GT Biopharma, Inc S-1, filed Apr 22, 2021
GT Biopharma, Inc. (GTBP)
S-1
2021-04-22
View Original
Added on
October 15, 2026
As filed with the Securities and Exchange Commission on April 22,
2021
Registration No.
333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GT BIOPHARMA, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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2834
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94-1620407
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State or other jurisdiction
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(Primary Standard Industrial
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(I.R.S. Employer
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incorporation or organization
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Classification Code Number)
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Identification Number)
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9350 Wilshire Blvd. Suite 203
Beverly Hills, CA 90212
(800) 304-9888
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive
offices)
Anthony J. Cataldo
Chief Executive Officer
9350 Wilshire Blvd. Suite 203
Beverly Hills, CA 90212
(800) 304-9888
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies of Communications to:
Roger W. Bivans
Baker & McKenzie LLP
1900 N. Pearl Street, Suite 1500
Dallas, TX 75201, USA
(214) 978 3000
Approximate date of commencement of proposed sale to the
public: As soon as practicable
after the effective date of this registration
statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933,
check the following box. ☒
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities
Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer,
smaller reporting company, or
an emerging growth company. See
the definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting
company,” and “emerging
growth company” in Rule
12b-2 of the Exchange
Act.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging growth company ☐
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If an emerging growth company,
indicate by check mark if the registrant has elected not to use the
extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section
7(a)(2)(B) of the Securities
Act. ☐
_______________________
CALCULATION OF REGISTRATION FEE
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Title of each
class ofsecurity to be registered
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Amount to
beregistered (1)
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Proposed maximum
offering price per share (2)
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Proposed maximum
aggregate offering price
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Amount of
registration fee
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Common
Stock
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130,246
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$9.32
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$1,213,893
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$132.44
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(1)
Pursuant to Rule 416 under the Securities Act, the securities being
registered hereunder include such indeterminate number of
additional securities as may, from time to time, become issuable by
reason of stock splits, stock dividends, recapitalizations or other
similar transactions.
(2)
Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457(c) under the Securities Act of
1933, as amended, based on the average of the high and low prices
reported by the Nasdaq Capital Market on April 15,
2021.
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Securities and Exchange Commission acting pursuant
to said section 8(a), may determine.
The information in this preliminary prospectus is not complete and
may be changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange
Commission is effective. This preliminary prospectus is not an
offer to sell these securities and it is not soliciting an offer to
buy these securities in any state or jurisdiction where the offer
or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL
22, 2021
PRELIMINARY PROSPECTUS
130,246 Shares of Common Stock
This
prospectus relates to the proposed resale or other disposition from
time to time of up to 130,246 shares of common stock, par value
$0.001 per share (the “Common Stock”), of GT Biopharma,
Inc., a Delaware corporation (the “Company”) by the
Selling Shareholders identified in this prospectus. .
We will
receive the proceeds from the exercise of any warrants for cash,
but not from the sale of the underlying shares of Common Stock. See
“Plan of Distribution.”
The
Selling Shareholders may sell or otherwise dispose of the shares
described in this prospectus at various times and in various types
of transactions, including sales in the open market, sales in
negotiated transactions and sales by a combination of these
methods. The Selling Shareholders may sell the shares to or through
underwriters, broker-dealers or agents, who may receive
compensation in the form of discounts, concessions or commissions.
The Selling Shareholders will bear all commissions and discounts,
if any, attributable to the sales of the shares. We will bear all
other costs, expenses and fees in connection with the registration
of the shares.
Our
Common Stock is presently listed on the Nasdaq Capital Market under
the trading symbol “GTBP.” On April 16, 2021, the
closing sale price for our Common Stock was $9.82 per
share.
Investing in our securities involves a high degree of risk. You
should carefully review and consider “Risk Factors”
beginning on page 6 of this prospectus.
Neither the Securities and Exchange Commission (the
“SEC”) nor any state securities commission has approved
or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus
is
, 2021.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
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1
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PROSPECTUS SUMMARY
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2
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RISK FACTORS
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7
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TAX CONSIDERATIONS
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12
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USE OF PROCEEDS
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12
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SELLING SHAREHOLDERS
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13
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PLAN OF DISTRIBUTION
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15
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MARKET INFORMATION
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17
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DESCRIPTION OF SECURITIES
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17
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LEGAL MATTERS
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20
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DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES
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20
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EXPERTS
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20
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WHERE YOU CAN FIND MORE INFORMATION
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20
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
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21
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You
should rely only on the information contained in this prospectus or
a supplement to this prospectus. We have not authorized anyone to
provide you with different information. This prospectus is not an
offer to sell securities, and it is not soliciting an offer to buy
securities, in any jurisdiction where the offer or sale is not
permitted. You should not assume that the information contained in
this prospectus or any supplement to this prospectus is accurate as
of any date other than the date on the front cover of those
documents.
i
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Some of
the statements in this prospectus are “forward-looking
statements” within the meaning of the safe harbor from
liability established by the Private Securities Litigation Reform
Act of 1995. Forward-looking statements include statements
regarding our current beliefs, goals and expectations about matters
such as our expected financial position and operating results, our
business strategy and our financing plans. The forward-looking
statements in this prospectus are not based on historical facts,
but rather reflect the current expectations of our management
concerning future results and events. The forward-looking
statements generally can be identified by the use of terms such as
“believe,” “expect,”
“anticipate,” “intend,” “plan,”
“foresee,” “may,” “guidance,”
“estimate,” “potential,”
“outlook,” “target,”
“forecast,” “likely” or other similar words
or phrases. Similarly, statements that describe our objectives,
plans or goals are, or may be, forward-looking statements.
Forward-looking statements involve known and unknown risks,
uncertainties and other factors that may cause our actual results,
performance or achievements to be different from any future
results, performance and achievements expressed or implied by these
statements. We cannot guarantee that our forward-looking statements
will turn out to be correct or that our beliefs and goals will not
change. Our actual results could be very different from and worse
than our expectations for various reasons. You should review
carefully all information, including the discussion under
“Risk Factors”
and “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations” in our annual report on Form 10-K, which
is incorporated by reference into this prospectus. Any
forward-looking statements in this prospectus are made only as of
the date hereof and, except as may be required by law, we do not
have any obligation to publicly update any forward-looking
statements contained in this prospectus to reflect subsequent
events or circumstances.
ii
ABOUT THIS PROSPECTUS
This prospectus is part of the Registration Statement on Form S-1
that we filed with the SEC under the Securities Act. This
prospectus does not contain all of the information included in such
Registration Statements. For further information, we refer you to
the Registration Statement, including all amendments and their
respective exhibits, filed with the SEC. Statements contained in
this prospectus about the contents of any document are not
necessarily complete. If SEC rules require that a document be filed
as an exhibit to the Registration Statement, please see such
document for a complete description of these matters. You should
carefully read this prospectus, together with the additional
information described under the headings “Where You Can Find More
Information.”
For investors outside the United States: We have not done anything that would permit this
offering, or possession or distribution of this prospectus, in any
jurisdiction where action for that purpose is required, other than
in the United States. Persons who come into possession of this
prospectus in jurisdictions outside the United States are required
to inform themselves about and to observe any restrictions as to
this offering and the distribution of this prospectus applicable to
those jurisdictions.
Unless otherwise indicated, information contained in or
incorporated by reference into this prospectus concerning our
industry and the markets in which we operate, including our general
expectations and market position, market opportunity and market
share, is based on information from our own management estimates
and research, as well as from industry and general publications and
research, surveys and studies conducted by third parties.
Management estimates are derived from publicly available
information, our knowledge of our industry and assumptions based on
such information and knowledge, which we believe to be reasonable.
In addition, assumptions and estimates of our and our
industry’s future performance are necessarily subject to a
high degree of uncertainty and risk due to a variety of factors,
including those described in “Risk
Factors” in our Annual
Report on Form 10-K, which is incorporated by reference into this
prospectus. These and other factors could cause our future
performance to differ materially from our assumptions and
estimates. See “Cautionary Notice Regarding
Forward-Looking Statements.”
This prospectus and our annual report contain summaries of certain
provisions contained in some of the documents described herein, but
reference is made to the actual documents for complete
information. All of the
summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been, or
will be, filed or incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “Where You Can Find More
Information.”
All product and
company names are trademarks of their
respective owners. Solely for convenience, trademarks and trade
names referred to in this prospectus, including logos, artwork and
other visual displays, may appear without the ® or
TM
symbols, but such references are not
intended to indicate, in any way, that their respective owners will
not assert, to the fullest extent under applicable law, their
rights thereto. We do not intend our use or display of other
companies’ trade names or
trademarks to imply a relationship with, or endorsement or
sponsorship of us by, any other companies.
On
February 10, 2021, we effected a 1-for-17 reverse stock split of
our Common Stock. All share and per share data in this prospectus
or in documents incorporated by reference into this prospectus that
were filed after February 10, 2021 gives effect to the reverse
stock split. Documents incorporated by reference into this
prospectus that were filed prior to February 10, 2021, do not give
effect to the reverse stock split.
Throughout this prospectus, the terms “we,”
“us,” “our,” and “our Company”
and “the Company” refer to GT Biopharma, Inc., a
Delaware corporation, and/or its related subsidiaries, as the
context may require.
1
PROSPECTUS SUMMARY
This summary highlights certain
information about us, this offering and selected information
contained elsewhere in this prospectus. Because this is only a
summary, it does not contain all of the information that may be important to
you or that you should consider before investing in our
common stock. You should read the
entire prospectus carefully, including our financial statements and
related notes and especially the information under “Risk
Factors” set forth in this prospectus and as set forth in the
documents incorporated by reference from our annual report on Form
10-K for the year ended December 31, 2020 and filed with the SEC.
This prospectus contains forward-looking statements, based on
current expectations and related to future events and our future
financial performance, that involve risks and uncertainties. Our
actual results may vary materially from those discussed in the
forward-looking statements as a result of various factors,
including, without limitation, those set forth under “Risk
Factors,” as well as other matters described in this
prospectus and in our annual report. See “Cautionary Notice
Regarding Forward-Looking Statements.”
Overview
We are
a clinical stage biopharmaceutical company focused on the
development and commercialization of novel immuno-oncology products
based off our proprietary Tri-specific Killer Engager
(TriKE™) fusion protein immune cell engager technology
platform. Our TriKE platform generate proprietary therapeutics
designed to harness and enhance the cancer killing abilities of a
patient’s own natural killer cells, or NK cells. Once bound
to an NK cell, our moieties are designed to enhance the NK cell,
and precisely direct it to one or more specifically-targeted
proteins expressed on a specific type of cancer cell or virus
infected cell, ultimately resulting in the targeted cell’s
death. TriKE can be designed to target any number of tumor antigens
on hematologic malignancies, sarcomas or solid tumors and do not
require patient-specific customization.
We are
using our TriKE platform with the intent to bring to market
immuno-oncology products that can treat a range of hematologic
malignancies, sarcoma and solid tumors. The platform is scalable,
and we are putting processes in place to be able to produce
IND-ready moieties in a timely manner after a specific TriKE
conceptual design. After conducting market and competitive
research, specific moieties can then be advanced into the clinic on
our own or through potential collaborations with larger companies.
We are also evaluating, in conjunction with our Scientific Advisory
Board, additional moieties designed to target different tumor
antigens. We believe our TriKE may have the ability, if approved
for marketing, to be used as a monotherapy, augment the current
monoclonal antibody therapeutics, be used in conjunction with more
traditional cancer therapy and potentially overcome certain
limitations of current chimeric antigen receptor, or CAR-T,
therapy.
We are
also using our TriKE platform to develop therapeutics useful for
the treatment of infectious disease such as for the treatment of
patients infected by the human immunodeficiency virus (HIV). While
the use of anti-retroviral drugs has substantially improved the
health and increased the longevity of individuals infected with
HIV, these drugs are designed to suppress virus replication to help
modulate progression to AIDS and to limit further transmission of
the virus. Despite the use of anti-retroviral drugs, infected
individuals retain reservoirs of latent HIV-infected cells that,
upon cessation of anti-retroviral drug therapy, can reactivate and
re-establish an active HIV infection. For a curative therapy,
destruction of these latent HIV infected cells must take place. The
HIV-TriKE contains the antigen binding fragment (Fab) from a
broadly-neutralizing antibody targeting the HIV-Env protein. The
HIV-TriKE is designed to target HIV while redirecting NK cell
killing specifically to actively replicating HIV infected cells.
The HIV-TriKE induced NK cell proliferation, and demonstrated the
ability in vitro to reactivate and kill HIV-infected T-cells. These
findings indicate a potential role for the HIV-TriKE in the
reactivation and elimination of the latently infected HIV reservoir
cells by harnessing the NK cell’s ability to mediate the
antibody-directed cellular cytotoxicity (ADCC).
Our
initial work has been conducted in collaboration with the Masonic
Cancer Center at the University of Minnesota under a program led by
Dr. Jeffrey Miller, the Deputy Director. Dr. Miller is a recognized
leader in the field of NK cell and IL-15 biology and their
therapeutic potential. We have exclusive rights to the TriKE
platform and are generating additional intellectual property around
specific moieties.
2
Summary Risk Factors
Participating in this offering involves substantial risk. Our
ability to execute our strategy is also subject to certain risks.
You should carefully consider all of the information set forth in
this prospectus and, in particular, should evaluate the specific
factors set forth under the heading “Risk
Factors” in this
prospectus and in our Annual Report on Form 10-K for the year ended
December 31, 2020, which is incorporated herein by reference, in
deciding whether to invest in our securities. These risks include,
but are not limited to, the following:
●
Our
business is at an early stage of development and we may not develop
therapeutic products that can be commercialized.
●
We
have a history of operating losses and we expect to continue to
incur losses for the foreseeable future. We may never generate
revenue or achieve profitability.
●
Our
independent auditor’s report for the years ended December 31,
2020 and 2019 is qualified as to our ability to continue as a going
concern.
●
We
will need additional capital to conduct our operations and develop
our products, and our ability to obtain the necessary funding is
uncertain.
●
Our
current and future indebtedness may impose significant operating
and financial restrictions on us and affect our ability to access
liquidity.
●
The
cost of our research and development programs may be significantly
higher than expected, and there is no assurance that they will
successful in a timely manner, or at all.
●
We
have identified material weaknesses in our internal controls over
financial reporting and have not yet remedied these weaknesses. If
we fail to maintain an effective system of internal control over
financial reporting, we may not be able to accurately report our
financial results or prevent fraud. As a result, stockholders could
lose confidence in our financial and other public reporting, which
would harm our business and the trading price of our common
stock.
●
If
our efforts to protect the proprietary nature of the intellectual
property related to our technologies are not adequate, we may not
be able to compete effectively in our market and our business would
be harmed.
●
Claims
that we infringe the intellectual property rights of others may
prevent or delay our drug discovery and development
efforts.
●
We
may desire, or be forced, to seek additional licenses to use
intellectual property owned by third parties, and such licenses may
not be available on commercially reasonable terms, or at
all.
●
If
we are unsuccessful in obtaining or maintaining patent protection
for intellectual property in development or licensed from third
parties, our business and competitive position would be
harmed.
●
If
we fail to meet our obligations under our license agreements, we
may lose our rights to key technologies on which our business
depends.
●
Our
reliance on the activities of our non-employee consultants,
research institutions and scientific contractors, whose activities
are not wholly within our control, may lead to delays in
development of our proposed products.
●
Clinical
drug development is costly, time-consuming and uncertain, and we
may suffer setbacks in our clinical development program that could
harm our business.
3
●
If
we experience delays or difficulties in the enrollment of patients
in clinical trials, those clinical trials could take longer than
expected to complete and our receipt of necessary regulatory
approvals could be delayed or prevented.
●
Obtaining
regulatory approval, even after clinical trials that are believed
to be successful, is an uncertain process.
●
We
will continue to be subject to extensive FDA regulation following
any product approvals, and if we fail to comply with these
regulations, we may suffer a significant setback in our
business.
●
Many
of our business practices are subject to scrutiny and potential
investigation by regulatory and government enforcement authorities,
as well as to lawsuits brought by private citizens under federal
and state laws. We could become subject to investigations, and our
failure to comply with applicable law or an adverse decision in
lawsuits may result in adverse consequences to us. If we fail to
comply with U.S. healthcare laws, we could face substantial
penalties and financial exposure, and our business, operations and
financial condition could be adversely affected.
●
Our
product candidates may cause undesirable side effects or have other
properties that could delay or prevent their regulatory approval,
limit the commercial profile of an approved label, or result in
significant negative consequences following marketing approval, if
any.
●
We
may expend our limited resources to pursue a particular product
candidate or indication that does not produce any commercially
viable products and may fail to capitalize on product candidates or
indications that may be more profitable or for which there is a
greater likelihood of success.
●
Our
products may be expensive to manufacture, and they may not be
profitable if we are unable to control the costs to manufacture
them.
●
We
currently lack manufacturing capabilities to produce our
therapeutic product candidates at commercial-scale quantities and
do not have an alternate manufacturing supply, which would
negatively impact our ability to meet any demand for the
product.
●
Our
business is based on novel technologies that are inherently
expensive and risky and may not be understood by or accepted in the
marketplace, which could adversely affect our future
value.
●
We could be subject to product liability lawsuits
based on the use of our product candidates in clinical testing or,
if obtained, following marketing approval and commercialization. If
product liability lawsuits are brought against us, we may incur
substantial liabilities and may be required to cease clinical
testing or limit commercialization of our product
candidates.
●
We
rely on third parties to supply candidates for clinical testing and
to conduct preclinical and clinical trials of our product
candidates. If these third parties do not successfully carry out
their contractual duties or meet expected deadlines, we may not be
able to obtain regulatory approval for or commercialize our product
candidates. As a result, our business could be substantially
harmed.
Corporate Information
Our principal executive offices are located at 9350 Wilshire Blvd.
Suite 203, Beverly Hills, CA 90212, and our telephone number is
(800) 304¬9888. We maintain a website at www.gtbiopharma.com.
Information contained on or accessible through our website is not,
and should not be considered, part of, or incorporated by reference
into, this prospectus.
4
The Offering
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Shares
of Common Stock offered by us:
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None.
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Shares
of Common Stock offered by Selling Shareholders:
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130,246
shares of Common Stock.
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Use of
Proceeds:
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We
will not receive any proceeds from the sale of common stock offered
by the selling shareholders covered by this
prospectus.
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Trading
Market:
|
Our common stock is currently listed on the Nasdaq
Capital Market under the symbol “GTBP.”
|
|
Risk
Factors:
|
Investing in our securities involves a high degree
of risk. You should carefully review and consider
“Risk
Factors” beginning on
page 6 of this prospectus and any risks described in our annual
report on Form 10-K for the year ended December 31, 2020, which is
incorporated into this prospectus by reference.
|
5
Assumptions Used Throughout This Prospectus
Unless otherwise stated in this prospectus, the number of shares of
Common Stock outstanding prior to the exercise of the Warrants is
based on 28,393,960 shares of Common Stock outstanding as of April
12, 2021, after giving effect to the following:
●
The
mandatory conversion of the approximately $32.2 million of
convertible notes (plus approximately $5.5 million in accrued and
unpaid interest) into 11.1 million shares of Common Stock upon
completion of the Public Offering;
●
The
issuance of 395,358 shares of Common Stock upon exercise of certain
legacy warrants at an exercise price of $3.40 per share shortly
after the completion of the Public Offering; and
●
The
conversion of 2.3 million shares of Series J-1 Preferred Stock into
692,220 shares of Common Stock shortly after the completion of the
Public Offering.
The number of shares of Common Stock outstanding excludes the
following other securities as of April 12, 2021:
●
78,400
shares of Common Stock issuable upon the exercise of outstanding
legacy warrants at a weighted average exercise price of $3.40 per
share;
●
4,615,530
shares of Common Stock issuable upon exercise of warrants issued in
the Public Offering;
●
7
shares of Common Stock issuable upon exercise of outstanding stock
options or reserved for future issuance under our 2014 Stock
Incentive Plan; and
●
7
shares issuable upon conversion of Series C Preferred
Stock.
6
RISK FACTORS
Investing in our common stock involves a high degree of risk. You
should carefully consider the risks and uncertainties described
below in addition to the other information contained in this
prospectus and any prospectus supplement before deciding whether to
invest in shares of our common
stock. The risks summarized below and others are discussed more
fully in the section titled “Risk Factors” in our
Annual Report on Form 10-K for the year ended December 31, 2020,
which is incorporated herein by reference. If any of the following
risks or the risks incorporated by reference occur, our business,
financial condition or operating results could be harmed. In that
case, the trading price of our common stock could decline and you may lose part
or all of your investment. In
the opinion of management, the risks discussed below and
incorporated by reference represent the material risks known to us.
Additional risks and uncertainties not currently known to us or
that we currently deem immaterial may also impair our business,
financial condition and operating results and adversely affect the
market price of our common
stock.
Risks Related to Our Business
Risks
related to our business risks include,
but are not limited to, the following:
●
Our
business is at an early stage of development and we may not develop
therapeutic products that can be commercialized.
●
We
have a history of operating losses and we expect to continue to
incur losses for the foreseeable future. We may never generate
revenue or achieve profitability.
●
Our
independent auditor’s report for the years ended December 31,
2020 and 2019 is qualified as to our ability to continue as a going
concern.
●
We
will need additional capital to conduct our operations and develop
our products, and our ability to obtain the necessary funding is
uncertain.
●
Our
current and future indebtedness may impose significant operating
and financial restrictions on us and affect our ability to access
liquidity.
●
The
cost of our research and development programs may be significantly
higher than expected, and there is no assurance that they will
successful in a timely manner, or at all.
●
We
have identified material weaknesses in our internal controls over
financial reporting and have not yet remedied these weaknesses. If
we fail to maintain an effective system of internal control over
financial reporting, we may not be able to accurately report our
financial results or prevent fraud. As a result, stockholders could
lose confidence in our financial and other public reporting, which
would harm our business and the trading price of our common
stock.
●
If
our efforts to protect the proprietary nature of the intellectual
property related to our technologies are not adequate, we may not
be able to compete effectively in our market and our business would
be harmed.
●
Claims
that we infringe the intellectual property rights of others may
prevent or delay our drug discovery and development
efforts.
●
We
may desire, or be forced, to seek additional licenses to use
intellectual property owned by third parties, and such licenses may
not be available on commercially reasonable terms, or at
all.
●
If
we are unsuccessful in obtaining or maintaining patent protection
for intellectual property in development or licensed from third
parties, our business and competitive position would be
harmed.
7
●
If
we fail to meet our obligations under our license agreements, we
may lose our rights to key technologies on which our business
depends.
●
Our
reliance on the activities of our non-employee consultants,
research institutions and scientific contractors, whose activities
are not wholly within our control, may lead to delays in
development of our proposed products.
●
Clinical
drug development is costly, time-consuming and uncertain, and we
may suffer setbacks in our clinical development program that could
harm our business.
●
If
we experience delays or difficulties in the enrollment of patients
in clinical trials, those clinical trials could take longer than
expected to complete and our receipt of necessary regulatory
approvals could be delayed or prevented.
●
Obtaining
regulatory approval, even after clinical trials that are believed
to be successful, is an uncertain process.
●
We
will continue to be subject to extensive FDA regulation following
any product approvals, and if we fail to comply with these
regulations, we may suffer a significant setback in our
business.
●
Many
of our business practices are subject to scrutiny and potential
investigation by regulatory and government enforcement authorities,
as well as to lawsuits brought by private citizens under federal
and state laws. We could become subject to investigations, and our
failure to comply with applicable law or an adverse decision in
lawsuits may result in adverse consequences to us. If we fail to
comply with U.S. healthcare laws, we could face substantial
penalties and financial exposure, and our business, operations and
financial condition could be adversely affected.
●
Our
product candidates may cause undesirable side effects or have other
properties that could delay or prevent their regulatory approval,
limit the commercial profile of an approved label, or result in
significant negative consequences following marketing approval, if
any.
●
We
may expend our limited resources to pursue a particular product
candidate or indication that does not produce any commercially
viable products and may fail to capitalize on product candidates or
indications that may be more profitable or for which there is a
greater likelihood of success.
●
Our
products may be expensive to manufacture, and they may not be
profitable if we are unable to control the costs to manufacture
them.
●
We
currently lack manufacturing capabilities to produce our
therapeutic product candidates at commercial-scale quantities and
do not have an alternate manufacturing supply, which would
negatively impact our ability to meet any demand for the
product.
●
Our
business is based on novel technologies that are inherently
expensive and risky and may not be understood by or accepted in the
marketplace, which could adversely affect our future
value.
●
We could be subject to product liability lawsuits
based on the use of our product candidates in clinical testing or,
if obtained, following marketing approval and commercialization. If
product liability lawsuits are brought against us, we may incur
substantial liabilities and may be required to cease clinical
testing or limit commercialization of our product
candidates.
●
We
rely on third parties to supply candidates for clinical testing and
to conduct preclinical and clinical trials of our product
candidates. If these third parties do not successfully carry out
their contractual duties or meet expected deadlines, we may not be
able to obtain regulatory approval for or commercialize our product
candidates. As a result, our business could be substantially
harmed.
8
These
risks are described more fully in our Annual Report on Form 10-K
for the year ended December 31, 2021, which is incorporated herein
by reference.
Risks Related to this Offering and Our Common Stock
There has been a limited public market
for our common stock, and we do
not know whether one will develop to provide you adequate
liquidity. Furthermore, the trading price for our
common stock, should an active trading
market develop, may be volatile and could be subject to wide
fluctuations in per-share price.
Our common stock is now listed
on the Nasdaq Capital Market under the trading symbol
“GTBP”; historically, however, there has been a limited
public market for our common
stock. We cannot assure you that an active trading market for
our common stock will develop
or be sustained. The liquidity of any market for the shares of
our common stock will depend on
a number of factors, including:
●
the number of
stockholders;
●
our operating
performance and financial condition;
●
the market for
similar securities;
●
the extent of
coverage of us by securities or industry analysts; and
●
the interest of
securities dealers in making a market in the shares of our common
stock.
Even if an active trading market develops, the market price for
our common stock may be highly
volatile and could be subject to wide fluctuations. In addition,
the price of shares of our common stock could decline significantly if our
future operating results fail to meet or exceed the expectations of
market analysts and investors and actual or anticipated variations
in our quarterly operating results could negatively affect our
share price.
The volatility of the price of our common stock may also be impacted by the risks
discussed under this “Risk Factors” section, in
addition to other factors, including:
●
developments in the
financial markets and worldwide or regional economies;
●
announcements of
innovations or new products or services by us or our
competitors;
●
announcements by
the government relating to regulations that govern our
industry;
●
significant sales
of our common stock or other securities in the open
market;
●
variations in
interest rates;
●
changes in the
market valuations of other comparable companies; and
●
changes in
accounting principles.
Our outstanding warrants may affect the market price of our
common stock.
As of the date of this prospectus, we had approximately 28.6
million shares of common stock
outstanding and issued or issuable and had outstanding
warrants for the purchase of up to
approximately 78,400 additional shares of common stock at an exercise price of $3.40 per
share, warrants for the purchase of up to approximately 4,368,280
additional shares of common
stock at an exercise price of $5.50 per share and warrants for the
purchase of up to approximately 247,250 additional shares of
common stock at an exercise price of
$6.875 per share, all of which
are exercisable as of the date of this prospectus (subject to
certain beneficial ownership limitations). The amount of
common stock reserved for issuance may
have an adverse impact on our ability to raise capital and may
affect the price and liquidity of our common stock in the public market. In addition,
the issuance of these shares of common stock will have a dilutive effect on
current stockholders’ ownership.
9
Because our common stock may be deemed a low-priced
“penny” stock, an investment in our common stock should be considered high-risk and
subject to marketability restrictions.
Historically, the trading price of our common stock has been $5.00 per share or lower,
and deemed a penny stock, as defined in Rule 3a51-1 under the
Exchange Act, and subject to the penny stock rules of the Exchange
Act specified in rules 15g-1 through 15g-100. Those rules require
broker–dealers, before effecting transactions in any penny
stock, to:
●
deliver to the
customer, and obtain a written receipt for, a disclosure
document;
●
disclose certain
price information about the stock;
●
disclose the amount
of compensation received by the broker-dealer or any associated
person of the broker-dealer;
●
send monthly
statements to customers with market and price information about the
penny stock; and
●
in some
circumstances, approve the purchaser’s account under certain
standards and deliver written statements to the customer with
information specified in the rules.
Consequently, the penny stock rules may restrict the ability or
willingness of broker-dealers to sell the common stock and may affect the ability of holders
to sell their common stock in
the secondary market and the price at which such holders can sell
any such securities. These additional procedures could also limit
our ability to raise additional capital in the
future.
Financial Industry Regulatory
Authority (“FINRA”) sales practice requirements may
also limit a stockholder’s ability to buy and sell our
common stock, which could depress the
price of our common
stock.
In addition to the “penny stock” rules described above,
FINRA has adopted rules that require a broker-dealer to have
reasonable grounds for believing that the investment is suitable
for that customer before recommending an investment to a customer.
Prior to recommending speculative low-priced securities to their
non-institutional customers, broker-dealers must make reasonable
efforts to obtain information about the customer’s financial
status, tax status, investment objectives and other information.
Under interpretations of these rules, FINRA believes that there is
a high probability that speculative low-priced securities will not
be suitable for at least some customers. Thus, the FINRA
requirements make it more difficult for broker-dealers to recommend
that their customers buy our common stock, which may limit your ability to buy
and sell our shares of common
stock, have an adverse effect on the market for our shares
of common stock, and thereby
depress our price per share of common stock.
If securities or industry analysts do not publish research or
reports about our business, or if they issue an adverse or
misleading opinion regarding our stock, our stock price and trading
volume could decline.
The trading market for our common stock may be influenced by the research and
reports that industry or securities analysts publish about us or
our business. We currently have research coverage by only one
securities analyst, and we may never obtain research coverage by
additional analysts. If no or few securities or industry analysts
commence coverage of us, the trading price for our
common stock may be negatively
affected. In the event that we receive additional securities or
industry analyst coverage, if any of the analysts who cover us
issue an adverse or misleading opinion regarding us, our business
model, our intellectual property or our stock performance, or if
our operating results fail to meet the expectations of analysts,
our stock price would likely decline. If one or more of these
analysts cease coverage of us or fail to publish reports on us
regularly, we could lose visibility in the financial markets, which
in turn could cause our stock price or trading volume to
decline.
10
Anti-takeover provisions may limit the ability of another party to
acquire us, which could cause our stock price to
decline.
Delaware law and our restated certificate of incorporation
(“certificate of incorporation”), our restated bylaws
(“bylaws”) and other governing documents contain
provisions that could discourage, delay or prevent a third party
from acquiring us, even if doing so may be beneficial to our
stockholders, which could cause our stock price to decline. In
addition, these provisions could limit the price investors would be
willing to pay in the future for shares of our common stock.
We do not currently or for the
foreseeable future intend to pay dividends on our
common stock.
We have never declared or paid any cash dividends on our
common stock. We currently anticipate
that we will retain future earnings for the development, operation
and expansion of our business and do not anticipate declaring or
paying any cash dividends for the foreseeable future. As a result,
any return on your investment in our common stock will be limited to the appreciation
in the price of our common
stock, if any.
11
TAX CONSIDERATIONS
We are not providing any tax advice as to the acquisition, holding
or disposition of the securities offered herein. Investors in our
shares, particularly investors who are not residents of the U.S.,
are strongly encouraged to consult their own tax advisor to
determine the U.S. federal, state and any applicable foreign tax
consequences relating to their investment in our
securities.
USE OF PROCEEDS
The Company will receive no proceeds from the resale of the shares
by the Selling Shareholders. Unless otherwise set forth in a
prospectus supplement, all of the shares of Common Stock offered by
the Selling Shareholders pursuant to this prospectus will be sold
by the Selling Shareholders. The Selling Shareholders will receive
all proceeds from such sales.
If all of the warrants held by the Selling Shareholders are
exercised in full, we would receive proceeds from the payment of
the exercise price thereof of approximately $243,000, which we
intend to use for general corporate purposes, which includes, among
other purposes, the funding and expansion of our ongoing clinical
trials and the continued development of our pipeline of candidate
products.
12
SELLING SHAREHOLDERS
The Selling Shareholders may offer and sell, from time to time, any
or all of the shares covered by this prospectus. We are registering
130,246 shares of Common Stock that are either currently held by
the Selling Shareholders or that may be issued on the exercise of
the warrants held by the Selling Shareholders. The warrants were
issued in connection with a private placement transaction completed
on January 22, 2018, in which we agreed to file this registration
statement covering the resale of the shares issuable upon exercise
of such warrant.
The following table sets forth the name of the Selling
Shareholders, the number of shares of Common Stock beneficially
owned by the Selling Shareholders prior to and after completion of
the offering contemplated by this prospectus, and the aggregate
number of shares that may be offered by the Selling Shareholders
pursuant to this prospectus. In calculating the percentages of
shares of Common Stock beneficially owned by the Selling
Shareholders, we treated as outstanding the number of shares of our
Common Stock issuable upon exercise of the warrants and did not
assume exercise of any other warrants. The percentage of shares
owned prior to the offering is based on 28,393,960 shares of Common
Stock outstanding as of April 12, 2021.
Under the terms of the warrants, a Selling Shareholder may not
exercise the warrants to the extent such exercise would cause such
Selling Shareholder, together with its affiliates, to beneficially
own a number of shares of Common Stock which would exceed 4.99% of
our then outstanding shares of Common Stock following such
exercise, excluding for purposes of such determination shares of
Common Stock issuable upon exercise of the warrants which have not
been exercised. The number of shares in the third column do not
reflect this limitation or any similar limitation.
There is no assurance that the warrants will be exercised. If the
warrants are exercised, the Selling Shareholders may sell some, all
or none of the shares obtained thereby. We do not know how long the
Selling Shareholders will hold the shares before selling them, and
we currently have no agreements, arrangements or understandings
with the Selling Shareholders regarding the sale or other
disposition of any of the shares. As a result, we cannot estimate
the number of shares of Common Stock the Selling Shareholders will
beneficially own after termination of sales under this prospectus.
In addition, the Selling Shareholders may have sold, transferred or
otherwise disposed of all or a portion of its shares of Common
Stock since the date on which they provided information for this
table.
Unless otherwise indicated, the term “Selling
Shareholders” as used in this prospectus means the Selling
Shareholders referred to in this prospectus, and their donees,
pledgees, transferees, assigns and other successors-in-interest.
Information concerning the Selling Shareholders may change from
time to time and, to the extent required, we will supplement this
prospectus accordingly. We have prepared the following table and
the related notes based on information filed with the SEC, supplied
to us by the Selling Shareholders or estimated based on our
internal records, which may not include shares held by a Selling
Shareholder in “street name.”
|
|
Shares
Beneficially Owned Prior to this Offering (1)
|
Number of Shares
Offered
|
Shares
Beneficially Owned After This Offering (2)
|
||
|
Selling
Shareholder and Addresses
|
Number
|
Percentage
|
Hereby
|
Number
|
Percentage
|
|
Siesta Fiesta
Holdings, LLC (3)
|
707
|
*
|
707
|
0
|
*
|
|
James Heavener
(4)
|
1,402,305
|
4.9%
|
8,972
|
1,393,333
|
4.9%
|
|
Bristol Capital,
LLC (5)
|
972,418
|
3.4%
|
58,824
|
913,594
|
3.2%
|
|
Bristol Investment
Fund Ltd. (5)
|
1,192,292
|
4.2%
|
2,826
|
1,189,466
|
4.2%
|
|
Alto Opportunity
Master Fund, SPC – Segregated Master Portfolio B
(6)
|
177,521
|
*
|
28,256
|
149,265
|
*
|
|
Adam Kasower
(7)
|
539,130
|
*
|
7,064
|
532,066
|
*
|
|
Red Mango
Enterprises Limited (8)
|
1,737,365
|
6.1%
|
11,797
|
1,725,568
|
6.0%
|
|
Rosalinde and
Arthur Gilbert Foundation (9)
|
1,211,172
|
4.2%
|
4,945
|
1,206,227
|
4.2%
|
|
RSZ Trust
(10)
|
490,966
|
*
|
1,625
|
489,341
|
*
|
|
Jeffrey Bronfman
Revocable Liv. Trust (11)
|
319,011
|
*
|
2,120
|
316,891
|
*
|
|
Lipp Irrevocable
Trust (12)
|
14,144
|
*
|
566
|
13,578
|
*
|
|
Robert Lipp
Separate Property Trust (13)
|
245,607
|
*
|
1,978
|
243,629
|
*
|
|
Diane Lipp Separate
Property Trust (14)
|
63,220
|
*
|
566
|
62,654
|
*
|
(1)
Includes
78,400 shares of Common Stock that may
be issued if all Selling Shareholders exercise of the warrants in
full.
13
(2)
Assumes
sale of all shares available for sale under this prospectus and no
further acquisitions of shares by the Selling
Shareholders.
(3)
The
address of record is 7924 Midnight Pass Road, Sarasota, FL
34242.
(4)
The
address of record is 3300 University Blvd., Ste 218, Winter Park,
FL 32792.
(5)
The
address of record is 662 N. Sepulveda Blvd., Ste 300, Los Angeles,
CA 90049. Paul Kessler, as manager of Bristol Capital Advisors,
LLC, the investment advisor to Bristol Investment Fund, Ltd.
(“BIF”) and Bristol Capital, LLC (“BC”),
has voting and investment control over the securities held by BIF
and BC. Mr. Kessler disclaims beneficial ownership of these
securities except to the extent of his pecuniary interest
therein.
(6)
The
address of record is 1180 Avenue of Americas, Ste 842, New York, NY
10036.
(7)
The
address of record is 25170 Jim Bridger Road, Hidden Hills, CA
92302.
(8)
The
address of record is Pictet & Cie (Europe) S.A. Hong Kong
Branch, 9/F Chater House 8 Connaught Road Central, Hong Kong. We
have been advised that Chi Kan Tang exercises voting and investment
power over the securities held by Red Mango Enterprises
Limited.
(9)
The
address of record is 2730 Wilshire Blvd., Ste 301, Santa Monica, CA
90403. We have been advised that Martin H. Blank exercises voting
and investment power over the securities held by The Rosalinde and
Arthur Gilbert Foundation.
(10)
The
address of record is 11620 Wilshire Blvd., Ste 1000, Los Angeles,
CA 90025. We have been advised that Richard Ziman is the trustee of
The RSZ Trust and may be deemed to exercise voting and investment
control.
(11)
The
address of record is 1000 Cordova Place #710, Santa Fe, NM 87505.
We have been advised that Jeffrey Bronfman is the trustee of the
trust and may be deemed to exercise and investment
control.
(12)
The address of record is 270 18th
St., Santa Monica, CA 90402. We have
been advised that Diane Lipp is the trustee of the trust and may be
deemed to exercise and investment control.
(13)
The address of record is 270 18th
St., Santa Monica, CA 90402. We have
been advised that Robert Lipp is the trustee of the trust and may
be deemed to exercise and investment control.
(14)
The address of record is 270 18th
St., Santa Monica, CA 90402. We have
been advised that Diane Lipp is the trustee of the trust and may be
deemed to exercise and investment control.
14
PLAN OF DISTRIBUTION
We are
registering the shares of common stock issuable upon exercise of
the warrants to permit the resale of these shares of common stock
by the holders of the c warrants from time to time after the date
of this prospectus. We will not receive any of the proceeds from
the sale by the Selling Shareholders of the shares of common stock.
We will bear all fees and expenses incident to our obligation to
register the shares of common stock.
The
Selling Shareholders may sell all or a portion of the shares of
common stock beneficially owned by them and offered hereby from
time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold
through underwriters or broker-dealers, the Selling Shareholders
will be responsible for underwriting discounts or commissions or
agent’s commissions. The shares of common stock may be sold
in one or more transactions at fixed prices, at prevailing market
prices at the time of the sale, at varying prices determined at the
time of sale, or at negotiated prices. These sales may be effected
in transactions, which may involve crosses or block
transactions,
●
on any national
securities exchange or quotation service on which the securities
may be listed or quoted at the time of sale;
●
in the
over-the-counter market;
●
in transactions
otherwise than on these exchanges or systems or in the
over-the-counter market;
●
through the writing
of options, whether such options are listed on an options exchange
or otherwise;
●
ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers;
●
block trades in
which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
●
purchases by a
broker-dealer as principal and resale by the broker-dealer for its
account;
●
an exchange
distribution in accordance with the rules of the applicable
exchange;
●
privately
negotiated transactions;
●
short
sales;
●
sales pursuant to
Rule 144;
●
broker-dealers may
agree with the selling securityholders to sell a specified number
of such shares at a stipulated price per share;
●
a combination of
any such methods of sale; and
●
any other method
permitted pursuant to applicable law.
If the
Selling Shareholders effect such transactions by selling shares of
common stock to or through underwriters, broker-dealers or agents,
such underwriters, broker-dealers or agents may receive commissions
in the form of discounts, concessions or commissions from the
Selling Shareholders or commissions from purchasers of the shares
of common stock for whom they may act as agent or to whom they may
sell as principal (which discounts, concessions or commissions as
to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved).
In connection with sales of the shares of common stock or
otherwise, the Selling Shareholders may enter into hedging
transactions with broker-dealers, which may in turn engage in short
sales of the shares of common stock in the course of hedging in
positions they assume. The Selling Shareholders may also sell
shares of common stock short and deliver shares of common stock
covered by this prospectus to close out short positions and to
return borrowed shares in connection with such short sales. The
Selling Shareholders may also loan or pledge shares of common stock
to broker-dealers that in turn may sell such shares.
15
The
Selling Shareholders may pledge or grant a security interest in
some or all of the warrants or shares of common stock owned by them
and, if they default in the performance of their secured
obligations, the pledgees or secured parties may offer and sell the
shares of common stock from time to time pursuant to this
prospectus or any amendment to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act of 1933, as
amended, amending, if necessary, the list of Selling Shareholders
to include the pledgee, transferee or other successors in interest
as Selling Shareholders under this prospectus. The Selling
Shareholders also may transfer and donate the shares of common
stock in other circumstances in which case the transferees, donees,
pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
The
Selling Shareholders and any broker-dealer participating in the
distribution of the shares of common stock may be deemed to be
“underwriters” within the meaning of the Securities
Act, and any commission paid, or any discounts or concessions
allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act. At the time a
particular offering of the shares of common stock is made, a
prospectus supplement, if required, will be distributed which will
set forth the aggregate amount of shares of common stock being
offered and the terms of the offering, including the name or names
of any broker-dealers or agents, any discounts, commissions and
other terms constituting compensation from the Selling Shareholders
and any discounts, commissions or concessions allowed or reallowed
or paid to broker-dealers.
Under
the securities laws of some states, the shares of common stock may
be sold in such states only through registered or licensed brokers
or dealers. In addition, in some states the shares of common stock
may not be sold unless such shares have been registered or
qualified for sale in such state or an exemption from registration
or qualification is available and is complied with.
There
can be no assurance that any Selling Shareholder will sell any or
all of the shares of common stock registered pursuant to the
registration statement, of which this prospectus forms a
part.
The
Selling Shareholders and any other person participating in such
distribution will be subject to applicable provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, including, without limitation, Regulation M
of the Exchange Act, which may limit the timing of purchases and
sales of any of the shares of common stock by the Selling
Shareholders and any other participating person. Regulation M may
also restrict the ability of any person engaged in the distribution
of the shares of common stock to engage in market-making activities
with respect to the shares of common stock. All of the foregoing
may affect the marketability of the shares of common stock and the
ability of any person or entity to engage in market-making
activities with respect to the shares of common stock.
We will
pay all expenses of the registration of the shares of common stock
pursuant to the registration rights agreement, estimated to be
$21,590 in total, including, without limitation, Securities and
Exchange Commission filing fees and expenses of compliance with
state securities or “blue sky” laws; provided, however,
that a Selling Shareholder will pay all underwriting discounts and
selling commissions, if any. We will indemnify the Selling
Shareholders against liabilities, including some liabilities under
the Securities Act, in accordance with the registration rights
agreements, or the Selling Shareholders will be entitled to
contribution. We may be indemnified by the Selling Shareholders
against civil liabilities, including liabilities under the
Securities Act, that may arise from any written information
furnished to us by the Selling Shareholder specifically for use in
this prospectus, in accordance with the related registration rights
agreement, or we may be entitled to contribution.
Once
sold under the registration statement, of which this prospectus
forms a part, the shares of common stock will be freely tradable in
the hands of persons other than our affiliates.
16
MARKET INFORMATION
Our common stock is listed on
the Nasdaq Capital Market under the symbol
“GTBP.”
Stockholders
As of March 22, 2021, there were 51 stockholders of record. This
total does not include stockholders who hold their shares in
“street name.” The transfer agent for our
common stock is Computershare, whose address is 8742
Lucent Blvd., Suite 225, Highland Ranch, CO
80129.
Dividends
We have not paid any dividends on our common stock to date and do not anticipate that we
will pay dividends in the foreseeable future. Any payment of cash
dividends on our common stock
in the future will be dependent upon the amount of funds legally
available, our earnings, if any, our financial condition, our
anticipated capital requirements and other factors that the Board
may think are relevant. However, we currently intend for the
foreseeable future to follow a policy of retaining
all of our earnings, if any, to
finance the development and expansion of our business and,
therefore, do not expect to pay any dividends on our
common stock during such
time.
DESCRIPTION OF SECURITIES
The following description of our securities, together with any
additional information we include in any applicable prospectus
supplement or any related free writing prospectus, summarizes the
material terms and provisions of our capital stock. For the
complete terms of our capital stock, please refer to our
certificate of incorporation bylaws that are incorporated by
reference into the registration statement of which this prospectus
is a part or may be incorporated by reference in this prospectus or
any applicable prospectus supplement. The terms of these securities
may also be affected by the Delaware General Corporation Law
(“DGCL”). The summary below and that contained in any
applicable prospectus supplement or any related free writing
prospectus are qualified in their entirety by reference to our
certificate of incorporation and bylaws.
General
As of the date of this prospectus, our authorized capital stock
consists of 750.0 million shares of common stock, par value $0.001 per share, and 15.0
million shares of preferred stock, par value $0.001 per share. As
of April 12, 2021, there were 28,393,960 shares of our
common stock and 96,230 shares of
Series C Preferred Stock outstanding.
Common Stock
Holders of our common stock are
entitled to one vote for each share of common stock held of record for the election of
directors and on all matters
submitted to a vote of stockholders. Holders of our
common stock are entitled to receive
dividends ratably, if any, as may be declared by the Board out of
legally available funds, subject to any preferential dividend
rights of any preferred stock then outstanding. In the event of our
dissolution, liquidation or winding up, holders of our
common stock are entitled to share
ratably in our net assets legally available after the payment
of all of our debts and other
liabilities, subject to the liquidation preferences of any
preferred stock then outstanding. Holders of our
common stock have no preemptive,
subscription, redemption or conversion rights. The rights,
preferences and privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of
preferred stock currently outstanding or that we may designate and
issue in the future. All
outstanding shares of our common stock are fully paid and non-assessable.
Except as described below in “Anti-Takeover Provisions Under
Our Charter and Bylaws and Delaware Law,” holders of a
majority of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business, and a vote of
the majority of the voting power represented at such meeting at
which a quorum is generally required to take action under our
certificate of incorporation and bylaws.
17
Warrants
The
Common Warrants were issued in registered form and entitle the
registered holder to purchase one share of our common stock at a
price equal to $5.50 per share, subject to adjustment as discussed
below, terminating at 5:00 p.m., New York City time, on the fifth
anniversary of the date of issuance. The Underwriters Warrants were
issued in registered form and entitle the registered holder to
purchase one share of our common stock at a price equal to $6.875
per share, subject to adjustment as discussed below, terminating at
5:00 p.m., New York City time, on the fifth anniversary of the date
of issuance. Holders of Warrants may exercise such warrants on a
“cashless” basis if an effective registration statement
is not available with respect to the offering of shares of Common
Stock upon exercise of such Warrant. In such event, the aggregate
number of shares of common stock issuable in such cashless exercise
shall be equal to (x) the difference between (i) value of the
aggregate number of shares of common stock for which the Warrant is
being exercised based on the weighted average price of our common
stock as determined in the formula set forth in such Warrant and
(ii) the value of the aggregate number of shares of common stock
for which the Warrant is being exercised based on the exercise
price then in effect, divided by (y) the exercise price then in
effect. The exercise price and number of shares of common stock
issuable upon exercise of the Warrants may be adjusted in certain
circumstances, including in the event of a stock dividend,
extraordinary dividend on or recapitalization, reorganization,
merger or consolidation. The Warrants may be exercised by delivery
of a notice of exercise and the aggregate exercise price (assuming
no cashless exercise has been elected if an effective registration
statement is not available with respect to the offering of shares
of Common Stock upon exercise of such Warrant) to us as specified
in such Warrant. Holders of Warrants do not have the rights or
privileges of holders of common stock and any voting rights until
they exercise their Warrants and receive shares of common stock.
After the issuance of shares of common stock upon exercise of the
Warrants, each holder will be entitled to one vote for each share
held of record on all matters to be voted on by
stockholders.
Preferred Stock
Our Board is authorized, without action by the stockholders, to
designate and issue up to 15.0 million shares of preferred stock in
one or more series. In the past the Board has designated series
lettered A through K and issued shares in those series (other than
Series K). As of the date of this prospectus, only preferred shares
in the series designated C have shares issued and outstanding. Our
Board can fix or alter the rights, preferences and privileges of
the shares of each series and any of its qualifications,
limitations or restrictions, including dividend rights, conversion
rights, voting rights, terms of redemption, liquidation preferences
and the number of shares constituting a class or series. The
issuance of preferred stock could, under certain circumstances,
result in one or more of the following adverse
effects:
●
decreasing the
market price of our common stock;
●
restricting
dividends on our common stock;
●
diluting the voting
power of our common stock;
●
impairing the
liquidation rights of our common stock; or
●
delaying or
preventing a change in control of us without further action by our
stockholders.
Our Board will make any determination to issue such shares based on
its judgment as to our best interests and the best interests of our
stockholders.
Series C Preferred Stock
For a discussion of the terms of our Series C Preferred Stock, see
Note 8 to our audited financial statements, Stockholders’
Equity, incorporated in this
document by reference.
18
Anti-Takeover Provisions Under Our Charter and Bylaws and Delaware
Law
Certain provisions of Delaware law, our certificate of
incorporation and our bylaws contain provisions that could have the
effect of delaying, deferring or discouraging another party from
acquiring control of us. These provisions, which are summarized
below, may have the effect of discouraging coercive takeover
practices and inadequate takeover bids. These provisions are also
designed, in part, to encourage persons seeking to acquire control
of us to first negotiate with our Board. We believe that the
benefits of increased protection of our potential ability to
negotiate with an unfriendly or unsolicited acquirer outweigh the
disadvantages of discouraging a proposal to acquire us because
negotiation of these proposals could result in an improvement of
their terms.
Amended and Restated Certificate of Incorporation
Undesignated Preferred Stock.
Our Board has the ability to issue preferred stock with voting or
other rights or preferences that could impede the success of any
attempt to change control of us. These and other provisions may
have the effect of deferring hostile takeovers or delaying changes
in control or management of our company.
Special Meetings of Stockholders. Our bylaws provide that special meetings of our
stockholders may be called only by our Chairman of the Board, our
president or our Board, thus prohibiting a stockholder from calling
a special meeting. This provision might delay the ability of our
stockholders to force consideration of a proposal or for
stockholders controlling a majority of our capital stock to take
any action, including the removal of directors.
Board Vacancies Filled Only by Majority of
Directors. Vacancies and newly
created seats on our Board may be filled only by a majority of the
directors then in office. Only our Board may determine the number
of directors on our board. The
inability of stockholders to determine the number of directors or
to fill vacancies or newly created seats on our Board makes it more
difficult to change the composition of our Board, but these
provisions promote a continuity of existing
management.
No Cumulative Voting. The DGCL
provides that stockholders are not entitled to the right to
cumulate votes in the election of directors unless our certificate
of incorporation provides otherwise. Our certificate of
incorporation and bylaws do not expressly provide for cumulative
voting.
Directors Removed Only by Special Meeting of
Stockholders. A director can be
removed only by the affirmative vote of a majority of the votes of
the issued and outstanding stock entitled to vote for the election
of directors of the corporation given at a special meeting of the
stockholders called and held for this purpose.
Amendment of Charter Provisions. In order to amend certain of the above
provisions in our certificate of incorporation and our bylaws, the
Board is expressly authorized to adopt, alter or repeal the bylaws,
subject to the rights of the stockholders entitled to vote.
Stockholders can vote at any stockholder meeting and repeal, alter,
or amend the bylaws by the affirmative vote of a majority of the
stockholders entitled to vote in such meeting.
Delaware Anti-takeover
Statute
We are subject to Section 203 of the DGCL. In general,
Section 203 prohibits a publicly held Delaware corporation
from engaging in a “business combination” with an
“interested stockholder” for a period of three years
after the date of the transaction in which the person became an
interest stockholder, unless the business combination is approved
in a prescribed manner. A “business combination”
includes mergers, asset sales and other transactions in which the
interested stockholder receives or could receive a financial
benefit on other than a pro rata basis with other stockholders. An
“interested stockholder” is a person who, together with
affiliates and associates, owns, or within three years did own, 15%
or more of the corporation’s outstanding voting stock. This
provision has an anti-takeover effect with respect to transactions
not approved in advance by our Board, including discouraging
takeover attempts that might result in a premium over the market
price for the shares of our market price. With approval of our
stockholders, we could amend our amended and restated certificate
of incorporation in the future to avoid the restrictions imposed by
this anti-takeover law.
19
The provisions of Delaware law and our amended and restated
certificate of incorporation could have the effect of discouraging
others from attempting hostile takeovers and, as a consequence,
they may also inhibit temporary fluctuations in the market price of
our common stock that often
result from actual or rumored hostile takeover attempts. These
provisions may also have the effect of preventing changes in our
management. It is possible that these provisions could make it more
difficult to accomplish transactions that stockholders may
otherwise deem to be in their best interests.
Transfer Agent and Registrar
Our transfer agent and registrar for our capital stock is
Computershare. The transfer
agent’s address is 8742 Lucent Blvd., Suite 225, Highland Ranch, CO 80129, and its
telephone number is (303) 262-0600.
Existing Trading Markets
Our common stock is listed on
the Nasdaq Capital Market under the trading symbol
“GTBP.” The closing sale price of our
common stock on the Nasdaq Capital
Market on April 16, 2021, was $9.82 per share. Our
common stock is also quoted on
several European-based
exchanges including Berlin (GTBP.BE), Frankfurt (GTBP.DE), the
Euronext (GTBP.NX) and Paris (GTBP.PA).
LEGAL MATTERS
The validity of the common stock offered by this prospectus has
been passed upon for us by Baker & McKenzie LLP, Dallas,
Texas.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the registrant pursuant to the foregoing provisions,
the registrant has been informed that in the opinion of the SEC
such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
EXPERTS
The financial statements of GT Biopharma, Inc. at December 31,
2020, and for the year in the period ending December 31, 2020,
incorporated by reference into this prospectus, have been audited
by Weinberg & Company, an independent registered public
accounting firm, and the financial statements of GT Biopharma, Inc.
at December 31, 2019, and for the year in the period ending
December 31, 2019, incorporated by reference into this prospectus,
have been audited by Seligson & Giannattasio, LLP, each as set
forth in their report thereon incorporated by reference herein, and
are included in reliance upon such reports given on the authority
of such firms as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-1 under the
Securities Act with the SEC with respect to this offering. This
prospectus was filed as a part of that registration statement but
does not contain all of the
information contained in the registration statement and exhibits.
Reference is thus made to the omitted information. Statements made
in this prospectus are summaries of the material terms of
contracts, agreements and
documents and are not necessarily complete; however,
all information we considered material
has been disclosed. Reference is made to each exhibit for a more
complete description of the matters involved and these statements
are qualified in their entirety by the reference. You can find,
copy and inspect information we file at the SEC’s public
reference room, which is located at 100 F Street, N.E., Washington,
DC 20549. Please call the SEC at 1-800-SEC-0330 for more
information about the operation of the SEC’s public reference
room. The SEC also maintains a web site (http://www.sec.gov) that
contains this filed registration statement, reports and other
information regarding us that we have filed electronically with the
SEC. For more information pertaining to our company and this offering, reference is made to
the registration statement.
20
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC
allows the Company to “incorporate by reference” the
information it has filed with the SEC, which means that the Company
can disclose important information to you by referring you to those
documents. The information that the Company incorporates by
reference is an important part of this prospectus, and information
that it files later with the SEC will automatically update and
supersede this information. The documents the Company is
incorporating by reference are:
●
The Company’s
Annual Report on Form 10-K for the year ended December 31, 2021,
filed with the SEC on April 16, 2021;
●
The Company’s
Current Reports on Form 8-K filed with the SEC on January 19,
February 2, February 9, February 11, February 17, February 18 and
February 22, 2021; and
●
The description of
the Company’s common stock contained in our Registration
Statement on Form 8A-12B filed with the SEC on February 8,
2021.
All
documents the Company subsequently files with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except as
to any portion of any report or documents that is not deemed filed
under such provisions, (1) on or after the date of filing of the
registration statement containing this prospectus and prior to the
effectiveness of the registration statement and (2) on or after the
date of this prospectus until the earlier of the date on which all
of the securities registered hereunder have been sold or the
registration statement of which this prospectus is a part has been
withdrawn, shall be deemed incorporated by reference in this
prospectus and to be a part of this prospectus from the date of
filing of those documents and will be automatically updated and, to
the extent described above, supersede information contained or
incorporated by reference in this prospectus and previously filed
documents that are incorporated by reference in this
prospectus.
Nothing
in this prospectus shall be deemed to incorporate information
furnished but not filed with the SEC pursuant to Item 2.02, 7.01 or
9.01 of Form 8-K.
Upon
written or oral request, we will provide without charge to each
person to whom a copy of the prospectus is delivered a copy of the
documents incorporated by reference herein (other than exhibits to
such documents, unless such exhibits are specifically incorporated
by reference herein). You may request a copy of these filings, at
no cost, by contacting GT Biopharma, Inc.
We
maintain a website at https://ir.gtbiopharma.com. You may access
our annual reports on Form 10-K, quarterly reports on Form 10-Q,
current reports on Form 8-K and other reports filed or furnished
pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC
free of charge at our website as soon as reasonably practicable
after such material is electronically filed with, or furnished to,
the SEC.
There
have been no material changes to the Company’s affairs that
have occurred since December 31, 2020 that have not been described
in a Form 10-Q or Form 8-K filed under the Exchange
Act.
21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses expected to be incurred
in connection with the issuance and distribution of
common stock registered hereby,
all of which expenses, except for the
SEC registration fee, are estimated.
|
SEC
registration fee
|
$90
|
|
Transfer Agent fees
and expenses
|
*
|
|
Miscellaneous
expenses
|
*
|
|
Legal
|
20,000
|
|
Accounting
fees and expenses
|
1,500
|
|
|
|
|
Total
|
$21,590
|
*
Estimated expenses not presently know.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the DGCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals
against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with any threatened, pending
or completed actions, suits or proceedings in which such person is
made a party by reason of such person being or having been a
director, officer, employee or agent to us. The DGCL provides that
Section 145 is not exclusive of other rights to which those seeking
indemnification may be entitled under any bylaw,
agreement, vote of stockholders or
disinterested directors or otherwise. Our certificate of
incorporation provides for indemnification by us of our directors,
officers and employees to the fullest extent permitted by the
DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in
its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the
director’s duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
for unlawful payments of dividends or unlawful stock repurchases,
redemptions or other distributions or (iv) for any transaction from
which the director derived an improper personal benefit. Our
certificate of incorporation provides for such limitation of
liability.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since January 2018, the Company made the following issuances of its
unregistered securities pursuant exemptions contained in Section
4(a)(2) or 3(a)(9) of the Securities Act and/or Rule 506 of
Regulation D promulgated thereunder:
●
In January 2018, the Company
entered into a securities purchase agreement with certain
purchasers pursuant to which the Company issued (i) senior
convertible notes in an aggregate principal
amount of $7,760,510, which notes are convertible into the
Company’s common stock at an
initial conversion price of $4.58 per
share, and (ii) warrants to acquire up to an
aggregate of 1,694,440 shares of the
Company’s common stock at an initial
exercise price of $4.58 per share.
●
In August 2018, the Company
entered into a securities purchase agreement with certain
purchasers pursuant to which the Company issued 10% senior
convertible debentures in an aggregate
principal amount of $5,140,000, which debentures convertible
into common stock at an
initial conversion price of $2 per
share.
22
●
In September 2018, the Company
entered into a securities purchase agreement with certain
purchasers pursuant to which the Company issued 10% senior
convertible debentures in an aggregate
principal amount of $2,050,000, which debentures are convertible
into common stock at an
initial conversion price of $2 per
share.
●
In September 2018, the Company
entered into a securities purchase agreement with certain
purchasers pursuant to which the Company issued 10% senior
convertible debentures in an aggregate
principal amount of $800,000, which debentures are convertible
into common stock at an
initial conversion price of $2 per
share.
●
In February 2019, the Company
entered into a securities purchase agreement with certain
purchasers pursuant to which the Company issued secured
convertible notes in an aggregate principal
amount of $1,352,224, consisting of gross proceeds of $1,052,224
and settlement of existing debt of $300,000,
which notes are convertible
into common stock at an
initial conversion price of $0.60 per
share.
●
In April 2019, the Company issued
2,353,548 shares of Series J Preferred Stock to certain existing
investors, which Series J Preferred Stock are convertible into
shares of common stock at an initial rate
of $0.60 per share.
●
In May 2019, the Company entered
into a securities purchase agreement with certain
purchasers pursuant to which the Company issued
convertible notes in an aggregate principal
amount of $1,300,000, which notes are convertible into the
Company’s common stock at an
initial conversion price of $0.35 per
share.
●
Between July and August 2019, the
Company entered into a securities purchase agreement with certain
purchasers pursuant to which the Company issued
convertible notes in an aggregate principal
amount of $975,000, which notes are convertible into the
Company’s common stock at an
initial conversion price of $0.20 per
share.
●
In accordance with
a consulting agreement dated November 25, 2019, the Company issued
2,000,000 shares of unregistered, Rule 144 restricted Common
Stock.
●
In December 2019, the Company
entered into a securities purchase agreement with one
purchaser pursuant to which the Company issued
convertible notes in an aggregate principal
amount of $200,000, which notes are convertible into the
Company’s common stock at an
initial conversion price of $0.20 per
share.
●
In January 2020, the Company
entered into a securities purchase agreement with one
purchaser pursuant to which the Company issued
convertible notes in an aggregate principal
amount of $200,000, which notes are convertible into the
Company’s common stock at an
initial conversion price of $0.20 per
share.
●
Between April and
May 2020, the Company entered into a securities purchase agreement
with certain purchasers pursuant to which the Company issued
convertible notes in an aggregate principal amount of $2,017,000,
which notes are convertible into the Company’s common stock
at an initial conversion price of $0.20 per share.
●
In June 2020, the
Company issued (i) an aggregate of 3,500,000 shares of common
stock, (ii) pre-funded warrants to purchase an aggregate of
5,500,000 million shares of common stock at an initial exercise
price of $0.20 per share and (iii) convertible notes in an
aggregate principal amount of $450,000, which notes are convertible
into the Company’s common stock at an initial conversion
price of $0.20 per share, in each case, pursuant to the Settlement
Agreement.
23
●
In July 2020, the
Company entered into a securities purchase agreement with certain
purchasers pursuant to which the Company issued convertible notes
in an aggregate principal amount of $3,190,000, which notes are
convertible into the Company’s common stock at an initial
conversion price of $0.20 per share.
●
In September 2020,
the Company entered into a securities purchase agreement with
certain purchasers pursuant to which the Company issued convertible
notes in an aggregate principal amount of $250,000, which notes are
convertible into the Company’s common stock at an initial
conversion price of $0.20 per share.
●
In November 2020,
the Company entered into a securities purchase agreement with
certain purchasers pursuant to which the Company issues convertible
notes in an aggregate principal amount of $350,000, which notes are
convertible into the Company’s common stock at an initial
conversion price of $0.20 per share.
●
In December 2020
and January 2021, the Company entered into securities purchase
agreements with certain purchasers pursuant to which the Company
issues convertible notes in an aggregate principal amount of
$8,985,000, which notes are convertible into the Company’s
common stock at an initial conversion price of $0.20 per
share.
In addition, since January 2018, the Company made the following
issuances of its unregistered common stock pursuant exemptions from the
registration requirements of the Securities
Act:
●
20,934,347 shares
of common stock in connection with (i) the conversion of the
Company’s convertible notes or debentures and (ii) payments
of interest in lieu of cash with respect to the Company’s
convertible notes or debentures prior to the 1-for-17 reverse stock
split effected February 10, 2021;
●
11,074,856 shares
of common stock in connection with (i) the mandatory conversion of
the Company’s convertible notes or debentures and (ii)
payments of interest in lieu of cash with respect to the
Company’s convertible notes or debentures effective February
16, 2021;
●
395,358 shares of
common stock in connection with the exercise of certain settlement
warrants on or after February 16, 2021;
●
692,220 shares of
common stock in connection with the conversion of all outstanding
shares of Series J-1 Preferred Stock on February 23 and March 17,
2021;
●
11,500,000 shares
of common stock in connection with compensation of the
Company’s officers and directors;
●
5,236,429 shares of
common stock in connection with compensation of the Company’s
consultants prior to the 1-for-17 reverse stock split effected
February 10, 2021 and an additional 264,706 shares issued after
February 10, 2021; and
●
5,491,638 shares of
common stock to certain of the Company’s directors, executive
officers and consultants as compensatory bonuses on February 23,
2021 after completion of the successful listing on the Nasdaq
Capital Markets on February 11, 2021.
24
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
The following exhibits are filed with this registration
statement:
|
|
|
|
|
Incorporated
by Reference
|
||||||
|
Exhibit
Number
|
|
Exhibit
Description
|
|
Form
|
|
Date
|
|
Number
|
|
Filed
Herewith
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restated
Certificate of Incorporation as filed in Delaware September 10,
1996 and as thereafter amended through March 1, 2002
|
|
10-KSB
|
|
04/01/02
|
|
3.A
|
|
|
|
|
|
Certificate of Amendment to the Restated Certificate of
Incorporation of GT Biopharma, Inc., dated February 9,
2011
|
|
10-K
|
|
03/31/2011
|
|
3.2
|
|
|
|
|
|
Certificate of Amendment to the Restated Certificate of
Incorporation of GT Biopharma, Inc., effective as of July 19,
2017
|
|
8-K/A
|
|
03/15/2018
|
|
3.1
|
|
|
|
|
|
Certificate of Amendment to the Restated Certificate of
Incorporation of GT Biopharma, Inc., effective as of February 10,
2021
|
|
8-K
|
|
02/11/2021
|
|
3.1
|
|
|
|
|
|
Bylaws, as restated
effective September 7, 1994 and as amended through April 29,
2003
|
|
10-QSB
|
|
08/13/03
|
|
3
|
|
|
|
|
|
Certificate of Designation of Preferences, Rights and Limitations of Series J-1
Preferred Stock of GT Biopharma, Inc.,
dated April 3, 2019
|
|
8-K
|
|
04/04/2019
|
|
3.1
|
|
|
|
|
|
Certificate of Designation of Preferences, Rights and Limitations of Series K
Preferred Stock of GT Biopharma, Inc.,
dated April 3, 2019
|
|
10-K
|
|
04/16/2021
|
|
4.2
|
|
|
|
|
4.2
|
|
Form of Warrant
|
|
S-1/A
|
|
02/02/2021
|
|
4.2
|
|
|
|
|
Opinion of Barker & McKenzie
LLP
|
|
|
|
|
|
|
|
X
|
|
|
|
Exclusive
License Agreement, dated July 18, 2016, between the Regents of the
University of Minnesota and Oxis Biotech, Inc.
|
|
10-Q
|
|
08/11/17
|
|
10.3
|
|
|
|
|
|
License
Agreement, dated September 3, 2015, among Daniel A. Vallera,
Jeffrey Lion and Oxis Biotech, Inc.
|
|
10-Q
|
|
08/11/17
|
|
10.4
|
|
|
|
|
|
Clinical Trial
Agreement, dated September 2019, between the Regents of the
University of Minnesota and GT Biopharma, Inc.
|
|
10-Q
|
|
5/15/20
|
|
10.7
|
|
|
|
|
|
Note Conversion Agreement, dated as of August 29,
2017, among GT Biopharma, Inc. and the holders of the
convertible notes and
debentures named
therein
|
|
10-Q
|
|
11/14/17
|
|
10.5
|
|
|
|
|
|
Amendment Agreement related to Note Conversion Agreement, dated October 10, 2017,
among GT Biopharma, Inc. and the holders of the convertible
notes and debentures named therein
|
|
10-Q
|
|
11/14/17
|
|
10.8
|
|
|
|
|
|
Warrant Exercise Agreement, dated August 29, 2017,
among GT Biopharma, Inc. and the warrant holders named therein
|
|
10-Q
|
|
11/14/17
|
|
10.6
|
|
|
|
|
|
Amendment Agreement related to Warrant Exercise Agreement, dated October 10,
2017, among GT Biopharma, Inc. and the warrant holders named therein
|
|
10-Q
|
|
11/14/17
|
|
10.9
|
|
|
|
|
|
Preferred
Stock Exchange Agreement, dated as of August 29, 2017, among GT
Biopharma, Inc. and the holders of preferred stock named
therein
|
|
10-Q
|
|
11/14/17
|
|
10.7
|
|
|
|
|
|
Amendment Agreement related to Preferred Stock Exchange Agreement, dated October
10, 2017, among GT Biopharma, Inc. and the holders of preferred
stock named therein
|
|
10-Q
|
|
11/14/17
|
|
10.10
|
|
|
|
|
|
Securities
Purchase Agreement, dated January 9, 2017, among OXIS
International, Inc. and the purchasers named therein
|
|
8-K
|
|
01/13/17
|
|
10.1
|
|
|
|
|
|
Form of 10% Senior Convertible Debenture (related to
Securities Purchase Agreement, dated January 9,
2017)
|
|
8-K
|
|
01/13/17
|
|
10.2
|
|
|
|
|
|
Form of Common
Stock Purchase Warrant (related to Securities Purchase Agreement,
dated January 9, 2017)
|
|
8-K
|
|
01/13/17
|
|
10.3
|
|
|
|
|
|
Securities
Purchase Agreement, dated January 22, 2018, among GT Biopharma,
Inc. and the buyers named therein
|
|
8-K
|
|
1/23/18
|
|
10.1
|
|
|
|
|
|
Registration
Rights Agreement, dated January 22, 2018, among GT Biopharma, Inc.
and the buyers named therein
|
|
8-K
|
|
1/23/18
|
|
10.2
|
|
|
|
|
|
Form of Senior
Convertible Note (related to Securities Purchase Agreement, dated
January 22, 2018)
|
|
8-K
|
|
1/23/18
|
|
10.3
|
|
|
25
|
|
Form of Warrant to Purchase Common Stock (related to Securities
Purchase Agreement, dated January 22, 2018)
|
|
8-K
|
|
1/23/18
|
|
10.4
|
|
|
|
|
|
Securities
Purchase Agreement, dated August 2, 2018, among GT Biopharma, Inc.
and the purchasers named therein
|
|
8-K
|
|
08/03/18
|
|
10.1
|
|
|
|
|
|
Form of 10% Senior Convertible Debenture (related to
Securities Purchase Agreement, dated August 2,
2018)
|
|
8-K
|
|
08/03/18
|
|
4.1
|
|
|
|
|
|
Stock Pledge
Agreement, dated August 2, 2018, by the Pledgors named therein for the benefit of Grushko
& Mittman, P.C.
|
|
10-Q
|
|
08/14/18
|
|
10.10
|
|
|
|
|
|
Security
Purchase Agreement, dated September 7, 2018, among GT Biopharma,
Inc. and the purchasers named therein
|
|
8-K
|
|
09/07/18
|
|
10.1
|
|
|
|
|
|
Form of 10% Senior Convertible Debenture (related to
Securities Purchase Agreement, dated September 7,
2018)
|
|
8-K
|
|
09/07/18
|
|
4.1
|
|
|
|
|
|
Security
Purchase Agreement, dated September 24, 2018, among GT Biopharma,
Inc. and the purchasers named therein
|
|
8-K
|
|
09/28/18
|
|
10.1
|
|
|
|
|
|
Form of 10% Senior Convertible Debenture (related to
Securities Purchase Agreement, dated September 24,
2018)
|
|
8-K
|
|
09/28/18
|
|
4.1
|
|
|
|
|
|
Securities
Purchase Agreement, dated February 4, 2019, among GT Biopharma,
Inc. and the purchasers named therein
|
|
8-K
|
|
02/06/19
|
|
10.1
|
|
|
|
|
|
Registration
Rights Agreement, dated February 4, 2019, among GT Biopharma, Inc.
and the purchasers named therein
|
|
8-K
|
|
02/06/19
|
|
10.3
|
|
|
|
|
|
Form of Secured Convertible Note (related to Securities
Purchase Agreement, dated February 4, 2019)
|
|
8-K
|
|
02/06/19
|
|
4.1
|
|
|
|
|
|
Security Agreement, dated February 4, 2019, among
GT Biopharma, Inc. and Alpha
Capital Anstalt, as collateral agent
|
|
8-K
|
|
02/06/19
|
|
10.2
|
|
|
|
|
|
Securities
Purchase Agreement, dated May 22, 2019, among GT Biopharma, Inc.
and the purchasers named therein
|
|
8-K
|
|
05/24/19
|
|
10.1
|
|
|
|
|
|
Registration
Rights Agreement, dated May 22, 2019, among GT Biopharma, Inc. and
the purchasers named therein
|
|
8-K
|
|
05/24/19
|
|
10.2
|
|
|
|
|
|
Form of Convertible Note (related to Securities Purchase
Agreement, dated August 20, 2019)
|
|
8-K
|
|
05/24/19
|
|
4.1
|
|
|
|
|
10.31
|
|
Securities
Purchase Agreement, dated August 20, 2019, among GT Biopharma, Inc.
and the purchasers named therein
|
|
8-K
|
|
05/24/19
|
|
10.1
|
|
|
|
10.32
|
|
Registration
Rights Agreement, dated August 20, 2019, among GT Biopharma, Inc.
and the purchasers named therein
|
|
8-K
|
|
05/24/19
|
|
10.2
|
|
|
|
10.33
|
|
Form of Convertible Note (related to Securities Purchase
Agreement, dated May 22, 2019)
|
|
8-K
|
|
05/15/20
|
|
4.1
|
|
|
|
|
Securities
Purchase Agreement, dated January 30, 2020, among GT Biopharma,
Inc. and the purchaser named therein
|
|
10-Q
|
|
05/15/20
|
|
10.1
|
|
|
|
|
|
Registration
Rights Agreement, dated January 30, 2020, among GT Biopharma, Inc.
and the purchaser named therein
|
|
10-Q
|
|
05/15/20
|
|
10.2
|
|
|
|
|
|
Form of Convertible Note (related to Securities Purchase
Agreement, dated January 30, 2020)
|
|
10-Q
|
|
05/15/20
|
|
10.3
|
|
|
|
|
10.37
|
|
Form
Securities Purchase Agreement among GT Biopharma, Inc. and the
purchaser named therein (executed in April/May 2020)
|
|
10-Q
|
|
05/15/20
|
|
10.1
|
|
|
|
10.38
|
|
Form
of Registration Rights Agreement among GT Biopharma, Inc. and the
purchaser named therein (executed in April/May 2020)
|
|
10-Q
|
|
05/15/20
|
|
10.2
|
|
|
|
10.39
|
|
Form of Convertible Note (related to Securities Purchase
Agreement executed in April/May 2020)
|
|
10-Q
|
|
05/15/20
|
|
10.3
|
|
|
|
|
Securities
Purchase Agreement, dated July 7, 2020, among GT Biopharma, Inc.
and the purchaser named therein
|
|
8-K
|
|
07/09/20
|
|
10.1
|
|
|
|
|
|
Registration
Rights Agreement, dated July 7, 2020, among GT Biopharma, Inc. and
the purchaser named therein
|
|
8-K
|
|
07/09/20
|
|
10.3
|
|
|
|
|
|
Form
of Convertible Note (related to Securities Purchase Agreement,
dated July 7, 2020)
|
|
8-K
|
|
07/09/20
|
|
4.1
|
|
|
|
|
|
Form of Standstill and Forbearance Agreement, dated June
23, 2020, between the Company and certain holders of
convertible notes and
debentures
|
|
8-K
|
|
06/23/20
|
|
10.1
|
|
|
|
|
|
Settlement
Agreement, dated June 19, 2020, among GT Biopharma, Inc., Empery
Asset Master Ltd., Empery Tax Efficient, LP and Empery Tax
Efficient II, LP, Anthony Cataldo and Paul Kessler.
|
|
8-K
|
|
06/19/20
|
|
10.1
|
|
|
|
|
|
Form of Convertible Note, dated June 19, 2020 (related to
Settlement Agreement, dated June 19, 2020)
|
|
8-K
|
|
06/19/20
|
|
10.2
|
|
|
|
|
|
Form of Pre-Funded Warrant to Purchase Common Stock, dated
June 19, 2020 (related to Settlement Agreement, dated June 19,
2020)
|
|
8-K
|
|
06/19/20
|
|
10.3
|
|
|
|
|
|
Executive
Employment Agreement, dated October 19, 2018, among GT Biopharma,
Inc. and Raymond W. Urbanski
|
|
10-Q
|
|
11/14/18
|
|
10.17
|
|
|
|
|
|
Consultant
Agreement, dated February 14, 2018, among GT Biopharma, Inc.,
Georgetown Translational Pharmaceuticals, Inc. and Anthony J.
Cataldo
|
|
8-K
|
|
2/21/18
|
|
10.3
|
|
|
26
|
|
Employment
agreement with Anthony Cataldo
|
|
10-Q
|
|
8/14/20
|
|
10.11
|
|
|
|
|
|
Employment
agreement with Steven Weldon
|
|
10-Q
|
|
8/14/20
|
|
10.12
|
|
|
|
|
|
Form
of Convertible Note (related to Securities Purchase Agreement,
dated September 16, 2020)
|
|
8-K
|
|
9/22/20
|
|
4.1
|
|
|
|
|
|
Securities
Purchase Agreement, dated September 16, 2020, among GT Biopharma,
Inc. and the purchasers named therein
|
|
8-K
|
|
9/22/20
|
|
10.1
|
|
|
|
|
|
Master
Services Agreement, dated October 5, 2020, between Gt Biopharma,
Inc. and Cytovance Biologics, Inc.
|
|
8-K
|
|
10/6/20
|
|
10.1
|
|
|
|
|
|
Form of First
Amendment and Extension of Standstill and Forbearance
Agreement
|
|
8-K
|
|
11/4/20
|
|
10.1
|
|
|
|
|
|
Form
of Secured Convertible Note
|
|
8-K
|
|
11/9/20
|
|
4.1
|
|
|
|
|
|
Securities Purchase
Agreement
|
|
8-K
|
|
11/9/20
|
|
10.1
|
|
|
|
|
|
Settlement
Agreement, dated as of November 9, 2020, by and among Adam Kasower,
East Ventures, Inc., A British Virgin Islands company, SV Booth
Investments III, LLC, a Delaware limited liability company and
Theorem Group, LLC, a California LLC and GT Biopharma Inc., a
Delaware corporation.
|
|
10-Q
|
|
11/13/20
|
|
10.19
|
|
|
|
|
|
Form of Settlement
Note, dated November 9, 2020.
|
|
10-Q
|
|
11/13/20
|
|
10.20
|
|
|
|
|
|
Steve Weldon Letter
of Resignation, dated November 11, 2020
|
|
10-Q
|
|
11/13/20
|
|
10.21
|
|
|
|
|
|
Board Service
Agreement with Bruce Wendel, dated November 11, 2020
|
|
10-Q
|
|
11/13/20
|
|
10.22
|
|
|
|
|
|
Board Service
Agreement with Greg Berk, dated November 11, 2020
|
|
10-Q
|
|
11/13/20
|
|
10.23
|
|
|
|
|
|
Consultant
Agreement with Michael Handelman, dated November 13,
2020
|
|
10-Q
|
|
11/13/20
|
|
10.24
|
|
|
|
|
|
Form of Amendment
to Convertible Note & Standstill Agreement
|
|
8-K
|
|
12/23/20
|
|
10.1
|
|
|
|
|
|
Settlement
Agreement, dated as of December 22, 2020, by and among Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B,
Anthony Cataldo, Paul Kessler and GT Biopharma Inc., a Delaware
corporation.
|
|
8-K
|
|
12/28/20
|
|
10.1
|
|
|
|
|
|
Settlement Note,
dated December 22, 2020, by GT Biopharma Inc. payable to Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio
B.
|
|
8-K
|
|
12/28/20
|
|
10.2
|
|
|
|
|
|
Form
of Second Amendment and Extension of Standstill and Forbearance
Agreement.
|
|
8-K
|
|
2/1/20
|
|
10.1
|
|
|
|
|
|
Form
of Amendment to Convertible Note, dated January 31,
2021
|
|
8-K
|
|
2/1/20
|
|
10.2
|
|
|
|
|
|
Board
Service Agreement with Rajesh Shrotriya, dated January 12,
2021.
|
|
S-1/A
|
|
02/08/2021
|
|
10.69
|
|
|
|
|
|
Board
Service Agreement with Michael Breen, dated January 12,
2021.
|
|
S-1/A
|
|
02/08/2021
|
|
10.70
|
|
|
|
|
|
Amendment
to Settlement Note with Alto Opportunity Master Fund, SPC -
Segregated Master Portfolio B.
|
|
S-1/A
|
|
02/08/2021
|
|
10.71
|
|
|
|
|
|
Form
of Securities Purchase Agreement - December 2020 / January 2021
Notes
|
|
S-1/A
|
|
02/08/2021
|
|
10.72
|
|
|
|
|
|
Form
of December 2020 / January 2021 Note
|
|
S-1/A
|
|
02/08/2021
|
|
10.73
|
|
|
|
21.1
|
|
Subsidiaries of GT Biopharma, Inc.
|
|
10-K
|
|
03/31/16
|
|
21.1
|
|
|
|
23.1
|
|
Consent of Seligson & Giannattasio, LLP
|
|
|
|
|
|
|
|
X
|
|
|
Consent of Weinberg & Company
|
|
|
|
|
|
|
|
X
|
|
|
|
Consent of Baker McKenzie LLP (incl. in Exhibit 5.1)
|
|
|
|
|
|
|
|
X
|
|
|
|
Power of Attorney (included on
signature page to this registration statement)
|
|
|
|
|
|
|
|
|
|
|
101.INS
|
|
XBRL Instance Document
|
|
|
|
|
|
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
|
|
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
|
|
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
|
|
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
|
|
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension
Presentation Linkbase Document
|
|
|
|
|
|
|
|
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i)
To include any
prospectus required by Section 10(a)(3) of the Securities
Act;
(ii)
To reflect in the prospectus any facts or events
arising after the effective date of this registration statement (or
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) (Section 230.424(b) of
this chapter) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration
Fee” table in the
effective registration statement; and
(iii)
To include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration
statement.
Provided, however, that:
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
27
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
controlling persons pursuant to the provisions above, or otherwise,
we have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy
as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by
the final adjudication of such issue.
28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the
City of Los Angeles, State of California, on April 22, 2021.
|
|
GT BIOPHARMA, INC.
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Anthony J.
Cataldo
|
|
|
|
|
Anthony J. Cataldo
|
|
|
|
|
Chief Executive Officer
|
|
29
Each person whose signature appears below hereby constitutes and
appoints each of Anthony J. Cataldo and Michael Handelman his true
and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him and in his name, place,
and stead, in any and all
capacities, to sign any and all
(1) amendments (including post-effective amendments) and additions
to this registration statement and (2) registration statements, and
any and all amendments thereto
(including post-effective amendments), relating to the offering
contemplated pursuant to Rule 462(b) under the Securities Act of
1933, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
and hereby grants to such attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his
substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment to the registration statement has been
signed below by the following persons in the capacities and on the
dates indicated.
|
/s/
Anthony
J. Cataldo
|
|
|
Anthony J. Cataldo, Chief Executive Officer and
Director
(principal executive officer)
|
|
|
April 22, 2021
|
|
|
|
|
|
/s/
Michael
Handelman
|
|
|
Michael Handelman, Chief Financial Officer
|
|
|
(principal financial officer and principal accounting
officer)
|
|
|
April 22, 2021
|
|
|
|
|
|
/s/
Bruce
Wendel
|
|
|
Bruce Wendel, Vice Chairman of the Board
|
|
|
April 22, 2021
|
|
|
|
|
|
/s/
Greg
Berk
|
|
|
Greg Berk, Director
|
|
|
April 22, 2021
|
|
|
|
|
|
/s/
Michael
Breen
|
|
|
Michael
Breen, Director
|
|
|
April 22, 2021
|
|
|
|
|
|
/s/
Rajesh
Shrotriva
|
|
|
Rajesh
Shrotriva, Director
|
|
|
April 22, 2021
|
|
30
Exhibit 5.1
[LETTERHEAD
OF BAKER & MCKENZIE LLP]
April
19, 2021
GT
Biopharma, Inc.
9350
Wilshire Blvd. Suite
203
Beverly
Hills, CA 90212
RE:
Registration Statement on Form S-1 for GT Biopharma,
Inc.
Ladies
and Gentlemen:
We are
acting as special securities counsel to GT Biopharma, Inc., a
Delaware corporation (the “Company”), in connection
with the Company’s Registration Statement on Form S-1 to be
filed under the U.S. Securities Act of 1933, as amended (the
“Securities
Act”), with the U.S. Securities and Exchange
Commission (the “SEC”) on or about April
15, 2021 (such registration statement, the “Registration Statement”)
relating to the offering of up to 130,246 shares of common stock
(the “ Common
Stock”) by the selling shareholders named therein (the
“Selling
Shareholders”), of which 71,422 shares are issuable
upon exercise of certain outstanding warrants held by the Selling
Shareholders.
In
connection therewith, we have examined originals or copies
certified or otherwise identified to our satisfaction of the
restated certificate of incorporation of the Company, as amended,
the restated bylaws of the Company, as amended, the corporate
proceedings with respect to the filing of the Registration
Statement, the form of warrants filed as an exhibit to the
Registration Statement and such other corporate records,
agreements, documents and instruments and certificates or
comparable documents of public officials and officers and
representatives of the Company as we have deemed necessary or
appropriate for the expression of the opinions contained
herein.
In
rendering the opinions contained herein, we have assumed the
genuineness of all signatures on all documents examined by us, the
legal capacity of all natural persons signing such documents, the
due authority of all parties signing such documents, the
authenticity of all documents submitted to us as originals and the
conformity to the originals of all documents submitted to us as
copies.
Based
upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we are of
the opinion that:
1.
The shares of
Common Stock that are currently outstanding and are to be offered
and sold from time to time by the Selling Stockholders have been
duly and validly authorized and are validly issued, fully paid and
non-assessable.
2.
The shares of
Common Stock that may be issued and are to be offered and sold from
time to time upon the exercise of warrants by the Selling
Stockholders have been duly and validly authorized and, assuming no
change in the applicable law or facts, will be validly issued,
fully paid and non-assessable when exercised in accordance with the
terms of such warrants.
We
express no opinion to the extent that, notwithstanding its current
reservation of shares of common stock for
future issuance, future issuances of securities of the Company
and/or adjustments to outstanding securities of the Company cause
such warrants to be convertible into more shares of the common
stock than the number that then remain authorized but
unissued.
The
opinions expressed above are limited to the General Corporation Law
of the State of Delaware and the federal laws of the United States
of America. We do not purport to cover herein the application of
the securities or “Blue Sky” laws of the various
states.
This
opinion letter is limited to the matters stated herein, and no
opinion is implied or may be inferred beyond the matters expressly
stated. We hereby consent to the use of our opinion as herein set
forth as an exhibit to the Registration Statement and to the use of
our name under the caption “Legal Matters” in the
prospectus forming a part of the Registration Statement. In giving
this consent, we do not hereby admit that we come within the
category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the SEC
promulgated thereunder or Item 509 of Regulation S-K.
Very
truly yours,
/s/
Baker & McKenzie LLP
BAKER
& McKENZIE LLP
Exhibit 23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration
Statement on Form S-1 of GT Biopharma, Inc. of our report dated
March 27, 2020, relating to our audit of the consolidated financial
statements as of December 31, 2019 and for the year then ended. Our
report included an explanatory paragraph expressing substantial
doubt about the ability of GT Biopharma, Inc. to continue as a
going concern.
We also
consent to the reference to our Firm under the caption
“Experts” in the Prospectus, which is part of this
Registration Statement.
/s/Seligson & Giannattasio, LLP
Seligson
& Giannattasio, LLP
White
Plains, New York
April
22, 2021
Exhibit
23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We
consent to the inclusion in the foregoing Registration Statement on
Form S-1 (File
No. 333- )
of our report dated April 16, 2021 by reference, relating to the
consolidated financial statements of GT BioPharma, Inc. as of
December 31, 2020, and for the year then ended (which report
includes an explanatory paragraph relating to substantial doubt
about GT BioPharma, Inc.’s ability to continue as a going
concern). We also consent to the reference to our firm under the
caption “Experts”.
Weinberg
& Company, P.A.
Los
Angeles, California
April
22, 2021