VOTING AGREEMENT
Exhibit
10.2
EXECUTION
VERSION
THIS
VOTING AGREEMENT
(this
“Agreement”),
dated
this 8th day of June 2006 is entered into by and among SIGA Technologies, Inc.,
a Delaware corporation ( “SIGA”),
TransTech Pharma, Inc., MacAndrews & Forbes Inc., Xxxxxx Xxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Oz, Xxxx X. Xxxx and
Xxxx X. Xxxxx (each a “Stockholder”
and
collectively the “Stockholders”)
and
Pharmathene Inc., a Delaware corporation (“Pharmathene”).
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Merger Agreement (as defined
below).
W
I T N E S S E T H:
WHEREAS,
the
Stockholders are collectively the legal and beneficial owners of 8,029,364
shares of SIGA Common Stock which represents 29.74% of the outstanding shares
of
SIGA Common Stock;
WHEREAS,
SIGA is
a party to an Agreement and Plan of Merger, which is being executed
contemporaneously herewith, between SIGA, Merger Sub and Pharmathene, a true
and
complete copy of which has been provided to the Stockholders (the “Merger
Agreement”);
WHEREAS,
each of
the Stockholders have agreed to vote all of the SIGA Capital Stock owned by
it,
whether beneficially or otherwise, or over which it has voting power
(collectively the “Stockholder
Shares”)
in
favor of all resolutions to be considered by holders of SIGA Capital Stock
in
connection with the transactions contemplated by the Merger
Agreement;
NOW,
THEREFORE
in
consideration of the foregoing premises and as inducement to and in
consideration of Pharmathene entering into the Merger Agreement and certain
other good and valuable consideration the receipt and sufficiency of which
are
hereby acknowledged, the parties agree as follows:
Section
1 Representations
and Warranties.
Each
of
the Stockholders hereby represents and warrants, for and in respect of itself
and its Stockholder Shares only, that:
(a) if
it is
not an individual, it is duly incorporated or organized and validly existing
under the laws of its jurisdiction of incorporation or organization; it has
the
corporate or other power and capacity and has taken all necessary corporate
or
other action to authorize the execution, delivery and performance of this
Agreement and its obligations hereunder and has received all requisite approvals
to enter into this Agreement and to complete the transactions contemplated
hereby and, upon the due execution and delivery of this Agreement by such
Stockholder, this Agreement shall be a valid and binding agreement enforceable
by Pharmathene against such Stockholder in accordance with its terms, subject
to
bankruptcy, insolvency,
1
reorganization,
fraudulent transfer, moratorium and other laws relating to or affecting
creditors' rights generally and to general principles of equity;
(b) if
it is
an individual, it has full power and authority to enter into and perform the
obligations under this Agreement and to consummate the transactions contemplated
hereby;
(c) the
Stockholder is not a party to, bound or affected by or subject to, any charter,
by-law or constituting document provision (in the case of a party that is not
an
individual), statute, regulation, judgment, order, decree or law which would
be:
violated, contravened, breached by, or under which default would occur as a
result of, the execution, delivery and performance of this Agreement and such
Stockholder is not a party to, bound or affected by or subject to any agreement
for voting any SIGA Capital Stock which would be violated, contravened, breached
by, or under which default would occur as a result of, the performance of this
Agreement; and
(d) such
Stockholder understands and agrees that if such Stockholder attempts to
transfer, or provide any other person or entity with the authority to vote
any
of the Stockholder Shares other than in compliance with this Agreement, SIGA
shall not, and such Stockholder hereby unconditionally and irrevocably instructs
SIGA to not, (i) permit any such transfer on its books and records, (ii) issue
a
new certificate representing any of such Stockholder Shares, or (iii) record
such vote unless and until such Stockholder shall have complied with the terms
of this Agreement.
Section
2 Covenants.
(a) Except
as
otherwise expressly provided herein, each Stockholder hereby covenants that
until this Agreement is terminated, such Stockholder will:
(i) |
not,
directly or indirectly, take or support any action of any kind which
could
reasonably be expected to reduce the likelihood of success of or
delay the
consummation of the Merger
Agreement;
|
(ii) |
not,
directly
or indirectly, initiate, solicit or encourage proposals,
requests,
inquiries or contacts,
or participate in negotiations or discussions, including without
limitation, the delivery of non-public information of SIGA to any
third
party, for the purpose or with the intention of leading to any
proposal,
concerning any disposition, directly or indirectly, of any material
assets
of SIGA,
without limitation, extending to any take-over
bid, merger,
consolidation or other business combination involving SIGA or any
acquisition
of an equity interest in SIGA representing any material amount of
the
equity of SIGA or any similar
transaction (a
“Competing
Proposal”),
except for the transactions contemplated by the Merger
Agreement;
and
|
(iii) |
not
enter into, continue or otherwise participate in any discussions
or
negotiations regarding, or furnish to any person or any
other
|
2
entity
any non-public information with respect to, or otherwise cooperate in any
way
with any party offering a Competing Proposal.
(b) Except
as
otherwise expressly provided herein or as otherwise agreed to by Pharmathene
in
writing on or prior to the date hereof, each Stockholder hereby covenants that
until this Agreement is terminated, such Stockholder shall not directly or
indirectly (v) grant any proxy, power of attorney or other authorization or
consent with respect to any of its Stockholder Shares; (w) deposit any of its
Stockholder Shares into a voting trust, or enter into a voting agreement or
arrangement with respect to any of its Stockholder Shares; (x) take any other
action that would in any way restrict, limit or interfere with the performance
of such Stockholder’s obligations hereunder or the transactions contemplated
hereby; (y) sell, assign, transfer, encumber, pledge, hedge, gift or enter
into
derivative transactions in respect of, or otherwise dispose of any of its
Stockholder Shares or any rights therein (including without limitation any
voting rights) (or consent to do any of the foregoing), or (z) enter into any
contract, option or other combination, arrangement, undertaking or understanding
with respect to the actions described in any of the foregoing clauses (the
restrictions in clauses (v), (w),(x), (y) and (z) hereof being referred to
as
the “Restrictions”).
Notwithstanding the forgoing, each Stockholder may transfer or permit the
transfer of some or all of its Stockholder Shares to related persons of such
Stockholder (including its members, partners, affiliates, trusts and/or family
members) or to a charitable trust, provided that (a) such transfer does not
adversely affect Pharmathene or SIGA, including without limitation from a tax
perspective or by causing any delay or by reducing the number of the Stockholder
Shares subject to this Agreement, and (b) the transferee executes and delivers
an agreement in the same form as this Agreement to Pharmathene prior to the
transfer; provided, however that the such Stockholder shall be responsible
for
any breach of default by its transferee.
(c) Each
Stockholder agrees that it shall not issue any press release or make any other
statement to the public with respect to the Merger Agreement or any other
transaction contemplated by the Merger Agreement without the prior consent
of
Pharmathene except as maybe required by applicable law.
Section
3 Voting.
Subject
to the terms of this Agreement, each Stockholder hereby irrevocably and
unconditionally agrees until this Agreement is terminated:
(a) to
vote
(or cause to be voted) all of its Stockholder Shares (and any other securities
in respect of which such Stockholder has the right to vote) which are eligible
to vote at any meeting of holders of SIGA Capital Stock and in any action by
written consent in favor of the Merger Agreement and the transactions
contemplated thereby including, without limitation, the PIPE, the amendment
of
the SIGA Stock Option Plan and the reconfiguration of the board of directors
(each as contemplated by the Merger Agreement), (collectively the “Merger
Transactions”)
and
against any Competing Proposal;
(b) to
vote
(or cause to be voted) all of its Stockholder Shares (and any other securities
in respect of which such Stockholder has the right to vote) which are eligible
to vote at any meeting of holders of SIGA Capital Stock and in any action by
written consent, against any
3
action
that could reasonably be expected to impede, interfere with, delay, frustrate,
prevent, prohibit or discourage the consummation of the transactions
contemplated by the Merger Agreement including, without limitation, the Merger
Transactions;
(c) not,
without the prior written consent of Pharmathene, to requisition or join in
any
requisition of any meeting of holders of SIGA Capital Stock;
(d) to
vote
in favor of adoption of any proposal or action that is reasonably determined
by
SIGA to be necessary or appropriate to submit for stockholder approval in order
to facilitate the consummation of the transactions contemplated by the Merger
Agreement, including, without limitation the Merger Transactions and against
approval of any proposal made in opposition to or competition with the
consummation of the transactions contemplated by the Merger Agreement,
including, without limitation the Merger Transactions.
Section
4 Proxy.
Each of
the Stockholders hereby grants to Pharmathene an irrevocable proxy, coupled
with
an interest, to vote all of their respective Stockholder Shares in accordance
with this Agreement and to take such other action to the extent necessary to
carry out the provisions of this Agreement.
Section
5 Directors
and Officers; Voting as to Other Matters.
Notwithstanding any provision of this Agreement to the contrary, nothing in
this
Agreement shall limit or restrict any Stockholder from acting in such
Stockholder’s capacity as a director or officer of SIGA (it being understood
that this Agreement shall apply to each Stockholder solely in such Stockholder’s
capacity as a stockholder of SIGA) or voting or granting proxies in each
Stockholder’s sole discretion on any matter other than those matters specified
in this Agreement. For the avoidance of doubt, this Agreement shall not require
any Stockholder to vote or grant any proxy to vote, or refrain from voting
or
granting any proxy to vote, on any matter other than those specified in this
Agreement.
Section
6 Remedies.
In case
any one or more of the covenants and/or agreements set forth in this Agreement
shall have been breached by any party hereto, the party or parties entitled
to
the benefit of such covenants or agreements may proceed to protect and enforce
its or their rights, either by suit in equity and/or action at law, including,
but not limited to, an action for damages as a result of any such breach and/or
an action for specific performance of any such covenant or agreement contained
in this Agreement. The rights, powers and remedies of the parties under this
Agreement are cumulative and not exclusive of any other right, power or remedy
which such parties may have under any other agreement or law. No single or
partial assertion or exercise of any right, power or remedy of a party hereunder
shall preclude any other or further assertion or exercise thereof.
Section
7 Successors
and Assigns.
Except
as otherwise expressly provided herein, this Agreement shall bind and inure
to
the benefit of SIGA, Pharmathene and each of the Stockholders and the respective
successors and permitted assigns.
Section
8 Duration
of Agreement.
Except
as specifically set forth herein, the rights and obligations of Pharmathene,
SIGA and each of the Stockholders set forth herein shall survive until, and
this
Agreement shall terminate upon, either the consummation of the Merger
or
4
termination
of the Merger Agreement.
Section
9 Entire
Agreement.
This
Agreement, together with the other writings referred to herein or delivered
pursuant hereto which form a part hereof, contains the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous arrangements or understandings with respect
thereto.
Section
10 Notices.
All
notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument delivered
in person or duly sent by first class registered, certified or overnight mail,
postage prepaid, or telecopied with a confirmation copy by regular mail,
addressed or telecopied, as the case may be, to such party at the address or
telecopier number, as the case may be, set forth below or such other address
or
telecopier number, as the case may be, as may hereafter be designated in writing
by the addressee to the addressor listing all parties:
(i) |
if
to SIGA, to:
|
000
Xxxxxxxxx
Xxxxxx
Xxxxx
000
Xxx
Xxxx, XX
00000
Attention:
Chief Financial Officer
Telecopier:
(000) 000-0000
with a copy to:
Xxxxxx
Xxxxx
Xxxxxxxx & Xxxxxxx LLP
0000
Xxxxxx
xx xxx Xxxxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxx X. Xxxxxx, Esq.
Telecopier:
(000) 000-0000
(ii) |
if
to the Stockholders:
|
MacAndrews
& Forbes Holdings Inc.
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxx X. Xxxxxxxx
Telecopier:
(000) 000-0000
(iii) |
if
to Pharmathene:
|
000
Xxxxxxx
Xxxxxxxx Xxxxx
Xxxxx
000
Xxxxxxxxx,
XX
00000
Attention:
Chief Executive Officer
Telecopier:
(000) 000-0000
5
with a copy to:
XxXxxxxx
& English, LLP
Four
Gateway
Center
000
Xxxxxxxx
Xxxxxx
Xxxxxx,
XX
00000
Attention:
Xxxxxxx Xxxxxx
Telecopier:
(000) 000-0000
All
such
notices, requests, consents and communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery,
(b)
in the case of mailing, on the third business day following the date of such
mailing, (c) in the case of overnight mail, on the first business day following
the date of such mailing, and (d) in the case of facsimile transmission, when
confirmed by facsimile machine report.
Section
11 Changes.
The
terms and provisions of this Agreement may be modified or amended, or any of
the
provisions hereof waived, temporarily or permanently, only pursuant to the
written consent of Pharmathene, SIGA and each of the Stockholders.
Section
12 Counterparts.
This
Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
Section
13 Headings.
The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be a part of this
Agreement.
Section
14 Nouns
and Pronouns.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
names and pronouns shall include the plural and vice-versa.
Section
15 Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
16 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, excluding choice of law rules thereof.
* * * * *
6
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement on the date first above
written.
SIGA
TECHNOLOGIES, INC.
By: /s/
Xxxxxx X.
Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title:
Chief Financial Officer and Acting
Chief Executive Officer
PHARMATHENE,
INC.
By: /s/
Xxxxx X.
Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Chief Executive Officer
STOCKHOLDERS
TRANSTECH
PHARMA, INC.
By:
/s/
Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Senior Vice President and Chief Financial Officer
MACANDREWS
& FORBES INC.
By: /s/
Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice Chairman
7
/s/
Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx
/s/
Xxxxxx X.
Xxxxxxx
Xxxxxx
X.
Xxxxxxx
/s/
Xxxxx
Xxxxx
Xxxxx
Xxxxx
/ s/
Xxxxxx X.
Xxxxxxxxx
Xxxxxx
X.
Xxxxxxxxx
/s/ Xxxxxx
X.
Oz
Xxxxxx
X.
Oz
/s/
Xxxx X.
Xxxx
Xxxx
X.
Xxxx
/s/
Xxxx X.
Xxxxx
Xxxx
X.
Xxxxx
8