AMENDMENT AGREEMENT
Exhibit 10.8
This
Amendment Agreement (“Agreement”) is made and entered
into as of October 10, 2017, by and among GT Biopharma Inc.,
a Delaware corporation (the
“Company”), and
the parties identified on the signature page hereto (each a
“Note Holder”
and collectively, “Note
Holders”). Capitalized terms used but not defined
herein will have the meanings assigned to them in the Note
Conversion Agreements (as defined below).
Capitalized terms
defined herein shall be incorporated in the Note Conversion
Agreements, as appropriate.
WHEREAS, on August
25, 2017, the Company and Note Holders identified on Schedule A entered into Note Conversion
Agreements (the “Note
Conversion Agreements”); and
WHEREAS, pursuant
to the terms of the Note Conversion Agreements, in exchange for the
cancellation of all indebtedness of the Company, the Company issued
to the Note Holders Newly Issued Capital Stock and New Stock (as
defined in the Note Conversion Agreements; and
WHEREAS, pursuant
to Section 8(j) of the Note Conversion Agreements, a Majority in
Interest may consent to an amendment of any provision of the Note
Conversion Agreements on behalf of the Note Holders;
and
WHEREAS, the
Company has requested the Note Holders agree to an amendment of
Section 7 of the Note Conversion Agreements.
NOW
THEREFORE, in consideration of promises and mutual covenants
contained herein and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby consent and agree as follows:
1.
Section
7 of the Note Conversion Agreements shall be amended as
follows:
(a)
the
following language shall be added to the end of Section
7(a):
The
restrictions set forth in this Section 7(a) shall terminate if the
Company issues any securities in a financing transaction for the
purpose of raising capital during any time that any New Stock is
outstanding.
(b)
the
following language shall be added to the end of Section
7:
“In
addition to the obligations set forth herein, beginning on October
9, 2017 until the earlier of November 30, 2017 and the end of
the Restricted Period, no shares of New Stock may be sold by a Note
Holder at a sales price of less than $7.00 per share of New Stock.
During the Restricted Period, if in effect, from and
after December 1, 2017, the shares of New Stock which may be
sold on a particular trading day (the "Baseline Day") based on such
Note Holder’s Percentage (the "Allotted Shares") may be sold
by such Note Holder on the Baseline Trading Day and any one or more
of the following five consecutive trading days following the
Baseline Trading Day (for example, if the Note Holder determines
that its number of Allotted Shares is 10,000 on the Baseline
Trading Day, then the Note Holder may sell the 10,000 shares over
the six (6) consecutive trading day period beginning on the
Baseline Trading Day and continuing for the following five
consecutive trading days after that).”
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2. The
Company will immediately notify each of the Note Holders upon the
attainment by the Company of the approval of a Majority in Interest
of Note Holders.
3.
The Company
represents that the foregoing amendment of Section 7 was requested
by the Company of each Note Holder and was not requested by any
Note Holder.
4.
Each of the Note
Holders hereby represents the truth and accuracy of each Note
Holder’s representations and warranties contained in the Note
Conversion Agreement when made and also as if such representations
and warranties were made as of the date hereof.
5.
Each of the Note
Holders executing this Agreement represents to the Company that it
has the authority to enter into and deliver this
Agreement.
6.
All other terms
contained in the Note Conversion Agreements remain in
effect.
7. Except
as specifically described herein, there is no other amendment or
waiver expressed or implied.
8.
Each Note Holder
represents to the Company that it is making its own determination
whether it will consent to this Agreement and not as a part of a
group.
9.
All notices,
demands, requests, consents, approvals, and other communications
required or permitted in connection with this Agreement shall be
made and given in the same manner set forth in the Note Conversion
Agreements.
10.
This Agreement
shall be governed by and construed in accordance with the laws of
the State of New York without regard to conflicts of laws and
principles that would result in the application of the substantive
laws of another jurisdiction. Any action brought by either party
against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of New York in
the federal courts located in the state of New York. Both parties
and the individuals executing this Agreement and other agreements
on behalf of the parties agree to submit to the jurisdiction of
such courts and waive trial by jury. The prevailing party (which
shall be the party which receives an award most closely resembling
the remedy or action sought) shall be entitled to recover from the
other party its reasonable attorney’s fees and costs. In the
event that any provision of this Agreement or any other agreement
delivered in connection herewith is invalid or unenforceable under
any applicable statute or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of
any other provision of any agreement.
11. This
Agreement may be executed in counterparts, all of which when taken
together shall be considered one and the same Agreement and shall
become effective when the counterparts have been signed by each
party and delivered to the other party, it is being understood that
all parties need not sign the same counterpart. In the event that
any signature is delivered by facsimile or PDF transmission, such
signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) the same
with the same force and effect as if such facsimile signature were
an original thereof.
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IN
WITNESS WHEREOF, the Company and the undersigned Note Holders have
caused this Agreement to be executed as of the date first written
above.
GT
BIOPHARMA INC.
By:_______________________________________
__________________________________________
the
“Note Holder”
By:_______________________________________
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