Exhibit 3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement"), is
entered into as of October 6, 2000, between SIGA TECHNOLOGIES, INC., a Delaware
corporation (with its successors and assigns, referred to as the "Corporation")
and Xxxxxx Xxxxxxxx (referred to as "Konatich").
WHEREAS, the Corporation and Konatich are parties to an Employment
Agreement dated as of April 1, 1998 (the "Original Agreement"), as amended on
January 19, 2000 (the "Agreement"); and
WHEREAS, the Corporation and Konatich have agreed to amend and restate the
Original Agreement in order to add certain change of control provisions and make
other modifications.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual agreements and covenants hereinafter set forth, the parties hereto agree
to the terms and conditions of this Agreement as follows:
1. Employment for Term. The Corporation hereby employs Konatich and
Konatich hereby accepts employment with the Corporation for the period beginning
on January 19, 2000 and ending April 1, 2002. (the "Initial Term"), or upon the
earlier termination of the Term pursuant to Section 6. The termination of
Konatich's employment under this Agreement shall end the Term but shall not
terminate Konatich's or the Corporation's other agreements in this Agreement,
except as otherwise provided herein.
2. Position and Duties. During the Term, Konatich shall serve as the Chief
Financial Officer of the Corporation. During the Term, Konatich shall also hold
such additional positions and titles as the Board of Directors of the
Corporation (the "Board") may determine from time to time. During the Term,
Konatich shall devote as much time as is necessary to satisfactorily perform his
duties as an employee of the Corporation.
3. Compensation.
(a) Base Salary. The Corporation shall pay Konatich a base salary,
beginning on the first day of the Term and ending on the last day of the Term,
of not less than $170,000 per annum, payable at least monthly on the
Corporation's regular pay cycle for professional employees (the "Base Salary").
(b) Stock Options. In addition to stock options to purchase 95,000 shares
of the Corporation's Common Stock previously granted, Konatich is hereby granted
additional
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options as follows: Pursuant to the Corporation's stock option plan and subject
to stockholder approval of the Corporation's Amended 1996 Incentive and
Non-Qualified Stock Option Plan (the "Plan"), Konatich is hereby granted options
to purchase 100,000 shares at an exercise price of $2.00 per share, the closing
bid price of the Common Stock of the Corporation on January 19, 2000 (the
"Options"). The Options shall expire on January 19, 2010. The 100,000 Options
will vest in eight equal installments on every three month anniversary of the
date of the Amendment. All unvested options shall automatically vest upon the
closing of a Change of Control. In the event the closing bid price of the common
stock of the Corporation is at least $10.00 per share for twenty consecutive
trading days prior to January 19, 2001, the first four installments, or the
unvested portion of the balance thereof, shall immediately vest. Similarly, an
additional 25,000 options shall immediately vest if the closing bid price for
such twenty day period is $15.00 per share, and an additional 25,000 options if
the closing bid price equals or exceeds $20.00 per share. The Corporation will
provide a stock option agreement providing, among other things, that all vested
and non-vested stock options will terminate immediately upon termination for
Cause. In the event of termination for any other reason, all vested options must
be exercised within ninety (90) days of termination and all non-vested options
will terminate immediately. In the event the Plan is not approved by the
stockholders at the Corporation's 2000 Annual Meeting, the Corporation shall
grant to Konatich such Options outside of the Plan with the same terms and
conditions as if granted pursuant to the Plan.
(c) Other and Additional Compensation. The preceding sections
establish the minimum compensation during the Term and shall not preclude the
Board from awarding Konatich a higher salary or any bonuses or stock options in
the discretion of the Board during the Term at any time. The Corporation intends
to adopt a performance based bonus plan for 1998 and subsequent years and
Konatich will be eligible to participate in such plan.
4. Employee Benefits. During the Term, Konatich shall be entitled to the
employee benefits including vacation, 401(k) plan, health plan and other
insurance benefits made available by the Corporation to any other employee of
the Corporation.
5. Expenses. The Corporation shall reimburse Konatich for actual
out-of-pocket expenses incurred by him in the performance of his services for
the Corporation upon the receipt of appropriate documentation of such expenses.
6. Termination.
(a) General. The Term shall end immediately upon Konatich's death.
The Term may also end for Cause or Disability, as defined in Section 7.
(b) Notice of Termination. Promptly after it ends the Term, the
Corporation shall give Konatich notice of the termination, including a statement
of whether the termination was for Cause or Disability (as defined in Section
7(a) and 7(b)
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below). The Corporation's failure to give notice under this Section 6(b) shall
not, however, affect the validity of the Corporation's termination of the Term.
(c) Effective Termination by the Corporation. If the Corporation
reassigns Konatich's base of operations outside of New York City, or materially
reduces Konatich's duties during the term, including replacing Konatich as Chief
Financial Officer, then, at his option, Konatich may treat such reduction in
duties as a termination of the Term without Cause by the Corporation.
7. Severance Benefits.
(a) Cause Defined. "Cause" means (i) willful malfeasance or willful
misconduct by Konatich in connection with his employment; (ii) Konatich's gross
negligence in performing any of his duties under this Agreement; (iii)
Konatich's conviction of, or entry of a plea of guilty to, or entry of a plea of
nolo contendre with respect to, any crime other than a traffic violation or
infraction which is a misdemeanor; (iv) Konatich's material breach of any
written policy applicable to all employees adopted by the Corporation which is
not cured to the reasonable satisfaction of the Corporation within fifteen (15)
business days after notice thereof; or (v) material breach by Konatich of any of
his agreements in this Agreement which is not cured to the reasonable
satisfaction of the Corporation within fifteen (15) business days after notice
thereof.
(b) Disability Defined. "Disability" shall mean Konatich's
incapacity due to physical or mental illness that results in his being
substantially unable to perform his duties hereunder for six consecutive months
(or for six months out of any nine month period). During a period of Disability,
Konatich shall continue to receive his base salary hereunder, provided that if
the Corporation provides Konatich with disability insurance coverage, payments
of Konatich's base salary shall be reduced by the amount of any disability
insurance payments received by Konatich due to such coverage. The Corporation
shall give Konatich written notice of termination which shall take effect sixty
(60) days after the date it is sent to Konatich unless Konatich shall have
returned to the performance of his duties hereunder during such sixty (60) day
period (whereupon such notice shall become void).
(c) Termination. If the Corporation ends the Term for Cause or
Disability, or if Konatich resigns as an employee of the Corporation for reasons
other than a material breach by the Corporation of its obligations under this
Agreement or a material reduction of Konatich's duties as provided in Section
6(c), or if Konatich dies, then the Corporation shall have no obligation to pay
Konatich any amount, whether for salary, benefits, bonuses, or other
compensation or expense reimbursements of any kind, accruing after the end of
the Term, and such rights shall, except as otherwise required by law, be
forfeited immediately upon the end of the Term, except that payments under
Section 3(a) shall continue for the remainder of the Term unless the Corporation
ends the Term for Cause or if Konatich resigns for reasons other than a material
breach by the Corporation of its obligations under this Agreement or a material
reduction of his duties
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as provided in Section 6(c). If the Corporation ends the Term without Cause,
then the Corporation will be obligated to continue to pay Konatich's salary and
all other amounts due hereunder for the remainder of the Term.
8. Change of Control Payment. The provisions of this paragraph 8 set forth
the terms of an agreement reached between Konatich and the Corporation regarding
Konatich's rights and obligations upon the occurrence of a "Change in Control"
(as hereinafter defined) of the Corporation. These provisions are intended to
assure and encourage in advance Konatich's continued attention and dedication to
his assigned duties and his objectivity during the pendency and after the
occurrence of any such Change in Control. These provisions shall apply in lieu
of, and expressly supersede, the provisions of paragraph 7(c) if Konatich's
employment is terminated or Notice of Termination is given ninety (90) days
prior to or within eighteen (18) months after the occurrence of an event
constituting a Change in Control.
(a) Escrow. Within ten (10) days after the occurrence of the first
event constituting a Change in Control (irrespective of whether Konatich
has actual knowledge of such event), the Corporation shall place
immediately negotiable funds in escrow in an amount equal to Konatich's
salary and all other amounts due hereunder for the remainder of the Term,
plus such additional amount as equals the "Gross Up Payment" (as
hereinafter defined) thereon (the "Change of Control Amount"). Such escrow
shall be conducted pursuant to a standard escrow agreement among the
Corporation, Konatich and an independent escrow agent providing for the
timely payment to Konatich of the amounts hold in such escrow in the event
Konatich becomes entitled thereto under the applicable provisions of this
Agreement (the "Escrow Arrangement"). The Escrow Arrangement shall be
maintained until the earlier of (A) nineteen (19) months after the
occurrence of an event constituting a Change in Control or (B) the payment
to Konatich of all sums escrowed.
(b) Change in Control. If, within 90 days prior to, or within eighteen
(18) months after the occurrence of an event constituting a Change in
Control, Konatich's employment is terminated or a Notice of Termination is
given for any reason other than (A) his death, (B) his Disability, or (C)
by Konatich without Cause on the part of the Corporation, then such
termination shall be deemed to be a "Termination Due to Change in Control
(herein so called), in which event the Corporation shall pay Konatich, in
a lump sum, on or prior to the fifth (5th) day following the date of
termination of the Term:
(1) an amount equal to the Change of Control Amount (including any
Gross Up Payment); and
(2) Konatich's accrued and unpaid base salary.
(c) Stock Option Floor. Upon the occurrence of the first event
constituting a Change in Control, all stock options and other stock-based
grants to Konatich by
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the Corporation shall, irrespective of any provisions of his option
agreements, immediately and irrevocably vest and become exercisable as of
the date of such first event whereupon, at any time during the Option Term
as defined in the option agreements, Konatich or his estate may by five
(5) days' advance written notice given to the Corporation, and
irrespective of whether Konatich is then employed by the Corporation or
then living, and solely at the election of Konatich or his estate, require
the Corporation to:
(1) within thirty (30) days of a request by Konatich or his estate
file and cause to become effective a Form S-8 (or other appropriate
form) with the Securities and Exchange Commission ("SEC")
registering for resale all shares underlying stock options granted
to Konatich and outstanding with all fees and expenses of such
filing being paid by the Corporation, or,
(2) allow Konatich to exercise all or any part of such Stock Options
at the option prices therefor specified in the grant of the Stock
Options.
In the event the Corporation does not file and cause to become
effective a Form S-8 (or other appropriate form) with the SEC within
the thirty (30) day time period, the Corporation shall pay
liquidated damages to Konatich or his estate equal to the greater of
(a) the amount equal to the difference between the Market Price of
the Corporation's common stock and the exercise price of the stock
options multiplied by the aggregate number of stock options
outstanding or (b) $500,000. For purposes of this Section 8(c),
Market Price is defined as the average of the closing bid and ask
price of the Corporation's common stock on the Nasdaq SmallCap
Market or the closing sale price of the common stock on a national
exchange, if listed on such exchange, in each case, on the day prior
to the date of the Corporation's breach of this Section 8(c).
(d) Gross Up Payment
(1) Excess Parachute Payment. If Konatich incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code
of 1986 (the "Code") on "Excess Parachute Payments" within the
meaning of Section 280G(b)(1) of the Code, the Corporation will pay
to Konatich an amount (the "Gross Up Payment") such that the net
amount retained by Konatich, after deduction of any Excise Tax on
both the Excess Parachute Payment and any federal, state and local
income tax (together with penalties and interest) as well as the
Excise Tax upon the payment provided for by this subparagraph
8(d)(1), will be equal to the Change of Control Amount.
(2) Applicable Rates. For purposes of determining the amount of the
Gross Up Payment, Konatich will be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation in the
calendar year
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in which the Gross Up Payment is to be made and state and local
income taxes at the highest marginal rates of taxation in the state
and locality where taxes thereon are lawfully due, net of the
maximum reduction (if any) in federal income taxes that could be
obtained from deduction of deductible state and local taxes.
(3) Determination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be
based upon the opinion of tax counsel selected by Konatich and
reasonably approved by the Corporation, which approval will not be
unreasonably withheld or delayed. If such opinion is not finally
accepted by the Internal Revenue Service (or state and local taxing
authorities), then appropriate adjustments to the Excise Tax will be
computed and additional Gross Up Payments will be made in the manner
provided by this subparagraph (d).
(4) Payment. The Corporation will pay the estimated amount of the
Gross Up Payment in cash to Konatich at the time specified in this
Agreement. Konatich and the Corporation agree to reasonably
cooperate in the determination of the actual amount of the Gross Up
Payment. Further, Konatich and the Corporation agree to make such
adjustments to the estimated amount of the Gross Up Payment as may
be necessary to equal the actual amount of the Gross Up Payment,
which in the case of the Corporation will refer to refunds of prior
overpayments by the Corporation and in the case of Konatich will
refer to additional payments to Konatich to make up for prior
underpayments.
(e) Definitions. For purposes of this paragraph 8, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
(1) the acquisition by any individual, entity, or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Corporation, or any of its
Subsidiaries or any Excluded Group (as defined herein), of
beneficial ownership (within the meaning of Rule 13d-3- promulgated
under the Exchange Act) of 35% or more of the combined voting power
or economic interests of the then outstanding voting securities of
the Corporation entitled to vote generally in the election of
directors; provided however, that any transfer from any director or
executive officer listed in the Company's Form 10-KSB for the year
ended December 31, 1999 under "Security Ownership of Certain
Beneficial Owners" (the "Excluded Group") will not result in a
Change in Control if such transfer was part of a series of related
transactions the effect of which, absent the transfer to such
Acquiring Person by the Excluded Group, would not have resulted in
the acquisition
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by such Acquiring Person of 35% or more of the combined voting power
or economic interests of the then outstanding voting securities; or
(2) during any period of 12 consecutive months after the date of
this Amendment, the individuals who at the beginning of any such
12-month period constituted a majority of the Directors (the
"Incumbent Non-Investor Majority") cease for any reason to
constitute at least a majority of such Directors; provided that (i)
any individual becoming a director whose election, or nomination for
election by the Corporation's stockholders, was approved by a vote
of the stockholders having the right to designate such director and
(ii) any director whose election to the Board or whose nomination
for election by the stockholders of the Corporation was approved by
the requisite vote of directors entitled to vote on such election or
nomination in accordance with the Restated Certificate of
Incorporation of the Corporation, shall, in each such case, be
considered as though such individual were a member of the Incumbent
Non-Investor Majority, but excluding, as a member of the Incumbent
Non-Investor Majority, any such individual whose initial assumption
of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Corporation
(as such terms are used in Rule 14a-2 of Regulation 14A
promulgated under the Exchange Act) and further excluding any person
who is an affiliate or associate of an Acquiring Person having or
proposing to acquire beneficial ownership of 25% or more of the
combined voting power of the then outstanding voting securities of
the Corporation entitled to vote generally in the election of
directors; or
(3) the approval by the stockholders of the Corporation of a
reorganization, merger or consolidation, in each case, with respect
to which all or substantially all of the individuals and entities
who were the respective beneficial owners of the voting securities
of the Corporation immediately prior to such reorganization, merger,
or consolidation do not, following such reorganization, merger, or
consolidation, beneficially own, directly or indirectly, more than
50% of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors
of the Corporation resulting from such reorganization, merger, or
consolidation; or
(4) the sale or other disposition of assets representing 50% or more
of the assets of the Corporation in one transaction or series of
related transactions not initiated or commenced by any person within
the Excluded Group; or
(5) a "Fundamental Change in Business" as hereinafter defined; or
(6) a "Hostile Takeover" as hereinafter defined is declared.
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"Fundamental Change in Business" shall mean that the Corporation, at
any time, no longer spends at least fifty percent (50%) of its annual
budget on activities related to biotechnology or pharmaceuticals.
"Hostile Takeover" shall mean any Change in Control which at any
time is declared by at least a majority of the Board, directly or
indirectly, to be hostile or not in the best interests of the Corporation,
or in which an attempt is made (irrespective of whether successful) to
wrest control away from the incumbent management of the Corporation, or
with respect to which the Board makes any effort to resist.
9. Confidentiality, Ownership, and Covenants.
(a) "Corporation Information" and "Inventions" Defined. "Corporation
Information" means all information, knowledge or data of or pertaining to (i)
the Corporation, its employees and all work undertaken on behalf of the
Corporation, and (ii) any other person, firm, corporation or business
organization with which the Corporation may do business during the Term, that is
not in the public domain (and whether relating to methods, processes,
techniques, discoveries, pricing, marketing or any other matters). "Inventions"
collectively refers to any and all inventions, trade secrets, ideas, processes,
formulas, source and object codes, data, programs, other works of authorship,
know-how, improvements, research, discoveries, developments, designs, and
techniques regarding any of the foregoing.
(b) Confidentiality. (i) Konatich hereby recognizes that the value
of all trade secrets and other proprietary data and all other information of the
Corporation not in the public domain disclosed by the Corporation in the course
of his employment with the Corporation may be attributable substantially to the
fact that such confidential information is maintained by the Corporation in
strict confidentiality and secrecy and would be unavailable to others without
the expenditure of substantial time, effort or money. Konatich, therefore,
except as provided in the next two sentences, covenants and agrees that all
Corporation Information shall be kept secret and confidential at all times
during the Term and for the five (5) year period after the end of the Term and
shall not be used or divulged by him outside the scope of his employment as
contemplated by his Agreement, except as the Corporation may otherwise expressly
authorize by action of the Board. In the event that Konatich is requested in a
judicial, administrative or governmental proceeding to disclose any of the
Corporation Information, Konatich will promptly so notify the Corporation so
that the Corporation may seek a protective order of other appropriate remedy
and/or waive compliance with this Agreement. If disclosure of any of the
Corporation Information is required, Konatich may furnish the material so
required to be furnished, but Konatich will furnish only that portion of the
Corporation Information that legally is required.
(ii) Konatich also hereby agrees to keep the terms of this Agreement
confidential to the same extent that the Corporation maintains such
confidentiality
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(except with regard to any disclosure by the Corporation required under
applicable securities laws).
(c) Ownership of Inventions, Patents and Technology. Konatich hereby
assigns to the Corporation all of Konatich's rights (including patent rights,
copyrights, trade secret rights, and all other rights throughout the world),
title and interest in and to Inventions, whether or not patentable or
registrable under copyright or similar statutes, made or conceived or reduced to
practice or learned by Konatich, either alone or jointly with others, during the
course of the performance of services for the Corporation. Konatich shall also
assign to, or as directed by, the Corporation, all of Konatich's right, title
and interest in and to any and all Inventions, the full title to which is
required to be in the United States government of any of its agencies. The
Corporation shall have all right, title and interest in all research and work
product produced by Konatich as an employee of the Corporation, including, but
not limited to, all research materials and lab books.
(d) Non-Competition Period Defined. "Non-Competition Period" means
the period beginning at the end of the Term and ending one (1) year after the
end of the Term.
(e) Covenants Regarding the Term and Non-Competition Period.
Konatich acknowledges and agrees that his services pursuant to this Agreement
are unique and extraordinary; that the Corporation will be dependent upon
Konatich for the development of its products; and that he will have access to
and control of confidential information of the Corporation. Konatich further
acknowledges that the business of the Corporation is international in scope and
cannot be confined to any particular geographic area. For the foregoing reasons
and to induce the Corporation to enter this Agreement, Konatich covenants and
agrees that, subject to Section 9(h), during the Term and the Non-Competition
Period Konatich shall not unless with written consent of the Corporation:
(i) engage in any business related to the research and development of the
products or processes in which the Corporation is engaged in during the Term or
in any other business conducted by the Corporation during the Term (collectively
the "Prohibited Activity") in the World for his own account;
(ii) become interested in any individual, corporation, partnership or
other business entity (a "Person") engaged in any Prohibited Activity in the
World, directly or indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, employee, trustee, consultant or in any other
relationship or capacity; provided, however, that Konatich may own directly or
indirectly, solely as an investment, securities of any Person which are traded
on any national securities exchange if Konatich (x) is not a controlling person
of, or a member of a group which controls, such person or (y) does not, directly
or indirectly, own 5% or more of any class of securities of such person; or
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(iii) directly or indirectly hire, employ or retain any person who at any
time during the Term was an employee of the Corporation or directly or
indirectly solicit, entice, induce or encourage any such person to become
employed by any other person.
(f) Remedies. Konatich hereby acknowledges that the covenants and
agreements contained in Section 9 are reasonable and valid in all respects and
that the Corporation is entering into this Agreement, inter alia, on such
acknowledgement. If Konatich breaches, or threatens to commit a breach, of any
of the Restrictive Covenants, the Corporation shall have the following rights
and remedies, each of which rights and remedies shall be independent of the
other and severally enforceable, and all of which rights and remedies shall be
in addition to, and not in lieu of, any other rights and remedies available to
the Corporation under law or in equity: (i) the right and remedy to have the
Restrictive Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Corporation and that
money damages will not provide an adequate remedy to the Corporation; (ii) the
right and remedy to require Konatich to account for and pay over to the
Corporation such damages as are recoverable at law as the result of any
transactions constituting a breach of any of the Restrictive Covenants; (iii) if
any court determines that any of the Restrictive Covenants, or any part thereof,
is invalid or unenforceable, the remainder of the Restrictive Covenants shall
not thereby be affected and shall be given full effect, without regard to the
invalid portions; and (iv) if any court construes any of the Restrictive
Covenants, or any part thereof, to be unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
(g) Jurisdiction. The parties intend to and hereby confer
jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Covenants. If the courts of
any one or more such jurisdictions hold the Restrictive Covenants wholly
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties that such determination not bar or in any way affect
the Corporation's right to the relief provided above in the courts of any other
jurisdiction, within the geographical scope of such Covenants, as to breaches of
such Covenants in such other respective jurisdiction such Covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
(h) Konatich's agreements and covenants under Section 9(e) shall
automatically terminate if the Corporation ends the Term without Cause or
Konatich resigns due to a material breach by the Corporation of its obligations
under this Agreement or a material reduction of Konatich's duties as provided in
Section 6(c).
10. Successors and Assigns.
(a) Konatich. This Agreement is a personal contract, and the rights
and interests that the Agreement accords to Konatich may not be sold,
transferred,
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assigned, pledged, encumbered, or hypothecated by him. All rights and benefits
of Konatich shall be for the sole personal benefit of Konatich, and no other
person shall acquire any right, title or interest under this Agreement by reason
of any sale, assignment, transfer, claim or judgement or bankruptcy proceedings
against Konatich. Except as so provided, this Agreement shall inure to the
benefit of and be binding upon Konatich and his personal representatives,
distributes and legatees.
(b) The Corporation. This Agreement shall be binding upon the
Corporation and inure to the benefit of the Corporation and of its successors
and assigns, including (but not limited to) any corporation that may acquire all
or substantially all of the corporation's assets or business or into or with
which the Corporation may be consolidated or merged. In the event that the
Corporation sells all or substantially all of its assets, merges or
consolidates, otherwise combines or affiliates with another business, dissolves
and liquidates, or otherwise sells or disposes of substantially all of its
assets and Konatich does not elect to treat any such transaction as a
termination by the Corporation without Cause pursuant to Section 7(c), then this
Agreement shall continue in full force and effect. The Corporation's obligations
under this Agreement shall cease, however, if the successor to, the purchaser or
acquirer either of the Corporation or of all or substantially all of its assets,
or the entity with which the Corporation has affiliated, shall assume in writing
the Corporation's obligations under this Agreement (and deliver and executed
copy of such assumption to Konatich), in which case such successor or purchaser,
but not the Corporation, shall thereafter be the only party obligated to perform
the obligations that remain to be performed on the part of the Corporation under
this Agreement.
11. Entire Agreement. This Agreement represents the entire agreement
between the parties concerning Konatich's employment with the Corporation and
supersedes all prior negotiations, discussions, understanding and agreements,
whether written or oral, between Konatich and the Corporation relating to the
subject matter of this Agreement.
12. Amendment or Modification, Waiver. No provision of this Agreement may
be amended or waived unless such amendment or waiver is agreed to in writing
signed by Konatich and by a duly authorized officer of the Corporation. No
waiver by any party to this Agreement or any breach by another party of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same time, any prior time or any subsequent time.
13. Notices. Any notice to be given under this Agreement shall be in
writing and delivered personally or sent by overnight courier or registered or
certified mail, postage prepaid, return receipt requested, addressed to the
party concerned at the address indicated below, or to such other address of
which such party subsequently may give notice in writing:
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If to Konatich: Xxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
If to the Corporation: SIGA TECHNOLOGIES, INC.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Any notice delivered personally or by overnight courier shall be deemed given on
the date delivered and any notice sent by registered or certified mail, postage
prepaid, return receipt requested, shall be deemed given on the date mailed.
14. Severability. If any provision of this Agreement or the application of
any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid and unenforceable shall not be affected, and each provision of this
Agreement shall be validated and shall be enforced to the fullest extent
permitted by law. If for any reason any provision of this Agreement containing
restrictions is held to cover an area or to be for a length of time that is
unreasonable or in any other way is construed to be too broad or to any extent
invalid, such provision shall not be determined to be entirely null, void and of
no effect; instead, it is the intention and desire of both the Corporation and
Konatich that, to the extent that the provision is or would be valid or
enforceable under applicable law, any court of competent jurisdiction shall
construe and interpret or reform this Agreement to provide for a restriction
having the maximum enforceable area, time period and such other constraints or
conditions (although not greater than those contained currently contained in
this Agreement) as shall be valid and enforceable under the applicable law.
15. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
16. Headings. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience of reference, and no provision of
this Agreement is to be construed by reference to the heading of any section or
paragraph.
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17. Withholding Taxes. All salary, benefits, reimbursements and any other
payments to Konatich under this Agreement shall be subject to all applicable
payroll and withholding taxes and deductions required by any law, rule or
regulation of and federal, state or local authority.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together constitute one and same instrument.
19. Applicable Law; Arbitration. The validity, interpretation and
enforcement of this Agreement and any amendments or modifications hereto shall
be governed by the laws of the State of New York, as applied to a contract
executed within and to be performed in such State. The parties agree that any
disputes shall be definitively resolved by binding arbitration before the
American Arbitration Association in New York, New York and consent to the
jurisdiction to the federal courts of the Southern District of New York or, if
there shall be no jurisdiction, to the state courts located in New York County,
New York, to enforce any arbitration award rendered with respect thereto. Each
party shall choose one arbitrator and the two arbitrators shall choose a third
arbitrator. All costs and fees related to such arbitration (and judicial
enforcement proceedings, if any) shall be borne by the unsuccessful party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SIGA TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
/s/ Xxxxxx Xxxxxxxx
----------------------
Xxxxxx Xxxxxxxx
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