SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT
SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT
This SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made and entered into as of September 17, 2009, by and between SIGA TECHNOLOGIES, INC., a Delaware corporation (the “Company”),
and MACANDREWS & FORBES LLC, a Delaware limited liability company (the “Purchaser”).
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(i) is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in shares representing an investment decision like that involved in the acquiring of the Shares and Related
Consideration Warrants, including investments in securities issued by the Company and comparable entities, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to acquire the Shares and Related Consideration Warrants;
(ii) is acquiring the Shares and Related Consideration Warrants in the ordinary course of its business and for its own account for investment only and with no present intention or view toward the public sale or distribution thereof, and
no arrangement or understanding exists with any other persons regarding the public sale or distribution of any Shares and/or Related Consideration Warrants; and
(iii) will not, directly or indirectly, except in compliance with the Securities Act, the rules and regulations promulgated thereunder and such other securities or blue sky laws as may be applicable, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares and Related Consideration Warrants.
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is being made as to the future value of the Common Stock and that the Purchaser has carefully read and considered the matters set forth in public filings made by the Company with the Securities and Exchange Commission (“SEC”). The Purchaser has the
knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares and Related Consideration Warrants and has the ability to bear the economic risks of an investment in the Shares and Related Consideration Warrants. The Purchaser has had a reasonable opportunity to review the Company’s public filings with the SEC, to ask questions of the Company and its representatives; and the Company has answered all inquiries that the
Purchaser or the Purchaser’s representatives have put to it, and all such inquiries have been answered to the full satisfaction of the Purchaser.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER SECURITIES LAWS, AND SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNDER THE SAID ACT AND LAWS OR AN EXEMPTION THEREFROM.
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or made any recommendation or endorsement of the Shares and Related Consideration Warrants.
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(a) If the Company shall receive from the Purchaser a written request that the Company effect a registration of the Shares and Related Consideration Warrant Shares (together, the “Registrable
Securities”) it shall as soon as reasonably practicable effect such registration as may be so requested and as would permit or facilitate the sale and distribution of all the Registrable Securities of the Purchaser as specified in such written request; provided, however, that the Company shall not be obliged to take any action to effect any such registration:
(i) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification
or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(ii) During the period starting with the date thirty (30) days prior to the Company’s estimated date of filing of, and ending on the date three (3) months
immediately following the effective date of, any registration statement pertaining to securities of the Company sold by the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) After the Company has effected an aggregate of three (3) registrations pursuant to this Section 6(a) or 6.2(b), provided that (x) such registrations have been
declared or ordered effective and (y) the offerings thereunder are not interfered with by any stop order, injunction, order or requirement of the SEC or other agency or court of competent jurisdiction; or
(iv) If the Company shall furnish to the Purchaser a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board
of Directors it would (A) be materially detrimental to the Company or its stockholders, (B) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company, or (C) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, if a registration statement (a “Registration Statement”) were to be filed
in the near future, then the Company’s obligation to register, qualify or comply under this Section 6(a) shall be deferred for a period not to exceed ninety (90) days from the date of receipt of written request from Purchaser, provided, however, that in such event, (x) the Purchaser shall be entitled to withdraw such request and retain its rights under this Section 6(a) and (y) the Company shall not utilize this right more than once in any twelve (12) month period.
(b) If, at any time, the Company shall determine to proceed with the preparation and filing of a Registration Statement pursuant to the Securities Act in connection with the proposed
offer and sale of any of its securities by it or any of its security holders (other than a Registration Statement on Form X-0, X-0, or other limited purpose form), the Company will give written
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notice of its determination to the Purchaser. Upon receipt of a written request from the Purchaser, within ten (10) days after receipt of any such notice from the Purchaser, the Company will cause the Registrable Securities requested by the Purchaser to be included in such Registration Statement, all to the extent required
to permit the sale or other disposition by the Purchaser, of such shares. The obligation of the Company under this Section 6(b) shall be limited as to three registration statements to which it applies, unless the Effectiveness Period (as defined below) has ended, provided that there shall be no duplication, and any Registrable Securities which are already included in a Registration Statement (other than a Registration Statement which has been withdrawn) may not be included
in any other Registration Statement. Notwithstanding the foregoing, the Company shall have the right to postpone or withdraw any registration effected pursuant to this Section 6(b). In addition, if any registration effected pursuant to Section 6(a) or this Section 6(b) is a registered public offering involving an underwriting, the Company shall so advise the Purchaser in response to the written request received pursuant to Section 6(a) or as part of the
written notice given pursuant to this Section 6(b). In such event, the right of the Purchaser to include Registrable Securities in such registration pursuant to Section 6(a) or this Section 6(b) shall be conditioned upon the Purchaser’s execution of an underwriting agreement upon customary terms with the underwriter or underwriters selected by the Company. Furthermore, if the lead underwriter advises the Company that marketing factors require a limitation (or elimination) of shares
held by the Purchaser to be underwritten, the number of Registrable Securities that may be included in such Registration Statement and underwritten, if any, shall be allocated among the Purchaser and other holders, if any, of registration rights requesting registration in proportion, as nearly as practicable, to the respective number of shares held by them and for which they have registration rights on the date the Company gives the notice specified in Section 6(a) or this Section 6(b).
(c) The Company will maintain the Registration Statement or post-effective amendment filed under the terms of this Agreement effective under the Securities Act until the earlier
of (i) the date that all of the Registrable Securities have been sold pursuant to such Registration Statement or (ii) all Registrable Securities have been otherwise transferred to persons who may trade such shares without restriction under the Securities Act, and the Company has delivered a new certificate or other evidence of ownership for such securities not bearing a restrictive legend. The Company shall respond as promptly as possible, but in no event later than fifteen
(15) business days, to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Purchaser with true and complete copies of all correspondence from and to the SEC relating to the Registration Statement.
(d) All fees, disbursements and out-of-pocket expenses and costs incurred by the Company in connection with the preparation and filing of the Registration Statement, in making filings
with FINRA, and in complying with applicable federal securities and Blue Sky laws (including, without limitation, all attorneys’ fees of the Company) shall be borne by the Company. The Purchaser shall bear the cost of underwriting and/or brokerage discounts, fees and commissions, if any, applicable to the Registrable Securities being registered and the fees and expenses of their counsel. The Company shall use its commercially reasonable efforts to qualify any of the Related Consideration
Warrant Shares for sale in such states as the Purchaser reasonably designates. However, the Company shall not be required to qualify in any state which will require an escrow or other restriction relating to the Company, or which will require
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the Company to qualify to do business in such state or require the Company to file therein any general consent to service of process.
(e) Certificates evidencing the Registrable Securities shall not contain any legend: (i) while a Registration Statement covering the resale of such security is effective under the Securities
Act if the registered holder has undertaken to only sell in accordance with the prospectus delivery and other requirements of the Registration Statement and Securities Act, (ii) following any sale of such Registrable Securities pursuant to Rule 144, (iii) if such Registrable Securities are eligible for legend removal under Rule 144 or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC). The
Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent promptly after the effectiveness of the Registration Statement (in the case of item (i) herein) or upon request of the Purchaser (in the case of items (ii), (iii) or (iv) herein) if required by the Company’s transfer agent to effect the removal of the legend hereunder. If all or any of the Related Consideration Warrants are exercised at a time when there is an effective registration statement to cover
the resale of the underlying shares thereof, or if such underlying shares may be sold under Rule 144 or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations thereof), then such underlying shares shall be issued free of all legends. The Company agrees that following the effectiveness of the Registration Statement or at such time as such legend is no longer required under this Section 6(e), it will, promptly following the delivery
by the Purchaser to the Company’s transfer agent of a certificate representing Registrable Securities accompanied by appropriate stock power or other required documentation, as applicable, issued with a restrictive legend, deliver or cause to be delivered to the Purchaser a certificate representing such shares that is free from all restrictive and other legends, in each case without charge to the Purchaser other than customary transfer fees which may be charged by the transfer agent or broker-dealer. The
Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section 6(e).
(f) The Company will prepare and make available to the Purchaser and make publicly available in accordance with Rule 144(c) such information as is required for the Purchaser to sell the
Registrable Securities under Rule 144. The Company further covenants that it will take such further action as the Purchaser may reasonably request, all to the extent required from time to time to enable the Purchaser to sell such Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including causing its counsel to issue such customary legal opinions as may be reasonably requested by the Purchaser in connection with such sales. In
addition, the Purchaser shall be entitled to three piggyback registration rights under Section 6(b) above.
(g) In the case of each registration effected by the Company pursuant to this Section 6, the Company will keep the Purchaser advised in writing as to the initiation of each registration
and as to the completion thereof. At its expense, the Company will:
(i) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
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respect to a disposition of all securities covered by such registration statement;
(ii) Notify the Purchaser, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as
a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing, and at the request of the Purchaser, prepare and furnish to it a reasonable number of copies of a supplement to, or an amendment of, such prospectus as may be necessary so that, as thereafter
delivered to the Purchaser, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing; provided that, for not more than ten (10) consecutive business days (or a total of not more than thirty
(30) calendar days in any 12-month period), the Company may delay the disclosure of material non-public information concerning the Company the public disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company and which may, based on the written advice of outside counsel, be delayed under applicable law or regulation (an “Allowed Delay”); provided, further,
that the Company shall promptly (a) notify the Purchaser in writing of the existence of (but in no event, without the prior written consent of the Purchaser, shall the Company disclose to the Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay and (b) advise the Purchaser in writing to cease all sales under such registration statement until the termination of the Allowed Delay;
(iii) Use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a registration statement, and, if such
an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify the Purchaser (and, in the event of an underwritten offering, the managing underwriter) of the issuance of such order and the resolution thereof; and
(iv) Otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC.
(h) To the extent the Purchaser includes any Registrable Securities in a registration statement pursuant to the terms hereof, the Company will indemnify and hold harmless the Purchaser
and its directors and officers from and against, and will reimburse the Purchaser and/or its directors and officers with respect to, any and all loss, damage, liability, cost and expense to which the Purchaser may become subject under the Securities Act or otherwise, insofar as such losses, damages, liabilities, costs or expenses are caused by any untrue statement or alleged untrue statement of any material fact contained in such registration statement, any prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such loss, damage, liability, cost
or expense arises out of, or is based
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upon, an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by the Purchaser in writing specifically for use in the preparation thereof.
(i) To the extent the Purchaser includes any Registrable Securities in a registration statement pursuant to the terms hereof, the Purchaser will indemnify and hold harmless the Company,
its directors and officers, and will reimburse the Company, its directors and officers with respect to any and all loss, damage, liability, cost or expense to which the Company and/or its directors and officers may become subject under the Securities Act or otherwise, insofar as such losses, damages, liabilities, costs or expenses are caused by any untrue statement or alleged untrue statement of any material fact contained in such registration statement, any prospectus contained therein or any amendment or supplement
thereto, or arise out of, or are based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in reliance upon and in conformity with written information furnished by or on behalf of the Purchaser specifically
for use in the preparation thereof.
(j) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts
for which it would otherwise be liable hereunder to the extent permitted by law, provided that (i) no contribution shall be made under circumstances where the indemnifying party would not have been liable for indemnification pursuant to the provisions hereof, (ii) no seller of securities guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any seller of securities who was not guilty of such fraudulent misrepresentation and (iii)
the amount of the contribution together with any other payments made in respect of such loss, damage, liability or expense by any seller of securities shall be limited to the net amount of proceeds received by such seller from the sale of such securities.
(k) The Purchaser will cooperate with the Company in connection with this Agreement, including supplying within ten (10) days upon request
all information and executing and returning any documents requested by the Company which are required to enable the Company to perform its obligations to register the Shares and the Related Consideration Warrant Shares. The Purchaser’s failure to provide any documents required by this Section 6(k) prior to the date on which the Registration Statement can be declared effective (by SEC clearance, passage of time, or otherwise) shall relieve the Company of its obligation to register the Purchaser’s Registrable
Securities until such time as the Company files another Registration Statement hereunder.
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(e) Governing Law. This Agreement shall be deemed to be a contract made under and shall be governed by and construed in accordance with the internal laws of the State of New York
without reference to the principles of conflict of laws.
(f) Consent to Jurisdiction and Service of Process. Any suit, action or proceeding arising out of or relating to the Agreement or the transactions contemplated hereby may be instituted in any
federal court situated in the State of New York or any state court of the State of New York, and each party agrees not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that the Agreement or the subject matter hereof or thereof may not be enforced in or
by such court. Each party further irrevocably submits to the jurisdiction of such court in any such suit, action or proceeding. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by law or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction.
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[SIGNATURE PAGE FOLLOWS]
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COUNTERPART SIGNATURE PAGE
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PURCHASER: |
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MACANDREWS & FORBES LLC |
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By: |
/s/ Xxxx X. Xxxxx | ||
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Name: |
Xxxx X. Xxxxx | ||
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Title: |
Executive Vice President and Chief Financial Officer | ||
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Address: |
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00 Xxxx 00xx Xxxxxx |
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Xxx Xxxx, XX 00000 |
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COUNTERPART SIGNATURE PAGE
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SIGA TECHOLOGIES, INC. |
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By: |
/s/ Xxxxxx Xxxxxx | ||
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Xxxxxx Xxxxxx |
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Chief Financial Officer |
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