Exhibit 10.22


 


AMENDED AND RESTATED FIFTH AMENDMENT,
WAIVER AND CONSENT


 


This Amended and Restated
Fifth Amendment, Waiver and Consent (“Amended Fifth Consent”) which supersedes the Fifth Amendment, Waiver and Consent
entered into on July 15, 2016, is made and entered into as of September 20, 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”) on dates ranging from December 2014 through
September 2016 (the Securities Purchase Agreements executed in 2016 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”) and as further amended on July 15, 2016 pursuant to a Fifth Amendment,
Waiver and Consent (the “Fifth Amendment”, and together with the First Amendment, Second Amendment, Third Amendment,
and Fourth Amendment, 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
wishes to amend the definition of Qualified Offering as it is defined in Section 1.1 of the 2016 Securities Purchase Agreements
and the accompanying Transaction Documents and as amended pursuant to the Prior Amendments; and


 


WHEREAS, the Company
wishes to amend the definition of Termination Date as it is employed in the 2016 Securities Purchase Agreements and the accompanying
Transaction Documents to the 2016 Securities Purchase Agreements to allow additional Closings for the balance of the maximum allowed
Subscription Amount to occur until October 5, 2016 instead of June 30, 2016 as well as to increase the maximum allowed Subscription
Amount from $1,500,000 to up to $1,850,000; 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”) agree to the extension of the Maturity Date of the December 2014 Notes to November 30, 2016, and in connection
with the consent of such extension of the Maturity Date by the December 2014 Purchasers,, the Company agrees to issue to the December
2014 Purchasers an aggregate of 5,208 Warrants; and


 









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WHEREAS, the Company
is requesting that the Purchasers agree to the amendment of the Notes to delete Section 6(a) – Mandatory Exchange and delete
Section 6(b) – Optional Redemption and add Section 4(a)(ii) – Automatic Conversion as well as the addition of certain
registration rights; and


 


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 Purchasers (“Effective Date”).


 


NOW, THEREFORE, the
Company and Purchasers hereby agree as follows:


 


1.          The
definition of “Qualified Offering” in Section 1.1 of the Securities Purchase Agreements is deleted and replaced with
the following:


 


““Qualified Offering”
means the occurrence of an offering of the Company’s Common Stock which closes in one or more closings in connection with
which the Company receives not less than $5,000,000 of gross cash proceeds from the sale of Common Stock on or before November
30, 2016 at a pre-money valuation on a fully diluted basis of at least $20,000,000.”


 


2.          The
term “Termination Date” and the maximum allowed Subscription Amount as both are defined in Section 2.1 of the 2016
Securities Purchase Agreements shall mean September 30, 2016 and $1,850,000, respectively.


 


3.          The
Maturity Date of the December 2014 Notes is extended to November 30, 2016.


 


4.          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 November 30, 2016 (the period from the date hereof through November 30, 2016 being referred to
as the “Waiver Period”) in order to afford the Company the opportunity to implement a Qualified Offering.


 


5.          Section
4(a) has been amended to add Section 4(a)(ii) as follows:


 


“Automatic Conversion.
Upon the closing of a Qualified Offering, all of the outstanding principal amount, plus any accrued but unpaid interest, hereunder
shall automatically convert into the same type of securities offered in the Qualified Offering at the then in effect Conversion
Price; provided, however, that if such closing of the Qualified Offering occurs following the end of the Waiver Period,
there shall be no automatic conversion if, at such time, an Event of Default has occurred (but has not been cured, if subject
to cure), is then occurring or if there is an existing event which, with the passage of time or the giving of notice, would
constitute an Event of Default. The Holder shall, within three (3) calendar days of receiving notice from the Company of the anticipated
closing of a Qualified Offering, deliver to Borrower (i) a Notice of Conversion requesting conversion of all of the outstanding
principal and accrued but unpaid interest on the Note and (ii) the original Note. In the event that the Holder does not deliver
a Notice of Conversion within three (3) calendar days of receiving notice of a Qualified Offering, the Holder acknowledges and
agrees that the Borrower shall have the right to cancel the Note in its entirety and send to the Holder the number of securities
that would otherwise have been issued to the Holder in connection with this Section 4(a)(ii).”


 




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6.          Section
6 of the Notes is deleted in its entirety and replaced with the following:


 


“Registration Rights.
If the Company consummates an initial public offering of its Common Stock and such initial public offering is a Qualified Offering,
then the Company agrees to register the shares of Common Stock issued upon conversion of this Note (the “Registrable Securities”)
in a selling stockholder prospectus that shall be a part of the initial public offering registration statement. Notwithstanding
the registration obligations set forth in this Section 6, if the Securities and Exchange Commission (the “Commission”)
informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 promulgated by the
Commission pursuant to the Securities Act of 1933, as amended, as such Rule may be amended or interpreted from time to time, or
any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule,
be registered for resale along with the shares of Common Stock being offered in the initial public offering (or any other securities
that may also be offered in the initial public offering and included on the registration statement) on a single registration statement,
the Company agrees to, within twenty-four (24) hours, inform the Holder and will file a new registration statement within thirty
(30) calendar days following consummation of the initial public offering to register for resale the Registrable Securities.”


 


7.          The
undersigned hereby acknowledges, ratifies and confirms in all respects the Prior Amendments.         


 


8.          Within
three (3) days of execution of this Amended Fifth Consent, the Company will issue to the December 2014 Purchasers additional Warrants
in the amounts described on Schedule A hereto.


 


9.          Notwithstanding
any other documents executed by the Purchaser prior to this Amended Fifth Consent, the Purchaser acknowledges and agrees that this
Amended Fifth Consent constitutes the sole agreement between the parties relating to the consummation of a Qualified Offering.


 


10.         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 Amended Fifth Consent.


 


11.         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 Fifth Consent.


 


12.         This
Amended Fifth 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 Amended Fifth Consent may be signed and delivered by facsimile or electronically and
such facsimile or electronically signed and delivered Amended Fifth Consent shall be enforceable.


 






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13.         This
Amended Fifth Consent shall be included in the definition of Transaction Documents as such term is defined in the Securities Purchase
Agreements.


 


14.         Sections
5.4, 5.5, 5.12 and 5.21 of the Securities Purchase Agreements are incorporated herein by reference.


 


15.         Except
as expressly set forth herein, this Amended Fifth 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 Amended Fifth 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:	 
	 	 	Michael Fonstein, 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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