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): December 22,
2020
GT Biopharma, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of incorporation or
organization)
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000-08092
(Commission
File Number)
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94-1620407
(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 exchange
on 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.
Amendment to Convertible Note and Standstill
Agreements
On December 22, 2020, GT Biopharma, Inc., a Delaware corporation
(the “Company”),
entered into an Amendment to Convertible Note and Standstill
Agreement (collectively, the “Note
Amendments”) with each of
Empery Asset Master Ltd., Empery Tax Efficient, LP and Empery Tax
Efficient II, LP (collectively, the “Empery
Funds”), which amended
certain terms and conditions of previously disclosed senior
convertible notes issued to the Empery Funds (the
“Original
Notes”). The Note
Amendments extended the maturity date of the Original Notes from
December 19, 2020 to March 19, 2021.
As a result of the Note Amendments, the principal amount of each of
the Original Notes was increased by fifteen percent (15%).
The current principal amount of the Original Notes, after giving
effect to the Note Amendments, is $517,500.
By entry into the Note Amendments, the Empery Funds agreed to
refrain from selling, assigning or otherwise transferring or
agreeing to transfer any securities of the Company, until the
earlier of January 31, 2021 and the date that the Company completes
a capital raise consisting of a sale of common stock of the Company
in an amount equal to or exceeding $15,000,000.00. The Note
Amendments also contain certain representations and warranties and
covenants customary for transactions of this type.
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 9.01. Financial
Statements and Exhibits.
(d) Exhibits
Form of Amendment to Convertible Note & Standstill
Agreement.
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:
December 22, 2020
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By:
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/s/
Michael Handelman
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Michael
Handelman
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Chief
Financial Officer
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Exhibit 10.1
AMENDMENT TO CONVERTIBLE NOTE & STANDSTILL
AGREEMENT
This
Amendment to Convertible Note & Standstill Agreement (this
“Amendment”) is entered
into as of December [●], 2020 (the “Effective Date”), by and
between GT Biopharma, Inc., a Delaware corporation (the
“Borrower”) and [●],
a [●] (the “Holder” and together with
the Borrower, the “Parties”) with respect to
that certain Convertible Note Due December 19, 2020, dated June 19,
2020, in the principal amount of [●] (the “Note”). Any capitalized
term used in this Amendment and not otherwise defined shall have
the meaning ascribed to it in the Note.
RECITALS
A. The
Borrower promised to pay to the Holder the principal amount of the
Note, plus interest, on the Maturity Date (as defined and set forth
in the Note).
B. The
Maturity as set forth in the Note was set at December 19,
2020.
C. The
Company has requested that the Maturity Date be extended to March
19, 2021, and the Holder is willing to do so on the terms and
conditions set forth herein.
NOW, THEREFORE, in
consideration of the promises and the mutual agreements therein, ,
and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
Section 1. Extension of Maturity
Date. Effective as of the Effective Date, the Note is hereby
amended by extending the Maturity Date from December 19, 2020 to
March 19, 2021.
Section 2. Increase to Principal Amount. (a) Effective as of
the Effective Date, the Note is hereby amended by increasing the
principal amount of the Note from $[ ]1 (the "Original Principal Amount") to
$[●]2
(the "Increased Principal
Amount"). For the avoidance of doubt, (i) from June 19, 2020
through the calendar day immediately prior to the Effective Date,
interest accrued under the Note was based on the Original Principal
Amount of the Note, and from and after the Effective Date, interest
shall accrue under the Note based on the Increased Principal Amount
of the Note plus any previously accrued but unpaid interest under
the Note.
(b) The
Note was originally issued on June 19, 2020 in exchange for other
notes and warrants (the "Original Securities") that were
originally issued by the Borrower to the Holder on January 22,
2018. For the avoidance of doubt, the Parties hereby acknowledge
and agree that for purposes of Rule 144 promulgated under the 1933
Act, the holding period of the Note, as amended pursuant to
Sections 1 and 2 of this Amendment, may be tacked onto the holding
period of the Note, in effect prior to this Amendment, as well as
onto the holding period of the Original Securities. Accordingly,
the Parties acknowledge and agree that the holding period of the
Note shall be deemed to have begun on January 22, 2018, and the
Borrower shall not take a position contrary to this Section
2(b).
2 Note to Draft: Principal amount of
original Note multiplied by 1.15.
Section 3. Standstill. Until the earlier of (a) January 31,
2021 and (b) such date that the Borrower completes a capital raise
consisting of a sale of Common Stock, in an amount equal to or
exceeding $15,000,000, neither the Holder nor any Affiliate of the
Holder will sell, transfer, assign, offer, pledge, contract to
sell, transfer or assign, sell any option or contract to purchase,
purchase any option or contract to sell, transfer or assign, grant
any option, right or warrant to purchase, or otherwise transfer,
assign or dispose of, directly or indirectly, any securities of
Borrower now held or hereafter acquired. Further, the Parties
acknowledge that the Borrower would not have an adequate remedy at
law for money damages in the event that this covenant were not
performed in accordance with its terms and therefore the Holder
agrees that the Borrower shall be entitled to specific enforcement
of the terms hereof in addition to any other remedy to which it may
be entitled, at law or in equity.
Section 4. Representations and Warranties of Borrower. As of
the Effective Date, the Borrower represents and warrants
that:
(a) The
Borrower is duly formed and validly existing under the laws of
Delaware, with full power and authority to conduct its business as
it is currently being conducted and to own its assets; and has
secured any other authorizations, approvals, permits and orders
required by law for the conduct by the Borrower of its business as
it is currently being conducted.
(b) The
Borrower has the requisite corporate power and authority to enter
into and perform its obligations under this Amendment. The
execution and delivery of this Amendment by the Borrower and the
consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary corporate action and no
further consent or authorization of the Borrower or its board of
directors or stockholders is required. This Amendment has been duly
executed and delivered by the Borrower and constitutes a valid and
binding obligation of the Borrower enforceable against the Borrower
in accordance with its terms and conditions, except as such
enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors’ rights
generally and (ii) the effect of rules of law governing the
availability of equitable remedies.
Section 5. Representations and Warranties of Holder. As of
the Effective Date, the Holder represents and warrants
that:
(a) The
Holder is duly formed and validly existing under the laws of the
jurisdiction of its formation, with full power and authority to
conduct its business as it is currently being conducted and to own
its assets; and has secured any other authorizations, approvals,
permits and orders required by law for the conduct by the Holder of
its business as it is currently being conducted.
(b) The
Holder has the requisite corporate (or other) power and authority
to enter into and perform its obligations under this Amendment. The
execution and delivery of this Amendment by the Holder and the
consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary corporate (or other) action
and no further consent or authorization of the Holder or its board
of directors or stockholders is required. This Amendment has been
duly executed and delivered by the Holder and constitutes a valid
and binding obligation of the Holder enforceable against the Holder
in accordance with its terms and conditions, except as such
enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors’ rights
generally and (ii) the effect of rules of law governing the
availability of equitable remedies.
Section
6. Disclosure of
Transactions and Other Material Information. Borrower shall
file a current report on Form 8-K reasonably acceptable to Holder
(the “8-K
Filing”) on or before 8:30 a.m., New York City time,
on December 23, 2020 in the form required by the 1934 Act, relating
to the transactions contemplated by this Amendment and other
substantially identical amendment agreements and attaching a form
of this Amendment as an exhibit to the 8-K Filing. From and after
the filing of the 8-K Filing with the SEC, Holder shall not be in
possession of any material, nonpublic information received from
Borrower, 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, Borrower acknowledges and agrees that any and all
confidentiality or similar obligations under any agreement, whether
written or oral, between Borrower, any of its Subsidiaries or any
of their respective officers, directors, employees or agents, on
the one hand, and Holder or any of its respective affiliates, on
the other hand, shall terminate and be of no further force or
effect. Borrower shall not, and shall cause each of its
Subsidiaries and its and each of their respective officers,
directors, employees and agents, not to, provide Holder with any
material, nonpublic information regarding Borrower or any of its
Subsidiaries from and after the date hereof without the express
prior written consent of Holder or as otherwise contemplated
hereby. To the extent that Borrower, any of its Subsidiaries or any
of their respective officers, directors, affiliates employees or
agents delivers any material, non-public information to Holder
without Holder's consent, Borrower hereby covenants and agrees that
Holder shall not have any duty of confidentiality to Borrower, any
of its Subsidiaries or any of their respective officers, directors,
employees or agents with respect to, or a duty to Borrower, 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. Borrower understands and confirms that
Holder will rely on the foregoing representations in effecting
transactions in securities of Borrower.
Section 7. No Other Modification. The amendments set forth
in Section 1 and
Section 2 are
effective only for the express purposes set forth herein, are
limited precisely as written and shall not constitute or be deemed
to constitute an amendment, waiver or modification of, or consent
to any deviation from, the terms and conditions of the Note, except
as expressly set forth herein, and shall not prejudice any right or
remedy which the Holder may now have or may have in the future
under or in connection with the Note. Except as expressly set forth
herein, the Note shall remain in full force and effect and is
hereby confirmed and ratified in all respects.
Section 8. Incorporation by Reference. The terms and
provisions of Section 9 (Miscellaneous) of the Note are hereby
incorporated by reference and shall apply to this Amendment
mutatis mutandis as if fully set forth
herein.
[Signature
page follows]
IN
WITNESS WHEREOF, the Parties have caused this Amendment to be
executed by their duly authorized representatives as of the
Effective Date.
GT
BIOPHARMA, INC.
Name:
Michael Handelman
Title:
Chief Financial Officer
[NAME
OF HOLDER]
Name:
Title:
Signature Page to Amendment to Convertible Note
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