SEVENTH AMENDMENT, WAIVER AND CONSENT
Exhibit 10.24
SEVENTH AMENDMENT, WAIVER AND CONSENT
This Seventh Amendment, Waiver and Consent (“Seventh Consent”), is made and entered into as of December 1, 2016, by and among Accelerated Pharma, Inc., a Delaware corporation (the “Company”), and the parties identified on the signature page hereto (each a “Purchaser” and collectively, “Purchasers”). Capitalized terms used but not defined herein will have the meanings assigned to them in the Securities Purchase Agreements and Transaction Documents (as defined below). Capitalized terms defined herein shall be incorporated in the Transaction Documents, as appropriate.
WHEREAS, the Company and Purchasers identified on Schedule A entered into Securities Purchase Agreements (“Securities Purchase Agreements”) and other Transaction Documents (collectively, “Transaction Documents”) dated as of December 23, 2014, May 8, 2015, June 11, 2015, November 6, 2015, April 20, 2016, April 22, 2016, May 9, 2016, May 27, 2016 and July 15, 2016 (the April 20, 2016, April 22, 2016, May 9, 2016, May 27, 2016 and several other Securities Purchase Agreements with dates ranging between July 15, 2016 through October 6, 2016 (the Securities Purchase Agreements and Transaction Documents are collectively known as the “2016 Securities Purchase Agreements”); and
WHEREAS, the Transaction Documents were previously amended and certain consents and waivers were granted pursuant to a certain Amendment, Waiver and Consent entered into as of May 8, 2015 (the “First Amendment”) and as further amended on November 6, 2015 pursuant to a Second Amendment, Waiver and Consent (the “Second Amendment”) and as further amended on April 20, 2016 pursuant to a Third Amendment, Waiver and Consent (the “Third Amendment”) and as further amended on May 9, 2016 pursuant to a Fourth Amendment, Waiver and Consent (the “Fourth Amendment”) as further amended on July 15, 2016 pursuant to a Fifth Amendment, Waiver and Consent (the “Fifth Amendment”), as further amended and restated on September 16, 2016 (the “Fifth Amended and Restated Amendment”), and as further amended on October 2, 2016 (the “Sixth Amendment”), and together with the First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Fifth Amended and Restated Amendment, and the Sixth Amendment, ( collectively referred to as the “Prior Amendments”); and
WHEREAS, pursuant to the Transaction Documents, the Company issued to the Purchasers Secured Convertible Notes (“Notes”) and Warrants (the “Warrants”); and
WHEREAS, the Company is requesting that Purchasers waive any Events of Default that occurred or may have occurred prior to the date hereof and for a future period of time; and
WHEREAS, the Company is requesting that the Purchasers of the Notes (“December 2014 Purchasers”) issued on December 23, 2014 (“December 2014 Notes”) and the Purchasers of the Notes (the “2015 Purchasers”) issued in May, June and November of 2015 (the “2015 Notes”) agree to the extension of the Maturity Date of the December 2014 Notes and the 2015 Notes to December 31, 2016,
WHEREAS, the Company and Purchasers agree to the following amendments, waivers, and consents, which amendments, waivers and consents shall be effective upon the approval of all December 2014 Purchasers and 2015 Purchasers (“Effective Date”).
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NOW, THEREFORE, the Company and Purchasers hereby agree as follows:
1. The Maturity Date of the December 2014 Notes and the 2015 Notes is extended to December 31, 2016.
2. Purchasers waive any Events of Default that have occurred or may have occurred prior to the date hereof and agree to continue to waive any such default or defaults through December 31, 2016 (the period from the date hereof through December 31, 2016 being referred to as the “Waiver Period”) in order to afford the Company the opportunity to implement a Qualified Offering.
3. The undersigned hereby acknowledges, ratifies and confirms in all respects the Prior Amendments.
4. The undersigned represents to the Company that it is the holder of the Notes and Warrants in the amounts set forth on Schedule A hereto, it has not sold, transferred or otherwise assigned any of the Notes and Warrants and it has the authority to enter into and deliver this Seventh Consent.
5. The Company represents that Schedule A hereto identifies all of the holders and sets forth the amounts as of the date herein of all of the securities issued or issuable pursuant to the Securities Purchase Agreements and that the Transaction Documents have not been previously amended nor any waiver of any term thereof granted by any party thereto other than as set forth in the Prior Amendments and this Amended Seventh Consent.
6. This Seventh Consent may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same instrument. This Seventh Consent may be signed and delivered by facsimile or electronically and such facsimile or electronically signed and delivered Seventh Consent shall be enforceable.
7. This Seventh Consent shall be included in the definition of Transaction Documents as such term is defined in the Securities Purchase Agreements.
8. Sections 5.4, 5.5, 5.12 and 5.21 of the Securities Purchase Agreements are incorporated herein by reference.
9. Except as expressly set forth herein, this Seventh Consent shall not be deemed to be a waiver, amendment or modification of any provisions of the Transaction Documents or of any right, power or remedy of the Purchaser, or constitute a waiver of any provision of the Transaction Documents (except to the extent herein set forth), or any other document, instrument and/or agreement executed or delivered in connection therewith and any other agreement to which the Purchaser may be parties to, in each case whether arising before or after the date hereof or as a result of performance hereunder or thereunder. Except as set forth herein, the Purchaser reserves all rights, remedies, powers, or privileges available under the Transaction Documents and any other agreement to which the Purchaser may be parties to, at law or otherwise. This Seventh Consent shall not constitute a novation or satisfaction and accord of the Transaction Documents or any other document, instrument and/or agreement executed or delivered in connection therewith and any other agreement to which the Purchaser may be a party to.
(Signatures to follow)
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IN WITNESS WHEREOF, the Company and the undersigned Purchasers have caused this Fifth Consent to be executed as of the date first written above.
| ACCELERATED PHARMA, INC. | ||
| the “Company” | ||
| By: | ||
| Xxxxxxx Xxxxxxxx, Chief Executive Officer | ||
“PRIOR PURCHASER”
| Name of Prior Purchaser: |
| Signature of Authorized Signatory of Prior Purchaser: |
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
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SCHEDULE A
| PURCHASERS OF DECEMBER 23, 2014 | PURCHASE PRICE AND PRINCIPAL AMOUNT OF NOTE | WARRANTS | FIFTH CONSENT WARRANTS | |||||||||
CURBER INTERNATIONAL LTD. Xxxxxxx Xxxxx, 0xx Xxxxx Xxxxxxxx Xxxxxx, Xxxx Xxxxxx P.O. Box 156 Grand Turk Truks and Caicos Island Attn: X. Xxxxxxxxxx Xxxxxxxxxx00@xxxxx.xxx | $ | 400,000.00 | 27,778 | 2,779 | ||||||||
XXXXXX XXXXX 0000 Xxxx 00xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000 Email: xxxxxxxxxxxx@xxx.xxx | $ | 50,000.00 | 3,472 | 347 | ||||||||
| XXXXXX XXXXX 000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Email: xx00000000@xxx.xxx | $ | 100,000.00 | 6,944 | 694 | ||||||||
| AMERICAN EUROPEAN INSURANCE CO. 000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Email: xx00000000@xxx.xxx | $ | 100,000.00 | 6,944 | 694 | ||||||||
| HSI PARTNERSHIP 000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Email: xx00000000@xxx.xxx | $ | 50,000.00 | 3,472 | 000 | ||||||||
XX XXXXXXXXXX 2012 LP c/o Xxx Xxxxxxxx Xxxxx Gliedman Investments PC 000 0xx Xxxxxx Xxx Xxxx, XX 00000 | $ | 50,000.00 | 3,472 | 347 | ||||||||
| TOTALS | $ | 750,000.00 | 52,082 | 5,208 | ||||||||
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SCHEDULE A (continued)
| PURCHASERS OF MAY 8, 2015 AND JUNE 11, 2015 | PURCHASE PRICE AND PRINCIPAL AMOUNT OF NOTE | WARRANTS | ||||||
| 2004 XXXX XXXXXX IRREVOCABLE TRUST CORP. 0000 Xxxxxxxxx Xxx., Xxxxx 000 Xxxxxxxx, XX 00000 Attn: Willy Beer Tax ID# 00-000-0000 | $ | 100,000.00 | 50,000 | |||||
| XXXX FAMILY EQUITIES LLC 000-00 Xxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 Attn: Xxxxxx Xxxx, Member Tax ID# 000000000 | $ | 50,000.00 | 25,000 | |||||
| XX XXXXXXXXXX 0000 LP 000 Xxxxxxx Xxxx Xxxx Xxx Xxxx, XX 00000 Attn: Xxxxx Xxxxxx, Manager Tax ID# 00-0000000 | $ | 500,000.00 | 250,000 | |||||
| API BIO INVESTORS, LLC 0 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxxxx, XX 00000 Attn: XX Xxxxxxxx, Member XXxxxxxxxx00@xxxxx.xxx Tax ID# 00-0000000 | $ | 340,000.00 | 170,000 | |||||
| XXXXXXX XXXXXX 00 Xxxxxxx Xxxx Xxxxxxxx, XX 00000 Fax: 000 000-0000 Tax ID# ###-##-#### | $ | 50,000.00 | 25,000 | |||||
| XXXXX X. XXXXXX CHILDREN’S TRUST 00 Xxxxx Xxxxx Xxxx Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx, Trustee Email: xxxxxxx@xxxxxx-xxxxxxxx.xxx Tax ID# 00-0000000 | $ | 100,000.00 | 50,000 | |||||
XXX XXXXXXXX-XXXXX 0000 Xxxx 00xx Xxxxxx Xxxxxxxx, XX 00000 Fax: 000-000-0000 Tax ID# ###-##-#### | $ | 25,000.00 | 12,500 | |||||
| XXXXXX XXXX 000 Xxxxxxxxxx Xxxxxx Xxxxxxxx, XX 00000 Fax: 000-000-0000 Tax ID# ###-##-#### | $ | 25,000.00 | 12,500 | |||||
| ALPHA CAPITAL ANSTALT Xxxxxxxxxxx 00 0000 Xxxxx, Xxxxxxxxxxxxx Attn: Xxxxxx Xxxxxxxxx, Director Fax: 000-000-0000000 | $ | 750,000.00 | 375,000 | |||||
| BRIO CAPITAL MASTER FUND LTD. C/O Brio Management LLC 000 Xxxxxxx Xxxx, Xxxxx 000X Xxxxxxxxx Xxxxxx, XX 00000-0000 Fax: 000-000-0000 Tax ID# 00-0000000 | $ | 110,000.00 | 55,000 | |||||
| XXXXXXXX XXXXXXX 00 Xxxxxxx Xxxxxx Xx., Xxx. 00 Xxx Xxxx 00000, Xxxxxx Email: xxxxxxxx@xxxxxxxxx.xxx.xx Tax ID#: ###-##-#### | $ | 50,000.00 | 25,000 | |||||
| TOTALS | $ | 2,100,000.00 | 1,050,000 | |||||
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SCHEDULE A (continued)
| PURCHASERS OF NOVEMBER 6, 2015 | PURCHASE PRICE AND PRINCIPAL AMOUNT OF NOTE | WARRANTS | ||||||
| API BIO INVESTORS, LLC 0 Xxxxxxx Xxxxxxx Xxxxxx Xxxxxx, XX 00000 Attn: X.X. Xxxxxxxx, Member Email: XXXxxxxxxx00@xxxxx.xxx Tax ID#: | $ | 220,000.00 | 6,659 | |||||
| XXXXXXXXX XXXX XXXXXX 000 Xxxxxx Xxxxxx Xxxxxxxx, XX 00000 Tel.: (000) 000-0000 Tax ID# ###-##-#### | $ | 50,000.00 | 1,513 | |||||
| XXXXX XXXXXX 00 Xxxxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 Attn: Xxxxx Xxxxxxxxx, Manager Tel.: (000) 000-0000 Tax ID#: 00-0000000 | $ | 35,000.00 | 1,059 | |||||
| XXXXX XXXXX 0000 Xxxxxxxxxx Xxxxxx, Xxxx 0 Xxxxxxxx, XX 00000 Tel.: (000) 000-0000 Tax ID#: ###-##-#### | $ | 30,000.00 | 908 | |||||
| XXXX FAMILY EQUITIES, LLC 000-00 Xxxxxx Xxxxxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 Attn: Xxx Xxxx, Member Fax: (000) 000-0000 Tax ID# 00-0000000 | $ | 100,000.00 | 3,027 | |||||
XXXXXX XXXXX 0000 Xxxx 00xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000 Email: xxxx00@xxxxx.xxx | $ | 50,000.00 | 1,513 | |||||
XXX XXXXXXXX-XXXXX 0000 Xxxx 00xx Xxxxxx Xxxxxxxx, XX 00000 Fax: 000 000-0000 Tax ID# ###-##-#### | $ | 15,000.00 | 454 | |||||
| TOTALS | $ | 500,000.00 | 15,133 | |||||
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SCHEDULE A (continued)
| PURCHASERS OF APRIL 20, 2016 and APRIL 22, 2016 | PURCHASE PRICE AND PRINCIPAL AMOUNT OF NOTE | WARRANTS | ||||||
| 2004 XXXX XXXXXX IRREVOCABLE TRUST CORP. 0000 Xxxxxxxxx Xxx., Xxxxx 000 Xxxxxxxx, XX 00000 Attn: Willy Beer Tax ID# 00-000-0000 | $ | 100,000.00 | 2,579 | |||||
| VENTURE CAP GROUP LLC 000 Xxxxxxx Xxxxxxx Xxxxxxxx, XX 00000 | $ | 50,000.00 | 1,289 | |||||
| XXXXXX XXXXX 000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Email: xx00000000@xxx.xxx | $ | 40,000.00 | 1,031 | |||||
| AMERICAN EUROPEAN INSURANCE CO. 000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Email: xx00000000@xxx.xxx | $ | 40,000.00 | 1,031 | |||||
| HSI PARTNERSHIP 000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Email: xx00000000@xxx.xxx | $ | 20,000.00 | 516 | |||||
| TOTALS | $ | 250,000.00 | 6,446 | |||||
| PURCHASERS OF MAY 9, 2016 | PURCHASE PRICE AND PRINCIPAL AMOUNT OF NOTE | WARRANTS | ||||||
XXXXXX X. XXXXXX 0000 00xx Xxxxxx, Xxxxx 000 Xxxxxxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 | $ | 100,000.00 | 2,579 | |||||
| PURCHASERS OF MAY 27, 2016 | PURCHASE PRICE AND PRINCIPAL AMOUNT OF NOTE | WARRANTS | ||||||
| SCHEIN VENTURES LLC 000 Xxxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx 00000 Attn: Xxxxxx X. Xxxxxx, Manager | $ | 100,000.00 | 2,149 | |||||
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SCHEDULE A (continued)
| PURCHASERS OF JULY 15, 2016 | PURCHASE PRICE AND PRINCIPAL AMOUNT OF NOTE | WARRANTS | ||||||
| ALPHA CAPITAL ANSTALT Xxxxxxxxxxx 00 0000 Xxxxx, Xxxxxxxxxxxxx Attn: Xxxxxx Xxxxxxxxx, Director Fax: 000-000-0000000 | $ | 50,000.00 | 1,074 | |||||
XXXXXXX XXXXX 0000 Xxxx 00xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 | $ | 40,000.00 | 859 | |||||
| BRIO CAPITAL MASTER FUND LTD. C/O Brio Management LLC 000 Xxxxxxx Xxxx, Xxxxx 000X Xxxxxxxxx Xxxxxx, XX 00000-0000 Fax: 000-000-0000 Tax ID# 00-0000000 | $ | 25,000.00 | 000 | |||||
| XXXXX X. XXXXXX CHILDREN’S TRUST 00 Xxxxx Xxxxx Xxxx Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx, Trustee Email: xxxxxxx@xxxxxx-xxxxxxxx.xxx Tax ID# 00-0000000 | $ | 50,000.00 | 1,074 | |||||
| 2004 XXXX XXXXXX IRREVOCABLE TRUST CORP. 0000 Xxxxxxxxx Xxx., Xxxxx 000 Xxxxxxxx, XX 00000 Attn: Willy Beer Tax ID# 00-000-0000 | $ | 50,000.00 | 1,074 | |||||
| TOTALS | $ | 215,000.00 | 4,618 | |||||
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