Exhibit 4(h)
WARRANT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL
OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
SIGA TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
1. Issuance; Certain Definitions. In consideration of good and
valuable consideration, the receipt of which is hereby acknowledged by SIGA
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), _____________ or its
registered assigns (the "Holder") is hereby granted the right to purchase at any
time until 5:00 P.M., New York City time, on March 1, 2012 (the "Expiration
Date"), ______________________ (_____) fully paid and nonassessable shares of
the Company's common stock, par value $.0001 per share (the "Common Stock"), at
an initial exercise price per share (the "Exercise Price") of $1.69 per share,
subject to further adjustment as set forth herein. The shares of Common Stock
issued upon exercise of this Warrant are referred to as "Warrant Shares." This
Warrant is being issued to the Holder pursuant to the terms of that certain
Asset Purchase Agreement dated as of May 14, 2003 (the "Agreement"), to which
the Company and Plexus Vaccine Inc., a California corporation, are parties.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Agreement.
2. Exercise of Warrants.
2.1 General. This Warrant is exercisable in whole or in part
at any time and from time to time. Such exercise shall be effectuated by
submitting to the Company (either by delivery to the Company or by facsimile
transmission as provided in Section 8 hereof) a completed and duly executed
Notice of Exercise (substantially in the form attached to this Warrant
Certificate) as provided in this paragraph. The date such Notice of Exercise is
faxed to the Company shall be the "Exercise Date," provided that, if this
Warrant has been fully exercised, the Holder of this Warrant tenders this
Warrant Certificate to the Company within five (5) business days thereafter. The
Notice of Exercise shall be executed by the Holder of this Warrant and shall
indicate the number of shares then being purchased pursuant to such exercise.
Upon surrender of this Warrant Certificate, if relevant, with, together with
appropriate payment of the Exercise Price for the shares of Common Stock
purchased, the Holder shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased. The Exercise Price per share of
Common Stock for the shares then being exercised shall be payable in cash or by
certified or official bank check or wire transfer. The Holder shall be deemed to
be the holder of the shares issuable to it in accordance with the provisions of
this Section 2.1 on the Exercise Date.
2.2 Limitation on Exercise. Notwithstanding the provisions of
this Warrant, the Agreement or the other Related Documents, in no event (except
(i) as specifically provided in this Warrant as an exception to this provision,
or (ii) while there is outstanding a tender offer for any or all of the shares
of the Company's Common Stock) shall the Holder be entitled to exercise this
Warrant, or shall the Company have the obligation to issue shares upon such
exercise of all or any portion of this Warrant, to the extent that, after such
exercise the sum of (1) the number of shares of Common Stock beneficially
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owned by the Holder and its affiliates (other than shares of Common Stock which
may be deemed beneficially owned through the ownership of the unexercised
portion of the Warrants), and (2) the number of shares of Common Stock issuable
upon the exercise of the Warrants with respect to which the determination of
this proviso is being made, would result in beneficial ownership by the Holder
and its affiliates of more than 9.99% of the outstanding shares of Common Stock
(after taking into account the shares to be issued to the Holder upon such
exercise). For purposes of the proviso to the immediately preceding sentence,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), except as
otherwise provided in clause (1) of such sentence. The Holder, by its acceptance
of this Warrant, further agrees that if the Holder transfers or assigns any of
the Warrants to a party who or which would not be considered such an affiliate,
such assignment shall be made subject to the transferee's or assignee's specific
agreement to be bound by the provisions of this Section 2.2 as if such
transferee or assignee were the original Holder hereof.
3. Reservation of Shares. The Company hereby agrees that at all
times during the term of this Warrant there shall be reserved for issuance upon
exercise of the then outstanding balance of this Warrant such number of shares
of its Common Stock as shall be required for issuance of the Warrant Shares.
4. Mutilation or Loss of Warrant. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated Warrant shall thereupon become void.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set forth herein.
6. Protection Against Dilution and Other Adjustments.
6.1 Adjustment Mechanism. If an adjustment of the Exercise
Price is required pursuant to this Section 6, the Holder shall be entitled to
purchase such number of additional shares of Common Stock as will cause (i) the
total number of shares of Common Stock Holder is entitled to purchase pursuant
to this Warrant, multiplied by (ii) the adjusted Exercise Price per share, to
equal (iii) the dollar amount of the total number of shares of Common Stock
Holder is entitled to purchase before adjustment multiplied by the total
Exercise Price before adjustment.
6.2 Capital Adjustments. In case of any stock split or reverse
stock split, stock dividend, reclassification of the Common Stock,
recapitalization, merger or consolidation, or like capital adjustment affecting
the Common Stock of the Company, the provisions of this Section 6 shall be
applied as if such capital adjustment event had occurred immediately prior to
the date of this Warrant and the original Exercise Price had been fairly
allocated to the stock resulting from such capital adjustment; and in other
respects the provisions of this Section shall be applied in a fair, equitable
and reasonable manner so as to give effect, as nearly as may be, to the purposes
hereof. A rights offering to stockholders shall be deemed a stock dividend to
the extent of the bargain purchase element of the rights.
6.3 Adjustment for Spin Off. If, for any reason, prior to the
exercise of this Warrant in full, the Company spins off or otherwise divests
itself of a part of its business or operations or disposes all or of a part of
its assets in a transaction (the "Spin Off") in which the Company does not
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receive compensation for such business, operations or assets, but causes
securities of another entity (the "Spin Off Securities") to be issued to
security holders of the Company, then:
(a) the Company shall cause (i) to be reserved Spin Off Securities
equal to the number thereof which would have been issued to
the Holder had all of the Holder's unexercised Warrants
outstanding on the record date (the "Record Date") for
determining the amount and number of Spin Off Securities to be
issued to security holders of the Company (the "Outstanding
Warrants") been exercised as of the close of business on the
trading day immediately before the Record Date (the "Reserved
Spin Off Shares"), and (ii) to be issued to the Holder on the
exercise of all or any of the Outstanding Warrants, such
amount of the Reserved Spin Off Shares equal to (x) the
Reserved Spin Off Shares multiplied by (y) a fraction, of
which (I) the numerator is the amount of the Outstanding
Warrants then being exercised, and (II) the denominator is the
amount of the Outstanding Warrants; and
(b) the Exercise Price on the Outstanding Warrants shall be
adjusted immediately after consummation of the Spin Off by
multiplying the Exercise Price by a fraction (if, but only if,
such fraction is less than 1.0), the numerator of which is the
average closing bid price of the Common Stock for the five (5)
trading days immediately following the fifth trading day after
the Record Date, and the denominator of which is the average
closing bid price of the Common Stock on the five (5) trading
days immediately preceding the Record Date; and such adjusted
Exercise Price shall be deemed to be the Exercise Price with
respect to the Outstanding Warrants after the Record Date.
7. Transfer to Comply with the Securities Act; Registration Rights
Agreement.
7.1 Transfer. This Warrant has not been registered under the
Securities Act of 1933, as amended, (the "1933 Act") and has been issued to the
Holder for investment and not with a view to the distribution of either the
Warrant or the Warrant Shares. Neither this Warrant nor any of the Warrant
Shares or any other security issued or issuable upon exercise of this Warrant
may be sold, transferred, pledged or hypothecated in the absence of an effective
registration statement under the 1933 Act relating to such security or an
opinion of counsel satisfactory to the Company that registration is not required
under the 1933 Act. Each certificate for the Warrant, the Warrant Shares and any
other security issued or issuable upon exercise of this Warrant shall contain a
legend on the face thereof, in form and substance satisfactory to counsel for
the Company, setting forth the restrictions on transfer contained in this
Section 7.
7.2 Registration Rights. Reference is made to the Registration
Rights Agreement dated of even date herewith between the Company and the Holder
(the "Registration Rights Agreement"). The Company's obligations under the
Registration Rights Agreement and the other terms and conditions thereof with
respect to the Warrant Shares, including, but not necessarily limited to, the
Company's commitment to file a registration statement including the Warrant
Shares, to have the registration of the Warrant Shares completed and effective,
and to maintain such registration, are incorporated herein by reference.
8. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage pre-paid. Any such notice shall be deemed given
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when so delivered personally, telegraphed, telexed or sent by facsimile
transmission, or, if mailed, two days after the date of deposit in the United
States mails, as follows:
(i) if to the Company, to:
SIGA TECHNOLOGIES, INC.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(ii) if to the Holder, to:
_____________________
_____________________
_____________________
_____________________
_____________________
Any party may be notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
9. Supplements and Amendments; Whole Agreement. This Warrant may be
amended or supplemented only by an instrument in writing signed by the parties
hereto. This Warrant contains the full understanding of the parties hereto with
respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein and therein.
10. Governing Law. This Warrant shall be deemed to be a contract
made under the laws of the State of New York for contracts to be wholly
performed in such state and without giving effect to the principles thereof
regarding the conflict of laws. Each of the parties consents to the jurisdiction
of the federal courts whose districts encompass any part of the City of New York
or the state courts of the State of New York sitting in the City of New York in
connection with any dispute arising under this Warrant and hereby waives, to the
maximum extent permitted by law, any objection, including any objection based on
forum non conveniens, to the bringing of any such proceeding in such
jurisdictions.
11. Counterparts. This Warrant may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
12. Descriptive Headings. Descriptive headings of the sections of
this Warrant are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant as
of the 23rd day of May, 2003.
SIGA TECHNOLOGIES, INC.
By:
________________________________
(Name) Xxxxxx X. Xxxxxxxx
(Title) Acting Chief Executive Officer
Chief Financial Officer
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NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant Certificate dated as of ________________, ____, to
purchase ______________ shares of the common stock, par value $.0001 per share,
of SIGA TECHNOLOGIES, INC. ("Common Stock") and tenders herewith payment in
accordance with Section 1 of the Common Stock Purchase Warrant.
It is the intention of the Holder to comply with the provisions of Section
2.2 of the Common Stock Purchase Warrant regarding certain limits on the
Holder's right to exercise thereunder. Based on the analysis on the attached
Worksheet Schedule, the Holder believe this exercise complies with the
provisions of said Section 2.2. Nonetheless, to the extent that, pursuant to the
exercise effected hereby, the Holder would have more shares than permitted under
said Section, this notice should be amended and revised, ab initio, to refer to
the exercise which would result in the issuance of shares consistent with such
provision. Any exercise above such amount is hereby deemed void and revoked.
Please deliver the stock certificate to:
Dated:
[Name of Xxxxxx]
By:
CASH: $
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NOTICE OF EXERCISE OF WARRANT
WORKSHEET SCHEDULE
1. Current Common Stock holdings of Holder and Affiliates _____________
2. Shares to be issued on current exercise _____________
3. Other shares eligible to be acquired without restriction _____________
4. Total [sum of Lines 1 through 3] _____________
5. Outstanding shares of Common Stock _____________
6. Adjustments to Outstanding
a. Shares from Line 1 not included in Line 5 _____________
b. Shares to be issued per Line 2 _____________
c. Total Adjustments [Lines 6a and 6b] _____________
7. Total Adjusted Outstanding [Lines 5 plus 6c] _____________
8. Holder's Percentage [Line 4 divided by Line 7] _____________%
[Note: Line 8 not to be above 9.99%]
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