Exhibit 4(i)
SIGA PHARMACEUTICALS, INC.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of February 10,
1998, by and between SIGA PHARMACEUTICALS, INC. (the "Company"), a Delaware
corporation having its principal offices at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, and MEDIMMUNE, INC., a Delaware corporation having its principal
offices at 00 X. Xxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx, XX 00000 ("MedImmune").
BACKGROUND
A. MedImmune is selling, transferring and assigning its right, title and
interest to certain patents, inventions, discoveries and other technology and
information to the Company (the "Transfer") pursuant to a Technology Transfer
Agreement between the Company and MedImmune, dated as of the date hereof (the
"Technology Transfer Agreement").
B. In consideration of the Transfer, MedImmune will acquire from the
Company 335,530 shares of the Company's Common Stock, par value $.0001 ("Common
Stock") upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and for other good and
lawful considerations, the receipt and sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, do hereby agree:
AGREEMENT
1. Sale of Stock.
1.1 Authorization. The Company has duly authorized the issuance and sale of
335,530 shares of Common Stock (the "Shares") which are being issued and sold in
accordance with the terms of this Agreement.
1.2 Sale. Subject to the terms and conditions of this Agreement, at the
Closing (as hereinafter defined) the Company shall sell and issue to MedImmune,
and MedImmune shall purchase the Shares in exchange and as full consideration
for the Transfer.
1.3 Closing. The acquisition and sale of the shares shall take place at the
offices of the Company's counsel, Xxxxxxxxx & Zivian, New York, NY as of the
date of this Agreement, or at such other time and place as the Company and
MedImmune shall mutually agree orally or in writing (which time and place are
referred to herein as the "Closing"). At the Closing, the Company will deliver
to MedImmune certificate(s) representing the Shares.
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1.4 Legend. The certificate(s) representing the Shares to be issued at
Closing will bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. SUCH SHARES MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT WHICH IS
CONFIRMED IN A LEGAL OPINION SATISFACTORY TO THE COMPANY."
2. Representations and Warranties of the Company. The Company does hereby
represent and warrant to MedImmune that:
2.1 Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has full power and authority to own or lease and to
operate its properties and to conduct its business as presently conducted, and
to enter into and perform this Agreement and the "Registration Rights Agreement"
(as defined below). The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the failure to
so qualify would have a material adverse effect on the operations or financial
condition of the Company.
2.2 Authority. The execution, delivery and performance by the Company of
this Agreement and the Registration Rights Agreement, and the consummation by
the Company of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate action. This Agreement and the
Registration Rights Agreement have been duly executed and delivered by the
Company and constitute valid and binding obligations of the Company, enforceable
in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
rights and remedies of creditors generally and as may be limited by general
equitable principles.
2.3 Non-Contravention. The execution and delivery of, performance under and
compliance with this Agreement and the Registration Rights Agreement by the
Company will not violate any provision of law or any order of any court or
government agency, and will not conflict with or result in any breach of any of
the terms, conditions, or provisions of, or constitute, with or without the
passage of time or the giving of notice, a default under, or give to any person
the right to exercise any remedy under, or to accelerate the maturity of, or to
cancel, terminate or modify, or require a consent or waiver under, its
Certificate of Incorporation or By-laws (each as amended and presently in
effect) or any material indenture, lease, agreement or other instrument to which
the Company is a party or by which it or any of its properties is bound.
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2.4 Capitalization. The authorized capital stock of the Company
(immediately prior to the Closing) is 25,000,000 shares of Common Stock, par
value $.0001 per share, of which 3,367,182 shares are issued and outstanding,
and 10,000,000 shares of undesignated preferred stock, par value $.0001 per
share, of which no shares are issued. All of such outstanding common shares have
been validly issued and are fully paid and non-assessable. Except as set forth
in the "SB-2" (as defined below), there are no outstanding rights of first
refusal, preemptive rights or other rights, options (except for stock options
granted under the Company's stock option plans), warrants, conversion rights or
other agreements, either directly or indirectly, for the purchase or acquisition
from the Company of shares of its capital stock. The Company has not previously
entered into any agreement with respect to any of its securities granting any
registration rights to any person, other than the Registration Rights Agreement.
2.5 Validity of Shares. The Shares have been duly authorized and reserved
for issuance and, upon their issuance and delivery in accordance with the terms
hereof, will be (i) validly issued, fully paid and non-assessable, and (ii) free
and clear of any liens or encumbrances except as specifically contemplated by
the Registration Rights Agreement, and (iii) issued in compliance with all
applicable federal and state securities laws. The Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any state securities laws or regulations, and may not be sold unless they are
subsequently so registered or an exemption from such registration is available.
2.6 Compliance with Law. The Company is not in default with respect to any
judgment, order, writ, injunction, decree or award, and the Company is not in
violation of, and the business of the Company is presently being conducted so as
to comply in all material respects with, its Certificate of Incorporation,
By-laws and applicable Federal, state and local governmental laws and
regulations, all to the extent necessary to avoid any material adverse effect on
the business, properties or financial condition of the Company.
2.7 Governmental Consent, etc. The Company is not required to obtain any
consent, approval or authorization of, or to make any declaration or filing
with, any governmental authority as a condition to or in connection with the
valid execution, delivery and performance of this Agreement and the Registration
Rights Agreement, the valid offer, sale or delivery of the Shares, or the
performance by the Company of its obligations in respect thereof.
2.8 Taxes. The Company has filed or caused to be filed, or will file within
the time period prescribed by law, all federal and state income tax returns
which are required to be filed and has paid or caused to be paid all taxes to
the extent that such taxes have become due and payable, except taxes the
validity or amount of which is being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside. The
Company has paid or caused to be paid, or has established reserves adequate in
all material respects, for all Federal income tax liabilities and state income
tax liabilities applicable to the
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Company for all fiscal years which have not been examined and reported on by the
taxing authorities (or closed by applicable statutes).
2.9 Actions Pending. There are no actions, suits, investigations or
proceedings pending or, to the best knowledge of the Company, threatened against
or affecting the Company or any properties or rights of the Company before any
courts, governmental bodies, arbitration boards or other tribunals, which if
decided adversely to the Company could reasonably be expected, individually or
in the aggregate, to result in any material adverse change in the business,
financial condition or results of operations of the Company and its subsidiaries
taken as a whole.
2.10 Possession of Franchises, Licenses, etc. The Company possesses all
franchises, certificates, licenses, permits and other authorizations from
governmental political subdivisions or regulatory authorities that are necessary
in any material respect for the ownership, maintenance and operation of their
respective properties and assets, and to conduct the businesses now conducted,
and the Company is not in violation of any thereof in any material respect.
2.11 Trademarks, Patents, etc. The Company owns free and clear of liens and
encumbrances, or possesses the right to use to the extent necessary in its
businesses on terms deemed commercially reasonable in the exercise of the
Company's business judgement, all material trade secrets, trademarks, trade
names, copyrights, patents, patent rights, computer software, licenses,
intellectual property rights and other assets considered to be "intangible
assets" in accordance with generally accepted accounting principles
(collectively, "Intangible Assets") that are necessary in any material respect
to the conduct of its business as now operated. To the knowledge of the Company,
all material Intangible Assets of the Company are currently valid and
enforceable in accordance with the terms under which such material Intangible
Assets are owned or held by the Company.]] No Intangible Asset, to the knowledge
of the Company, conflicts with or infringes the valid trade secret, trademark,
trade name, copyright, patent, patent right or other Intangible Asset of any
other person. To the knowledge of the Company, no third party is infringing any
material Intangible Asset of the Company. For purposes of this Agreement, the
term "Intangible Asset" excludes any item of intellectual property transferred
or otherwise assigned by MedImmune to the Company contemporaneously with this
Agreement.
2.12 SEC Reports and Financial Statements. The Company's Registration
Statement on Form SB-2 filed on March 10, 1997, as amended (the "SB-2") was in
substantial compliance with the requirements of its report form on the date of
filing, and the SB-2 does not or did not, on the date of filing or the date as
of which information is set forth therein, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statement therein, in the light of the circumstances under
which they were made, not misleading. The financial statements included in the
SB-2, including in each case the related notes, fairly present the financial
position of the Company as
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of the respective dates of said balance sheets and the results of the operations
of the Company for the respective periods covered by said statements of
operations and retained earnings and changes in financial position, and have
been prepared in accordance with generally accepted accounting principles
consistently applied by the Company throughout the periods involved and the
Company has no knowledge of any material liabilities contingent or otherwise,
not reflected in said balance sheet as of said date or in the SB-2. As of the
date hereof, there has been no material adverse change in the financial position
or results of operation of the Company since the date of such financial
statements.
2.13 No General Solicitation. The sale of the Shares hereunder is exempt
from the registration and prospectus delivery requirements of the Securities
Act. In connection with the issuance and sale of the Shares, no form of general
solicitation or general advertising was used by the Company or any of its
representatives including, but not limited to advertisements, articles, notices
or other communications published in any newspaper, magazine or similar medium
or broadcast over television or radio, or any seminar or meeting whose attendees
had been invited by any general solicitation or general advertising.
2.14 Title to Property and Assets. The Company owns its property and assets
(exclusive of Intangible Assets) free and clear of all liens and encumbrances,
except such encumbrances and liens which arise in the ordinary course of
business and do not materially impair the Company's ownership or use of such
property or assets. With respect to the property and assets it leases, the
Company is in compliance in all material respects with such leases, the failure
with which to comply would materially and adversely affect the financial
position and results of operations of the Company, and, to its knowledge, holds
a valid leasehold interest free of any liens, claims or encumbrances, which
liens, claims or encumbrances would materially and adversely affect the
financial position and results of operations of the Company.
2.15 No Finder's Fees. The Company has not retained any finder, broker,
agent or other party with respect to the sale of Shares to MedImmune pursuant to
this Agreement, and the Company has not incurred any liability or otherwise
become obligated for any brokerage fees, commissions, finder's fees or
investment banking fees in connection with the sale of the Shares to MedImmune
pursuant to this Agreement.
2.16 Environmental Laws. The property, assets and operation of the Company
are in compliance with all applicable federal, state or local laws, rules,
orders, decrees, judgments, injunctions, licenses, permits or regulations
relating to environmental matters (collectively, the "Environmental Laws"),
except to the extent that failure to comply with such Environmental Laws would
not have a material adverse effect on the financial position or results of
operations of the Company.
2.17 Employee Benefit Plans. Each employee benefit plan, within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended, and the
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rules and regulations promulgated thereunder, as in effect from time to time
("ERISA"), maintained by the Company or any ERISA Affiliate (as defined below)
of the Company is in compliance in all material respects with those provisions
of ERISA and the Internal Revenue Code of 1986, as amended, and the regulations
thereunder (the "Code") which are applicable to it. Neither the Company nor any
of its ERISA Affiliates maintain (or has ever maintained), contributed to (or
has ever contributed to) or has any liability with respect to any Plan or any
Multiemployer Plan. For purposes of this Section 2.17: (a) "ERISA Affiliate"
means any trade and business (whether or not incorporated) which is under common
control with the Company within the meaning of Section 4001 of ERISA or is part
of a group which includes the Company and which is treated as a single employer
under Section 414 of the Code; (b) "Multiemployer Plan" has the meaning set
forth in Section 4001(a)(3) of ERISA; and (c) "Plan" means any employee benefit
plan which is subject to the provisions of Title IV of ERISA.
3. Representations of MedImmune. MedImmune represents and warrants to the
Company that:
3.1 Investment. MedImmune is acquiring the Shares for its own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof which would be in violation of the securities laws of the
United States, and any sale, transfer or other disposition of any Shares will be
made in compliance with all applicable provisions of the Securities Act and the
rules and regulations promulgated thereunder.
3.2 Authority. MedImmune has full power and authority to enter into, to
perform under and comply with this Agreement and this Agreement constitutes the
valid and binding obligation of MedImmune enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws limiting the rights and remedies of creditors generally
and as may be limited by general equitable principles.
3.3 Independent Investigation. MedImmune, in entering into this Agreement,
has relied upon an independent investigation made by it and its representatives,
if any. In making its investment decision to purchase the Shares, MedImmune is
not relying on any oral or written representations or assurances from the
Company or any of its employees, representatives or agents other than as set
forth in this Agreement.
3.4 Accredited Investor. MedImmune is an Accredited Investor as such term
is defined in the Securities Act, Rule 501(a).
3.5 Non-Contravention. The execution of, performance under and compliance
with this Agreement and the Registration Rights Agreement by MedImmune will not
violate any provision of law and will not conflict with or result in any breach
of any of the terms, conditions, or provisions of, or constitute, with or
without the passage of time or the giving of notice, a default under, or require
a consent or waiver under, any indenture, lease, agreement
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or other instrument to which MedImmune is a party or by which MedImmune or any
of its properties is bound except as would not have a material adverse effect on
MedImmune's ability to perform its obligations hereunder or pursuant to the
Registration Rights Agreement.
4. Closing Conditions. The obligations of each of the parties hereto shall
be subject to the satisfaction or waiver of each of the following conditions:
4.1 Execution of Agreements. The execution and delivery of the Technology
Transfer Agreement, the other agreements and instruments referenced therein, and
the Registration Rights Agreement of even date with this Agreement between the
parties (the "Registration Rights Agreement").
4.2 No Judgments or Actions. There shall not be in effect a judgment, order
or decree of a court of competent jurisdiction that prevents or delays the
consummation of the transactions contemplated hereby. There shall not be any
actions, suits, investigations or proceedings pending or to the best knowledge
of the Company threatened against or affecting the Company or its properties
which, if adversely determined, would interfere with or adversely affect the
issuance of the Shares.
4.3 Representations and Warranties. The representations and warranties of
the parties hereto shall have been true when made and shall be true at and as of
the Closing as though made at and as of such date.
4.4 Approvals and Consents. The Company shall have received all consents
and approvals required in connection with the issuance of the Shares, including,
without limitation, those required by law and any contract or agreement to which
the Company is a party.
4.5 Officer's Certificate. The Company shall have delivered the certificate
of an executive officer of the Company to the effect that the foregoing
conditions to closing have been satisfied, unless waived by Purchaser.
4.6 Legal Opinion. A written opinion of Xxxxxxxxx & Xxxxxx, counsel to the
Company, in the form attached to this Agreement as Exhibit A.
4.7 Satisfactory Proceedings. All proceedings taken in connection with the
sale of the Shares and all documents relating thereto shall be satisfactory in
form and substance to the Company and MedImmune.
5. Adjustment Upon Changes in Capitalization. In the event of any change in
the Company's common stock prior to the Closing by reason of stock dividends,
split-ups, recapitalizations, combinations, exchanges of shares or the like, the
number of Shares provided for hereunder shall be adjusted proportionately.
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6 Additional Covenants
6.1 Press Release. Neither of the parties shall issue any press release
relating to the sale and acquisition of the Shares and related matters
contemplated hereby without the prior approval of the other party, such approval
not to be unreasonably withheld. Notwithstanding the foregoing, the parties
acknowledge that certain of the material terms of this Agreement are disclosed
in the SB-2 and may be described in MedImmune's and the Company's respective
filings with the Securities and Exchange Commission and applicable stock
exchanges.
6.2 Confidentiality. Subject to Section 6.1 hereof, each party, on its own
behalf and on behalf of its representatives and agents, agrees not to use or
disclose to third parties any information (i) relating to the contents of this
Agreement, (ii) obtained from the other party in connection with the
transactions contemplated by this Agreement, or (iii) any relating to the
financial affairs of the other party obtained pursuant to the terms of this
Agreement or the Registration Rights Agreement (the "Confidential Information"),
and will keep all such information confidential; provided that the restrictions
imposed by this Section 6.2 shall not apply to the disclosure of any information
which (a) was rightfully known by the receiving party at the time of disclosure,
(b) is or becomes generally available to the public other than as a result of
any breach of the provisions of this Agreement, (c) is rightfully obtained from
a third party who is not under similar restrictions of confidentiality and
without breach of this Agreement, (d) is independently developed without
reference to the Confidential Information, or (e) is required to be disclosed by
law or is disclosed upon a party becoming legally compelled to disclose, if, in
any such case, such party has used its best efforts to afford the other party
the opportunity to obtain an appropriate protective order or other satisfactory
assurance of confidential treatment for the Confidential Information required to
be so disclosed.
7. Miscellaneous.
7.1 Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
7.2 Termination. This Agreement may be terminated by mutual written consent
of the parties hereto or by either party if the other party breaches this
Agreement.
7.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, by cable,
telegraph or telex, Federal Express or other recognized overnight courier, by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by facsimile transmission to the respective parties as follows:
If to MedImmune to:
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MedImmune, Inc.
00 X. Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
Telephone: (301) 527-[[____]]
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to:
SIGA Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx X. xx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxxx & Xxxxxx
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxx, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
7.4 Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by the Company or MedImmune in
connection herewith shall survive the execution and delivery of this Agreement,
the sale and purchase of the Shares and any disposition thereof, regardless of
any investigation made by or on behalf of MedImmune or the Company, as the case
may be.
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7.5 Indemnification.
(a) The Company agrees to indemnify MedImmune and each officer, director,
employee and affiliate thereof (each a "Medimmune Indemnified Party") for,
and hold each MedImmune Indemnified Party harmless from and against: (i)
any and all damages, losses and other liabilities of any kind, including
without limitation judgements and costs of settlement, and (ii) any and all
reasonable out-of-pocket costs and expenses of any kind, including without
limitation reasonable fees and disbursements of one counsel for all
MedImmune Indemnified Parties (all of which expenses shall be periodically
reimbursed as incurred) ((i) and (ii) above collectively referred to as
"MedImmune Losses"), in each case suffered or incurred in connection with
(A) any investigative, administrative or judicial proceeding or claim,
brought or threatened by a third party, relating to or arising out of the
execution, delivery or performance of this Agreement or the transactions
contemplated hereby and thereby by the Company, (B) any material inaccuracy
or alleged material inaccuracy in any representation or warranty made by
the Company in this Agreement, and (C) any breach or alleged breach by the
Company of any covenant or agreement made in this Agreement, except in each
case for all MedImmune Losses suffered by such persons as a result of the
gross negligence or willful misconduct of any MedImmune Indemnified Party.
(b) MedImmune agrees to indemnify the Company and each officer, director,
employee and affiliate thereof (each a "Company Indemnified Party") for,
and hold each Company Indemnified Party harmless from and against: (i) any
and all damages, losses and other liabilities of any kind, including
without limitation judgements and costs of settlement, and (ii) any and all
reasonable out-of-pocket costs and expenses of any kind, including without
limitation reasonable fees and disbursements of one counsel for all Company
Indemnified Parties (all of which expenses shall be periodically reimbursed
as incurred) ((i) and (ii) above collectively referred to as "Company
Losses"), in each case suffered or incurred in connection with (A) any
investigative, administrative or judicial proceeding or claim, brought or
threatened by a third party, relating to or arising out of the execution,
delivery or performance of this Agreement or the transactions contemplated
hereby and thereby by MedImmune, (B) any material inaccuracy or alleged
material inaccuracy in any representation or warranty made by MedImmune in
this Agreement, and (C) any breach or alleged breach by MedImmune of any
covenant or agreement made in this Agreement, except in each case for all
Company Losses suffered by such persons as a result of the gross negligence
or willful misconduct of any Company Indemnified Party.
7.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive law of the State of Delaware without giving
effect to the principles of conflict of laws thereof.
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7.7 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
7.8 Entire Agreement. This Agreement, the Technology Transfer Agreement and
the Registration Rights Agreement, and all other agreements executed by the
parties as contemplated by the foregoing Agreements, constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and thereof and supersede all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof
and thereof.
*****END OF TEXT*****
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
on the day and year first above written.
SIGA PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. xx Xxxxx
-----------------------------------
Xxxxx X. xx Xxxxx
President and Chief
Executive Officer
MEDIMMUNE, INC.
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Its: President
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