Blueprint





 







Exhibit 10.7


 



PREFERRED STOCK EXCHANGE AGREEMENT


 


This Preferred Stock Exchange Agreement (this
“Agreement”)
is entered into as of August 29, 2017, by and among GT Biopharma,
Inc., a Delaware corporation (the “Company”),
and the parties listed on Schedule
A hereto.


 


WHEREAS, Theorem Group LLC and Canyons Trust
(together, the “Series H
Stockholders”) currently
hold shares of Series H Convertible Preferred Stock of the Company
(the “Series H
Preferred Stock”)
pursuant to the Series H Preferred Stock Agreement, dated February
10, 2010 (the “Series H
Preferred SPA”);


 


WHEREAS, Adam Kasower (the
“Series I
Stockholder”) currently
hold shares of Series I Convertible Preferred Stock of the Company
(the “Series I
Preferred Stock”)
pursuant to the Series I Preferred Stock Purchase Agreement, dated
November 8, 2010 (the “Series I
Preferred SPA”);


 


WHEREAS, Series H Preferred Stock, and Series I
Preferred Stock are herein collectively referred to as the
“Preferred
Stock”;


 


WHEREAS, Series H Stockholders and Series I
Stockholders are herein collectively referred to as the
“Investors”
or “Preferred
Stockholders”;


 


WHEREAS, the Series H Preferred SPA and Series I
Preferred SPA are herein collectively referred to as the
“Prior
Subscription Agreements”
or “Prior
Transaction Documents”;


 


WHEREAS, each Preferred Stockholder hereby agrees
to exchange all shares of Preferred Stock held by such Preferred
Stockholder, and the Company agrees to issue to each Preferred
Stockholder in exchange for such shares, and for no additional
consideration, the number of shares of Common Stock set forth
opposite such Preferred Stockholder’s name
on Schedule
B hereto (the
“Exchange
Shares”);


 


NOW,
THEREFORE, in consideration of the rights and benefits that they
will each receive in connection with this Agreement, the parties,
intending to be legally bound, agree as follows:


 


1. Exchange
of Preferred Stock; Issuance of Exchange Shares.  Subject to the terms and conditions
of this Agreement, in exchange for the Preferred Stock and for no
additional consideration, such number of Exchange Shares set forth
beside such Preferred Stockholder’s name on Schedule B
attached hereto (the “Stock
Conversion”). Thereafter,
the Preferred Stock converted shall solely represent the right to
receive the Exchange Shares hereunder, and Preferred Stock shall
remain issued and outstanding. In the event a Stock Conversion will
result in a Preferred Stockholder owning more than 9.99% of the
total issued and outstanding common shares of the Company, the
Preferred Stockholder will be issued common stock in connection
with the Stock Conversion until the Preferred Stockholder owns
9.99% of the issued and outstanding stock of the Company. The
balance of the Stock Conversion will be completed by the Company
issuing the Preferred Stockholder shares of Series J Preferred
Stock. A copy of the Certificate of Designation with respect to
such Series J Preferred Stock is annexed hereto as Exhibit
C.


 


2. Closing.


 


(a) Closing.  With
respect to all shares of Preferred Stock, the Preferred
Stockholders shall deliver their certificates representing the
Preferred Stock (or if such certificates are lost, mutilated or
destroyed, a lost certificate affidavit and indemnity agreement in
substantially the form attached hereto as Exhibit A (each, an
“Affidavit”)) to the Company for
cancellation.


 


(b) Delivery of
Shares. Within five (5)
business days from the receipt of the certificates (or Affidavit,
as applicable) from any Preferred Stockholder, the Company shall
deliver the applicable Exchange Shares to such Preferred
Stockholder pursuant to a legal opinion acceptable to the transfer
agent and the Preferred Stockholders to be issued by Company
counsel and paid for by the Company, electronically through the
Depository Trust Company or another established clearing
corporation performing similar functions.


 




 

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3. Representations
and Warranties of the Company.  The Company hereby represents and
warrants to each Investor as of the date hereof as
follows:


 


(a) Organization and
Standing.  The
Company is a corporation duly organized, validly existing under,
and by virtue of, the laws of the State of Delaware, and is in good
standing under such laws.  The Company has all requisite
corporate power and authority to own and operate its properties and
assets and to carry on its business as presently
conducted.  The Company is duly qualified and authorized
to transact business and is in good standing as a foreign
corporation in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business, properties or
financial condition.


 


(b) Corporate
Power.  The Company
has all requisite legal and corporate power and authority to
execute and deliver this Agreement, to sell and issue the Exchange
Shares hereunder, and to carry out and perform its obligations
under the terms of this Agreement and the transactions contemplated
hereby.


 


(c) Authorization.  All
corporate action on the part of the Company, its officers,
directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement, the
authorization, sale, issuance and delivery of the Exchange Shares
and the performance of all of the Company’s obligations
hereunder, other than the Charter Amendment, have been taken or
will be taken prior to the Closing.  This Agreement has
been duly executed by the Company and constitutes valid and legally
binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, subject to the laws of
general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.


 


(d) Valid Issuance of
Stock.  The Exchange
Shares, when issued, sold and delivered in compliance with the
provisions of this Agreement, will be duly and validly issued,
fully paid and nonassessable and issued in compliance with
applicable federal and state securities laws.  Such
Exchange Shares will also be free and clear of any liens or
encumbrances; provided, however, that the Exchange Shares shall be
subject to the provisions of this Agreement and restrictions on
transfer under state and/or federal securities laws.  The
Exchange Shares are not subject to any preemptive rights, rights of
first refusal or restrictions on transfer.


 


(e) Offering.  Subject
in part on the accuracy of the Investor’s representations
in Sections 4 and 5 (if
applicable) hereof, the offer, sale and issuance of the Exchange
Shares in conformity with the terms of this Agreement constitute
transactions exempt from registration under the Securities Act of
1933, as amended (the “Securities
Act”) and from all
applicable state securities laws.


 


(f) Governmental
Consents.  No
consent, approval, qualification or authority of, or registration
or filing with, any local, state or federal governmental authority
on the part of the Company is required in connection with the valid
execution, delivery or performance of this Agreement, or the offer,
sale or issuance of the Shares, or the consummation of any
transaction contemplated hereby, except (i) such filings as have
been made prior to the date hereof, (ii) the Charter Amendment and
(iii) such additional post-closing filings as may be required to
comply with applicable federal and state securities laws (including
but not limited to any Form D or Form 8-K filings), and with
applicable general corporation laws of the various states, each of
which will be filed with the proper authority by the Company in a
timely manner.


 


4. Representations
and Warranties of all Investors.  Each Investor, for itself and for no
other person, hereby represents and warrants as of the date hereof
to the Company as follows:


 


(a) Organization and
Standing.  The
Investor is either an individual or an entity duly organized,
validly existing under, and by virtue of, the laws of the
jurisdiction of its incorporation or formation, and is in good
standing under such laws.


 


(b) Corporate
Power.  The Investor
has all right, corporate, partnership, limited liability company or
similar power and authority to execute and deliver this Agreement,
to effect the Exchange hereunder, and to carry out and perform its
obligations under the terms of this Agreement and the transactions
contemplated hereby.


 




 

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(c) Authorization.  All
corporate, partnership, limited liability company or similar
action, as applicable on the part of such Investor, necessary for
the authorization, execution, delivery and performance of this
Agreement, the Exchange and the performance of all of such
Investor’s obligations hereunder have been taken or will be
taken prior to the Closing.  This Agreement has been duly
executed by the Investor and constitutes valid and legally binding
obligations of such Investor, enforceable against such Investor in
accordance with their respective terms, subject to the laws of
general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.


 


(d) Governmental
Consents.  No
consent, approval, qualification or authority of, or registration
or filing with, any local, state or federal governmental authority
on the part of the Company is required in connection with the valid
execution, delivery or performance of this Agreement, or the offer,
sale or issuance of the Exchange Shares, or the consummation of any
transaction contemplated hereby, except such filings as have been
made prior to the date hereof.


 


(e) Own
Account.  Such
Investor understands that the Exchange Shares are “restricted
securities” and have not been registered under the Securities
Act or any applicable state securities law in reliance upon
exemptions from regulation for non-public offerings and is
acquiring the Exchange Shares as principal for its own account and
not with a view to or for distributing or reselling such Exchange
Shares or any part thereof in violation of the Securities Act or
any applicable state securities law, has no present intention of
distributing any such Exchange Shares in violation of the
Securities Act or any applicable state securities law and has no
direct or indirect arrangement or understandings with any other
persons to distribute or  regarding the distribution of
such Exchange Shares in violation of the Securities Act or any
applicable state securities law.  Such Investor agrees
that the Exchange Shares or any interest therein will not be sold
or otherwise disposed of by such Investor unless the shares are
subsequently registered under the Securities Act and under
appropriate state securities laws or unless the Company receives an
opinion of counsel satisfactory to it that an exception from
registration is available.


 


(f) Investor
Status.  The Investor
is either: (i) an “accredited investor” as defined in
Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the
Securities Act or (ii) a “qualified institutional
buyer” as defined in Rule 144A under the Securities
Act.  Such Investor is not required to be registered as a
broker-dealer under Section 15 of the Securities Exchange Act of
1934, as amended (the “Exchange
Act”).


 


(g) Experience of
Investor.  Such
Investor, either alone or together with its representatives, has
such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Exchange Shares, and has
so evaluated the merits and risks of such
investment.


 


(h) Ability to Bear
Risk.  Such Investor
understands and acknowledges that in investment in the Company is
highly speculative and involves substantial risks.  Such
Investor is able to bear the economic risk of an investment in the
Exchange Shares and is able to afford a complete loss of such
investment. 


 


(i) General
Solicitation.  Such
Investor is not accepting the Exchange Shares as a result of any
advertisement, article, notice or other communication regarding the
Exchange Shares published in any newspaper, magazine or similar
media or broadcast over television or radio or presented at any
seminar or any other general solicitation or general
advertisement.


 


(j) Disclosure of
Information.  Such
Investor has had the opportunity to receive all additional
information related the Company requested by it and to ask
questions of, and receive answers from, the Company regarding the
Company, including the Company’s business management and
financial affairs, and the terms and conditions of this offering of
the Exchange Shares.  Such questions were answered to
such Investor’s satisfaction.  Such Investor has
also had access to copies of the Company’s filings with the
Securities Exchange Commission under the Securities Act and
Exchange Act.  The Investor believes that it has received
all the information such Investor considers necessary or
appropriate for deciding whether to consummate the
Exchange.  The Investor understands that such
discussions, as well as any information issued by the Company, were
intended to describe certain aspects of the Company’s
business and prospects, but were not necessarily a through or
exhaustive description.  The Investor acknowledges that
any business plans prepared by the Company have been, and continue
to be, subject to change and that any projections included in such
business plans or otherwise are necessarily speculative in nature
and it can be expected that some or all of the assumptions
underlying the projections will not materialize or will vary
significantly from actual results.


 




 

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(k) Residency.  The
residency of the Investor (or in the case of a partnership or
corporation, such entity’s principal place of business) is
correctly set forth on signature pages attached
hereto.


 


(l) Security
Holdings.  The shares
of Preferred Stock held by each Investor, as applicable, as of the
date hereof are correctly described on Schedule
B attached
hereto.  The Investor does not hold any other securities
or equity interests in the Company other than what is set forth
opposite such Investor’s name on Schedule
B attached
hereto, Schedule
B to the Note Conversion
Agreement, dated August 25, 2017, and Schedule
B to the Warrant Exercise
Agreement, dated August 25, 2017, each of which is incorporated
herein by reference as though fully set forth herein and made a
part of this Agreement.


 


(m) Tax
Matters.  The
Investor has reviewed with its own tax advisors the U.S. federal,
state, local and foreign tax consequences of this investment and
the transaction contemplated by this Agreement.  The
Investor understands that it (and not the Company) shall be
responsible for its own tax liability that may arise as a result of
this investment and the transactions contemplated by this
Agreement.


 


(n) Restrictions on
Transferability; No Endorsement.  The Investor has been informed of and
understand the following:


 


i. there
are substantial restrictions on the transferability of the Exchange
Shares; or 



 


ii. no
federal or state agency has made any finding or determination as to
the fairness for public investment, nor any recommendation nor
endorsement of the Exchange Shares.


 


(o) No Other
Representation by the Company.  None of the following information has
ever been represented, guaranteed or warranted to the Investor,
expressly or by implication by any broker, the Company, or agent or
employee of the foregoing, or by any other
Person:


 


i. the
approximate or exact length of time that the Investor will be
required to remain a holder of the Exchange Shares;


 


ii. the
amount of consideration, profit or loss to be realized, if any, as
a result of an investment in the Company; or


 


iii. that
the past performance or experience of the Company, its officers,
directors, associates, agents, affiliates or employees or any other
person will in any way indicate or predict economic results in
connection with the plan of operations of the Company or the return
on investment.


 


5. Representations,
Warranties and Covenants of Non-US Investors.  Each Investor who is a Non-U.S.
Person (as defined herein) hereby represents and warrants to the
Company as follows:


 


(a) Certain
Definitions.  As used
herein, the term “United States” means and includes the
United States of America, its territories and possessions, any
state of the United States and the District of Columbia, and the
term “Non-U.S. person” means any person who is not a
U.S. person (as defined in Regulation S) or is deemed not to be a
U.S. person under Rule 902(k)(2) of the Securities
Act.


 


(b) Reliance on
Representations and Warranties by the Company.  This Agreement is made by the Company
with such Investor who is a Non-U.S. person
(“Non-U.S.
Investor”) in reliance
upon such Non-U.S. Investor’s representations and warranties
made herein.


 


(c) Regulation
S.  Such Non-U.S.
Investor has been advised and acknowledges
that:


 


i. the
Exchange Shares have not been registered under the Securities Act,
the securities laws of any state of the United States or the
securities laws of any other country;


 




 

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ii. in
issuing and selling the Exchange Shares to such Non-U.S. Investor
pursuant to hereto, the Company is relying upon the “safe
harbor” provided by Regulation S and/or on Section 4(a)(2)
under the Securities Act;


 


iii. it is a condition to the availability of
the Regulation S “safe harbor” that the Exchange Shares
not be offered or sold in the United States or to a U.S. person
until the expiation of a period of one year following the Closing
Date; notwithstanding the foregoing, prior to the expiration of one
year after the Closing (the “Restricted
Period”), the Exchange
Shares may be offered and sold by the holder thereof only if such
offer and sale is made in compliance with the terms of this
Agreement and either: (A) if the offer or sale is within the United
States or to or for the account of a U.S. person, the securities
are offered and sold pursuant to an effective registration
statement of the Securities Act, or (B) the offer and sale is
outside the United States and to other than a U.S.
person.


 


(d) Certain Restrictions
on Exchange Shares.  Such Non-U.S. Investor agrees that
with respect to the Shares until the expiration of the Restricted
Period:


 


i. such
Non-U.S. Investor, its agents or its representatives have not and
will not solicit offers to buy, offer for sale or sell any of the
Shares or any beneficial interest therein in the United States or
to or for the account of a U.S. person during the Restricted
Period; notwithstanding the foregoing, prior to the expiration of
the Restricted Period, the Exchange Shares may be offered and sold
by the holder thereof only if such offer and sale is made in
compliance with the terms of this Agreement and either: (A) if the
offer or sale is within the United States or to or for the account
of a U.S. person, the securities are offered and sold pursuant to
an effective registration statement or pursuant to Rule 144 under
the Securities Act or pursuant to an exemption from registration
requirements of the Securities Act; or (B) the offer and sale is
outside the United States and to a person other than a U.S. person;
and


 


ii. such
Non-U.S. Investor shall not engage in hedging transactions with
regards to the Exchange Shares unless in compliance with the
Securities Act.


 


The
foregoing restrictions are binding upon subsequent transferees of
the Exchange Shares, except for transferees pursuant to an
effective registration statement.  Such Non-U.S. Investor
agrees that after the Restricted Period, the Exchange Shares may be
offered or sold within the United States or to or for the account
of a U.S. person only pursuant to applicable securities
laws.


 


(e) Directed
Selling.  Such
Non-U.S. Investor has not engaged, nor is it aware that any party
has engaged, and such Non-U.S. Investor will not engage or cause
any third party to engage, in any directed selling efforts (as such
term is defined in Regulation S) in the United States with respect
to the Shares.


 


(f) Location of Non-U.S.
Investor. Such Non-U.S.
Investor: (i) is domiciled and has its principal place of business
or registered office outside the United States; (ii) certifies it
is not a U.S. person and is not acquiring the Exchange Shares for
the account or benefit of any U.S. person; and (iii) at the time of
Closing, the Non-U.S. Investor or persons acting on the Non-U.S.
Investor’s behalf in connection therewith are located outside
the United states.


 


(g) Distributor;
Dealer.  Such
Non-U.S. Investor is not a “distributor” (as defined in
Regulation S) or a “dealer” (as defined in the
Securities Act).


 


(h) Notation of
Restrictions.  Such
Non-U.S. Investor acknowledges that the Company shall make a
notation in its stock books regarding the restrictions on transfer
set forth in this section and shall transfer such shares on the
books of the Company only to the extent consistent
therewith.


 


(i) Compliance with
Laws. Such Non-U.S. Investor is
satisfied as to the full observance of the laws of such Non-U.S.
Investor’s jurisdiction in connection with the Exchange,
including (i) the legal requirements within such Non-U.S.
Investor’s jurisdiction for the Exchange, (ii) any foreign
exchange restrictions applicable to such Exchange, (iii) any
governmental or other consents that may need to be obtained and
(iv) the income tax and other tax consequences, if any, that may be
relevant to the exchange, holding, redemption, sale or transfer of
such securities.  Such Non-U.S. Investor’s
participation in the Exchange, and such Non-U.S. Investor’s
continued beneficial ownership of the Exchange Shares will not
violate any applicable securities or other laws of such Non-U.S.
Investor’s jurisdiction.


 




 

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6. Waiver
and Release. Effective
immediately upon the Stock Conversion with respect to the Preferred
Stock held by each Preferred Stockholder:


 


(a) Such
Investor expressly forfeits and waives any and all anti-dilution
and piggyback registration rights under any and all Prior
Transaction Documents or otherwise applicable to the Preferred
Stock, including any anti-dilution rights such Investor may have
with respect to the issuances of any capital stock or other
securities of the Company pursuant to previous transactions and
pursuant to this Agreement.


 


(b) Such
Investor unconditionally, irrevocably and absolutely releases and
discharges the Company, and any parent and subsidiary corporations,
divisions and affiliated corporations, partnerships or other
entities of the Company, past and present, as well as the
Company’s past and present employees, officers, directors,
agents, principals, shareholders, successors and assigns from all
claims, losses, demands, interests, causes of action, suits, debts,
controversies, liabilities, costs, expenses and damages related to
the waiver of anti-dilution and piggyback registration rights
above, any security interest pursuant to any Prior Transaction
Documents or otherwise over any collateral of the Company, or
related in any way to any rights such Investor may have to equity
or debt securities of the Company, other than as provided under
this Agreement, any other agreement entered into contemporaneously
herewith or set forth on the schedules hereto and thereto
..  This release includes, but is not limited to, any
tort, contract, common law, constitution or other statutory claims
(including but not limited to any claims for attorneys’ fees,
costs and expenses).


 


(c) Such
Investors and the Company expressly waives such Investor’s or
Company’s (as applicable) right to recovery of any type,
including damages or reinstatement, in any administrative court or
action, whether state or federal, and whether brought by such
Investor or Company or on such Investor’s or Company’s
(as applicable) behalf, related in any way to the matters released
herein.


 


(d) Such
Investors and the Company declare and represent that they intend
this Agreement to be complete and not subject to any claim of
mistake, and that the release of the claims described herein
expresses a full and complete release and it intends the release of
such claims to be final and complete.


 


(e) The parties acknowledge that this release
is not intended to bar any claims that, by statute, may not be
waived and
shall not waive any indemnification rights previously granted in
Prior Transaction Documents.


 


(f)                 The
Company unconditionally, irrevocably and absolutely releases and
discharges such Preferred Stockholder, and any parent and
subsidiary corporations, divisions and affiliated corporations,
partnerships or other entities of such Preferred Stockholder, past
and present, as well as the such Preferred Stockholder’s past
and present employees, officers, directors, agents, principals,
shareholders, successors and assigns from all claims, losses,
demands, interests, causes of action, suits, debts, controversies,
liabilities, costs, expenses and damages related to any Prior
Transaction Documents or otherwise over any collateral of the
Company, or related in any way to any obligations such Preferred
Stockholder may have to the Company, other than as provided under
this Agreement or set forth on the schedules hereto. This release
includes, but is not limited to, any tort, contract, common law,
constitution or other statutory claims (including but not limited
to any claims for attorneys’ fees, costs and
expenses).


 




 

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7. Covenants.  


 

(a) On
or about the date of this Agreement, the Company is entering into
Note Conversion Agreements, Preferred Stock Exchange Agreements,
and Warrant Exercise Agreements with the debenture holders, the
preferred stock holders and the warrant holders of the Company.
Pursuant to these agreements, common stock and sometimes Series J
Preferred Stock will be issued upon the conversion of debentures,
conversion of old preferred stock and the exercise of warrants
(collectively the “Newly Issued Capital Stock”). The
Note Holder’s “New Stock” is the common stock
received pursuant to this Agreement, any Preferred Stock Exchange
Agreement and any Warrant Exercise Agreement of even date herewith,
together with the number of common shares into which the Note
Holder’s Series J Preferred Stock received by virtue of the
same agreements, is convertible. The “Note Holder’s
Percentage” is the percentage of the Note Holder’s New
Stock compared to the total of the Newly Issued Capital Stock.
At all times during the one-year
period immediately following the Closing in which the Note Holder
participates (“Restricted Period”), beginning on the
Closing Date, such Note Holder hereby agrees with the Company that
such Note Holder shall not sell on any one day, any shares of the
Company’s capital stock in excess of the Note Holder’s
Percentage of the Company’s trading volume on that day. The
foregoing restriction was requested by the Company of each Note
Holder and was not requested by any Note Holder. Each Note Holder
shall make its own determination of when to sell and when not to
sell independently of any other Note Holder and not as a part of
any group. Notwithstanding the foregoing, the restrictions set
forth in this Section
7(a) will terminate with
respect to any Note Conversion Shares when the Company has any
registration statement declared effective by the Securities and
Exchange Commission. The Company undertakes and agrees to notify
each Note Holder in writing (which may be via e-mail to with a
‘read receipt requested’) of the effective date on the
same day that the Company receives notice of such effective
date.  The parties hereto acknowledge and agree that,
except as set forth in this Agreement, the Company is under no
obligation to register any of the Note Conversion Shares. The Note
Holder’s Percentage is listed on Schedule
A. Notwithstanding
anything herein to the contrary, during the Restricted Period, the
Holder may, directly or indirectly, sell or transfer all, or any
part, of the Shares or the Warrant Shares (the “Restricted
Securities”) to any Person (an “Assignee”) in a
transaction which does not need to be reported on the Nasdaq
consolidated tape, without complying with (or otherwise limited by)
the restrictions set forth in this Section 7(a); provided, that as
a condition to any such sale or transfer an authorized signatory of
the Company and such Assignee duly execute and deliver a leak-out
agreement in the form of this Section 7(a) (an “Assignee
Agreement”, and each such transfer a “Permitted
Transfer”) and, subsequent to a Permitted Transfer, sales of
the Note Holder and all Assignees (other than any such sales that
constitute Permitted Transfers) shall be aggregated for all
purposes of this Section 7(a) and all Assignee
Agreements.


 


(b)                 The
Company hereby represents and warrants as of the date hereof and
covenants and agrees from and after the date hereof that none of
the terms offered to any Preferred Stockholder with respect to the
terms hereunder and the Exchange Shares is or will be more
favorable to any other Preferred Stockholder than those offered
under this Agreement (including by way of any written or verbal
side or separate agreements). If, and whenever on or after the date
hereof, the Company offers different terms to another Preferred
Stockholder, then (i) the Company shall provide notice thereof to
all Preferred Stockholders promptly following the occurrence
thereof and (ii) the terms and conditions of this Agreement shall
be, without any further action by the Preferred Stockholder or the
Company, automatically and retroactively amended and modified in an
economically and legally equivalent manner such that all Preferred
Stockholders shall receive the benefit of the more favorable terms
and/or conditions (as the case may be) granted to such other
Preferred Stockholder, provided that upon written notice to the
Company at any time a Preferred Stockholder may elect not to accept
the benefit of any such amended or modified term or condition, in
which event the term or condition contained in this Agreement shall
apply to the Preferred Stockholder as it was in effect immediately
prior to such amendment or modification as if such amendment or
modification never occurred with respect to the Preferred
Stockholder.


 


(c)                 
This Agreement shall be effective with
respect to Preferred Stockholders who accept this offer only if
Preferred Stockholders possessing not less than 100% of the
outstanding Note principal and interest accept this offer and
execute and deliver a copy of this Agreement to the Company on or
before September 1, 2017. If this Agreement becomes effective and
the transaction documents are executed on or before 8:30 a.m. on
September 5, 2017, then on or before 9:00 a.m. Eastern Time on
September 5, 2017, the Company shall file a Current Report on Form
8-K with the Commission. From and after such filing, the Company
represents to the Preferred Stockholders that it shall have
publicly disclosed all material, non-public information delivered
to it by the Company or any of its Subsidiaries, or any of their
respective officers, directors, employees or
agents.


 




 

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(d)                 Except
with respect to the material terms and conditions of the
transactions contemplated by this Agreement, the Company covenants
and agrees that neither it, nor any other Person acting on its
behalf, will provide any Preferred Stockholder or its agents or
counsel with any information that the Company believes constitutes
material non-public information, unless prior thereto such
Preferred Stockholder shall have entered into a written agreement
with the Company regarding the confidentiality and use of such
information. The Company understands and confirms that each
Preferred Stockholder shall be relying on the foregoing covenant in
effecting transactions in securities of the
Company.


 


8. Miscellaneous.


 


(a) Restriction
Notations. The provisions of
this Subsection 8(a) and Subsection 8(d) below, apply to all common
shares received by any Note Holder pursuant to a Note Conversion
Agreement, a Preferred Stock Exchange Agreement, or a Warrant
Exercise Agreement and shares of common stock into which Series J
Preferred Stock is converted, which shares of Series J Preferred
Stock are received pursuant to the same agreements. Collectively
these shares are referred to in this Subsection 8(a) and Subsection
8(d) as the “Shares”.


 


 


i. Except as otherwise provided in this
Agreement, the Company shall not make any notations on its records
or give any instructions to the registrar and transfer agent of the
Company (along with any successor transfer agent of the Company,
the “Transfer
Agent”) implementing any
restrictions on transfer.


 


ii.
Company and Transfer Agent records evidencing the Shares shall not
contain any restriction notation (including any restriction
notation under this Section 8(a)): (i) while a registration
statement covering the resale of such security is effective under
the Securities Act, (ii) following any sale of such Shares pursuant
to Rule 144, (iii) if such Shares are eligible for sale under Rule
144 or (iv) if such restriction notation is not required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the
Securities and Exchange Commission). The Company shall cause its
counsel to issue a legal opinion to the Transfer Agent promptly if
required by the Transfer Agent or requested by an Investor to
effect the removal of the restriction notation hereunder. If all or
any Series J Preferred Stock is converted at a time when there is
an effective registration statement to cover the resale of the
Shares, Common Stock issuable upon conversion of the Series J
Preferred Stock (“Series J Conversion Shares”) or if
the Shares may be sold under Rule 144 or if such restriction
notation is not otherwise required under applicable requirements of
the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission) then such
Shares and Series J Conversion Shares shall be issued free of all
restriction notations. The Company agrees that following such time
as such restriction notation is no longer required under this
Section 8(a), it will, no later than three business days following
the request by an Investor to the Company that the restriction on
the Investor’s shares be removed (such third business day,
the “Restriction Notation Removal Date”), cause the
Transfer Agent to transfer the Shares upon the request of the
Investor by crediting the account of the Investor's prime broker
with the Depository Trust Company System as directed by such
Investor. The Company may not make any notation on its records or
give instructions to the Transfer Agent that enlarge the
restrictions on transfer set forth in this Section 8. Without
limiting the generality of the foregoing and subject to the volume
limitations of Section 7(a), provided a Note Holder is not an
affiliate of the Company and the Company is current in its
reporting obligations, the Note Conversion Shares and Series J
Conversion Shares may be sold under Rule 144 without restriction
and the Company will provide the required legal opinions in
connection with such sales.


 




 

-8-








 






 


iii.
In addition to the Investor's other available remedies, the Company
shall pay to an Investor, in cash, as partial liquidated damages
and not as a penalty, for each $1,000 of Shares (based on the VWAP
of the Common Stock of the Company on the date a request for
restriction notation removal is submitted to the Transfer Agent) to
which a removal of a restriction notation was requested and subject
to Section 8(a)(ii), $10 per business day (increasing to $20 per
business day five (5) business days after such damages have begun
to accrue) for each business day after the Restriction Notation
Removal Date until such stock is delivered without a restriction
notation. Nothing herein shall limit such Investor's right to
pursue actual damages for the Company's failure to transfer Shares
or Series J Conversion Shares as required by this Agreement, and
such Investor shall have the right to pursue all remedies available
to it at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief. For the purposes
of this section, "VWAP" means, for any date, the price determined
by the first of the following clauses that applies: (a) if the
Common Stock is then listed or quoted on a Trading Market, the
daily volume weighted average price of the Common Stock for such
date (or the nearest preceding date) on the Trading Market on which
the Common Stock is then listed or quoted as reported by Bloomberg
L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to
4:02 p.m. (New York City time)), (b) if the OTC Bulletin Board is
not a Trading Market, the volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the
OTC Bulletin Board, (c) if the Common Stock is not then listed or
quoted for trading on the OTC Bulletin Board and if prices for the
Common Stock are then reported in the "Pink Sheets" published by
Pink OTC Markets, Inc. (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent
bid price per share of the Common Stock so reported, or (d) in all
other cases, the fair market value of a share of Common Stock as
determined by an independent appraiser selected in good faith by
the Investors of a majority in interest of the Securities then
outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company. For the purposes of
this section, “Trading Market” means any of the
following markets or exchanges on which the Common Stock is listed
or quoted for trading on the date in question: the NYSE MKT, the
Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market, the New York Stock Exchange, the OTC Bulletin Board,
or any market of the OTC Markets, Inc. (or any successors to any of
the foregoing).


 


In
addition to such Investor’s other available remedies, in the
event that the Shares are delivered more than 5 Trading Days
following the date hereof (or if issued pursuant to the Series J
Preferred, following conversion) or a legal opinion required above
is not delivered to the Transfer Agent prior to the expiration of
its effectiveness (“Required Delivery Date”), Company
shall pay to an Investor, in cash, (i) as partial liquidated
damages and not as a penalty, for each $1,000 of Shares (based on
the VWAP of the Common Stock on the date such Securities are
required to be delivered), $10 per Trading Day (increasing to $20
per Trading Day five (5) Trading Days after such damages have begun
to accrue) for each Trading Day after the Required Delivery Date
until such Shares or Series J Conversion Shares are delivered
without a legend and (ii) if the Company fails to (a) issue and
deliver (or cause to be delivered) to an Investor by the Required
Delivery Date Shares or Series J Conversion Shares without legends
that are free from all restrictive and other legends and (b) if
after the Required Delivery Date such Investor purchases (in an
open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by such Investor of all or any
portion of the number of shares of Common Stock, or a sale of a
number of shares of Common Stock equal to all or any portion of the
number of shares of Common Stock that such Investor anticipated
receiving from the Company without any restrictive legend, then, an
amount equal to the excess of such Investor’s total purchase
price (including brokerage commissions and other out-of-pocket
expenses, if any) for the shares of Common Stock so purchased
(including brokerage commissions and other out-of-pocket expenses,
if any) (the “Buy-In Price”) over the product of (A)
such number of that the Company was required to deliver to such
Investor by the Required Delivery Date multiplied by (B) the lowest
closing sale price of the Common Stock on any Trading Day during
the period commencing on the date of the delivery by such Investor
to the Company of the applicable Shares or Series J Conversion
Shares (as the case may be) and ending on the date of such delivery
and payment under this clause (iii).


 


(b)       Transfers.
Subject to Section 7 above, the Company hereby confirms that it
will not require a legal opinion or “no action” letter
from any Investor who desires to transfer the Exhange Shares or
Series J Conversion Shares in compliance with Rule 144 promulgated
by the Securities and Exchange Commission under the Securities Act
(“Rule 144”).


 


(c)       Registration
Rights. Holders of Exchange
Shares will have the registration rights described in Exhibit B
hereto.


 




 

-9-








 






 


(d)       Furnishing
of Information. Until the
earliest of the time that no Investor owns Preferred Stock or
Shares, the Company covenants to maintain the registration of its
Common Stock under Section 12(b) or 12(g) of the Exchange Act.
During the period that the Investors own Preferred Stock or Shares,
the Company shall timely file (or obtain extensions in respect
thereof and file within the applicable grace period) all reports
required to be filed by the Company pursuant to the Exchange Act,
even if the Company is not then subject to the reporting
requirements of the Exchange Act.


 


 (e) Tacking.
Each party hereto acknowledges that the holding period for the
Exchange Shares and Series J Conversion Shares may be tacked back
to the date the Preferred Stock was initially issued and the
Company shall take no position contrary to this
position.


 


(f) Reliance on
Representations and Warranties by the Company. Each Investor acknowledges that the
representations and warranties contained herein are made by it with
the intention that such representations and warranties may be
relied upon by the Company and its legal counsel in determining the
Investor’s eligibility to acquire the Exchange Shares under
applicable securities legislation, or (if applicable) the
eligibility of others on whose behalf it is contracting hereunder
to purchase the Exchange Shares under applicable securities
legislation. The Investor further agrees that the representations
and warranties made by the Investor will survive the Exchange and
will continue in full force and effect notwithstanding any
subsequent disposition of the Investor of such Exchange
Shares.


 


(g) Fees and
Expenses. Each party shall pay
the fees and expenses of its advisors, counsel, accountants and
other experts, if any, and all other expenses incurred by such
party incident to the preparation, execution, delivery and
performance of this Agreement.


 


(h) Entire
Agreement. This Agreement,
together with the schedules attached hereto, contain the entire
understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral
or written with respect to such matters.


 


(i) Notices.
All notices, demands requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable
air courier service with charges prepaid, or (iv) transmitted by
hand delivery, addressed as set forth below or to such other
address as such party shall have specified most recently by written
notice. The addresses for such communications shall be: (i) if to
the Company, to: GT Biopharma, Inc., Attn: Chief Financial Officer,
4100 South Ashley Drive, Suite 600, Tampa, FL 33602, and (ii) if to
the Note Holders, to the addresses as indicated on the signature
pages attached hereto.


 


(j) Amendments;
Waivers. No provision of this
Agreement may be waived, modified, supplemented or amended except
in a written instrument signed, in the case of an amendment, by the
Company and the Investors holding at least a majority in interest
of the Exchange Shares then outstanding or, in the case of a
waiver, by the party against whom enforcement of any such waived
provision is sought; provided, that all waivers, modifications,
supplements or amendments effected by less than all Investors
impact all Investors in the same fashion. No waiver with respect to
any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any
other provision, condition or requirement hereof, nor shall any
delay or omission of any party to exercise any right hereunder in
any manner impair the exercise of any such
right.


 


(k) Headings.
The headings herein are for convenience only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.


 


(l) Successors and
Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties and their
successors and permitted assigns.


 


(m) No Third-Party
Beneficiaries. This Agreement
is intended for the benefit of the parties hereto and their
respective successors and assigns, and is not for the benefit of,
nor may any provision hereof be enforced by, any other
Person.


 




 

-10-








 






 


(n) Governing
Law. All questions concerning
the construction, validity, enforcement and interpretation of this
Agreement and the transactions contemplated hereby shall be
governed by and construed and enforced in accordance with the
internal laws of the State of New York, without regard to the
principals of conflicts of law thereof. Each party agrees that all
legal proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement (whether
brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or
agents) shall be commenced exclusively in the state and federal
courts of New York. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts of New York
for the adjudication of any dispute hereunder or in connection
herewith or the transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not venue for
such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. In addition to
any other rights or remedies hereunder, any indemnification
provisions granted to an Investor shall continue to survive and
apply to such Investor as if such rights were granted
hereunder.


 


(o) Survival.
The representations and warranties contained herein shall survive
the Closings for the applicable statute of
limitations.


 


(p) Execution.
This Agreement may be executed in one or more counterparts, all of
which when taken together shall be considered one and the same
agreement, it being understood that the parties need not sign the
same counterpart. In the event that any signature is delivered by
facsimile transmission or by email delivery of a “.pdf”
format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature was an original
thereof.


 (q) Severability.
If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their
commercially reasonable efforts to find and employ, an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.


 


(r) Independent Nature of
Obligations and Rights. The
obligations of each Investor and hereunder are several and not
joint with the obligations of any other Investor, and no Investor
shall be responsible in any way for the performance or
non-performance of the obligations of any other Investor hereunder.
Nothing contained herein and no action taken by any Investor hereto
shall be deemed to constitute the Investors as a partnership, an
association, a joint venture or any other kind of entity, or create
a presumption that the Investors are in any way acting in concert
or as a group with respect to such obligations or the transactions
contemplated hereby. The Company and each Investor confirms that
such Investor has independently participated in the negotiation of
the transactions contemplated hereby with the advice of its own
counsel and advisors. Each Investor shall be entitled to
independently protect and enforce its rights under this Agreement
and it shall not be necessary for any other Investor to be joined
as an additional party in any proceeding for such
purpose.


 


(s) No Third Party
Beneficiaries.  Nothing in this Agreement shall
provide any benefit to any third party nor entitle any third party
to any claim, cause of action, remedy or right of any kind, it
being the intent of the parties hereto that this Agreement shall
not otherwise be construed as a third party beneficiary
contract.


 


(t) Construction.  The
parties hereto agree that each of them and/or their respective
counsel have reviewed and have had an opportunity to revise this
Agreement and the schedules attached hereto.  This
Agreement shall be construed according to its fair meaning and not
strictly for or against any party.  The word
“including” shall be construed to include the words
“without limitation.”  In this Agreement,
unless the context otherwise requires, references to the singular
shall include the plural and vice versa.


 




 

-11-








 






 


(u) WAIVER
OF JURY TRIAL.  IN ANY ACTION,
SUIT OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST
ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY ANDINTENTIONALLY, TO
THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY,
UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRAIL BY
JURY.


 


 



[Remainder
of page intentionally left blank]


 


 


 


 


 


 


 


 


 


 


 


 




 

-12-








 






 

 



Signature page to



Preferred Stock Exchange Agreement



(Company)



 



 


 



IN WITNESS WHEREOF, the parties have caused this Preferred Stock
Exchange Agreement to be duly executed and delivered as of the date
and year first written above.


 


 


	
 

	


“Company”


 



GT Biopharma, Inc.

	
 


	
 

	
 

	
 

	
 


	
 

	

By:

	
 

	
 


	
 

	

Name:

	
 

	
 


	
 

	

Title:

	
 

	
 


	
 

	
 

	
 

	
 







 



 


 


 




 

-13-








 






 

 



Signature page to



Preferred Stock Exchange Agreement



(Investors)


 


IN
WITNESS WHEREOF, the parties have caused this Preferred Stock
Exchange Agreement to be duly executed and delivered as of the date
and year first written above.



 


	
 

	

“Investors”

	
 


	
 

	
 

	
 


	
 

	


If by an individual:

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

Printed
Name:

	
 

	
 


	
 

	

Residency:

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	


If by an entity:

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 


	
 

	

Name of
entity

	
 


	
 

	
 

	
 

	
 


	
 

	

By:

	
 

	
 


	
 

	

Printed
Name:

	
 

	
 


	
 

	

Title:

	
 

	
 


	
 

	

Principal
Place of Business:

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	


Address for Notice:

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	


Facsimile:

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 








 


 




 

-14-








 







Schedule A


 


	
 

	
 

	

Percentage


	
 

	
 

	
 


	

Bristol
Investment Fund

	
 

	

21.515%


	

Theorem
Group*

	
 

	

14.507%


	

James
W. Heavener

	
 

	

11.175%


	

Adam
Kasower*

	
 

	

10.515%


	

Canyons
Trust*

	
 

	

10.407%


	

Red
Mango

	
 

	

9.096%


	

Alpha
Capital

	
 

	

7.374%


	

Scott
Booth Investments III

	
 

	

5.551%


	

Bristol
Capital

	
 

	

2.954%


	

East
Ventures Inc

	
 

	

2.136%


	

HC
Wainwright

	
 

	

1.065%


	

Raymond
Pribadi

	
 

	

0.653%


	

Scott
Williams

	
 

	

0.554%


	

Randy
Berinhout

	
 

	

0.398%


	

Craig
Osborne

	
 

	

0.393%


	

Adam
Cohen

	
 

	

0.321%


	

Les
Cantor

	
 

	

0.319%


	

Munt
Trust

	
 

	

0.245%


	

Gianna
Simone Baxter

	
 

	

0.183%


	

Farhad
Rastanian

	
 

	

0.132%


	

Howard
Knee

	
 

	

0.121%


	

Ho'okipa
Capital Partners Inc

	
 

	

0.120%


	

Anthony
Baxter

	
 

	

0.085%


	

Piter
Korompis

	
 

	

0.057%


	

Greg
McPherson

	
 

	

0.049%


	

Net
Capital

	
 

	

0.039%


	

Barry
Wolfe

	
 

	

0.025%


	

John
Brady

	
 

	

0.009%


	

Brannon
Family Office LLLP

	
 

	

0.002%


	
 

	
 

	
 


	

Total

	
 

	

100.000%







 



*Party to this agreement


 


 



 


 




 

-15-








 






 



Schedule B


 



Exchange Shares


 



Preferred Stock holder of Series H:


 



Theorem Group
LLC           4.99%
of fully diluted shares (approximately 2,481,417
shares)



Canyons
Trust                  
  4.99% of fully diluted shares (approximately 2,481,417
shares)


 


 



Preferred Stock holder of Series I:


 



Adam
Kasower                    208,333
shares


 


 



 



 


 


 


 








 



 


 




 

-16-








 






 



EXHIBIT A


 



LOST STOCK CERTIFICATE AFFIDAVIT



AND INDEMNITY AGREEMENT


 


 



[_______________] (the “Investor”),
by and through its duly authorized person, hereby
certifies:


 


1. This Lost Stock Certificate Affidavit and
Indemnity Agreement (the “Agreement”),
entered into effective as of [_____________ __, 2017], relates to
the Series [H/I] Preferred Stock Purchase Agreement (the
“Purchase
Document”) dated as of
[______________ __, 20__] by and among GT Biopharma, Inc., a
Delaware corporation (the “Company”)
and the Investor.


 


2. The Investor is the sole legal and
beneficial owner of a total of ______________ shares of the Series
[H/I] Preferred Stock (the “Shares”)
of the Company, represented by stock certificate number [_____]
(the “Certificate”),
issued by the Company to Investor as of [_____________ __,
20__].


 



3.           Investor
hereby represents, warrants, and agrees as follows:


 



a.           After
having conducted a diligent investigation of its records and files,
Investor has been unable to find the Certificate and believes that
such Certificate has been lost, misfiled, misplaced, or
destroyed.


 



b.           Investor
has not assigned, encumbered, endorsed, pledged, or hypothecated
the Certificate, or otherwise transferred to another individual or
entity any right, title, interest, or claim in, to, or under the
Certificate.


 



c.           Investor
agrees that if it ever finds the Certificate, it will promptly
notify Company of the existence of the Certificate, mark the
Certificate as canceled, and forward the Certificate to Company or
the Company’s designee.


 



d.           Investor
shall indemnify Company for, and hold Company harmless from and
against, any damages, liabilities, losses, claims (including any
claim by any individual or entity for the collection of any sums
due under or with respect to such Certificate), or expenses arising
out of, or resulting from, (i) Investor’s inability to find
and deliver the Certificate to Company, or (ii) by reason of any
payment, transfer, exchange or other act which the Company may do
or cause to be done with respect to the Certificate, or (iii) by
reason of any refusal to make any payment on the Certificate to any
person tendering the Certificate, or (iv) any inaccuracy or
misstatement of fact in, or breach of any representation, warranty,
agreement, or duty in or under, this Agreement, whether or not such
liabilities, losses, costs, damages, counsel fees and other
expenses arise or occur through accident, oversight, inadvertence
or neglect on the part of the Company, or its respective officers,
agents, clerks or employees.


 



3.           This
Agreement may be executed in counterparts, each of which shall be
identical and all of which, when taken together, shall constitute
one and the same instrument.


 



4.           This
Agreement shall be governed by and construed in accordance with the
law of the State of Delaware (without regard to any conflicts of laws
provisions thereof).


 



[Remainder
of page intentionally left blank]



 




 

-17-








 






 


The
parties have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the
date first written above.


 


	
 

	

“INVESTOR”

	
 


	
 

	
 

	
 


	
 

	


If by an individual:

	
 


	
 

	
 

	
 


	
 

	

Printed
Name:

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	


If by an entity:

	
 

	
 


	
 

	
 

	
 


	
 

	

Name of
entity

	
 


	
 

	
 

	
 

	
 


	
 

	

By:

	
 

	
 


	
 

	

Printed
Name:

	
 

	
 


	
 

	

Title:

	
 

	
 







 



 



ACCEPTED AND AGREED


 


 



“COMPANY”


 



GT Biopharma, Inc.



a Delaware corporation


 


 


 



By:                                                                                



Printed Name:                                                             



Title:                                                                             


 


 


 




 

-18-








 






 



EXHIBIT B

 



REGISTRATION RIGHTS

 



1.1            

Company Registration. If the
Company shall determine to register any of its securities either
for its own account or the account of a security holder or holders,
other than a registration relating solely to employee benefit
plans, a registration relating to a corporate reorganization or
other Rule 145 transaction, or a registration on any registration
form that does not permit secondary sales, the Company
will:





 


(a)
promptly give written notice of the proposed registration to all
Investors; and

 


(b) use
its commercially reasonable efforts to include in such registration
(and any related qualification under blue sky laws or other
compliance), except as set forth in Section 1.2 of this Exhibit B
below, and in any underwriting involved therein, all of such
Registrable Securities as are specified in a written request or
requests made by any Investor or Investors received by the Company
within 10 days after such written notice from the Company is mailed
or delivered. Such written request may specify all or a part of a
Investor’s Registrable Securities.

 



1.2            

Underwriting. If the
registration of which the Company gives notice is for a registered
public offering involving an underwriting, the Company shall so
advise the Investors as a part of the written notice given pursuant
to Section 1.1(a) of this Exhibit B. In such event, the right of
any Investor to registration pursuant to this Section 1.2 shall be
conditioned upon such Investor’s participation in such
underwriting and the inclusion of such Investor’s Registrable
Securities in the underwriting to the extent provided herein. All
Investors proposing to distribute their securities through such
underwriting shall (together with the Company, the Other selling
stockholders and other holders of securities of the Company with
registration rights to participate therein distributing their
securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.





 


Notwithstanding
any other provision of this Section 1.2, if the underwriters advise
the Company in writing that marketing factors require a limitation
on the number of shares to be underwritten, the underwriters may
(subject to the limitations set forth below) limit the number of
Registrable Securities to be included in, the registration and
underwriting. The Company shall so advise all holders of securities
requesting registration, and the number of shares of securities
that are entitled to be included in the registration and
underwriting shall be allocated, as follows: (i) first, to the
Company for securities being sold for its own account, and (ii)
second, to the Investors and other selling stockholders requesting
to include Registrable Securities and Other Shares in such
registration statement based on the pro rata percentage of
Registrable Securities and Other Shares held by such Investors and
other selling stockholders, assuming conversion and (iii) third, to
the other selling stockholders requesting to include other shares
in such registration statement based on the pro rata percentage of
other shares held by such other selling stockholders, assuming
conversion.

 


If a
person who has requested inclusion in such registration as provided
above does not agree to the terms of any such underwriting, such
person shall also be excluded therefrom by written notice from the
Company or the underwriter. The Registrable Securities or other
securities so excluded shall also be withdrawn from such
registration. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn
from such registration.

 




 

-19-








 






 

 



1.3            

Right to Terminate
Registration. The Company shall have the right to terminate
or withdraw any registration initiated by it under this Exhibit B
prior to the effectiveness of such registration whether or not any
Investor has elected to include securities in such
registration.





 



1.4            

Definitions. The following
definitions shall apply for the purposes of this Exhibit
B:





 


(a)
“Other Selling Stockholders” shall mean persons other
than Investors who, by virtue of agreements with the Company, are
entitled to include their Other Shares in certain registrations
hereunder.

 


(b)
“Other Shares” shall mean shares of Common Stock, other
than Registrable Securities (as defined below), with respect to
which registration rights have been granted.

 


(c)
“Registrable Securities” shall mean (i) shares of
Common Stock issued or issuable pursuant to the conversion of the
Notes and (ii) any Common Stock issued as a dividend or other
distribution with respect to or in exchange for or in replacement
of the shares referenced in (i) above; provided, however, that
Registrable Securities shall not include any shares of Common Stock
described in clause (i) or (ii) above which have previously been
registered or which have been sold to the public either pursuant to
a registration statement or Rule 144, or which have been sold in a
private transaction in which the transferor’s rights under
this Agreement are not validly assigned in accordance with this
Agreement.


 




 

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