Exhibit 10.2
AMENDMENT NO. 5 TO EMPLOYMENT AGREEMENT
This AMENDMENT NO. 5 TO EMPLOYMENT AGREEMENT (this "Amendment No.
5"), dated as of July 29, 2004 (the "Effective Date of Amendment No. 5"),
between SIGA Technologies, Inc., a Delaware corporation (the "Corporation"), and
Xx. Xxxxxx X. Xxxxx ("Xxxxx"), amends certain provisions of the Employment
Agreement, dated as of January 1, 1998, as amended (the "Existing Agreement").
Capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Existing Agreement.
WHEREAS, under the Existing Agreement, the Initial Term ends on
December 31, 2005; and
WHEREAS, the Corporation and Xxxxx desire to amend the Existing
Agreement as provided in this Amendment No. 5.
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, intending legally to be bound, hereby agree as
follows:
1. Section 2 of the Existing Agreement (referenced as "Paragraph 1"
in the Amendment No. 2, dated as of June 13, 2000) shall be amended to read in
its entirety as follows:
1. Employment for Term. The Corporation hereby employs Xxxxx
and Xxxxx hereby accepts employment with the Corporation for the period
beginning on the date hereof and ending on December 31, 2007 (the "Initial
Term"), or upon the earlier termination of the Term pursuant to Section 7.
The foregoing notwithstanding, the Corporation shall have the right to
terminate Xxxxx'x employment under the Agreement upon 1 year written
notice and such termination will be treated as Termination with Cause
pursuant to Section 8 of this Agreement. The termination of Xxxxx'x
employment under this Agreement shall end the Term but shall not terminate
Xxxxx'x or the Corporation's other agreements in this Agreement, except as
otherwise provided herein.
2. Section 4(a) of the Existing Agreement shall be amended to add
the following sentence at the end thereof:
From and after the date hereof, the Base Salary shall be not less than
$225,000 per annum, and the Corporation shall make the appropriate
adjustments to its payroll.
3. Subsection 4(e) of the Existing Agreement shall be deleted, be of
no further force and effect, and be replaced by the following:
(e) 2004 Stock Option Grant. Xxxxx shall be granted an option to
purchase a total of 150,000 shares of Common Stock of the Corporation at
an exercise price of $1.40 per share, which shall vest in 75,000 share
increments on December 31 of each year, commencing December 31, 2005,
pursuant to a Stock Option Grant Agreement in substantially the form
attached hereto as Exhibit A5A.
4. Section 4 of the Existing Agreement shall be amended to add a
Subsection (f) that reads as follows:
(f) Other and Additional Compensation. The preceding sections
establish the minimum compensation during the Term and shall not preclude
the Board from awarding Xxxxx a higher salary or any bonuses or stock
options in the discretion of the Board during the Term at any time,
provided that, from and after the Effective Date of Amendment No. 5, any
bonus amount awarded Xxxxx in the discretion of the Board or a committee
thereof shall not exceed 50% of Xxxxx'x annual salary.
5. The Existing Agreement shall be amended to add an Exhibit A5A
thereto in the form of Exhibit A5A hereto.
5. Any event occurring prior to the Effective Date of Amendment No.
5 that would otherwise constitute a Change of Control shall not be deemed a
Change of Control for purposes of the Agreement.
6. Neither the amendments set forth in this Amendment No. 5, nor any
event that took place prior to the Effective Date of Amendment No. 5, shall be
deemed to constitute a breach of the Existing Agreement by the Corporation.
[Signature page follows immediately]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be dully executed, as of the day and year first written.
SIGA TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx, M.D.
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxx
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Xx. Xxxxxx X. Xxxxx
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EXHIBIT A5A
SIGA TECHNOLOGIES, INC.
Incentive Stock Option Agreement
Granting Date: July 29, 2004
To: Xx. Xxxxxx X. Xxxxx:
We are pleased to notify you that SIGA TECHNOLOGIES, INC., a
Delaware corporation (the "Corporation"), has granted to you (the "Holder") an
incentive stock option (the "Option") under the Corporation's Amended and
Restated 1996 Incentive and Non-Qualified Stock Option Plan (the "Plan") to
purchase all or any part of an aggregate of 150,000 shares of Common Stock of
the Corporation (the "Optioned Shares"), subject to the terms and conditions of
this Agreement.
1. Vesting, Term and Exercise of Option. Subject to the provisions
of this Agreement, this Option may be exercised for up to the number of vested
Optioned Shares (subject to adjustment as provided in Section 6 hereof) by you
on or prior to the tenth anniversary of the Granting Date ("Last Exercise Date")
at an initial exercise price (the "Exercise Price") of $1.40 per share (subject
to adjustment as provided in Section 6 hereof) and all as subject to Plan and
this Agreement. The Holder may exercise this Option according to the following
vesting schedule: this Option shall become exercisable with respect to the first
75,000 Optioned Shares on December 31, 2005, and with respect to the remaining
75,000 Optioned Shares, on December 31, 2006. Any portion of the Option that you
do not exercise shall accumulate and can be exercised by you any time prior to
the Last Exercise Date. You may not exercise your Option to purchase a
fractional share or fewer than 100 shares, and you may only exercise your Option
by purchasing shares in increments of 100 shares unless the remaining shares
purchasable are less than 100 shares.
This Option may be exercised by delivering to the Secretary of the
Corporation (i) a written Notice of Intention to Exercise in the form attached
hereto as Appendix A signed by you and specifying the number of Optioned Shares
you desire to purchase, (ii) payment, in full, of the Exercise Price for all
such Optioned Shares in cash, certified check, surrender of shares of Common
Stock of the Corporation having a value equal to the exercise price of the
Optioned Shares as to which you are exercising this Option, provided that such
surrendered shares, if previously acquired by exercise of a stock option, have
been held by you at least six months prior to their surrender, or by means of a
brokered cashless exercise. As a holder of an option, you shall have the rights
of a shareholder with respect to the Optioned Shares only after they shall have
been issued to you upon the exercise of this Option. Subject to the terms and
provisions of this Agreement and the Plan, the Corporation shall use its best
efforts to cause the Optioned Shares to be issued as promptly as practicable
after receipt of your Notice of Intention to Exercise.
2. Non-transferability of Option. This Option shall not be
transferable and may be exercised during your lifetime only by you. Any
purported transfer or assignment of this Option shall be void and of no effect,
and shall give the Corporation the right to terminate this Option as of the date
of such purported transfer or assignment. No transfer of an Option by will or by
the laws of descent and distribution shall be effective unless the Corporation
shall have
been furnished with written notice thereof, and such other evidence
as the Corporation may deem necessary to establish the validity of the transfer
and conditions of the Option, and to establish compliance with any laws or
regulations pertaining thereto.
3. Certain Rights and Restrictions With Respect to Common Stock. The
Optioned Shares which you may acquire upon the exercise of this Option may not
be registered under the Securities Act of 1933, as amended, or under state
securities laws and the resale by you of such Optioned Shares may, therefore, be
restricted. If there is no such registration, you will be unable to transfer
such Optioned Shares without either registration under such Act and compliance
with applicable state securities laws or the availability of an exemption
therefrom. Accordingly, you represent and warrant to the Corporation that all
shares of Common Stock you may acquire upon the exercise of this Option will be
acquired by you for your own account for investment and that you will not sell
or otherwise dispose of any such shares except in compliance with all applicable
federal and state securities laws. The Corporation may place a legend to such
effect upon each certificate representing Optioned Shares acquired by you upon
the exercise of this Option.
4. Disputes. Any dispute which may arise under or as a result of or
pursuant to this Agreement shall be finally and conclusively determined in good
faith by the Board of Directors of the Corporation in its sole discretion, and
such determination shall be binding upon all parties.
5. Termination of Status.
(a) This Option is a separate incentive and not in lieu of
salary or other compensation. The Optioned Shares do not vest you with any right
to employment with the Corporation, nor is the Corporation's right to terminate
your employment in any way restricted by this Agreement. Subject to the
following provisions of this Section 5, the Option will terminate upon and will
not be exercisable after termination of your employment with the Corporation
("Employment Termination Date"). If your employment with the Corporation is
terminated for any reason other than death or disability, this Option may not be
exercised after the earlier of (i) ninety (90) days from the Employment
Termination Date or (ii) the Expiration Date, and may not be exercised for more
than the number of Optioned Shares purchasable under Section 1 on the Employment
Termination Date.
(b) If you die while this Option is exercisable, or within a
period of three months after the Employment Termination Date, the Option may be
exercised by the duly authorized executor of your last will or by the duly
authorized administrator of your estate, but may not be exercised after the
earlier of (i) one year from the date of your death or (ii) the Expiration Date,
and may not be exercised for more than the number of Optioned Shares purchasable
under Section 1 on the date of your death.
(c) If your employment is terminated as a result of your
permanent disability, this Option may not be exercised after the earlier of (i)
one year from the Employment Termination Date, or (ii) the Expiration Date, and
may not be exercised for more than the number of Optioned Shares purchasable
under Section 1 on the Employment Termination Date. If you die after the date
your employment is terminated under the provisions of this Section 5(c)
but before the Expiration Date, the provisions of Section 5(b) above shall
apply. Permanent disability shall mean a disability described in Section
422(c)(6) of the Code. The existence of a Disability shall be determined by the
Committee in its absolute discretion.
6. Adjustments to Exercise Price and Number of Securities. If the
Corporation shall at any time subdivide or combine the outstanding shares of
Common Stock, or similar corporate events the Exercise Price and the number of
shares subject to the Option shall be appropriately adjusted.
7. Reservation and Listing of Securities. The Corporation shall at
all times reserve and keep available out of its authorized shares of Common
Stock, solely for the purpose of issuance upon the exercise of this Option, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Corporation covenants and
agrees that, upon exercise of this Option and payment of the Exercise Price
therefor, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable and not
subject to the preemptive rights of any stockholder. As long as this Option
shall be outstanding, the Corporation shall use its best efforts to cause all
shares of Common Stock issuable upon the exercise of the Option to be listed
(subject to official notice of issuance) on all securities exchanges on which
the Common Stock may then be listed and/or quoted on NASDAQ.
8. Forfeiture of Option Gains. If at any time within one year after
the exercise of all or any portion of the Option the Committee determines that
the Corporation has been materially harmed by you, which harm either (a) results
in your being terminated for Cause or (b) results from your engaging in any
activity determined by the Committee, in its sole discretion, to be in
competition with any activity of the Corporation, or otherwise inimical,
contrary or harmful to the interests of the Corporation (including, but not
limited to, violating any non-competition or similar agreements entered into
with the Corporation or otherwise accepting employment with or serving as a
consultant, adviser or in any other capacity to an entity that is in competition
with or acting against the interests of the Corporation), then upon notice from
the Corporation to you any gain ("Gain") realized by you upon exercising such
Option shall be paid by you to the Corporation. For purposes of this Section 8,
such Gain shall be the excess of the Fair Market Value of the shares of stock
obtained through such exercise as of the date of option exercise over the
purchase price of such shares. The Corporation shall have the right to offset
such Gain against any amounts otherwise owed to you by the Corporation
(including, but not limited to wages, vacation pay, or pursuant to any benefit
plan or other compensatory arrangement).
9. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made and
sent when delivered, or mailed by registered or certified mail, return receipt
requested:
(a) If to the registered Holder of this Option, to the address
of the Holder as shown on the books of the Corporation; or
(b) If to the Corporation, to 000 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxx, XX 00000, or to such other address as the Corporation may
designate by notice to the Holders.
10. Supplements and Amendments. The Corporation and the Holder may
from time to time supplement or amend this Agreement in any respect, provided,
however, that no amendment may adversely affect your rights hereunder without
your written consent.
11. Successors. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Corporation, the Holder
and their respective successors and assigns hereunder.
12. Governing Law. This Agreement shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall be
construed in accordance with the laws of the State of New York without giving
effect to the rules of the State of New York governing the conflicts of laws.
13. Entire Agreement; Modification. This Agreement, including all
schedules and exhibits hereto, contains the entire understanding between the
parties hereto with respect to the subject matter hereof.
14. Severability. If any provision of this Agreement shall be held
to be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
15. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
16. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Corporation and
the registered Holder of this Option any legal or equitable right, remedy or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Corporation and the Holder.
17. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
[Signature page follows immediately]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be dully executed, as of the day and year first written.
SIGA TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, M.D.
Chief Executive Officer
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
