and be
substituted for the Company (so that from and after the date of the
applicable Fundamental Transaction, the provisions of this Warrant
and the Settlement Agreement referring to the “Company”
shall refer instead to the Successor Entity), and may exercise
every right and power of the Company and shall assume all of the
obligations of the Company under this Warrant with the same effect
as if such Successor Entity had been named as the Company herein.
Upon consummation of each Fundamental Transaction, the Successor
Entity shall deliver to the Holder confirmation that there shall be
issued upon exercise of this Warrant at any time after the
consummation of the applicable Fundamental Transaction, in lieu of
the shares of Common Stock (or other securities, cash, assets or
other property (except such items still issuable under Sections 3
and 4(a) above, which shall continue to be receivable thereafter))
issuable upon the exercise of this Warrant prior to the applicable
Fundamental Transaction, such shares of common stock (or its
equivalent) of the Successor Entity (including its Parent Entity)
which the Holder would have been entitled to receive upon the
happening of the applicable Fundamental Transaction had this
Warrant been exercised immediately prior to the applicable
Fundamental Transaction (without regard to any limitations on the
exercise of this Warrant), as adjusted in accordance with the
provisions of this Warrant. Notwithstanding the foregoing, and
without limiting Section 1(f) hereof, the Holder may elect, at its
sole option, by delivery of written notice to the Company to waive
this Section 4(b) to permit the Fundamental Transaction without the
assumption of this Warrant. In addition to and not in substitution
for any other rights hereunder, prior to the consummation of each
Fundamental Transaction pursuant to which holders of shares of
Common Stock are entitled to receive securities or other assets
with respect to or in exchange for shares of Common Stock (a
“Corporate
Event”), the Company shall make appropriate provision
to insure that the Holder will thereafter have the right to receive
upon an exercise of this Warrant at any time after the consummation
of the applicable Fundamental Transaction but prior to the
Expiration Date, in lieu of the shares of the Common Stock (or
other securities, cash, assets or other property (except such items
still issuable under Sections 3 and 4(a) above, which shall
continue to be receivable thereafter)) issuable upon the exercise
of the Warrant prior to such Fundamental Transaction, such shares
of stock, securities, cash, assets or any other property whatsoever
(including warrants or other purchase or subscription rights)
(collectively, the “Corporate
Event Consideration”) which the Holder would have been
entitled to receive upon the happening of the applicable
Fundamental Transaction had this Warrant been exercised immediately
prior to the applicable Fundamental Transaction (without regard to
any limitations on the exercise of this Warrant). The provision
made pursuant to the preceding sentence shall be in a form and
substance reasonably satisfactory to the Holder. The provisions of
this Section 4(b) shall apply similarly and equally to successive
Fundamental Transactions and Corporate Events.
5. NONCIRCUMVENTION. The Company
hereby covenants and agrees that the Company will not, by amendment
of its Certificate of Incorporation or Bylaws, or through any
reorganization, transfer of assets, consolidation, merger, scheme
of arrangement, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, and will at all
times in good faith carry out all of the provisions of this Warrant
and take all action as may be required to protect the rights of the
Holder. Without limiting the generality of the foregoing, the
Company (i) shall not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the
Exercise Price of this Warrant, (ii) shall take all such
actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and non-assessable
shares of Common Stock upon the exercise of this Warrant, and (iii)
shall, so long as any of the Settlement Warrants are outstanding,
take all action necessary to reserve and keep available out of its
authorized and unissued shares of Common Stock, solely for the
purpose of effecting the exercise of the Settlement Warrants, the
number of shares of Common Stock as shall from time to time be
necessary to effect the exercise of the Settlement Warrants then
outstanding (without regard to any limitations on
exercise).
6. WARRANT HOLDER NOT DEEMED A
STOCKHOLDER. Except as otherwise specifically provided
herein, the Holder, solely in such Person's capacity as a holder of
this Warrant, shall not be entitled to vote or receive dividends or
be deemed the holder of capital stock of the Company for any
purpose, nor shall anything contained in this Warrant be construed
to confer upon the Holder, solely in such Person's capacity as the
Holder of this Warrant, any of the rights of a stockholder of the
Company or any right to vote, give or withhold consent to any
corporate action (whether any reorganization, issue of stock,
reclassification of stock, consolidation, merger, conveyance or
otherwise), receive notice of meetings, receive dividends or
subscription rights, or otherwise, prior to the issuance to the
Holder of the Warrant Shares which such Person is then entitled to
receive upon the due exercise of this Warrant. In addition, nothing
contained in this Warrant shall be construed as imposing any
liabilities on the Holder to purchase any securities (upon exercise
of this Warrant or otherwise) or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by
creditors of the Company. Notwithstanding this Section 6, the
Company shall provide the Holder with copies of the same notices
and other information given to the stockholders of the Company
generally, contemporaneously with the giving thereof to the
stockholders.
7. REISSUANCE OF
WARRANTS.
(l) Transfer of Warrant. If this
Warrant is to be transferred, the Holder shall surrender this
Warrant to the Company, whereupon the Company will forthwith issue
and deliver upon the order of the Holder a new Warrant (in
accordance with Section 7(d)), registered as the Holder may
request, representing the right to purchase the number of Warrant
Shares being transferred by the Holder and, if less than the total
number of Warrant Shares then underlying this Warrant is being
transferred, a new Warrant (in accordance with Section 7(d)) to the
Holder representing the right to purchase the number of Warrant
Shares not being transferred.
(m) Lost, Stolen or Mutilated
Warrant. Upon receipt by the Company of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant, and, in the case of loss, theft or
destruction, of any indemnification undertaking by the Holder to
the Company in customary form and, in the case of mutilation, upon
surrender and cancellation of this Warrant, the Company shall
execute and deliver to the Holder a new Warrant (in accordance with
Section 7(d)) representing the right to purchase the Warrant Shares
then underlying this Warrant.
(n) Exchangeable for Multiple
Warrants. This Warrant is exchangeable, upon the surrender
hereof by the Holder at the principal office of the Company, for a
new Warrant or Warrants (in accordance with Section 7(d))
representing in the aggregate the right to purchase the number of
Warrant Shares then underlying this Warrant, and each such new
Warrant will represent the right to purchase such portion of such
Warrant Shares as is designated by the Holder at the time of such
surrender; provided, however, that no Settlement
Warrants for fractional Warrant Shares shall be given.
(o) Issuance of New Warrants.
Whenever the Company is required to issue a new Warrant pursuant to
the terms of this Warrant, such new Warrant (i) shall be of like
tenor with this Warrant, (ii) shall represent, as indicated on the
face of such new Warrant, the right to purchase the Warrant Shares
then underlying this Warrant (or in the case of a new Warrant being
issued pursuant to Section 7(a) or Section 7(c), the Warrant Shares
designated by the Holder which, when added to the number of shares
of Common Stock underlying the other new Warrants issued in
connection with such issuance, does not exceed the number of
Warrant Shares then underlying this Warrant), (iii) shall have an
issuance date, as indicated on the face of such new Warrant which
is the same as the Issuance Date, and (iv) shall have the same
rights and conditions as this Warrant.
8. NOTICES. Whenever notice is
required to be given under this Warrant, unless otherwise provided
herein, such notice shall be given in accordance with Section 20 of
the Settlement Agreement. The Company shall provide the Holder with
prompt written notice of all actions taken pursuant to this
Warrant, including in reasonable detail a description of such
action and the reason therefor. Without limiting the generality of
the foregoing, the Company will give written notice to the Holder
(i) immediately upon any adjustment of the Exercise Price, setting
forth in reasonable detail, and certifying, the calculation of such
adjustment and (ii) at least fifteen (15) days prior to the date on
which the Company closes its books or takes a record (A) with
respect to any dividend or distribution upon the shares of Common
Stock, (B) with respect to any grants, issuances or sales of any
Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property to holders of shares of
Common Stock or (C) for determining rights to vote with respect to
any Fundamental Transaction, dissolution or liquidation;
provided in each
case that such information shall be made known to the public prior
to or in conjunction with such notice being provided to the Holder.
It is expressly understood and agreed that the time of exercise
specified by the Holder in each Exercise Notice shall be definitive
and may not be disputed or challenged by the Company.
9. AMENDMENT AND WAIVER. Any
provision of this Warrant may be changed or amended with the prior
written consent of the Holder and the Company, and any provision of
this Warrant may be waived with the prior written consent of the
Holder. In addition, the affirmative vote of the Required Holders
at a meeting duly called for such purpose or the written consent
without a meeting of the Required Holders shall be required for any
change or amendment or waiver of any provision of all Settlement
Warrants. Any change or amendment by the Company and the Required
Holders, and any waiver by the Required Holders, shall be binding
on all holders of Settlement Warrants (including the Holder of this
Warrant). The Company hereby covenants and agrees that if, and
whenever on or after the date hereof, the Company amends or
modifies any term of any of the Settlement Warrants held by any
Person (each document amending such terms, an "Amendment Document"), then (i) the
Company shall provide notice thereof to the Holder immediately
following the occurrence thereof and (ii) the terms and conditions
of this Warrant shall be, without any further action by the Holder
or the Company, automatically amended and modified in an
economically and legally equivalent manner such that the Holder
shall receive the benefit of such amended or modified terms and/or
conditions (as the case may be) set forth in such Amendment
Document, provided that upon written notice to the Company at any
time the Holder may elect not to accept the benefit of any such
amended or modified term or condition, in which event the term or
condition contained in this Warrant shall apply to the Holder as it
was in effect immediately prior to such amendment or modification
as if such amendment or modification never occurred with respect to
the Holder. The provisions of the foregoing sentence shall apply
similarly and equally to each Amendment Document.
10. GOVERNING
LAW; JURISDICTION; JURY TRIAL. This Warrant shall be
governed by and construed and enforced in accordance with, and all
questions concerning the construction, validity, interpretation and
performance of this Warrant shall be governed by, the internal laws
of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of
New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State
of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in
The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, 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 any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. The Company 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 to such party at the address set forth in
Section 20 of the Settlement Agreement 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 manner permitted by law.
Nothing contained herein shall be deemed or operate to preclude the
Holder from bringing suit or taking other legal action against the
Company in any other jurisdiction to collect on the Company's
obligations to the Holder, to realize on any collateral or any
other security for such obligations, or to enforce a judgment or
other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
11. CONSTRUCTION; HEADINGS. This
Warrant shall be deemed to be jointly drafted by the Company and
all of the initial holders of the Settlement Warrants and shall not
be construed against any Person as the drafter hereof. The headings
of this Warrant are for convenience of reference and shall not form
part of, or affect the interpretation of, this
Warrant.
12. DISPUTE RESOLUTION. In the case
of a dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall
submit the disputed determinations or arithmetic calculations via
facsimile or electronic mail within one (1) Business Day of receipt
of the Exercise Notice giving rise to such dispute, as the case may
be, to the Holder. If the Holder and the Company are unable to
agree upon such determination or calculation of the Exercise Price
or the Warrant Shares within one (1) Business Day of such disputed
determination or arithmetic calculation being submitted to the
Holder, then the Company shall, within one (1) Business Day submit
via facsimile or electronic mail (a) the disputed determination of
the Exercise Price to an independent, reputable investment bank
selected by the Holder and approved by the Company, such approval
not to be unreasonably withheld, conditioned or delayed or (b) the
disputed arithmetic calculation of the Warrant Shares to an
independent, outside accountant, selected by the Holder and
approved by the Company, such approval not to be unreasonably
withheld, conditioned or delayed. The Company shall cause at its
expense the investment bank or the accountant, as the case may be,
to perform the determinations or calculations and notify the
Company and the Holder of the results no later than five (5)
Business Days from the time it receives the disputed determinations
or calculations. Such investment bank's or accountant's
determination or calculation, as the case may be, shall be binding
upon all parties absent demonstrable error.
13. REMEDIES, OTHER OBLIGATIONS, BREACHES
AND INJUNCTIVE RELIEF. The remedies provided in this Warrant
shall be cumulative and in addition to all other remedies available
under this Warrant and the other Settlement Documents (as defined
in the Settlement Agreement), at law or in equity (including a
decree of specific performance and/or other injunctive relief), and
nothing herein shall limit the right of the Holder to pursue actual
damages for any failure by the Company to comply with the terms of
this Warrant. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Holder and
that the remedy at law for any such breach may be inadequate. The
Company therefore agrees that, in the event of any such breach or
threatened breach, the holder of this Warrant shall be entitled, in
addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing economic
loss and without any bond or other security being
required.
14. TRANSFER. This
Warrant and the Warrant Shares may be offered for sale, sold,
transferred, pledged or assigned without the consent of the
Company.
15. SEVERABILITY. If
any provision of this Warrant is prohibited by law or otherwise
determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited,
invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the
invalidity or unenforceability of such provision shall not affect
the validity of the remaining provisions of this Warrant so long as
this Warrant as so modified continues to express, without material
change, the original intentions of the parties as to the subject
matter hereof and the prohibited nature, invalidity or
unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal
obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The
parties will endeavor in good faith negotiations to replace the
prohibited, invalid or unenforceable provision(s) with a valid
provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable
provision(s).
16. DISCLOSURE. Upon receipt or
delivery by the Company of any notice in accordance with the terms
of this Warrant, unless the Company has in good faith determined
that the matters relating to such notice do not constitute
material, nonpublic information relating to the Company or its
subsidiaries, the Company shall within one (1) Business Day after
any such receipt or delivery publicly disclose such material,
nonpublic information on a Current Report on Form 8-K or otherwise.
In the event that the Company believes that a notice contains
material, nonpublic information relating to the Company or its
subsidiaries, the Company so shall indicate to such Holder
contemporaneously with delivery of such notice, and in the absence
of any such indication, the Holder shall be allowed to presume that
all matters relating to such notice do not constitute material,
nonpublic information relating to the Company or its
subsidiaries.
17. CERTAIN DEFINITIONS. For
purposes of this Warrant, the following terms shall have the
following meanings:
(p) "1933 Act" means the Securities Act of
1933, as amended.
(q) "Affiliate" means, with respect to any
Person, any other Person that directly or indirectly controls, is
controlled by, or is under common control with, such Person, it
being understood for purposes of this definition that "control" of
a Person means the power directly or indirectly either to vote 10%
or more of the stock having ordinary voting power for the election
of directors of such Person or direct or cause the direction of the
management and policies of such Person whether by contract or
otherwise.
(r) "Attribution Parties" means,
collectively, the following Persons and entities: (i) any
investment vehicle, including, any funds, feeder funds or managed
accounts, currently, or from time to time after the Issuance Date,
directly or indirectly managed or advised by the Holder's
investment manager or any of its Affiliates or principals, (ii) any
direct or indirect Affiliates of the Holder or any of the
foregoing, (iii) any Person acting or who could be deemed to be
acting as a Group together with the Holder or any of the foregoing
and (iv) any other Persons whose beneficial ownership of the
Company's Common Stock would or could be aggregated with the
Holder's and the other Attribution Parties for purposes of Section
13(d) of the 1934 Act. For clarity, the purpose of the foregoing is
to subject collectively the Holder and all other Attribution
Parties to the Maximum Percentage.
(s) "Bid Price" means, for any date, the
price determined by the first of the following clauses that
applies: (a) if the Common Stock is then listed or quoted on an
Eligible Market, the bid price of the Common Stock for the time in
question (or the nearest preceding date) on the Eligible Market on
which the Common Stock is then listed or quoted as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York
City time) to 4:02 p.m. (New York City time)), (b) if the Common
Stock is not then listed or quoted for trading on OTCQB or OTCQX
and if prices for the Common Stock are then reported in the on the
Pink Open Market (or a similar organization or agency succeeding to
its functions of reporting prices), the most recent bid price per
share of the Common Stock so reported, or (c) in all other cases,
the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the Purchasers
of a majority in interest of the Securities then outstanding and
reasonably acceptable to the Company, the fees and expenses of
which shall be paid by the Company.
(t) "Bloomberg" means Bloomberg Financial
Markets.
(u) "Business Day" means any day other than
Saturday, Sunday or other day on which commercial banks in The City
of New York are authorized or required by law to remain
closed.
(v) "Closing Bid Price" and "Closing Sale Price" means, for any
security as of any date, the last closing bid price and last
closing trade price, respectively, for such security on the
Principal Market, as reported by Bloomberg, or, if the Principal
Market begins to operate on an extended hours basis and does not
designate the closing bid price or the closing trade price, as the
case may be, then the last bid price or the last trade price,
respectively, of such security prior to 4:00:00 p.m., New York
time, as reported by Bloomberg, or, if the Principal Market is not
the principal securities exchange or trading market for such
security, the last closing bid price or last trade price,
respectively, of such security on the principal securities exchange
or trading market where such security is listed or traded as
reported by Bloomberg, or if the foregoing do not apply, the last
closing bid price or last trade price, respectively, of such
security in the over-the-counter market on the electronic bulletin
board for such security as reported by Bloomberg, or, if no closing
bid price or last trade price, respectively, is reported for such
security by Bloomberg, the average of the bid prices, or the ask
prices, respectively, of any market makers for such security as
reported on the Pink Open Market (formerly Pink OTC Markets Inc.).
If the Closing Bid Price or the Closing Sale Price cannot be
calculated for a security on a particular date on any of the
foregoing bases, the Closing Bid Price or the Closing Sale Price,
as the case may be, of such security on such date shall be the fair
market value as mutually determined by the Company and the Holder.
If the Company and the Holder are unable to agree upon the fair
market value of such security, then such dispute shall be resolved
pursuant to Section 12. All such determinations to be appropriately
adjusted for any stock dividend, stock split, stock combination,
reclassification or other similar transaction during the applicable
calculation period.
(w) "Common Stock" means (i) the
Company's shares of Common Stock, par value $0.001 per share, and
(ii) any capital stock into which such Common Stock shall have
been changed or any capital stock resulting from a reclassification
of such Common Stock.
(x) "Convertible Securities" means any stock
or securities (other than Options) directly or indirectly
convertible into or exercisable or exchangeable for shares of
Common Stock.
(y) "Eligible Market" means the Principal
Market, the NYSE American, the Nasdaq Global Market, the Nasdaq
Global Select Market, the Nasdaq Capital Market, the OTC QX or The
New York Stock Exchange, Inc.
(z) "Expiration Date" means the date sixty
(60) months after the Issuance
Date or, if such date falls on a day other than a Business
Day or on which trading does not take place on the Principal Market
(a "Holiday"), the next day
that is not a Holiday.
(aa) "Fundamental
Transaction" means (A) that the Company shall, directly or
indirectly, including through subsidiaries, Affiliates or
otherwise, in one or more related transactions, (i) consolidate or
merge with or into (whether or not the Company is the surviving
corporation) another Subject Entity, or (ii) sell, assign,
transfer, convey or otherwise dispose of all or substantially all
of the properties or assets of the Company or any of its
"significant subsidiaries" (as defined in Rule 1-02 of Regulation
S-X) to one or more Subject Entities, or (iii) make, or allow one
or more Subject Entities to make, or allow the Company to be
subject to or have its Common Stock be subject to or party to one
or more Subject Entities making, a purchase, tender or exchange
offer that is accepted by the holders of at least either (x) 50% of
the outstanding shares of Common Stock, (y) 50% of the outstanding
shares of Common Stock calculated as if any shares of Common Stock
held by all Subject Entities making or party to, or Affiliated with
any Subject Entities making or party to, such purchase, tender or
exchange offer were not outstanding; or (z) such number of shares
of Common Stock such that all Subject Entities making or party to,
or Affiliated with any Subject Entity making or party to, such
purchase, tender or exchange offer, become collectively the
beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of
at least 50% of the outstanding shares of Common Stock, or (iv)
consummate a stock purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with one or more Subject
Entities whereby such Subject Entities, individually or in the
aggregate, acquire, either (x) at least 50% of the outstanding
shares of Common Stock, (y) at least 50% of the outstanding shares
of Common Stock calculated as if any shares of Common Stock held by
all the Subject Entities making or party to, or Affiliated with any
Subject Entity making or party to, such stock purchase agreement or
other business combination were not outstanding; or (z) such number
of shares of Common Stock such that the Subject Entities become
collectively the beneficial owners (as defined in Rule 13d-3 under
the 1934 Act) of at least 50% of the outstanding shares of Common
Stock, or (v) reorganize, recapitalize or reclassify its Common
Stock, (B) that the Company shall, directly or indirectly,
including through subsidiaries, Affiliates or otherwise, in one or
more related transactions, allow any Subject Entity individually or
the Subject Entities in the aggregate to be or become the
"beneficial owner" (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, whether through acquisition, purchase,
assignment, conveyance, tender, tender offer, exchange, reduction
in outstanding shares of Common Stock, merger, consolidation,
business combination, reorganization, recapitalization, spin-off,
scheme of arrangement, reorganization, recapitalization or
reclassification or otherwise in any manner whatsoever, of either
(x) at least 50% of the aggregate ordinary voting power represented
by issued and outstanding Common Stock, (y) at least 50% of the
aggregate ordinary voting power represented by issued and
outstanding Common Stock not held by all such Subject Entities as
of the Settlement Date calculated as if any shares of Common Stock
held by all such Subject Entities were not outstanding, or (z) a
percentage of the aggregate ordinary voting power represented by
issued and outstanding shares of Common Stock or other equity
securities of the Company sufficient to allow such Subject Entities
to effect a statutory short form merger or other transaction
requiring other stockholders of the Company to surrender their
shares of Common Stock without approval of the stockholders of the
Company or (C) directly or indirectly, including through
subsidiaries, Affiliates or otherwise, in one or more related
transactions, the issuance of or the entering into any other
instrument or transaction structured in a manner to circumvent, or
that circumvents, the intent of this definition in which case this
definition shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this definition to the
extent necessary to correct this definition or any portion of this
definition which may be defective or inconsistent with the intended
treatment of such instrument or transaction.
(bb) "Group"
means a "group" as that term is used in Section 13(d) of the 1934
Act and as defined in Rule 13d-5 thereunder.
(cc) "Options"
means any rights, warrants or options to subscribe for or purchase
shares of Common Stock or Convertible Securities.
(dd) "Parent
Entity" of a Person means an entity that, directly or
indirectly, controls the applicable Person, including such entity
whose common capital or equivalent equity security is quoted or
listed on an Eligible Market (or, if so elected by the Required
Holders, any other market, exchange or quotation system), or, if
there is more than one such Person or such entity, the Person or
such entity designated by the Required Holders or in the absence of
such designation, such Person or entity with the largest public
market capitalization as of the date of consummation of the
Fundamental Transaction.
(ee) "Person"
means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated
organization, any other entity and a government or any department
or agency thereof.
(ff) "Principal
Market" means the OTC QB.
(gg) "Required
Holders" means the holders of the Settlement Warrants
representing at least a majority of the shares of Common Stock
underlying the Settlement Warrants then outstanding and shall
include Empery Asset Management, LP so long as Empery Asset
Management, LP or any of its Affiliates holds any Settlement
Warrants.
(hh) "Standard
Settlement Period" means the standard settlement period,
expressed in a number of Trading Days, on the Company's primary
trading market with respect to the Common Stock as in effect on the
date of delivery of the applicable Exercise Notice.
(ii) "Subject
Entity" means any Person, Persons or Group or any Affiliate
or associate of any such Person, Persons or Group.
(jj) "Successor
Entity" means one or more Person or Persons (or, if so
elected by the Required Holders, the Company or Parent Entity)
formed by, resulting from or surviving any Fundamental Transaction,
or one or more Person or Persons (or, if so elected by the Required
Holders, the Company or the Parent Entity) with which such
Fundamental Transaction shall have been entered into.
(kk) "Trading
Day" means any day on which the Common Stock is traded on
the Principal Market, or, if the Principal Market is not the
principal trading market for the Common Stock on such day, then on
the principal securities exchange or securities market on which the
Common Stock is then traded.
(ll) "Weighted
Average Price" means, for any security as of any date, the
dollar volume-weighted average price for such security on the
Principal Market during the period beginning at 9:30:00 a.m., New
York time (or such other time as the Principal Market publicly
announces is the official open of trading), and ending at 4:00:00
p.m., New York time (or such other time as the Principal Market
publicly announces is the official close of trading), as reported
by Bloomberg through its "Volume at Price" function or, if the
foregoing does not apply, the dollar volume-weighted average price
of such security in the over-the-counter market on the electronic
bulletin board for such security during the period beginning at
9:30:00 a.m., New York time (or such other time as such market
publicly announces is the official open of trading), and ending at
4:00:00 p.m., New York time (or such other time as such market
publicly announces is the official close of trading), as reported
by Bloomberg, or, if no dollar volume-weighted average price is
reported for such security by Bloomberg for such hours, the average
of the highest Closing Bid Price and the lowest closing ask price
of any of the market makers for such security as reported on the
Pink Open Market (formerly Pink OTC Markets Inc.). If the Weighted
Average Price cannot be calculated for a security on a particular
date on any of the foregoing bases, the Weighted Average Price of
such security on such date shall be the fair market value as
mutually determined by the Company and the Holder. If the Company
and the Holder are unable to agree upon the fair market value of
such security, then such dispute shall be resolved pursuant to
Section 12 with the term "Weighted Average Price" being substituted
for the term "Exercise Price." All such determinations shall be
appropriately adjusted for any stock dividend, stock split, stock
combination, reclassification or other similar transaction during
the applicable calculation period.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has
caused this Pre-Funded Warrant to Purchase Common Stock to be duly
executed as of the Issuance Date set out above.
By:___________________________
Title:
Chief Financial
Officer
[Signature
Page—Settlement Warrant]
16
EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS
PRE-FUNDED WARRANT TO PURCHASE COMMON STOCK
GT BIOPHARMA, INC.
The
undersigned holder hereby exercises the right to purchase
_________________ of the shares of Common Stock ("Warrant Shares") of GT Biopharma, Inc.,
a Delaware corporation (the "Company"), evidenced by the attached
Pre-Funded Warrant to Purchase Common Stock (the "Warrant").
The
Company shall deliver to the holder __________ Warrant Shares in
accordance with the terms of the Warrant.
Date:
_______________ __, ______
Name
of Registered Holder
Name:
Title:
ACKNOWLEDGMENT
The
Company hereby acknowledges this Exercise Notice and hereby directs
Computershare Trust Company, N.A. to issue the above indicated
number of shares of Common Stock.
By:________________________________
Name:
Title: