Exhibit 10.26


 





NINTH AMENDMENT, WAIVER, RESTRUCTURING
AND CONSENT


 


This Ninth Amendment, Waiver,
Restructuring and Consent (“Ninth Consent”), is made and entered into effective as of March 27, 2017 (the “Effective
Date”), 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 (all collectively the “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”) as further amended on April 20, 2016 pursuant to a Third Amendment,
Waiver and Consent (the “Third Amendment”) 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”), as further amended on October 2, 2016 (the “Sixth Amendment”) as further amended on November
30, 2016 (the “Seventh Amendment”), as further amended on January 30, 2017 (the “Eighth Amendment” and
together with the First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Fifth Amended and Restated
Amendment, the Sixth Amendment, the Seventh Amendment, and Eighth Amendment, the “Prior Amendments”), and as further
amended pursuant to this Ninth Consent; 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 Securities Purchase Agreements and the accompanying
Transaction Documents and as amended pursuant to the Prior Amendments and in this Ninth Consent; 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


 


WHEREAS, the Company is
requesting that the Purchasers of the Notes (“2014 Purchasers”) issued on December 23, 2014 (“2014 Notes”),
the Purchasers of the Notes (the “2015 Purchasers”) issued in May, June and November of 2015 (the “2015 Notes”),
and the Purchasers of the Notes (the “2016 Purchasers”) issued in April, May, June, July, September and October of
2016 (the “2016 Notes”) agree to the extension of the Maturity Date of the December 2014 Notes and the 2015 Notes to
May 31, 2017; and


 




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WHEREAS, in order to facilitate
a public offering of its equity securities, the Company wishes to exchange all of the Warrants for new shares of common stock of
the Company (the “New Shares”) as set forth below (the “Warrant Exchange”); and


 


WHEREAS, pursuant to the
Transaction Documents, the Company is prohibited from, without the prior approval of the majority of the Purchasers, from completing
the Warrant Exchange; and


 


WHEREAS, by executing the
Warrant Exchange, Company also wishes to lower the investment cost (the “Cost of Investment”, as defined below) for
the Purchasers in a way to bring the total cost of the prior investment in the Company more closely aligned among the Purchasers;
and


 


WHEREAS, the Company and
Purchasers agree to the following amendments, waivers, exchange and consents, which amendments, waivers, exchange and consents
shall be effective upon the approval of all 2014 Purchasers, all of the 2015 Purchasers, and all of the 2016 Purchasers with such
approval when achieved to be deemed effective as of the Effective Date.


 


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


 


1.          The
Maturity Date of the 2014 Notes and the 2015 Notes is extended to May 31, 2017.


 


2.          The
definition of “Qualified Offering” in Section 1.1 of the Securities Purchase Agreement 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 May 31, 2017
at a pre-money valuation on a fully diluted basis of at least $20,000,000.”


 


3.          The Purchasers consent
to and hereby undertake the Warrant Exchange with the Company as set forth in this Section 3. As used herein, the term “Cost
of Investment” shall mean the average of (i) the conversion price of the Notes purchased by each Purchaser and (ii) the
exercise price of each such Purchaser’s Warrants.


 


a.           The
2014 Purchasers shall receive a total of 114,842 New Shares in exchange for all of the Warrants that they own, with the effect
that the 2014 Purchasers shall exchange each share of Company common stock underlying their Warrants for 0.29 New Shares. Within
five (5) days of the Effective Date, the 2014 Purchasers will be issued the New Shares and upon such issuance all of their Warrants
will be automatically and without any further action required terminated and cancelled. With respect to the 2014 Purchasers, the
Warrant Exchange lowers the Cost of Investment of the 2014 Investors to $1.57 per share.


 


b.           The
2015 Purchasers shall receive a total of 578,408 New Shares in exchange for all of the Warrants that they own, with the effect
that the 2015 Purchasers shall exchange each share of Company common stock underlying their Warrants for 0.96 New Shares. Within
five (5) days of the Effective Date, the 2015 Purchasers will be issued the New Shares and upon such issuance all of their Warrants
will be automatically and without any further action required terminated and cancelled. With respect to the 2015 Purchasers, the
Warrant Exchange lowers the Cost of Investment of the 2015 Investors to $1.63 per share.


 




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c.           The
2016 Purchasers shall receive a total of 411,486 New Shares in exchange for all of the Warrants that they own, with the effect
that the 2016 Purchasers shall exchange each share of Company common stock underlying their Warrants for 1.81 New Shares. Within
five (5) days of the Effective Date, the 2016 Purchasers will be issued the New Shares and upon such issuance all of their Warrants
will be automatically and without any further action required terminated and cancelled. With respect to the 2016 Purchasers, the
Warrant Exchange lowers the Cost of Investment of the 2016 Investors to $1.78 per share.


 


4.          Solely
upon effectiveness of the Warrant Exchange, the Purchasers waive (i) any Events of Default that have occurred or may have occurred
prior to the date hereof, and (ii) any restrictions contained in the Transaction Documents solely as such restrictions prohibit
the Company from completing the Qualified Offering.


 


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


 


6.          The
undersigned Purchaser 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 Ninth Consent.


 


7.          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 Ninth Consent.


 


8.          The
Company agrees to pay to Grushko & Mittman, P.C. a fee of $2,250 out of the proceeds of a Qualified Offering.


 


9.          This
Ninth 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 Ninth Consent may be signed and delivered by facsimile or electronically and such facsimile or
electronically signed and delivered Seventh Consent shall be enforceable.


 


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


 


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


 


12.         Except
as expressly set forth herein, this Ninth 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 Ninth 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.         


 


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IN WITNESS WHEREOF, the Company and the undersigned
Purchasers have caused this Eighth 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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SCHEDULE A 


 


	PURCHASERS OF DECEMBER 23, 2014	 	PURCHASE 
 PRICE AND 
 PRINCIPAL 

AMOUNT OF 
 NOTE	 	 	WARRANTS	 	 	FIFTH 
 CONSENT 
 WARRANTS	 
	CURBER INTERNATIONAL LTD.
 
	 	$	400,000.00	 	 	 	27,778	 	 	 	2,779	 
	MORRIS FUCHS
 
	 	$	50,000.00	 	 	 	3,472	 	 	 	347	 
	NACHUM STEIN
 
	 	$	100,000.00	 	 	 	6,944	 	 	 	694	 
	AMERICAN EUROPEAN INSURANCE CO.
 
	 	$	100,000.00	 	 	 	6,944	 	 	 	694	 
	HSI PARTNERSHIP
 
	 	$	50,000.00	 	 	 	3,472	 	 	 	347	 
	RR INVESTMENT 2012 LP
 
	 	$	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 LEON SCHARF IRREVOCABLE TRUST CORP. 
	 	$	100,000.00	 	 	 	50,000	 
	HOCH FAMILY EQUITIES LLC 
	 	$	50,000.00	 	 	 	25,000	 
	RR INVESTMENT 2012 LP 
	 	$	500,000.00	 	 	 	250,000	 
	API BIO INVESTORS, LLC 
	 	$	340,000.00	 	 	 	170,000	 
	ABRAHAM BELSKY 
	 	$	50,000.00	 	 	 	25,000	 
	EDWIN W. COLMAN CHILDREN’S TRUST 
	 	$	100,000.00	 	 	 	50,000	 
	ELI INZLICHT-SPREI
 
	 	$	25,000.00	 	 	 	12,500	 
	HARVEY LANG 
	 	$	25,000.00	 	 	 	12,500	 
	ALPHA CAPITAL ANSTALT 
	 	$	750,000.00	 	 	 	375,000	 
	BRIO CAPITAL MASTER FUND LTD. 
	 	$	110,000.00	 	 	 	55,000	 
	BERNHARD LAZARUS
 
	 	$	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
 
	 	$	220,000.00	 	 	 	6,659	 
	MORDECHAI MARC BELSKY 
	 	$	50,000.00	 	 	 	1,513	 
	KEREN BROCHA 
	 	$	35,000.00	 	 	 	1,059	 
	CHAIM GROSS 
	 	$	30,000.00	 	 	 	908	 
	HOCH FAMILY EQUITIES, LLC 
	 	$	100,000.00	 	 	 	3,027	 
	MORRIS FUCHS
 
	 	$	50,000.00	 	 	 	1,513	 
	ELI INZLICHT-SPREI
 
	 	$	15,000.00	 	 	 	454	 
	TOTALS	 	$	500,000.00	 	 	 	15,133	 



 




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SCHEDULE A (continued)


 





	PURCHASERS OF APRIL 2016	 	PURCHASE PRICE 
 AND PRINCIPAL 
 AMOUNT OF NOTE	 	 	WARRANTS	 
	2004 LEON SCHARF IRREVOCABLE TRUST CORP. 
	 	$	100,000.00	 	 	 	2,579	 
	VENTURE CAP GROUP LLC 
	 	$	50,000.00	 	 	 	1,289	 
	NACHUM STEIN
 
	 	$	40,000.00	 	 	 	1,031	 
	AMERICAN EUROPEAN INSURANCE CO.
 
	 	$	40,000.00	 	 	 	1,031	 
	HSI PARTNERSHIP
 
	 	$	20,000.00	 	 	 	516	 
	PURCHASERS OF MAY 2016
	 	 	 	 	 	 	 	 
	MANUEL S. SCHARF
 
	 	$	100,000.00	 	 	 	2,579	 
	SCHEIN VENTURES LLC
 	 	$	100,000.00	 	 	 	2,149	 








 




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SCHEDULE A (continued)


 


	PURCHASERS OF JULY 2016	 	PURCHASE PRICE 
 AND PRINCIPAL 
 AMOUNT OF NOTE	 	 	WARRANTS	 
	ALPHA CAPITAL ANSTALT 
	 	$	50,000.00	 	 	 	1,074	 
	RAYMOND DAYAN
 
	 	$	40,000.00	 	 	 	859	 
	BRIO CAPITAL MASTER FUND LTD. 
	 	$	25,000.00	 	 	 	537	 
	EDWIN W. COLMAN CHILDREN’S TRUST 
	 	$	50,000.00	 	 	 	1,074	 
	2004 LEON SCHARF IRREVOCABLE TRUST CORP. 
	 	$	50,000.00	 	 	 	1,074	 
	Additional 2016 Purchasers	 	 	 	 	 	 	 	 
	Yuri Rabinovich 
	 	$	50,000.00	 	 	 	1,074	 
	Ross Overbeek 
	 	$	20,000.00	 	 	 	431	 
	Michael H. Schwartz Profit Sharing Plan 
	 	$	120,000.00	 	 	 	2,578	 
	Masoud Toghraie 
	 	$	200,000.00	 	 	 	4,297	 
	Walter Schenker IRA #1374
 
	 	$	150,000.00	 	 	 	3,223	 
	Scott Greenberg 
	 	$	50,000.00	 	 	 	1,074	 
	TOTALS	 	$	1,386,000	 	 	 	29,781	 



 




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