Contract
Exhibit
10.4
THIS
WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR, SUBJECT TO
SECTION 11 HEREOF, AN OPINION OF COUNSEL (WHICH MAY BE COMPANY
COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR ANY APPLICABLE STATE
SECURITIES LAWS.
To
Purchase Shares of the Common Stock of
Dated
as of February 28, 2019 (the “Effective
Date”)
WHEREAS, TG
Therapeutics, Inc., a Delaware corporation (the “Company”), has entered
into a Loan and Security Agreement of even date herewith (as
amended and in effect from time to time, the “Loan Agreement”) with
Hercules Capital, Inc., a Maryland corporation, in its capacity as
administrative and collateral agent, Hercules Technology III, L.P.,
a Delaware limited partnership (the “Warrantholder”), and the
lenders from time to time party thereto;
WHEREAS, pursuant
to the Loan Agreement and as additional consideration to the
Warrantholder for, among other things, its agreements in the Loan
Agreement, the Company has agreed to issue to the Warrantholder
this Warrant Agreement, evidencing the right to purchase shares of
the Company’s Common Stock (this “Warrant”,
“Warrant
Agreement”, or this “Agreement”);
NOW,
THEREFORE, in consideration of the Warrantholder having executed
and delivered the Loan Agreement and provided the financial
accommodations contemplated therein, and in consideration of the
mutual covenants and agreements contained herein, the Company and
Warrantholder agree as follows:
SECTION 1. GRANT OF THE RIGHT TO
PURCHASE COMMON STOCK.
(a) For
value received, the Company hereby grants to the Warrantholder, and
the Warrantholder is entitled, upon the terms and subject to the
conditions hereinafter set forth, to subscribe for and purchase,
from the Company, up to the aggregate number of fully paid and
non-assessable shares of Common Stock (as defined below) as
determined pursuant to Section 1(b) below, at a purchase price per
share equal to the Exercise Price (as defined below). The number
and Exercise Price of such shares are subject to adjustment as
provided in Section 8. As used herein, the following terms shall
have the following meanings:
“Act” means the Securities
Act of 1933, as amended.
“Charter” means the
Company’s Certificate of Incorporation or other
constitutional document, as may be amended and in effect from time
to time.
“Common Stock” means the
Company’s common stock, $0.001 par value per share, as
presently constituted under the Charter, and any class and/or
series of Company capital stock for or into which such common stock
may be converted or exchanged in a reorganization, recapitalization
or similar transaction.
“Excluded Registration”
means (i) a registration relating to the sale of securities to
employees of the Company or a subsidiary pursuant to an equity
option, equity purchase, or similar plan; (ii) a registration
relating to an SEC Rule 145 transaction; or (iii) a registration on
any form that does not include substantially the same information
as would be required to be included in a registration statement
covering the sale of the Registrable Securities, provided that, for the
avoidance of doubt, the inclusion of information regarding this
Warrant and the plan of distribution of and selling securityholder
information related to the Common Shares issuable upon exercise of
this Warrant, shall not constitute a basis for excluding the
Registrable Securities from a registration pursuant to this clause
(iii).
“Exercise Price” means
$4.08, subject to adjustment from time to time in accordance with
the provisions of this Warrant.
“Liquid Sale” means the
closing of a Merger Event in which the consideration received by
the Company and/or its stockholders, as applicable, consists solely
of cash and/or Marketable Securities.
“Marketable Securities” in
connection with a Merger Event means securities meeting all of the
following requirements: (i) the issuer thereof is then subject to
the reporting requirements of Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), and is then current in its filing of all
required reports and other information under the Act and the
Exchange Act; (ii) the class and series of shares or other security
of the issuer that would be received by the Warrantholder in
connection with the Merger Event were the Warrantholder to exercise
this Warrant on or prior to the closing thereof is then traded on a
national securities exchange or over-the-counter market, and (iii)
following the closing of such Merger Event, the Warrantholder would
not be restricted from publicly re-selling all of the
issuer’s shares and/or other securities that would be
received by the Warrantholder in such Merger Event were the
Warrantholder to exercise this Warrant in full on or prior to the
closing of such Merger Event, except to the extent that any such
restriction (x) arises solely under federal or state securities
laws, rules or regulations, and (y) does not extend beyond six (6)
months from the closing of such Merger Event.
“Merger Event” means any
of the following: (i) a sale, lease or other transfer of all or
substantially all assets of the Company, (ii) any merger or
consolidation involving the Company in which the Company is not the
surviving entity or in which the outstanding shares of the
Company’s capital stock are otherwise converted into or
exchanged for shares of capital stock or other securities or
property of another entity, or (iii) any sale by holders of the
outstanding voting equity securities of the Company in a single
transaction or series of related transactions of shares
constituting a majority of the outstanding combined voting power of
the Company.
“Purchase Price” means,
with respect to any exercise of this Warrant, an amount equal to
the then-effective Exercise Price multiplied by the number of
shares of Common Stock as to which this Warrant is then
exercised.
“Registrable Securities”
means (i) the shares issuable upon exercise of this Warrant and
(ii) any other Common Shares issued as a dividend or other
distribution with respect to, in exchange for or in replacement of
such shares; provided that the securities
referred to in (i)-(ii) above shall cease to be Registrable
Securities (A) upon the sale of such securities pursuant to a
registration statement or (B) upon the sale of such securities
pursuant to Rule 144.
(b)
Number of Shares.
This Warrant shall be exercisable for an aggregate of 73,529 shares
of Common Stock, subject to adjustment from time to time in
accordance with the provisions of this Warrant.
SECTION 2. TERM OF THE
AGREEMENT.
The
term of this Agreement and the right to purchase Common Stock as
granted herein shall commence on the Effective Date and, subject to
Section 8(a) below, shall be exercisable until 5:00 p.m. (Eastern
Time) on the seventh (7th) anniversary of the Effective
Date.
SECTION 3. EXERCISE OF THE PURCHASE
RIGHTS.
(a)
Exercise. The
purchase rights set forth in this Agreement are exercisable by the
Warrantholder, in whole or in part, at any time, or from time to
time, prior to the expiration of the term set forth in Section 2,
by tendering to the Company at its principal office a notice of
exercise in the form attached hereto as Exhibit I (the
“Notice of
Exercise”), duly completed and executed. Promptly upon
receipt of the Notice of Exercise and the payment of the Purchase
Price in accordance with the terms set forth below, and in no event
later than three (3) business days thereafter, the Company or its
transfer agent shall either (i) issue to the Warrantholder a
certificate for the number of shares of Common Stock purchased or
(ii) credit the same via book entry to the Warrantholder, and the
Company shall execute the acknowledgment of exercise in the form
attached hereto as Exhibit
II (the “Acknowledgment of
Exercise”) indicating the number of shares which
remain subject to future purchases under this Warrant, if
any.
The
Purchase Price may be paid at the Warrantholder’s election
either (i) by cash or check, or (ii) by surrender of all or a
portion of the Warrant for shares of Common Stock to be exercised
under this Agreement and, if applicable, an amended Agreement
setting forth the remaining number of shares purchasable hereunder,
as determined below (“Net Issuance”). If the
Warrantholder elects the Net Issuance method, the Company will
issue shares of Common Stock in accordance with the following
formula:
X =
Y(A-B)
A
Where:
X = the number of shares of Common Stock to be issued
to the Warrantholder.
Y = the
number of shares of Common Stock requested to be exercised under
this Agreement.
A = the
then-current fair market value of one (1) share of Common Stock at
the time of exercise of this Warrant.
B =
the then-effective
Exercise Price.
For
purposes of the above calculation, the current fair market value of
shares of Common Stock shall mean with respect to each share of
Common Stock:
(i) at
all times when the Common Stock is traded on a national securities
exchange, inter-dealer quotation system or over-the-counter
bulletin board service, the average of the closing prices over a
five (5) day period ending three days before the day the current
fair market value of the securities is being
determined;
(ii) if
the exercise is in connection with a Merger Event, the fair market
value of a share of Common Stock shall be deemed to be the per
share value received by the holders of the outstanding shares of
Common Stock pursuant to such Merger Event as determined in
accordance with the definitive transaction documents executed among
the parties in connection therewith; or
(iii)
in cases other than as described in the foregoing clauses (i) and
(ii), the current fair market value of a share of Common Stock
shall be determined in good faith by the Company’s Board of
Directors.
Upon
partial exercise by either cash or Net Issuance, prior to the
expiration or earlier termination hereof, the Company shall
promptly issue an amended Agreement representing the remaining
number of shares purchasable hereunder. All other terms and
conditions of such amended Agreement shall be identical to those
contained herein, including, but not limited to the Effective Date
hereof.
(b)
Exercise Prior to
Expiration. To the extent this Warrant is not previously
exercised as to all shares of Common Stock subject hereto, and if
the then-current fair market value of one share of Common Stock is
greater than the Exercise Price then in effect, or, in the case of
a Liquid Sale, where the value per share of Common Stock (as
determined as of the closing of such Liquid Sale in accordance with
the definitive agreements executed by the parties in connection
with such Merger Event) to be paid to the holders thereof is
greater than the Exercise Price then in effect, this Agreement
shall be deemed automatically exercised on a Net Issuance basis
pursuant to Section 3(a) (even if not surrendered) as of
immediately before its expiration determined in accordance with
Section 2. For purposes of such automatic exercise, the fair market
value of one share of Common Stock upon such expiration shall be
determined pursuant to Section 3(a). To the extent this Warrant or
any portion hereof is deemed automatically exercised pursuant to
this Section 3(b), the Company agrees to promptly notify the
Warrantholder of the number of shares of Common Stock if any, the
Warrantholder is to receive by reason of such automatic exercise,
and to issue or cause its transfer agent to issue a certificate or
a book-entry credit to the Warrantholder evidencing such
shares.
SECTION 4. RESERVATION OF
SHARES.
During
the term of this Agreement, the Company will at all times have
authorized and reserved a sufficient number of shares of its Common
Stock to provide for the exercise of the rights to purchase Common
Stock as provided for herein. If at any time during the term hereof
the number of authorized but unissued shares of Common Stock shall
not be sufficient to permit exercise of this Warrant in full, the
Company will take such corporate action as may, in the opinion of
its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be
sufficient for such purposes.
SECTION 5. NO FRACTIONAL SHARES OR
SCRIP.
No
fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Agreement, but in lieu of such
fractional shares the Company shall make a cash payment therefor in
an amount equal to the product of (a) the Exercise Price then in
effect multiplied by (b) the fraction of a share.
SECTION 6. NO RIGHTS AS
SHAREHOLDER/STOCKHOLDER.
Without
limitation of any provision hereof, the Warrantholder agrees that
this Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder/stockholder of the Company
prior to the exercise of any of the purchase rights set forth in
this Agreement.
SECTION 7. WARRANTHOLDER
REGISTRY.
The
Company shall maintain a registry showing the name and address of
the registered holder of this Agreement. The Warrantholder’s
initial address, for purposes of such registry, is set forth in
Section 12(g) below. The Warrantholder may change such address by
giving written notice of such changed address to the
Company.
SECTION 8. ADJUSTMENT
RIGHTS.
The
Exercise Price and the number of shares of Common Stock purchasable
hereunder are subject to adjustment from time to time, as
follows:
(a)
Merger Event. In connection
with a Merger Event that is a Liquid Sale, this Warrant shall, on
and after the closing thereof, automatically and without further
action on the part of any party or other person, represent the
right to receive the consideration payable on or in respect of all
shares of Common Stock that are issuable hereunder as of
immediately prior to the closing of such Merger Event less the
Purchase Price for all such shares of Common Stock (such
consideration to include both the consideration payable at the
closing of such Merger Event and all deferred consideration payable
thereafter, if any, including, but not limited to, payments of
amounts deposited at such closing into escrow and payments in the
nature of earn-outs, milestone payments or other performance-based
payments), and such Merger Event consideration shall be paid to the
Warrantholder as and when it is paid to the holders of the
outstanding shares of Common Stock. In connection with a Merger
Event that is not a Liquid Sale, the Company shall cause the
successor or surviving entity to assume this Warrant and the
obligations of the Company hereunder on the closing thereof, and
thereafter this Warrant shall be exercisable for the same number
and type of securities or other property as the Warrantholder would
have received in consideration for the shares of Common Stock
issuable hereunder had it exercised this Warrant in full as of
immediately prior to such closing, at an aggregate Exercise Price
no greater than the aggregate Exercise Price in effect as of
immediately prior to such closing, and subject to further
adjustment from time to time in accordance with the provisions of
this Warrant. The provisions of this Section 8(a) shall similarly
apply to successive Merger Events.
(b) Reclassification
of Shares. Except for Merger Events subject to Section 8(a),
if the Company at any time shall, by combination, reclassification,
exchange or subdivision of securities or otherwise, change any of
the securities as to which purchase rights under this Agreement
exist into the same or a different number of securities of any
other class or classes of securities, this Agreement shall
thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such change
with respect to the securities which were subject to the purchase
rights under this Agreement immediately prior to such combination,
reclassification, exchange, subdivision or other change. The
provisions of this Section 8(b) shall similarly apply to successive
combination, reclassification, exchange, subdivision or other
change.
(c) Subdivision
or Combination of Shares. If the Company at any time shall
combine or subdivide its Common Stock, (i) in the case of a
subdivision, the Exercise Price shall be proportionately decreased
and the number of shares for which this Warrant is exercisable
shall be proportionately increased, or (ii) in the case of a
combination, the Exercise Price shall be proportionately increased
and the number of shares for which this Warrant is exercisable
shall be proportionately decreased.
(d) Dividends.
If the Company at any time while this Agreement is outstanding and
unexpired shall:
(i) pay
a dividend with respect to the Common Stock payable in additional
shares of Common Stock, then the Exercise Price shall be adjusted,
from and after the date of determination of stockholders entitled
to receive such dividend, to that price determined by multiplying
the Exercise Price in effect immediately prior to such date of
determination by a fraction (A) the numerator of which shall be the
total number of shares of Common Stock outstanding immediately
prior to such dividend or distribution, and (B) the denominator of
which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution, and
the number of shares of Common Stock for which this Warrant is
exercisable shall be proportionately increased; or
(ii) make
any other dividend or distribution on or with respect to Common
Stock, except any dividend or distribution specifically provided
for in any other clause of this Section 8, then, in each such
case, provision shall be made by the Company such that the
Warrantholder shall receive upon exercise or conversion of this
Warrant a proportionate share of any such dividend or distribution
as though it were the holder of the Common Stock (or other stock
for which the Common Stock is convertible) as of the record date
fixed for the determination of the stockholders of the Company
entitled to receive such dividend or distribution.
(e) Notice
of Certain Events. If: (i) the Company shall declare any
dividend or distribution upon its outstanding Common Stock, payable
in stock, cash, property or other securities (provided that the
Warrantholder in its capacity as lender under the Loan Agreement
consents to such dividend); (ii) the Company shall offer for
subscription pro rata to the holders of its Common Stock any
additional shares of stock of any class or other rights; (iii)
there shall be any Merger Event; or (iv) there shall be any
voluntary dissolution, liquidation or winding up of the Company;
then, in connection with each such event, the Company shall give
the Warrantholder notice thereof at the same time and in the same
manner as it gives notice thereof to the holders of outstanding
Common Stock. In addition, if at any time the number of shares of
Common Stock (or other securities of any other class or classes of
securities of the Company for which this Warrant is then
exercisable) outstanding is reduced such that the number of shares
of Common Stock or other securities issuable upon exercise of this
Warrant shall exceed five percent (5%) of the then outstanding
class of such securities, then, within three (3) business days of
such event, the Company shall give the Warrantholder written notice
thereof.
SECTION 9. REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE COMPANY.
(a) Reservation
of Common Stock. The Company covenants and agrees that all
shares of Common Stock that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly
issued and outstanding, fully paid and non-assessable, and will be
free of any taxes, liens, charges or encumbrances of any nature
whatsoever; provided, that the Common Stock issuable pursuant to
this Agreement may be subject to restrictions on transfer under
state and/or federal securities laws. The Company has made
available to the Warrantholder true, correct and complete copies of
its Charter and bylaws currently in effect. The issuance of
certificates or book-entry credit for shares of Common Stock upon
exercise of this Warrant shall be made without charge to the
Warrantholder for any issuance tax in respect thereof, or other
cost incurred by the Company in connection with such exercise and
related issuance of shares of Common Stock. The Company further
covenants and agrees that the Company will, at all times during the
term hereof, have authorized and reserved, free from preemptive
rights, a sufficient number of shares of Common Stock to provide
for the exercise of the rights represented by this
Warrant.
(b) Due
Authority. The execution and delivery by the Company of this
Agreement and the performance of all obligations of the Company
hereunder, including the issuance to the Warrantholder of the right
to acquire the shares of Common Stock, have been duly authorized by
all necessary corporate action on the part of the Company. This
Agreement: (i) does not violate the Charter or the Company’s
current bylaws; (ii) does not contravene any law or governmental
rule, regulation or order applicable to the Company; and (iii)
except as could not reasonably be expected to have a Material
Adverse Effect (as defined in the Loan Agreement), does not and
will not contravene any provision of, or constitute a default
under, any indenture, mortgage, contract or other instrument to
which the Company is a party or by which it is bound. This
Agreement constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors’ rights
generally (including, without limitation, fraudulent conveyance
laws) and by general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(c) Consents
and Approvals. No consent or approval of, giving of notice
to, registration with, or taking of any other action in respect of
any state, federal or other governmental authority or agency is
required with respect to the execution, delivery and performance by
the Company of its obligations under this Agreement, except for the
filing of notices pursuant to Regulation D under the Act and any
filing required by applicable state securities law, which filings
will be effective by the time required thereby.
(d) Exempt
Transaction. Subject to the accuracy of the
Warrantholder’s representations in Section 10, the issuance
of the Common Stock upon exercise of this Agreement will constitute
a transaction exempt from (i) the registration requirements of
Section 5 of the Act, in reliance upon Section 4(a)(2) thereof, and
(ii) the qualification requirements of the applicable state
securities laws.
(e) Information
Rights. At all times (if any) prior to the earlier to occur
of (x) the date on which all shares of Common Stock issued on
exercise of this Warrant have been sold, or (y) the expiration or
earlier termination of this Warrant, when the Company shall not be
required to file reports pursuant to Section 13 or 15(d) of the
Exchange Act or shall not have timely filed all such required
reports, the Warrantholder shall be entitled to the information
rights contained in Section 7.1(b) – (f) of the Loan
Agreement, and in any such event Section 7.1(b) – (f) of the
Loan Agreement is hereby incorporated into this Agreement by this
reference as though fully set forth herein, provided, however, that
the Company shall not be required to deliver a Compliance
Certificate once all Indebtedness (as defined in the Loan
Agreement) owed by the Company and its Subsidiaries to
Warrantholder has been repaid.
(f) Registration
of Shares. If the Company proposes to register (including,
for this purpose, a registration effected by the Company for the
sale by the Company of its securities and/or the resale of
securities of the Company by security holders other than the
Warrantholder) the sale or resale of any of its Common Shares or
other securities under the Act in connection with the public
offering of such securities (other than in an Excluded
Registration), the Company shall cause to be registered
all of the Registrable Securities in such registration. The Company
shall have the right to terminate or withdraw any registration
initiated by it under this Section 9(f) before the effective date
of such registration, provided that the
Company’s obligations to register the Registrable Securities
under this Section 9(f) in any subsequent registration (other than
in an Excluded Registration) shall continue following any such
termination or withdrawal. All fees and expenses incident to the
Company’s performance of or compliance with its obligations
under this Section 9(f) (excluding any underwriting discounts and
selling commissions) shall be borne by the Company.
(g) Rule
144 Compliance. The Company shall, at all times prior to the
earlier to occur of (i) the date of sale or other disposition by
Warrantholder of this Warrant or all shares of Common Stock issued
on exercise of this Warrant, (ii) the registration pursuant to
subsection (f) above of the shares issued on exercise of this
Warrant, or (iii) the expiration or earlier termination of this
Warrant if the Warrant has not been exercised in full or in part on
such date, use all commercially reasonable efforts to timely file
all reports required under the Exchange Act and otherwise timely
take all actions necessary to permit the Warrantholder to sell or
otherwise dispose of this Warrant and the shares of Common Stock
issued on exercise hereof pursuant to Rule 144 promulgated under
the Act (“Rule 144”), provided that the foregoing shall
not apply in the event of a Merger Event following which the
successor or surviving entity is not subject to the reporting
requirements of the Exchange Act. If the Warrantholder proposes to
sell Common Stock issuable upon the exercise of this Agreement in
compliance with Rule 144, then, upon the Warrantholder’s
written request to the Company, the Company shall furnish to the
Warrantholder, within five (5) business days after receipt of such
request, a written statement confirming the Company’s
compliance with the filing and other requirements of such Rule
144.
SECTION 10. REPRESENTATIONS AND
COVENANTS OF THE WARRANTHOLDER.
This
Agreement has been entered into by the Company in reliance upon the
following representations and covenants of the
Warrantholder:
(a) Investment
Purpose. This Warrant and the shares issued on exercise
hereof will be acquired for investment and not with a view to the
sale or distribution of any part thereof in violation of applicable
federal and state securities laws, and the Warrantholder has no
present intention of selling or engaging in any public distribution
of the same except pursuant to a registration or
exemption.
(b) Private
Issue. The Warrantholder understands that (i) the Common
Stock issuable upon exercise of this Agreement is not, as of the
Effective Date, registered under the Act or qualified under
applicable state securities laws, and (ii) the Company’s
reliance on exemption from such registration is predicated on the
representations set forth in this Section 10.
(c) Financial
Risk. The Warrantholder has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment, and has the ability to bear the
economic risks of its investment.
(d) Accredited
Investor. The Warrantholder is an “accredited
investor” within the meaning of Rule 501 of Regulation D
promulgated under the Act, as presently in effect
(“Regulation D”).
(e) No
Short Sales. The Warrantholder has not at any time on or
prior to the Effective Date engaged in any short sales or
equivalent transactions in the Common Stock. Warrantholder agrees
that at all times from and after the Effective Date and on or
before the expiration or earlier termination of this Warrant, it
shall not engage in any short sales or equivalent transactions in
the Common Stock.
SECTION 11. TRANSFERS.
Subject
to compliance with applicable federal and state securities laws,
this Agreement and all rights hereunder are transferable, in whole
or in part, without charge to the holder hereof (except for
transfer taxes) upon surrender of this Agreement properly endorsed.
Each taker and holder of this Agreement, by taking or holding the
same, consents and agrees that this Agreement, when endorsed in
blank, shall be deemed negotiable, and that the holder hereof, when
this Agreement shall have been so endorsed and its transfer
recorded on the Company’s books, shall be treated by the
Company and all other persons dealing with this Agreement as the
absolute owner hereof for any purpose and as the person entitled to
exercise the rights represented by this Agreement. The transfer of
this Agreement shall be recorded on the books of the Company upon
receipt by the Company of a notice of transfer in the form attached
hereto as Exhibit III (the “Transfer Notice”), at its
principal offices and the payment to the Company of all transfer
taxes and other governmental charges imposed on such transfer.
Until the Company receives such Transfer Notice, the Company may
treat the registered owner hereof as the owner for all purposes.
Notwithstanding anything herein or in any legend to the contrary,
the Company shall not require an opinion of counsel in connection
with any sale, assignment or other transfer by the Warrantholder of
this Warrant (or any portion hereof or any interest herein) or of
any shares of Common Stock issued upon any exercise hereof to an
affiliate (as defined in Regulation D) of the Warrantholder,
provided that such affiliate is an “accredited
investor” as defined in Regulation D.
SECTION 12. MISCELLANEOUS.
(a) Effective
Date. The provisions of this Agreement shall be construed
and shall be given effect in all respects as if it had been
executed and delivered by the Company on the date hereof. This
Agreement shall be binding upon any successors or assigns of the
Company.
(b) Remedies.
In the event of any default hereunder, the non-defaulting party may
proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including but not limited to an action for
damages as a result of any such default, and/or an action for
specific performance for any default where the Warrantholder will
not have an adequate remedy at law and where damages will not be
readily ascertainable.
(c) No
Impairment of Rights. The Company will not, by amendment of
its Charter or through any other means, avoid or seek to avoid the
observance or performance of any of the terms of this Agreement,
but will at all times in good faith assist in the carrying out of
all such terms and in the taking of all such actions as may be
necessary or appropriate in order to protect the rights of the
Warrantholder against impairment.
(d) Additional
Documents. The Company agrees to supply such other documents
as the Warrantholder may from time to time reasonably
request.
(e) Attorneys’
Fees. In any litigation, arbitration or court proceeding
between the Company and the Warrantholder relating hereto, the
prevailing party shall be entitled to attorneys’ fees and
expenses and all costs of proceedings incurred in enforcing this
Agreement. For the purposes of this Section 12(e), attorneys’
fees shall include without limitation fees incurred in connection
with the following: (i) contempt proceedings; (ii) discovery; (iii)
any motion, proceeding or other activity of any kind in connection
with an insolvency proceeding; (iv) garnishment, levy, and debtor
and third party examinations; and (v) post-judgment motions and
proceedings of any kind, including without limitation any activity
taken to collect or enforce any judgment.
(f) Severability.
In the event any one or more of the provisions of this Agreement
shall for any reason be held invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and the
invalid, illegal or unenforceable provision shall be replaced by a
mutually acceptable valid, legal and enforceable provision, which
comes closest to the intention of the parties underlying the
invalid, illegal or unenforceable provision.
(g) Notices.
Except as otherwise provided herein, any notice, demand, request,
consent, approval, declaration, service of process or other
communication that is required, contemplated, or permitted under
this Agreement or with respect to the subject matter hereof shall
be in writing, and shall be deemed to have been validly served,
given, delivered, and received upon the earlier of:
(i) personal delivery to the party to be notified,
(ii) when sent by confirmed telex, electronic transmission or
facsimile if sent during normal business hours of the recipient, if
not, then on the next business day, (iii) five (5) days after
having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (iv) one day after deposit with
a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt, and shall be
addressed to the party to be notified as follows:
If to
the Warrantholder:
HERCULES TECHNOLOGY
III, L.P.
Legal
Department
Attention: Chief
Legal Officer and Xxxxxxx Xxxxx and Xxxxx Xxxxx
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx, XX 00000
Facsimile:
000-000-0000
Telephone:
000-000-0000
Email :
xxxxx@xxxxxxxxxxxx.xxx; xxxxxx@xxxx.xxx;
xxxxxx@xxxx.xxx
With a copy to:
XXXXXX
& XXXXXXX
Attn:
Xxxx Xxxxxxxx
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Facsimile: (000)
000-0000
Telephone: (000)
000-0000
Email:
xxxx.xxxxxxxx@xx.xxx
If to
the Company:
Attention: Xxxx
Xxxxx, Chief Financial Officer
0
Xxxxxxxxxx Xx., 0xx Xxxxx
Xxx
Xxxx, XX 00000
Telephone:
(000)-000-0000
Email:
xx@xxxxxxx.xxx
or to
such other address as each party may designate for itself by like
notice.
(h) Entire
Agreement; Amendments. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the
subject matter hereof, and supersedes and replaces in their
entirety any prior proposals, term sheets, letters, negotiations or
other documents or agreements, whether written or oral, with
respect to the subject matter hereof. None of the terms of this
Agreement may be amended except by an instrument executed by each
of the parties hereto.
(i) Headings.
The various headings in this Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof.
(j) Advice
of Counsel. Each of the parties represents to each other
party hereto that it has discussed (or had an opportunity to
discuss) with its counsel this Agreement and, specifically, the
provisions of Sections 12(n), 12(o), 12(p), 12(q) and
12(r).
(k) No
Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of
any provisions of this Agreement.
(l) No
Waiver. No omission or delay by the Warrantholder at any
time to enforce any right or remedy reserved to it, or to require
performance of any of the terms, covenants or provisions hereof by
the Company at any time designated, shall be a waiver of any such
right or remedy to which the Warrantholder is entitled, nor shall
it in any way affect the right of the Warrantholder to enforce such
provisions thereafter during the term of this
Agreement.
(m) Survival.
All agreements, representations and warranties contained in this
Agreement or in any document delivered pursuant hereto shall be for
the benefit of the Warrantholder and shall survive the execution
and delivery of this Agreement and the expiration or other
termination of this Agreement.
(n) Governing
Law. This Agreement has been negotiated and delivered to the
Warrantholder in the State of California, and shall be deemed to
have been accepted by the Warrantholder in the State of California.
Delivery of Common Stock to the Warrantholder by the Company under
this Agreement is due in the State of California. This Agreement
shall be governed by, and construed and enforced in accordance
with, the laws of the State of California, excluding conflict of
laws principles that would cause the application of laws of any
other jurisdiction.
(o) Consent
to Jurisdiction and Venue. All judicial proceedings arising
in or under or related to this Agreement may be brought in any
state or federal court of competent jurisdiction located in the
State of California. By execution and delivery of this Agreement,
each party hereto generally and unconditionally: (i) consents to
personal jurisdiction in Santa Xxxxx County, State of California;
(ii) waives any objection as to jurisdiction or venue in Santa
Xxxxx County, State of California; (iii) agrees not to assert any
defense based on lack of jurisdiction or venue in the aforesaid
courts; and (iv) irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement. Service of
process on any party hereto in any action arising out of or
relating to this Agreement shall be effective if given in
accordance with the requirements for notice set forth in Section
12(g), and shall be deemed effective and received as set forth in
Section 12(g). Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the
right of either party to bring proceedings in the courts of any
other jurisdiction.
(p) Mutual
Waiver of Jury Trial. Because disputes arising in connection
with complex financial transactions are most quickly and
economically resolved by an experienced and expert person and the
parties wish applicable state and federal laws to apply (rather
than arbitration rules), the parties desire that their disputes
arising under or in connection with this Warrant be resolved by a
judge applying such applicable laws. EACH OF THE COMPANY AND THE
WARRANTHOLDER SPECIFICALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY
JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM,
THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY,
“CLAIMS”) ASSERTED BY THE COMPANY AGAINST THE
WARRANTHOLDER OR ITS ASSIGNEE OR BY THE WARRANTHOLDER OR ITS
ASSIGNEE AGAINST THE COMPANY RELATING TO THIS WARRANT. This waiver
extends to all such Claims, including Claims that involve persons
or entities other the Company and the Warrantholder; Claims that
arise out of or are in any way connected to the relationship
between the Company and the Warrantholder; and any Claims for
damages, breach of contract, specific performance, or any equitable
or legal relief of any kind, arising out of this
Agreement.
(q) Arbitration.
If the Mutual Waiver of Jury Trial set forth in Section 12(p) is
ineffective or unenforceable, the parties agree that all Claims
shall be submitted to binding arbitration in accordance with the
commercial arbitration rules of JAMS (the “Rules”),
such arbitration to occur before one arbitrator, which arbitrator
shall be a retired California state judge or a retired Federal
court judge. Such proceeding shall be conducted in Santa Xxxxx
County, State of California, with California rules of evidence and
discovery applicable to such arbitration. The decision of the
arbitrator shall be binding on the parties, and shall be final and
nonappealable to the maximum extent permitted by law. Any judgment
rendered by the arbitrator may be entered in a court of competent
jurisdiction and enforced by the prevailing party as a final
judgment of such court.
(r) Pre-arbitration
Relief. In the event Claims are to be resolved by
arbitration, either party may seek from a court of competent
jurisdiction identified in Section 12(o), any prejudgment order,
writ or other relief and have such prejudgment order, writ or other
relief enforced to the fullest extent permitted by law
notwithstanding that all Claims are otherwise subject to resolution
by binding arbitration.
(s) Counterparts.
This Agreement and any amendments, waivers, consents or supplements
hereto may be executed in any number of counterparts (including by
facsimile or electronic delivery (PDF)), and by different parties
hereto in separate counterparts, each of which when so delivered
shall be deemed an original, but all of which counterparts shall
constitute but one and the same instrument.
(t) Specific
Performance. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to the
Warrantholder by reason of the Company’s failure to perform
any of the obligations under this Agreement and agree that the
terms of this Agreement shall be specifically enforceable by the
Warrantholder. If the Warrantholder institutes any action or
proceeding to specifically enforce the provisions hereof, any
person against whom such action or proceeding is brought hereby
waives the claim or defense therein that the Warrantholder has an
adequate remedy at law, and such person shall not offer in any such
action or proceeding the claim or defense that such remedy at law
exists.
(u) Lost,
Stolen, Mutilated or Destroyed Warrant. If this Warrant is
lost, stolen, mutilated or destroyed, the Company may, on such
terms as to indemnity or otherwise as it may reasonably impose
(which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination and
tenor as this Warrant so lost, stolen, mutilated or destroyed. Any
such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
(v) Legends.
To the extent required by applicable laws, this Warrant and the
shares of Common Stock issuable hereunder (and the securities
issuable, directly or indirectly, upon conversion of such shares of
Common Stock, if any) may be imprinted with a restricted securities
legend in substantially the following form:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION RELATED
THERETO OR, SUBJECT TO SECTION 11 OF THE WARRANT AGREEMENT DATED
FEBRUARY 28, 2019, BETWEEN THE COMPANY AND HERCULES TECHNOLOGY III,
L.P., AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL)
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACTOR ANY STATE SECURITIES
LAWS.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed by its officers thereunto duly authorized
as of the Effective Date.
By:
______________________________
Name:
______________________________
Title:
______________________________
[Signature Page to Warrant]
WARRANTHOLDER:
HERCULES TECHNOLOGY III, L.P.,
a
Delaware limited partnership
By:
Hercules Technology
SBIC Management, LLC, its General PartnerBy:
Hercules Capital,
Inc.,
its ManagerBy:
Name:
__________________________
Title:
__________________________
[Signature Page to Warrant]
EXHIBIT
I
NOTICE
OF EXERCISE
To:
____________________________
(1)
The undersigned
Warrantholder hereby elects to purchase _______ shares of the
Common Stock of TG Therapeutics, Inc., a Delaware corporation
(“Company”), pursuant to the terms of the Warrant
Agreement dated the 28th day of February, 2019 (the “Warrant
Agreement”) by and between Company and the Warrantholder, and
tenders herewith payment of the Purchase Price in full, together
with all applicable transfer taxes, if any. [NET ISSUANCE: elects
pursuant to Section 3(a) of the Warrant Agreement to effect a
Net Issuance.]
(2)
Please issue a
certificate or certificates or book-entry credit(s) representing
said shares of Common Stock in the name of the undersigned or in
such other name as is specified below.
_________________________________
(Name)
_________________________________
(Address)
WARRANTHOLDER:
HERCULES TECHNOLOGY III, L.P.,
a Delaware
limited partnership
By:
Hercules Technology
SBIC Management, LLC,its General Partner
By:
Hercules Capital, Inc., its
Manager
By:
Name:
Title:
EXHIBIT
II
ACKNOWLEDGMENT OF
EXERCISE
The
undersigned ____________________________________, hereby
acknowledges receipt of the “Notice of Exercise” from
Hercules Technology III, L.P. (the “Warrantholder”) to
purchase ____ shares of the Common Stock of TG Therapeutics, Inc.,
a Delaware corporation (“Company”), pursuant to the
terms of the Warrant Agreement by and between Company and the
Warrantholder dated February 28, 2019 (the
“Agreement”), and further acknowledges that ______
shares remain subject to purchase under the terms of the
Agreement.
COMPANY:
________________________________
By:
Name:
Title:
EXHIBIT
III
TRANSFER
NOTICE
(To
transfer or assign the foregoing Agreement execute this form and
supply required information. Do not use this form to purchase
shares.)
FOR
VALUE RECEIVED, the foregoing Agreement and all rights evidenced
thereby are hereby transferred and assigned to
_________________________________________________________________
(Please
Print)
whose
address
is___________________________________________________
_________________________________________________________________
Dated:
_______________________________
Holder’s
Signature:
_______________________________
Holder’s
Address:
_______________________________
Signature
Guaranteed:
_______________________________
