Allarity Therapeutics, Inc 8-K, filed Jun 1, 2023
Allarity Therapeutics, Inc. (ALLR)
About this 8-K
Allarity Therapeutics, Inc filed this 8-K on June 1, 2023, reporting on events of May 26, 2023.
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.03: Change to shareholders' rights
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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Item 1.01 Entry into a Material Definitive Agreement.
Eisai Amendment
Allarity Therapeutics, Inc. (the “Company”) previously entered into an Exclusive License Agreement with Eisai, Inc. (“Eisai”) effective July 12, 2022, which was subsequently amended from time to time. On May 26, 2023, the Company and Eisai entered into a Fourth Amendment to the Exclusive License Agreement with an effective date of May 16, 2023 (the “Eisai Amendment”), to postpone the extension payment, restructure the payment schedule and extend the deadline to complete enrollment in a further Phase 1b or Phase 2 Clinical Trial for the Stenoparib (the “Product”).
Under the Eisai Amendment, the Company agreed to pay Eisai in periodic payments as follows: (i) one hundred thousand dollars ($100,000) which has been paid; (ii) fifty thousand dollars ($50,000) within ten (10) days of execution of the fourth amendment; (iii) one hundred thousand dollars ($100,000) upon completion of a capital raise; and (iv) eight hundred and fifty thousand dollars ($850,000) on or before March 1, 2024. The Company will have until April 1, 2024, to complete enrollment in a further Phase 1b or Phase 2 Clinical Trial of the Product. If the Company has not achieved successful completion of a further Phase 1b or Phase 2 Clinical Trial of the Product prior to April 1, 2024, Eisai may terminate the Exclusive License Agreement in its entirety, in its sole discretion on at least one hundred twenty (120) days prior written notice.
Exchange Agreement Amendment
On April 20, 2023, the Company previously entered into a certain Modification and Exchange Agreement (the “Original Agreement”) with 3i, LP (“3i”) pursuant to which the parties agreed to, among other things, exchange 50,000 shares of Series C Preferred Stock (the “Series C Shares”) beneficially owned by 3i for 4,027 shares of Series A Preferred Stock (the “Original Shares”). On May 26, 2023, the Company and 3i entered into an Amendment to Modification and Exchange Agreement (the “Amendment”), effective as of April 20, 2023, to correct an error relating to the Original Shares in the Original Agreement. Due to an error in not taking into account the proposed redemption of 1,550 share of Series A Preferred Stock, the Original Agreement incorrectly referenced “4,027” shares of Series A Preferred Stock instead of “ 5,577.” Accordingly, the Amendment corrects such error and memorializes that the parties originally agreed to exchange the Series C Shares for 5,577 shares of Series A Preferred Stock.
3i is the sole holder of all of the outstanding shares of Series A Preferred Stock and also a holder of warrants to purchase up to 19,270,055 shares of the Company’s common stock. In addition to the foregoing, the Company and 3i are also parties to (i) a Securities Purchase Agreement dated May 20, 2021 (as amended), relating to the purchase and sale of 20,000 shares of Series A Preferred Stock and a common stock purchase warrant, which was exchanged for a new warrant on April 21, 2023, which reflects a new exercise price of $0.75 and a right to acquire 12,603,385 shares of Common Stock, and (ii) the Registration Rights Agreement dated May 20, 2021, as amended.
The foregoing description of the Amendment and the Eisai Amendment does not purport to be complete and is qualified in its entirety to the Amendment and the Eisai Amendment, filed hereto as Exhibits 10.1 and 10.2, respectively, and incorporated herein by reference.
Item 3.03 Material Modification to Rights of Security Holders.
The disclosure set forth in Item 5.03 below is hereby incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On May 30, 2023, the Company filed a First Certificate of Amendment to Amended and Restated Certificate of Designations of Series A Convertible Preferred Stock (the “Amended COD”) to amend and restate the voting provisions of the Amended and Restated Certificate of Designations of Series A Convertible Preferred Stock, which was originally filed with the Secretary of State of the State of Delaware on April 21, 2023.
Under the Amended COD, the holders of the Series A Preferred Stock have the following voting rights: (1) holders of the Series A Preferred Stock have a right to vote on all matters presented at a meeting together with the Common Stock as a single class with the Common Stock on an “as converted” basis using the conversion price of $0.75 and based on the stated value of $1,080, subject to a beneficial ownership limitation of 9.99%, and in addition (2) holders of Series A Preferred Stock have granted the Board of Directors of the Company (the “Board”) an additional right, solely for the purpose of satisfying quorum and casting the votes necessary to adopt a proposal under Delaware law (a) to vote solely with respect to the Reverse Stock Split Proposal (as defined in the Amended COD) and the Adjournment Proposal (as defined in the Amended COD), and (b) to a number of votes per each share of Series A Preferred Stock equal to the quotient of (x) the sum of (1) the original aggregated stated value of the Series A Preferred Stock when originally issued on December 20, 2021 (calculated based on the original stated value of $1,000 of the Series A Preferred Stock multiplied by 20,000 shares of Series A Preferred Stock) and (2) $1,200,000, which represents purchase price of the Series C Convertible Redeemable Preferred Stock when originally issued; divided by (y) the then current conversion price of $0.75. In addition, among other things, the Reverse Stock Split Proposal, the effectuation of the Reverse Stock Split Proposal, and the amendment to the Company’s Certificate of Incorporation, are subject to the affirmative vote and consent of the holders of a majority of the then outstanding shares of Series A Preferred Stock.
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Under the Amended COD, the power to vote, or not to vote, the votes created by the Amended COD relating to the Reverse Stock Split Proposal and Adjournment Proposal vests solely and exclusively in the Board or its authorized proxy, upon the Board’s election. If the Board, or its authorized proxy, decides to cast the vote, it must vote all votes created by the Amended COD in the same manner and proportion as votes cast by the holders of Common Stock and Series A Preferred Stock, voting as a single class. Such voting rights granted to the Board relating to the Reverse Stock Split Proposal and Adjournment Proposal expire automatically on July 31, 2023.
The information set forth herein is qualified in its entirety by reference to the complete text of the Amended COD, a copy of which is filed as Exhibit 3.1 to this Current Report and is incorporated by reference herein.
A notice and proxy statement regarding the Special Meeting and the voting rights of the Common Stock and Series A Preferred Stock will be filed with the SEC and provided to the stockholders of record as of the Record Date.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
| Exhibit | Exhibit Description | |
| 3.1 | First Certificate of Amendment to the Amended and Restated Certificate of Designations of Series A Convertible Preferred Stock | |
| 10.1 | First Amendment to the Modification and Exchange Agreement | |
| 10.2 | Fourth Amendment to the Exclusive License Agreement | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on our behalf by the undersigned hereunto duly authorized.
| Allarity Therapeutics, Inc. | ||
| By: | /s/ James G. Cullem | |
| James G. Cullem | ||
| Chief Executive Officer | ||
| Dated: June 1, 2023 | ||
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Exhibit 3.1
FIRST
CERTIFICATE OF AMENDMENT
TO
AMENDED
AND RESTATED CERTIFICATE OF DESIGNATIONS OF
SERIES A CONVERTIBLE PREFERRED STOCK OF
ALLARITY THERAPEUTICS, INC.
Allarity Therapeutics, Inc., a corporation organized and existing under the laws of the State of Delaware (hereinafter called the “Corporation”), does hereby certify as follows:
FIRST: The Board of Directors of the Corporation (the “Board”) previously adopted a resolution designating a series of twenty thousand (20,000) shares of preferred stock as “Series A Convertible Preferred Stock,” and the original Certificate of Designations of Series A Convertible Preferred Stock was filed with the Secretary of State of the State of Delaware on December 14, 2021, as amended on November 22, 2023, and which was amended and restated on April 21, 2023.
SECOND: That this First Certificate of Amendment to Amended and Restated Certificate of Designations of Series A Convertible Preferred Stock (this “Certificate of Amendment”) amends certain provisions of the Amended and Restated Certificate of Designations of Series A Convertible Preferred Stock of the Corporation (the “Certificate of Designations”) filed with the Secretary of State of the State of Delaware on April 21, 2023.
THIRD: The Board has duly adopted resolutions approving the following amendment to the Certificate of Designations in accordance with the provisions of Sections 242 of the General Corporation Law of the State of Delaware, wherein the Board declared the amendment to be advisable and recommended that the stockholders of the Corporation entitled to vote thereon likewise adopt and approve the amendment.
FOURTH: The requisite holders of the Series A Convertible Preferred Stock have duly approved this Amendment in accordance with Sections 242 and 228 of the DGCL and Section 30 of the Certificate of Designation.
FIFTH: Section 12 of Certificate of Designations is hereby amended and restated in its entirety as follows:
Section 12. Voting Rights.
| (a) | Voting Rights. Subject to the limitations specified in Section 4(d) hereof and in addition to Sections 12(c) and 12(d), holders of Preferred Shares shall have the right to vote on all matters presented to the stockholders for approval together with the shares of Common Stock, voting together as a single class, on an “as converted” basis using the “Conversion Price” as set forth in Section 4(b)(ii) hereof (rounded down to the nearest whole number and using the record date for determining the stockholders of the Company eligible to vote on such matters), except as required by law (including, without limitation, the DGCL) or as otherwise expressly provided in the Certificate of Incorporation or this Certification of Designations. Holders of the Preferred Shares shall be entitled to written notice of all stockholder meetings or written consents (and copies of proxy materials and other information sent to stockholders) with respect to which they would be entitled to vote, which notice would be provided pursuant to the Company’s bylaws and the DGCL. To the extent that under the DGCL the vote of the holders of the Preferred Shares, voting separately as a class or series, as applicable, is required to authorize a given action of the Company, the affirmative vote or consent of the Required Holders represented at a duly held meeting at which a quorum is present or by written consent of the Required Holders (except as otherwise may be required under the DGCL), shall constitute the approval of such action by both the class or the series, as applicable. |
| (b) | Defined Terms. For purposes of Section 12(c), |
“Adjournment Proposal” means any proposal to adjourn any meeting of stockholders called for the purpose of voting on Reverse Stock Split.
“Amendment” means, collectively, the amendment to the Corporation’s certificate of incorporation, as in effect at such time, to, after the date hereof effect the Reverse Stock Split in accordance with the terms hereof.
“Reverse Stock Split Proposal” means the proposal to approve a reverse stock split of the Corporation’s issued and outstanding Common Stock that, subject to the affirmative vote or consent of the Holders of a majority of the then outstanding shares of the Series A Preferred Stock, is effected by the Corporation, following the next meeting of the Corporation’s stockholders after the date hereof, by the filing of the Amendment with and acceptance by the Secretary of State of the State of Delaware.
| (c) | Voting Rights; Adjournment Proposal, Amendment; Reverse Stock Split Proposal. |
(i) For purposes of determining the presence of a quorum and casting votes at any meeting of the stockholders of the Corporation at which the shares of Series A Preferred Stock are entitled to vote with respect to the Adjournment Proposal, the Reverse Stock Split Proposal and any Amendment Proposal, the number of shares of Series A Preferred Stock and votes represented by such shares shall be determined and counted in accordance with this Section 12(c) of this Certificate of Designations, subject to any limitations on conversion set forth in Section 4(d).
(ii) Subject to the election by the Board of Directors to exercise the voting rights set forth in Section 12(c)(iii), each share of Series A Preferred Stock shall entitle the holder thereof (a) to vote exclusively with respect to the Amendment and the Reverse Stock Split Proposal (and the Series A Preferred Stock shall not be entitled to vote on any other matter except to the extent required under the General Corporation Law of the State of Delaware or provided herein) and (b) to a number of votes per each share of Series A Preferred Stock determined by the quotient of (x) the sum of (1) the original aggregated stated value of the Series A Preferred Stock when originally issued on December 20, 2021 (calculated based on the original stated value of $1,000 of the Series A Preferred Stock multiplied by 20,000 shares of Series A Preferred Stock) and (2) $1,200,000, which represents the Purchase Price of the Series C Convertible Redeemable Preferred Stock when originally issued; divided by (y) the then current Conversion Price (initially, $0.75), as set forth in Section 4(b)(ii) of this Certificate of Designation, which shall be allocated ratably to all Series A Preferred Stock issued and outstanding on the record date for such meeting and shall, except as required by law, vote together with the Common Stock and any other issued and outstanding shares of preferred stock of the Corporation that are entitled to vote thereon, as a single class. Provided that the Board of Directors, or its authorized proxy, has elected to cast the votes created in this Section 12(c)(ii) in accordance with Section 12(c)(iii) hereof, the vote of each share of Series A Preferred Stock (or fraction thereof) entitled to vote on the Reverse Stock Split Proposal, the Amendment, or the Adjournment Proposal shall be cast in the same manner as the vote, if any, of the share of Common Stock (or fraction thereof) or Series A Preferred Stock cast on the Reverse Stock Split Proposal, the Amendment and the Adjournment Proposal or such other matter, as applicable, without giving effect to the voting power created by this Section 12(c)(ii).
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(iii) The power to vote, or not to vote, the votes created by Section 12(c)(ii) shall be vested solely and exclusively in the Board of Directors, or its authorized proxy. If the Board of Directors, or its authorized proxy, decides to vote any votes created by Section 12(c)(ii), it must vote all votes created by Section 12(c)(ii) in accordance with the provisions of Section 12(c)(ii).
Notwithstanding the foregoing, in addition, as long as any shares of Series A Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote or consent of the Holders of a majority of the then outstanding shares of the Series A Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Series A Preferred Stock or alter or amend this Certificate of Designation, (b) amend the Corporation’s certificate of incorporation or other charter documents of the Corporation in a manner adverse to the Holders, (c) increase the number of authorized shares of Series A Preferred Stock, (d) effectuate the Amendment, (e) effectuate the Reverse Stock Split Proposal, or (f) enter into any agreement with respect to any of the foregoing. To be free from doubt, the vote or consent of the Holders of a majority of the then outstanding shares of the Series A Preferred Stock contemplated by this paragraph, is in addition to any other consent or approval of the Holders of the Series A Preferred Stock set forth elsewhere in this Certificate of Amendment in order to effectuate any Reverse Stock Split Proposal and Amendment authorized by the stockholders.
| (d) | Termination. The rights granted under Sections 12(b) and 12(c) shall terminate on July 31, 2023. |
SIXTH: That this Certificate of Amendment was duly adopted in accordance with Sections 242 and 228 of the General Corporation Law of the State of Delaware and amends the provisions of the Corporation’s Certificate of Designations.
SEVENTH: All other provisions of the Certificate of Designations shall remain in full force and effect.
EIGHT: This Certificate of Amendment shall become effective immediately upon its filing with and acceptance by the Secretary of State of the State of Delaware.
[Rest of the page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be duly executed in its name on its behalf by its duly authorized officer as of the 30th of May, 2023.
| Allarity Therapeutics, Inc. | ||
| By: | /s/ James G. Cullem | |
| James G. Cullem | ||
| Chief Executive Officer | ||
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Exhibit 10.1
AMENDMENT TO MODIFICATION AND EXCHANGE AGREEMENT
THIS AMENDMENT TO MODIFICATION AND EXCHANGE AGREEMENT (the “Amendment”) dated as of May 26, 2023, is effective as of April 20, 2023, by and between Allarity Therapeutics, Inc., a Delaware corporation (the “Company”), and 3i, LP, a Delaware limited partnership (“Preferred Holder”). The Company and the Preferred Holder, each referred to herein as a “Party” and collectively, as the “Parties.”
RECITALS
WHEREAS, the Parties entered into a certain Modification and Exchange Agreement dated April 20, 2023 (the “Original Agreement”) pursuant to which among other things, Preferred Holder agreed to exchange 50,000 shares of the Company’s Series C Convertible Redeemable Preferred Stock (the “Series C Preferred Stock”) that it beneficially owned in exchange for a certain number of shares of Series A Convertible Preferred Stock (“Series A Preferred Stock”).
WHEREAS, due to an error in not taking into account the proposed redemption of 1,550 share of Series A Preferred Stock, the Original Agreement inadvertently stated that the number of shares of Series A Preferred Stock to be issued in exchange for 50,000 shares of Series C Preferred Stock (“Series C Shares”) was 4,027 instead of 5,577, a difference of 1,550 shares of Series A Preferred Stock; and
WHEREAS, the Parties desire to enter into this Amendment to correct this error in the Original Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Preferred Holder hereby agree as follows:
1. Recitals. The third “WHEREAS” of the Recitals of the Original Agreement is hereby deleted and amended and restated its entirety as follows:
“WHEREAS, the Preferred Holder desires to exchange 50,000 shares of Series C Preferred Stock (“Series C Preferred Shares”) for an aggregate of 5,577 shares Series A Preferred Stock (the “Exchange Shares”), and the Company desires to issue such shares of Series A Preferred Stock in exchange for the Series C Preferred Shares, on the terms and conditions set forth in this Agreement in reliance on the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”).”
2. Section 1.3. Section 1.3 of the Original Agreement is hereby deleted and amended and restated in its entirety as follows:
“Section 3(a)(9). Assuming the accuracy of the representations and warranties of each of the Company and the Preferred Holder set forth in Sections 2 and 3 of this Agreement, the parties acknowledge and agree that the purpose of such representations and warranties is, among other things, to ensure that the exchange of 50,000 shares of Series C Preferred Stock for 5,577 shares of Series A Preferred Stock, and the exchange of the Original Warrant for the New Warrant (the “Exchange”) pursuant to the terms of this Agreement qualifies as an exchange of securities under Section 3(a)(9) of the Securities Act.”
3. Amendment. All references in the Original Agreement (and in the other agreements, documents and instruments entered into in connection therewith) and to the Original Agreement shall be deemed for all purposes to refer to the Original Agreement, as amended by this Amendment.
4. Original Agreement. Except as expressly provided herein, the provisions of the Original Agreement shall remain in full force and effect in accordance with their terms and shall be unaffected by this Amendment.
5. Counterparts. This Amendment may be executed in counterparts, each of which when executed shall be deemed an original and both of which when executed shall be deemed one and the same instrument.
6. Headings. The headings to this Amendment are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
[Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Amendment to be effective as of April 20, 2023.
| Allarity Therapeutics, Inc. | ||
| By: | /s/ James G. Cullem | |
| James G. Cullem, CEO | ||
| 3i, LP | ||
| By: | /s/ Maier J. Tarlow | |
| Maier J. Tarlow, General Partner | ||
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Exhibit 10.2
FOURTH AMENDMENT TO EXCLUSIVE LICENSE AGREEMENT
This Fourth Amendment (“Fourth Amendment”) to Exclusive License Agreement effective as of May 16, 2023 (“Fourth Amendment Effective Date”) is by and between: Eisai Inc., with its principal office at 200 Metro Blvd., Nutley, NJ 07110, United States of America (“Eisai”) and Allarity Therapeutics, Inc., with its principal office at 24 School Street, 2nd Floor, Boston MA 02108, together with its wholly-owned subsidiaries (“Allarity”) (formerly Oncology Venture A/S), with reference to the following:
WITNESSETH:
WHEREAS, on July 6, 2017, the Parties entered into an Exclusive License Agreement, (the “Original Agreement”) relating to the cancer drug E7449 (now Stenoparib (2X-121)), a PARP inhibitor; and
WHEREAS, on December 11, 2020, the Parties executed a First Amendment to said Exclusive License Agreement, expanding the Field; and
WHEREAS, on August 3, 2021, the Parties executed a Second Amendment to said Exclusive License Agreement, extending the due date for the Extension Payment and related clinical trial enrollment deadlines; and
WHEREAS, on July 12, 2022, the Parties executed a Third Amendment to said Exclusive License Agreement, extending the due date for the Extension Payment and related clinical trial enrollment deadlines; and
WHEREAS, the Parties now desire to amend certain provisions of the Original Agreement (as amended) in order to further postpone the due date of the Extension Payment (as defined below).
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual promises and covenants of Parties set forth herein, the Parties have agreed as follows:
| 1. | Definitions |
Capitalized terms used in this Fourth Amendment and not defined herein shall have the meanings assigned thereto in the Original Agreement.
| 2. | Amendments and Agreements |
1) Section 7.6 of the Original Agreement (as amended), “Extension Payment”, is hereby amended and restated in its entirety as follows:
Section 7.6 Extension Payment. Allarity and Eisai desire to extend the timeframe for Allarity’s Successful Completion of the first Phase 2 Clinical Trial of the Product beyond December 31, 2022. In consideration of this extended timeframe, and Allarity not achieving the minimum patient enrollment, by July 1, 2022, set out in the Second Amendment, Allarity shall pay a one-time payment to Eisai of One Million One Hundred Thousand U.S. Dollars ($1,100,000.00) (the “Extension Payment”) as follows:
| (i) | One hundred thousand dollars ($100,000.00) which has already been received; and |
| (ii) | Fifty thousand dollars ($50,000.00) within ten (10) days of execution of this Fourth Amendment; and |
| (iii) | One Hundred Thousand Dollars ($100,000.00) upon completion of a seven-million-dollar capital raising campaign expected to take place in June 2023, but notwithstanding the above at least on or before March 1, 2024; and |
| (iv) | Eight Hundred and Fifty Thousand Dollars ($850,000.00) on or before March 1, 2024. |
| 3. | Effect |
This Fourth Amendment shall be effective from the Fourth Amendment Effective Date.
| 4. | No Other Amendments |
This Fourth Amendment shall be deemed to be part of and incorporated into the Original Agreement. Except as expressly set forth in this Fourth Amendment, all of the terms and conditions of the Original Agreement shall remain unchanged and are ratified, confirmed in all respects, and remain in full force and effect.
| 5. | Counterparts |
This Fourth Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to constitute one and the same instrument. An executed signature page of this Fourth Amendment delivered by facsimile transmission or by electronic mail in “portable document format” shall be as effective as an original executed signature page.
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IN WITNESS WHEREOF, the Parties hereto have executed this Fourth Amendment through their duly authorized representatives and made effective as of the Fourth Amendment Effective Date.
| Allarity Therapeutics, Inc. | Eisai Inc. | |||
| By: | /s/ James G. Cullem, | By: | /s/ Takashi Owa | |
| Name: | James G. Cullem, J.D. | Name: | Takashi Owa | |
| Title: | Chief Executive Officer | Title: | Chief Scientific Officer | |
| Date: | 26 May 2023 | Deep Human Biology Learning | ||
| Date: | 25 May 2023 | |||
[Signature Page to Fourth Amendment to Exclusive License Agreement between Allarity and Eisai]
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