WAIVER OF BLOCKER
Exhibit
10.6
This
WAIVER OF BLOCKER (this “Waiver”) is entered into effective
as of February 5, 2019 (the “Effective Date”) between Armistice
Capital Master Fund Ltd., a Cayman Islands exempted company
(“Armistice”),
and Aytu BioScience, Inc., a Delaware corporation
(“Aytu”).
RECITALS
WHEREAS, pursuant to Section 6(d) of the
Certificate of Designation of Preferences, Rights and Limitations
of Series C Convertible Preferred Stock (the “COD”) of Aytu, Aytu shall not
effect any conversion of the Series C Convertible Preferred Stock
of Aytu (the “Preferred
Stock”), and Armistice shall not have the right to
convert any portion of the Preferred Stock, to the extent that,
after giving effect to the conversion, Armistice would beneficially
own in excess of 4.99% (or, upon election by Armistice prior to the
issuance of any shares of Preferred Stock, 9.99%) of the number of
shares of the common stock of Aytu (“Common Stock”) outstanding
immediately after giving effect to the issuance of shares of Common
Stock issuable upon conversion of the Preferred Stock by Armistice
(the “Beneficial Ownership
Limitation”); and
WHEREAS, the parties agree to waive the
Beneficial Ownership Limitation solely with respect to
Armistice.
NOW THEREFORE, in consideration of the
foregoing premises, and other good and valuable consideration, the
receipt and legal sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Waiver. Each undersigned party
hereby irrevocably and unconditionally waives the Beneficial
Ownership Limitation in Section 6(d) of the COD solely with respect
to Armistice.
2. Effectiveness. This Waiver
shall be deemed effective as of the Effective Date. The recitals to
this Waiver are hereby incorporated by reference into and made a
part of this Waiver for all purposes.
3. Counterparts. This Waiver and
any amendments, waivers, consents or supplements may be executed in
any number of counterparts (including by facsimile or other
electronic means, including .pdf format) and by different parties
in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which
counterparts together shall constitute but one in the same
instrument. This Waiver shall become effective upon the execution
of a counterpart hereof by each of the parties.
4. Governing Law. THIS WAIVER
SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES.
[Signature page
follows]
IN WITNESS WHEREOF, this Waiver has been
duly executed by the undersigned as of the Effective
Date.
By:
/s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title:
Chief Executive
Officer
ARMISTICE
CAPITAL MASTER FUND LTD.
By:
/s/ Tohuan Xxxxx
Xxxx
Name:
Tohuan
Xxxxx Xxxx
Title:
Controller of the
Investment Manager
[Signature
Page to Waiver of Blocker]
