EXHIBIT 4(h)
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FORM OF REGISTRATION RIGHTS AGREEMENT FOR BRIDGE INVESTORS
THIS REGISTRATION AGREEMENT (the "Agreement") dated as of [ ],
1997 is made by and among SIGA PHARMACEUTICALS, INC., a Delaware corporation
(the "Company"), and the persons listed on Schedule I hereto (collectively, the
"Holders", each a "Holder").
RECITALS
A. In connection with the purchase by the Holders of certain units
("Units") of the Company's securities, each Unit consists of (i) a senior sub-
ordinated non-negotiable promissory note in the principal amount of $25,000
(individually, a "Bridge Note" and collectively, the "Bridge Notes"), and (ii)
warrants to purchase the number of shares of the Company's common stock, par
value $.0001 per share ("Common Stock;" shares of Common Stock shall be referred
as "Common Shares"), which equals $12,500 divided by the initial public offering
price of the Common Stock (the "IPO Price"), at an exercise price equal to the
IPO Price (the "Warrants").
B. The Company has agreed to grant to the Holders certain
registration rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder (collectively, the "Securities Act") with respect to
the Common Shares issuable upon exercise of the Warrants (the "Warrant Shares").
This Agreement sets forth the terms and conditions of such undertaking.
AGREEMENTS
The Company and the Holders covenant and agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
statements or similar documents in compliance with the Securities Act and
pursuant to Rule 415 under the Securities Act or any successor rule providing
for offering securities on a continuous basis ("Rule 415"), and the declaration
or ordering of the effectiveness of such registration statement or document by
the Securities and Exchange Commission (the "SEC");
(b) The term "Registrable Securities" means (i) the Warrant Shares and
(ii) any Common Shares issued as (or issuable upon the conversion or exercise of
any convertible security, warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of such Warrant Shares, excluding in all cases, however, any
Registrable Securities sold by a Holder in a transaction in which its
registration rights under this Agreement are not assigned.
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2. REGISTRATION.
(a) Demand Registration. Subject to the limitations set forth in
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Section 2(c) below, the Company shall, upon the written request of Holders
holding a majority of the sum of (x) the outstanding Registrable Securities and
(y) the then outstanding and unexercised Warrants, use its best efforts to cause
the Registrable Securities specified in such request to be registered under the
Securities Act (a "Demand Registration"). In the event that the Company shall
receive a written request under this Section 2(a), the Company shall give prompt
written notice thereof to any Holder which did not join in such written request.
If requested in writing by any of such other Holders within fifteen days after
the Company gives the notice described in the preceding sentence, the Company
shall include among the Registrable Securities that it endeavors to register
under this Section 2(a) such Registrable Securities as shall be specified in the
request of such other Holders.
(b) Notice of Demand Registration. Each request delivered pursuant
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to Section 2(a) shall: (i) specify the amount of Registrable Securities
intended to be offered and sold by each of the Holders joining in the request;
(ii) express the present intent to offer such Registrable Securities for
distribution; (iii) describe the nature or method of the proposed offer and sale
of the Registrable Securities; and (iv) contain the undertaking of the Holders
to provide all such information and materials and take all such action as may be
required in order to permit the Company to comply with all applicable
requirements of the Securities Act, the Registrable Securities and state
securities and "blue sky" laws, and to obtain acceleration of the effective date
of the Registration Statement (as defined below).
(c) Limitations on Demand Registrations. Notwithstanding anything
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herein to the contrary, the obligations of the Company to cause any Registrable
Securities to be registered pursuant to Section 2(a) are subject to each of the
following limitations, conditions and qualifications:
(i) The Holders may only request that the Company make any Demand
Registration subsequent to the earlier of 180 days following (i) the effective
date of the registration statement for the initial public offering of the
Company's securities or (ii) any class of securities otherwise becoming subject
to the registration requirements of Section 12 of the Securities Exchange Act of
1934, as amended.
(ii) Any request for Demand Registration made by the Sellers pursuant
to Section 2(a), to be effective, shall request the registration of the offering
and sale or other distribution by the Holders of not less than one-half of the
Registrable Securities.
(iii) In the event the Holders request Demand Registration pursuant to
Section 2(a) and the related offering is to be underwritten, the managing
underwriter shall be a nationally recognized investment banking firm approved by
the Company in the reasonable exercise of its discretion.
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(iv) The Company shall be required to effect only one
Demand Registration pursuant to Section 2(a).
(d) Incidental Registration. Subject to the limitations set forth in
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Section 2(f), at any time that the Company shall propose the registration under
the Securities Act of an offering of any of its securities on a registration
form which can be used for registration of the Registrable Securities, the
Company shall give written notice as promptly as possible of such proposed
registration to the Holders, and shall include in the offering such amount of
Registrable Securities as the Holders shall request to be included by written
notice to the Company received within fifteen days after receipt of the
Company's notice, upon the same terms (including the method of distribution) as
the securities being sold by the Company pursuant to any such offering (an
"Incidental Registration").
(e) Notice of Incidental Registration. Each request delivered
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pursuant to Section 2(d) shall: (i) specify the amount of Registrable Securities
intended to be offered and sold by each of the Holders; and (ii) contain the
undertaking of the Holders to provide all such information and materials and
take all such action as may be required in order to permit the Company to comply
with all applicable requirements of the Securities Act, the SEC and state
securities and "blue sky" laws and to obtain acceleration of the effective date
of the Registration Statement.
(f) Limitations on Incidental Registrations. Notwithstanding
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anything contained herein to the contrary, the obligations of the Company to
cause Registrable Securities to be registered pursuant to Section 2(d) are
subject to each of the following limitations, conditions and qualifications:
(i) The Company shall not be required to give notice or include
Registrable Securities in any registration pursuant to Section 2(d) if the
proposed registration is primarily: (A) a registration of a stock option,
thrift, employee benefit or compensation plan or of securities issued or
issuable pursuant to any such plan; (B) a registration of securities proposed to
be issued in connection with a dividend reinvestment and stock purchase plan or
customer stock purchase plan; (C) a registration of securities proposed to be
issued in exchange for securities or assets of, or in connection with a merger
or consolidation with, another corporation or other entity; or (D) a
registration of securities which is solely a combination of any of the above.
(ii) If the Company is advised in writing by the managing underwriter
(or its investment banking firm if the offering is not underwritten) that the
inclusion of Registrable Securities may, in the opinion of such underwriter or
investment banking firm, as the case may be, interfere with the orderly sale and
distribution of the securities proposed to be offered by the Company or
adversely affect the price at which such securities may be sold, the number of
shares of Registrable Securities to be included in the offering shall be reduced
or eliminated to the extent necessary as shall be reasonably determined by such
underwriter or investment banker, as the case may be, in good faith.
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(iii) In the event the Holders request registration pursuant to
Section 2(d) and the related offering is to be underwritten, the Holders will
enter into an underwriting agreement containing representations, warranties and
agreements not substantially different from those customarily made by an issuer
and a selling shareholder in underwriting agreements with respect to secondary
distributions.
(iv) The Company may, in its sole discretion, without the consent of
the Holders and without liability to any Holder for such action, withdraw such
registration statement and abandon the proposed offering in which the Holder had
requested to participate at any time.
(v) The Company shall only be required to effect one
Incidental Registration pursuant to Section 2(d).
3. OBLIGATIONS OF THE COMPANY. When required under the Agreement to
effect the registration of the Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Registration Statements. Prepare and file with the SEC a
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registration statement or statements or similar documents (the "Registration
Statement") with respect to all Registrable Securities, other than any
Registrable Securities excluded by Holders pursuant to Sections 2(a) and 2(d),
and use its best efforts to cause the Registration Statement to become effective
and maintain the effectiveness of the Registration Statement until the earlier
of (i) the date all such registered Registrable Securities are sold and any
prospectus delivery requirements under the Securities Act shall have lapsed, and
(ii) (A) six months (in the case of a registration statement on Form S-1 or
comparable long-form registration statement) or (B) six months following the
latest expiration date of the Warrants (in the case of a registration statement
on Form S-3 or comparable short-form registration statement).
(b) Amendments. Prepare and file with the SEC such amendments
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(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Registration
Statement.
(c) Prospectuses. Furnish promptly to each Holders such numbers of
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copies of a prospectus, including a preliminary prospectus, and all amendments
and supplements thereto, in conformity with the requirements of the Securities
Act, and such other documents as the Holders may reasonably request in order to
facilitate the disposition of Registrable Securities.
(d) Blue Sky. Use its best efforts to register and qualify the
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securities covered by the Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, and to prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements and to take such other
actions necessary or advisable to maintain such registration and
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qualifications in effect, and to take all other actions necessary or advisable
to enable the disposition of such securities in such jurisdictions, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions or to provide any undertaking or
make any change in its charter or bylaws which the Board of Directors determines
to be contrary to the best interest of the Company and its stockholders.
(e) Underwriting Arrangements. Enter into and perform its
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obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering. The Holders shall
also enter into and perform their customary obligations under any such agreement
including, without limitation, customary indemnification and contribution
obligations.
(f) Notification of Changes. Notify the Holders, at any time when a
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prospectus relating to Registrable Securities covered by the Registration
Statement is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus including in the 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 in light of the circumstances then
existing. The Company shall promptly amend or supplement the Registration
Statement to correct any such untrue statement or omission.
(g) Notification of Stop Orders. Notify the Holders of the issuance
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by the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible time.
(h) Review by Counsel. Permit a single firm of counsel designated as
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selling stockholders' counsel by the holders of a majority in interest of the
Registrable Securities to review (at the expense of such selling stockholders)
the Registration Statement and all amendments and supplements thereto a
reasonable period of time prior to their filing, and shall not file any document
in a form to which counsel reasonably objects.
(i) Opinions. At the request of the Holders, use its best efforts to
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furnish on the date that Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Agreement (i) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to
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underwriters in an underwritten public offering, addressed to the underwriters.
(j) Due Diligence. Make available for inspection by the Holders, any
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underwriters participating in the offering pursuant to the registration and the
counsel, accountants or other agents retained by the Holders or any such
underwriter, all pertinent financial and other records, corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by the Holders or any
such underwriters in connection with the registration.
(k) Listing. If the class of the Company's securities is then listed
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on a national securities exchange, use its best efforts to cause the Registrable
Securities to be listed on such exchange. If the Company's securities are not
then listed on a national securities exchange, use its best efforts to
facilitate the reporting of the Registrable Securities on NASDAQ.
(l) Further Actions. Take all other reasonable actions necessary to
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expedite and facilitate disposition by the Holders of the Registrable Securities
pursuant to the Registration Statement.
4. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to each Holder that such Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be reasonably
required to effect the registration of the Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request.
5. EXPENSES OF REGISTRATION. All expenses other than the
underwriting discounts and commissions incurred in connection with registration,
filings or qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing, filing and qualification fees, printing
and accounting fees, the fees and disbursements of counsel for the Company (but
excluding the fees and disbursements of any counsel for the Holders) shall be
borne by the Company.
6. INDEMNIFICATION. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) By Company. To the extent permitted by law, the Company will
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indemnify and hold harmless each Holder, the directors, if any, of such Holder,
the officers, if any, of such Holder who sign the Registration Statement, each
person, if any, who controls such Holder, any underwriter (as defined in the
Securities Act) for the Holders and each person, if any, who controls any such
underwriter within the meaning of the Securities Act or the Securities Act of
1934, as amended (the "1934 Act"), against any losses, claims, damages, expenses
or liabilities (joint or several) to which any of them may become subject under
the Securities Act, the 1934 Act or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions
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or proceedings, whether commenced or threatened, in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively, a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) 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 circumstance in which they are
made, not misleading or (iii) any violation or alleged violation by the Company
of the Securities Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the 1934 Act, any state
securities law; and the Company will reimburse the Holders and each such
underwriter or controlling person, promptly as such expenses are incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability action or
proceeding; provided, however, that the indemnity agreement contained in this
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Section 6(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company, which consent shall not be unreasonably withheld, nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it aries out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
the Holders or any such underwriter or controlling person, as the case may be.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Holders or any such underwriter or
controlling person and shall survive the transfer of the Registrable Securities
by Holders.
(b) By Holders. To the extent permitted by law, each Holder,
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severally and not jointly, will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the Registration Statement,
each person, if any, who controls the Company within the meaning of the
Registration Statement, each person, if any, who controls the Company within the
meaning of the Securities Act or the 1934 Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement or any of
its directors or officers or any person who controls such holder or underwriter,
against any losses, claims, damages or liabilities (joint or several) to which
any of them may become subject, under the Securities Act, the 1934 Act or other
federal state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration, and such Holder
will reimburse any legal or other expenses reasonably incurred by any of them in
connection with investigating or defending any such loss, claim, damage
liability or action; provided, however, that the indemnity agreement contained
in this subsection 6(b) shall not apply to amounts paid in settlement of such
loss, claim, damage, liability or action if such settlement is effected without
the consent of such Holder, which consent shall not be unreasonably withheld;
and provided further, that the Holder shall be liable under this paragraph for
only that
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amount of losses, claims, damages and liabilities as does not exceed the
proceeds to such Holder as a result of the sale of Registrable Securities
pursuant to such registration.
(c) Procedure for Indemnification. Promptly after receipt by an
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indemnified party under this Section 6 of notice of the commencement of any
action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense thereof
with counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if, in the reasonable opinion
of counsel for the indemnifying party, representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall relieve such indemnifying party of any
liability to the indemnified party under this Section 6 only to the extent
prejudicial to its ability to defend such action, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party other than under this Section 6. The
indemnification required by this Section 6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, promptly
as such expense, loss, damage or liability is incurred.
(d) Contribution. To the extent any indemnification by an
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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
otherwise would be liable under this Section 6 to the extent permitted by law,
provided that (i) no contribution shall be made under the circumstances where
the maker would not have been liable for indemnification under the fault
standards set forth in this Section 6, (ii) no seller of Registrable 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
Registrable Securities who was not guilty of such fraudulent misrepresentation
and (iii) contribution by any seller of Registrable Securities shall be limited
in amount to the net amount of proceeds received by such seller from the sale of
such Registrable Securities.
7. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holders the benefits of SEC Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at any
time permit the Holders to sell securities of the Company to the public without
registration, the Company agrees, following the initial public offer of the
Company's securities, to:
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(i) make and keep public information available, as those terms
are understood and defined in SEC Rule 144;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(iii) furnish to each Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (A) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Securities Act and the 1934 Act, (B) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company and (C) such other information as may be reasonably requested in
availing the Holders of any rule or regulation of the SEC which permits the
selling of any securities without registration.
8. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to have the
Company register Registrable Securities pursuant to this Agreement may be
assigned by the Holders to transferees or assignees of such securities provided
the Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
provided, further, that such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act. The term
"Holders" as used in this Agreement shall include permitted assignees.
9. MISCELLANEOUS.
(a) Notices. Notices required or permitted to be given hereunder
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shall be in writing and shall be deemed to be sufficiently given when personally
delivered or sent by registered mail, return receipt requested, addressed (i) if
to the Company, at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (with a copy
to: Xxxxxxxxx & Xxxxxx, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
Attention: Xxxx X. Xxxxxxxxx, Esq.) and (ii) if to a Holder at the address set
forth in Schedule I, or at such other address as each such party furnishes by
notice given in accordance with this Section 9(a).
(b) Waiver. Failure of any party to exercise any right or remedy
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under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, will not operate as a waiver thereof. No waiver will be effective
unless and until it is in writing and signed by the party giving the waiver.
(c) Governing Law. This Agreement shall be enforced, governed and
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construed in all respects in accordance with the laws of the State of New York,
as such laws are applied by New York courts to agreements entered into and to be
performed in New York by and between residents of New York. In the event that
any provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision
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shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute of rule of law. Any
provision hereof which may prove invalid or unenforceable under any law shall
not affect the validity or enforceability of any other provision hereof.
(d) Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto with respect to the subject matter hereof and may be
amended only be a writing executed by the Company and the holders of a majority
in interest of the sum of (x) the Registrable Securities and (y) the then
outstanding and unexercised Warrants.
SIGA PHARMACEUTICALS, INC.
By:
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Authorized Officer
HOLDER:
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Name:
Title:
NO. OF UNITS OF SUBSCRIPTION:
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SIGA PHARMACEUTICALS, INC.
SCHEDULE I
Name of Investor Address Aggregate Amount Invested
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