UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________
FORM 8-K
_____________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of
report (Date of earliest event reported): December 22,
2019
(Exact
Name of Registrant as Specified in Charter)
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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(Address
of Principal Executive Offices)
(212 )
554-4484
(Registrant's
telephone number, including area code)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
Securities
filed pursuant to Section 12(b) of the Act:
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Title
of Class
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Trading
Symbol(s)
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Exchange
Name
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Indicate by check
mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (17 CFR
§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934
(17 CFR §240.12b-2). Emerging growth company ☐
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 13(a) of the Exchange Act. ☐
Item 8.01. Other
Events.
On
December 23, 2019, TG Therapeutics, Inc. (the
“Company”) announced that it entered into a securities
purchase agreement (the “Agreement”) with an
institutional investor (the “Purchaser”) on December
22, 2019, pursuant to which the Company agreed to issue and sell to
Purchaser 5,434,783 shares of its common stock for an aggregate
amount of approximately $50,000,000 at a purchase price of $9.20
per share (the “Shares”).
The
Agreement includes customary representations, warranties, closing
conditions and covenants by the Company and the
Purchaser.
The
aggregate gross proceeds to the Company from the transaction are
expected to be approximately $50,000,000, less
expenses.
The
summary of the Agreement set forth above does not purport to be
complete and is subject to and is qualified in its entirety by
reference to the text of such Agreement, a form of which is filed
herewith as Exhibit 99.1.
Item 9.01. Financial Statements and Exhibits.
(d)
Exhibits.
The
following exhibits are filed as part of this report:
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Exhibit No.
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Description
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Opinion
of Alston & Bird LLP.
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Consent
of Alston & Bird LLP (included in Exhibit 5.1).
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Form of
Securities Purchase Agreement.
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SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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TG Therapeutics, Inc. (Registrant)
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Date:
December 23, 2019
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By:
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/s/
Sean A. Power
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Sean A.
Power
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Chief
Financial Officer
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Exhibit 5.1
90 Park
AvenueNew York, NY 10016
212-210-9400
| Fax: 212-210-9444
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Mark F.
McElreath
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Direct
Dial: 212-210-9595
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Email:
mark.mcelreath@alston.com
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December
23, 2019
TG
Therapeutics, Inc.
2
Gansevoort Street, 9th
Floor
New
York, NY 10014
Ladies
and Gentlemen:
We are
acting as counsel to TG Therapeutics, Inc., a Delaware corporation
(the “Company”) in connection
with the registration statement on Form S-3 (File No. 333-233636)
filed by the Company with the Securities and Exchange Commission
(the “Commission”) pursuant to
the Securities Act of 1933, as amended (the “Securities Act”), on
September 5, 2019 (the “Registration Statement”)
and declared effective immediately, and further in connection with
the Securities Purchase Agreement, the form of which was filed by
the Company on Form 8-K, on December 23, 2019 (the
“Agreement”) for the
issuance and sale of an aggregate of 5,434,783 shares (the
“Shares”) of common stock,
par value $0.001 per share, of the Company (the “Common
Stock”) in connection with a registered direct offering (the
“Registered Direct
Offering”). The Company is selling the Shares to an
institutional investor. This opinion is furnished to you at your
request in accordance with the requirements of Item 16 of the
Commission’s Form S-3 and Item 601(b)(5) of Regulation S-K
promulgated under the Securities Act.
We have
examined the Amended and Restated Certificate of Incorporation of
the Company, the Restated Bylaws of the Company, records of
proceedings of the Board of Directors, or committees thereof, and
records of proceedings of the stockholders, deemed by us to be
relevant to this opinion letter, and the Registration Statement. We
also have made such further legal and factual examinations and
investigations as we deemed necessary for purposes of expressing
the opinion set forth herein. In rendering such opinion, we have
relied as to factual matters upon the representations, warranties
and other statements made in the Underwriting
Agreement.
As to
certain factual matters relevant to this opinion letter, we have
relied conclusively upon originals or copies, certified or
otherwise identified to our satisfaction, of such records,
agreements, documents and instruments, including certificates or
other comparable documents of officers of the Company and of public
officials, as we have deemed appropriate as a basis for the opinion
hereinafter set forth. Except to the extent expressly set forth
herein, we have made no independent investigations with regard to
matters of fact, and, accordingly, we do not express any opinion as
to matters that might have been disclosed by independent
verification.
Based
upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion
that the Shares have been duly authorized by all necessary
corporate action of the Company and are validly issued, fully paid
and nonassessable.
Our
opinion set forth herein is limited to the General Corporation Law
of the State of Delaware, the laws of the State of New York, and
the federal law of the United States, and we do not express any
opinion herein concerning any other laws.
This
opinion letter is provided to the Company for its use solely in
connection with the Registered Direct Offering and may not be used,
circulated, quoted or otherwise relied upon for any other purpose
without our express written consent. The only opinion rendered by
us consists of that set forth in the fourth paragraph of this
letter, and no opinion may be implied or inferred beyond the
opinion expressly stated. Our opinion expressed herein is as of the
date hereof, and we undertake no obligation to advise you of any
changes in applicable law or any other matters that may come to our
attention after the date hereof that may affect our opinion
expressed herein.
We
consent to the filing of this opinion letter as an exhibit to the
Form 8-K Current Report of the Company to be filed by it in
connection with the Registered Direct Offering. In giving such
consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission
thereunder.
Sincerely,
/s/ Mark F. McElreath
Mark F.
McElreath
Partner
Alston
& Bird LLP www.alston.com
Atlanta
| Beijing | Brussels | Charlotte | Dallas | London | Los Angeles |
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D.C.
Exhibit 99.1
FORM
OF SECURITIES PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made and
entered into as of the 22nd day of December, 2019, by and among TG
Therapeutics, Inc., a Delaware corporation (the “Company”) and the
purchasers executing the purchaser signature page attached hereto
(each a “Purchaser”);
and
WHEREAS, the
Company has prepared and filed with the Securities and Exchange
Commission (the “SEC”), in accordance with
the provisions of the Securities Act of 1933, as amended (the
“Securities
Act”), and
the applicable rules and regulations thereunder, a registration
statement on Form S-3 (Commission File No. 333-233636), including a
prospectus, relating to the shares to be issued and sold pursuant
to this Agreement. The term “Registration Statement”
as used herein refers to such registration statement (including all
financial schedules and exhibits), as amended or as supplemented
and includes information contained in the form of final prospectus
and supplements thereto (the “Prospectus”) filed with
the SEC pursuant to Rule 424(b) of the rules under the Securities
Act and deemed to be part thereof at the time of effectiveness (the
“Effective
Date”) pursuant to Rule 430A of the rules under the
Securities Act.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company
and Purchaser agree as follows:
ARTICLE
I PURCHASE AND SALE
1.1 Closing. Purchaser shall purchase from
the Company, and the Company shall issue and sell to Purchaser, a
number of shares (the “Shares”) of common stock
of the Company, par value $0.001 (the “Common Stock”), equal to
Purchaser’s subscription amount as set forth on the signature
page hereto (the “Subscription Amount”)
divided by the Purchase Price (as defined below). Upon satisfaction
of the conditions set forth in Section 1.3, the closing shall occur
at the offices of the Company on December 23, 2019, or at such other place or on
such other date as the parties shall mutually agree (the
“Closing”).
1.2 Per Share Purchase Price. The per share
purchase price shall be equal to $9.20 (the “Purchase
Price”).
1.3
Closing Conditions.
(a) As a condition to
the Purchaser’s obligation to close, at the Closing, the
Company shall have satisfied each of the conditions set forth below
or shall deliver or cause to be delivered to Purchaser the items
set forth below, as appropriate:
(i)
this Agreement duly
executed by the Company;
(ii)
a copy of the
irrevocable instructions to the Company’s transfer agent
instructing such transfer agent to deliver via The Depository Trust
Company Deposit or Withdrawal at Custodian system the Shares,
registered in the name of the Purchaser;
(iii)
the representations
and warranties made by the Company herein shall be true and correct
in all material respects on the date made and on the date of the
Closing;
(iv)
all
covenants, agreements and conditions contained in this Agreement to
be performed by the Company on or prior to the date of the Closing
shall have been performed or complied with in all material
respects;
(v)
no statute,
regulation, executive order, decree, ruling or injunction shall
have been enacted, promulgated, endorsed or threatened or is
pending by or before any governmental authority of competent
jurisdiction which prohibits or threatens to prohibit the
consummation of the transaction contemplated by this Agreement;
and
(vi)
the Company shall
have filed an application with The Nasdaq Stock Market for the
listing of the Shares and shall have provided the Purchaser with
evidence of such filing.
(b) As a condition to
the Company’s obligation to close, at the Closing, Purchaser
shall have satisfied each of the conditions set forth below or
shall deliver or cause to be delivered to the Company the items set
forth below, as appropriate:
(i)
this Agreement duly
executed by Purchaser;
(ii)
the Subscription
Amount by wire transfer to the account of the Company as set forth
on the signature pages hereto;
(iii)
the representations
and warranties made by Purchaser herein shall be true and correct
in all material respects on the date made and on the date of the
Closing;
(iv)
Purchaser shall
have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by Purchaser
at or before the Closing; and
(v) no statute,
regulation, executive order, decree, ruling or injunction shall
have been enacted, promulgated, endorsed or threatened or is
pending by or before any governmental authority of competent
jurisdiction which prohibits or threatens to prohibit the
consummation of the transaction contemplated by this
Agreement.
(c) As of the date of
the Closing, there shall have been no Material Adverse Effect (as
defined below) with respect to the Company since the date
hereof.
ARTICLE
II REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the
Company. Except as set forth in the Company’s public
filings under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), the Company, including its consolidated
subsidiaries for the purposes of this Article 2, hereby makes the
following representations and warranties as of the date hereof and
as of the date of the Closing to Purchaser:
(a) Organization and Qualification. The
Company is an entity duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, with the
requisite corporate power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. The Company is duly qualified to conduct business and is
in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or
property owned by the Company makes such qualification necessary,
except where the failure to be so qualified or in good standing, as
the case may be, would not have or reasonably be expected to result
in (i) a material adverse effect on the legality, validity or
enforceability of this Agreement, (ii) a material adverse effect on
the results of operations, assets, business or financial condition
of the Company, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a
timely basis its obligations under this Agreement (any of (i), (ii)
or (iii), a “Material
Adverse Effect”).
(b) Authorization; Enforcement. The Company
has the requisite corporate power and authority to enter into and
to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The execution and
delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the
Company and no further action is required by the Company in
connection therewith. This Agreement has been (or upon delivery
will have been) duly executed by the Company and, when
delivered in accordance with the terms hereof, will constitute the
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive
relief or other equitable remedies.
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(c) No Conflicts. The execution, delivery
and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby
do not and will not (i) conflict with or violate any provision of
the Company’s Amended and Restated Certificate of
Incorporation or Amended and Restated Bylaws, (ii) conflict with,
or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company
debt or otherwise) or other understanding to which the Company is a
party or by which any property or asset of the Company is bound or
affected, or (iii) result in a
violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any
property or asset of the Company is bound or affected; except in
the case of each of clauses (ii) and (iii), such as would not have
or reasonably be expected to result in a Material Adverse
Effect.
(d) Filings, Consents and Approvals. The
Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state, local or
other governmental authority or other Person in connection with the
execution, delivery and performance by the Company of this
Agreement, other than (i) the filing with the SEC of a Form 8-K and
prospectus supplement relating to the Registration Statement, and
applicable Blue Sky filings, if any, (ii) a filing with the Nasdaq
Stock Market for the listing of the Shares and (iii) such as have
already been obtained. For purposes of this Agreement,
“Person” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
(e) Capitalization. All of the outstanding
shares of the Company’s Common Stock are, and all of the
Shares, when issued, will be, duly authorized, validly issued,
fully paid and nonassessable, and free and clear of all liens
created by the Company, and all such shares were, and the Shares,
will be issued in material compliance with all applicable federal
and state securities laws, including available exemptions
therefrom, and none of such issuances were, and the issuance of the
Shares will not be, made in violation of any pre-emptive or other
rights. The Company has reserved from its duly authorized capital
stock the number of shares of Common Stock issuable pursuant to
this Agreement. The issuance of the Shares will not trigger any
anti-dilution rights of any existing securities of the
Company.
(f) Registration Statement. The
Registration Statement has become effective under the Securities
Act, and no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the SEC; and any
request on the part of the SEC for additional information has been
complied with; the Registration Statement did not, as of the
Effective Date, and will not as of the date of this Agreement and
the Closing, contain an untrue statement of material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in
conformance with written information furnished to the Company by
Purchaser or its representatives; the Registration Statement and
any amendments thereto conformed and will conform in all material
respects to the requirements of the Securities Act; the Prospectus
will not, at time the Prospectus or any amendment or supplement
thereto was issued and at the Closing Date, contain an untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, that no representation or
warranty is made as to information contained in or omitted from the
Prospectus in reliance upon and in conformance with written
information furnished to the Company by Purchaser or its
representatives; and the Prospectus and any amendments or
supplements thereto, at time the Prospectus or any amendment or
supplement thereto
was issued and at the Closing Date, conformed and will conform in
all material respects to the requirements of the Securities
Act.
-3-
(g) SEC Reports; Financial Statements. The
Company has filed all reports, schedules, forms, statements and
other documents required to be filed by the Company under the
Securities Act and the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, for the one year preceding the date hereof
(or such shorter period as the Company was required by law or
regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by
reference therein, together with the Prospectus and the Prospectus
Supplement, being collectively referred to herein as the
“SEC
Reports”) on
a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and none of
the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of
the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied
on a consistent basis during the periods involved
(“GAAP”), except as may be
otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company as of and
for the dates thereof and the results of operations and cash flows
for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit
adjustments.
(h) Listing and Maintenance Requirements.
The Common Stock is registered pursuant to Section 12(b) or 12(g)
of the Exchange Act, and the Company has taken no action designed
to, or which to its knowledge is likely to have the effect of,
terminating the registration of the Common Stock under the Exchange
Act nor has the Company received any notification that the SEC is
contemplating terminating such registration. The Company has not,
in the 12 months preceding the date hereof, received notice from
any trading market on which the Common Stock is or has been listed
or quoted to the effect that the Company is not in compliance with
the listing or maintenance requirements of such trading market. The
Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with all such
listing and maintenance requirements. The Common Stock is currently
eligible for electronic transfer through the Depository Trust
Company or another established clearing corporation and the Company
is current in payment of the fees to the Depository Trust Company
(or such other established clearing corporation) in connection with
such electronic transfer.
2.2 Representations and Warranties of
Purchaser. Purchaser hereby represents and warrants as of
the date hereof and as of the date of the Closing to the Company as
follows:
(a) Organization; Authority. If Purchaser
is not a natural person, such Purchaser is an entity duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with full right, corporate,
limited liability or partnership power and authority to enter into
and to consummate the transactions contemplated by this Agreement
and otherwise to carry out its obligations hereunder. The
execution, delivery and performance by Purchaser of the
transactions contemplated by this Agreement has been duly
authorized by all necessary corporate or similar action on the part
of Purchaser. This Agreement to which it is a party has been duly
executed by Purchaser, and when delivered by Purchaser in
accordance with the terms hereof, will constitute the valid and
legally binding obligation of Purchaser, enforceable against it in
accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’
rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other
equitable remedies.
Information. Purchaser and its
advisors, if any, have been afforded the opportunity to ask
questions of the Company. Neither such inquiries nor any other due
diligence investigations
conducted by Purchaser or its advisors, if any, or its
representatives shall modify, amend or affect such
Purchaser’s right to rely on the Company’s
representations and warranties contained herein. Purchaser
understands that its investment in the Shares involves a high
degree of risk. Purchaser has sought such accounting, legal and tax
advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the
Shares.
-4-
(b) No Governmental Review. Purchaser
understands that no United States federal or state agency or any
other government or governmental agency has passed on or made any
recommendation or endorsement of the Shares or the fairness or
suitability of the investment in the Shares, nor have such
authorities passed upon or endorsed the merits of the offering of
the Shares.
(c) Sales; Short Selling. From and after
the date Purchaser received any information about the existence of
this offering and until the Closing, Purchaser has not offered,
pledged, sold, contracted to sell, sold any option or contract to
purchase, purchased any option or contract to sell, granted any
option, right or warrant to purchase, loaned, or otherwise
transferred or disposed of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, entered into any swap or other
arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the Common Stock, or
directly or indirectly, through related parties, Affiliates or
otherwise sold “short” or “short against the
box” (as those terms are generally understood) any equity
security of the Company. Purchaser does not currently have a short
position in shares of Common Stock. For purposes of this Agreement,
an “Affiliate” shall mean any
Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under
Rule 405 under the Securities Act.
(d) Information Regarding Purchaser.
Purchaser has provided the Company with true, complete, and correct
information regarding all applicable items set forth on
Purchaser’s signature page to this Agreement.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3.1 Furnishing of Information. Until the
time that the Purchaser owns no Shares, the Company covenants to
timely file (or obtain extensions in respect thereof and file
within the applicable grace period) all reports required to be
filed by the Company after the date hereof pursuant to the Exchange
Act even if the Company is not then subject to the reporting
requirements of the Exchange Act.
3.2 Securities Laws Disclosure; Publicity.
The Company shall (a) by 9:00 a.m. (New York City time) on the
trading day immediately following the date hereof, issue a press
release disclosing the material terms of the transactions
contemplated hereby, and (b) file a current report on Form 8-K with
the SEC within the time required by the Exchange Act. From and
after the issuance of such press release, the Company represents to
the Purchaser that it shall have publicly disclosed all material,
non-public information delivered to the Purchaser by the Company,
or any of its officers, directors, employees or agents in
connection with the transactions contemplated this Agreement. The
Company and the Purchaser shall consult with each other in issuing
any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor the Purchaser
shall issue any such press release nor otherwise make any such
public statement without the prior consent of the Company, with
respect to any press release of the Purchaser, or without the prior
consent of the Purchaser, with respect to any press release of the
Company, which consent shall not unreasonably be withheld or
delayed, except if such disclosure is required by law, in which
case the disclosing party shall promptly provide the other party
with prior notice of such public statement or
communication.
3.3 Non-Public Information. Except with
respect to the material terms and conditions of the transactions
contemplated by this Agreement, which shall be disclosed pursuant
to Section 3.2, the Company covenants and agrees that neither it,
nor any other Person acting on its behalf will provide the
Purchaser or its agents or counsel with any information that
constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto the Purchaser
shall have consented to the receipt of such information and agreed
with the Company to keep such information confidential. The Company
understands and confirms that
the Purchaser shall be relying on the foregoing covenant in
effecting transactions in securities of the Company. To the extent
that the Company delivers any material, non-public information to
the Purchaser without the Purchaser’s consent, the Company
hereby covenants and agrees that the Purchaser shall not have any
duty of confidentiality to the Company or any of its officers,
directors, agents, employees or Affiliates, or a duty to the
Company or any of its officers, directors, agents, employees or
Affiliates not to trade on the basis of, such material, non-public
information, provided that the Purchaser shall remain subject to
applicable law.
-5-
3.5 Indemnification of Purchaser. Subject
to the provisions of this Section 3.5, the Company will indemnify
and hold the Purchaser and its directors, officers, shareholders,
members, partners, employees and agents (and any other Persons with
a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title), each
Person who controls the Purchaser (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, shareholders, agents, members, partners or
employees (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such
title or any other title) of such controlling Persons (each, a
“Purchaser
Party”) harmless from any and all losses, liabilities,
obligations, claims, contingencies, damages, costs and expenses,
including all judgments, amounts paid in settlements, court costs
and reasonable attorneys’ fees and costs of investigation
that any such Purchaser Party may suffer or incur as a result of or
relating to (a) any breach of any of the representations,
warranties, covenants or agreements made by the Company in this
Agreement or (b) any action instituted against the Purchaser
Parties in any capacity, or any of them or their respective
Affiliates, by any stockholder of the Company who is not an
Affiliate of such Purchaser Party, with respect to any of the
transactions contemplated by this Agreement (unless such action is
based upon a breach of such Purchaser Party’s
representations, warranties or covenants under this Agreement or
any agreements or understandings such Purchaser Party may have with
any such stockholder or any violations by such Purchaser Party of
state or federal securities laws or any conduct by such Purchaser
Party which constitutes fraud, gross negligence, willful misconduct
or malfeasance). The indemnity agreements contained herein shall be
in addition to any cause of action or similar right of any
Purchaser Party against the Company or others and any liabilities
the Company may be subject to pursuant to law.
3.6 Listing of Common Stock. The Company
hereby agrees to use best efforts to maintain the listing or
quotation of the Common Stock on the Nasdaq Stock Market. The
Company further agrees, if the Company applies to have the Common
Stock traded on any other trading market, it will then include in
such application all of the Shares, and will take such other action
as is necessary to cause all of the Shares to be listed or quoted
on such other trading market as promptly as possible. The Company
will then take all action reasonably necessary to continue the
listing and trading of its Common Stock on a trading market and
will comply in all respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of the
trading market.
ARTICLE
IV MISCELLANEOUS
4.1 Fees and Expenses. Each party shall pay
the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery
and performance of this Agreement.
4.2 Entire Agreement. This Agreement,
together with the exhibits and schedules thereto, contains the
entire understanding of the parties with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents,
exhibits and schedules.
4.3 Notices. Any and all notices or other
communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such
notice or communication is delivered via electronic mail at the
address specified on the signature pages attached hereto prior to
6:30 p.m. (New York City time) on a Trading Day, (b) the next
Trading Day after the date of transmission, if such notice or
communication is delivered via electronic mail at the address
on the signature pages attached hereto on a day that is not a
Trading Day or later than 6:30 p.m. (New York City time) on any
Trading Day, (c) the Trading Day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service, or
(d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and
communications is set forth on the signature pages attached hereto.
For purposes of this Agreement, “Trading Day” shall
mean a day on which the Company’s Common Stock is traded on
the Nasdaq Capital Market, or, if the Company’s Common Stock
is not eligible for trading on the Nasdaq Capital Market, any day
except Saturday, Sunday and any day on which banking institutions
in the State of New York are authorized or required by law or other
governmental action to close.
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4.4 Amendments; Waivers. No provision of
this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and
Purchaser or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future
or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any
manner impair the exercise of any such right.
4.5 Construction. The headings herein are
for convenience only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any
party.
4.6 Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. Neither Company nor
Purchaser may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other
party.
4.7 No Third-Party Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and
their respective successors and permitted assigns and is not for
the benefit of, nor may any provision hereof be enforced by, any
other Person.
4.8 Governing Law. All questions concerning
the construction, validity, enforcement and interpretation of this
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without regard to
its conflicts of laws principles.
4.9 Survival. The representations,
warranties, agreements and covenants contained herein shall survive
the Closing and delivery of the Shares.
4.10 Execution.
This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. In
the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such
facsimile signature page were an original thereof.
4.11 Severability.
If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Agreement shall not in
any way be affected or impaired thereby and the parties will
attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this
Agreement.
(Signature Pages Follow)
-7-
IN
WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
TG
THERAPEUTICS, INC.
By:
Name:
Michael Weiss
Title: Chief
Executive Officer
Address for Notice:
2
Gansevoort, 9th Floor New
York, NY 10014
Attn:
Michael Weiss
With a
copy to (which shall not constitute notice): Alston & Bird
LLP
90 Park
Avenue
New
York, New York 10016 Attn: Mark F. McElreath
[Company Signature
Page to Securities Purchase Agreement]
-8-
PURCHASER
SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT
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By:
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Name:
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Title:
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Date:
December ____, 2019
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$
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NUMBER
OF SHARES
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PRICE
PER SHARE
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TOTAL
PURCHASE
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OF
COMMON STOCK
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PRICE
(the Subscription Amount)
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SUBSCRIBED
FOR
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The
above-signed Purchaser hereby provides the following information to
the Company:
1.
Please provide the
following information regarding the Purchaser:
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Purchaser
Name and Address:
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______________________________________
______________________________________
______________________________________
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Telephone:
( ) _____-________
Facsimile:
( ) ______-_________
Email:
_______________________
Tax ID
#:_____________________
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Wire Instructions
Bank
Name:
Bank
Address:
ABA
#
Account
Number:
Account
Name: TG Therapeutics, Inc.