Exhibit 4(j)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
February 10, 1998 by and between MEDIMMUNE, INC., a Delaware corporation (the
"Purchaser"), and SIGA PHARMACEUTICALS, INC., a Delaware corporation (the
"Company").
WHEREAS, concurrently with the execution and delivery of this Agreement,
the parties hereto have entered into the Stock Purchase Agreement (the "Purchase
Agreement"), pursuant to which the Purchaser has purchased 335,530 shares of
Common Stock, par value $.0001 per share, of the Company (the "Securities);
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Securities Subject to this Agreement
(a) Definitions. The terms "Registrable Securities" and "Restricted
Securities" mean and include each of the following, subject to Section 1(b): (i)
the Securities, (ii) any securities similar to the Securities distributed with a
dividend or split relating to the Securities and (iii) any other securities
issued in substitution or exchange for any of the Securities in which
substitution or exchange such Securities would cease to be outstanding.
(b) Restricted Securities. For the purposes of this Agreement, Restricted
Securities shall cease to be Registrable Securities when (i) such Restricted
Securities have been effectively registered under the Securities Act of 1933, as
amended (the "Act"), and they have been disposed of pursuant to an effective
registration statement covering such Registrable Securities, (ii) they are
distributed to the public pursuant to Rule 144 (or any similar provisions then
in force) under the Act or (iii) they may be sold or transferred pursuant to
Rule 144(k) (or any similar provision then in force) under the Act.
2. Demand Registration
(a) Request for Registration. At any time following the first anniversary
of the consummation of the initial public offering of the Company's securities,
and for a period of ten (10) years thereafter, the Purchaser may make written
requests for registration under the Act pursuant to this Section 2 of all or
part of the Registrable
Securities (a "Demand Registration"); provided, that, the Company need effect
only one Demand Registration pursuant hereto, unless the Company is eligible, at
the time of the first such Demand Registration, to file a registration statement
on Form S-3 or a similar "short form" in which case, the Company shall be
required to effect up to two Demand Registrations pursuant to such Form S-3 or
similar "short form" registration statement. Such request will specify the
aggregate number of shares of Registrable Securities proposed to be sold and
will also specify the intended method or methods of disposition thereof. Unless
the Purchaser shall consent in writing (which consent shall not be unreasonably
withheld), none of the Company's security holders (other than the Company) shall
have the right to include any of the Company's securities in any registration
statement prepared in connection with any such Demand Registration.
(b) Effective Registration and Expenses. A registration will not count as a
Demand Registration until it has become effective and the period of distribution
of the registration contemplated thereby has been completed; provided, however,
that if a registration does not become effective solely because of any act or
omission on the part of the Purchaser, such registration shall nevertheless
count as a Demand Registration. In any registration initiated as a Demand
Registration, the Company will pay all Registration Expenses (as hereinafter
defined) in connection therewith, whether or not such registration becomes
effective.
(c) Priority on Demand Registrations. If the Purchaser so elects, the
offering of Registrable Securities pursuant to a Demand Registration shall be in
the form of an underwritten offering. In such event, if the managing underwriter
or underwriters of such offering advise the Company and the Purchaser in writing
that in their opinion the aggregate amount of securities requested to be
included in such offering (including those being offered by the Company) is
sufficiently large to materially and adversely affect the success or offering
price of such offering, the Company will reduce the amount of securities to be
offered by it to the extent recommended by the managing underwriter (or if so
recommended, withdraw from the offering entirely) and will include in such
registration the aggregate amount of securities which in the opinion of such
managing underwriter or underwriters can be sold without any such material
adverse effect.
(d) Selection of Underwriters. If any Demand Registration is in the form of
an underwritten offering, the Purchaser will select and obtain the investment
banker or investment bankers and manager or managers of nationally recognized
standing that will administer the offering; provided, however, that such
investment bankers and managers must be reasonably satisfactory to the Company.
3. Piggy-Back Registrations
If the Company proposes to file a registration statement under the Act with
respect to an offering by the Company for its own account and/or for the account
of any holders (other than the Purchaser) of any class of security (other than a
registration
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statement (i) on Form S-4 or S-8 or successor forms thereto, (ii) filed in
connection with an exchange offer or an offering of securities solely to the
Company's existing stockholders or (iii) any other form or type of registration
which does not permit inclusion of Registrable Securities pursuant to applicable
laws or "Commission" (as defined below) rules or regulations), then the Company
shall in each case give written notice of such proposed filing to the Purchaser
at least twenty (20) days before the anticipated filing date, and such notice
shall offer (except as otherwise contemplated by the penultimate sentence of
this Section) the Purchaser the opportunity to register such number of shares of
Registrable Securities as the Purchaser may request. The Company shall use its
best efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the Purchaser to include such securities in such
offering on the same terms and conditions as any similar securities of the
Company included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering delivers a written opinion to the
Purchaser that the inclusion of such Registrable Securities would materially and
adversely affect the success or offering price of, or materially increase the
consideration (including commission) to be paid to the underwriter in connection
with, such offering, then the amount of securities to be offered for the account
of the Purchaser shall be reduced to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount recommended
by such managing underwriter; provided, that if securities similar to those
represented by the Registrable Securities are being offered for the account of
other persons as well as the Company, such reduction shall not represent a
greater fraction of the number of securities intended to be offered by the
Purchaser than the fraction of similar reductions imposed on such other persons
other than the Company. In connection with a piggy-back registration, the
Company will bear all Registration Expenses; provided, that the Company will not
have any obligation pursuant to this sentence to persons other than the
Purchaser.
4. Holdback Agreement
(a) Restrictions on Public Sale by the Purchaser. To the extent not
inconsistent with applicable law, the Purchaser agrees, upon the request of the
managing underwriter or underwriters in an underwritten offering, not to effect
any public sale, short sale, or loan, grant any option on the purchase, or
otherwise dispose, of any securities of the Company of the same class as the
securities included in a registration statement filed by the Company, or any
securities convertible into or exchangeable or exercisable for such securities
(except as part of such registration), during the period beginning twenty (20)
days prior to the anticipated effective date of such registration statement (so
long as the Company has delivered the notice required by the first sentence of
Section 3 hereof and notifies the Purchaser of such anticipated effective date)
and continuing until ninety (90) days (or such shorter period as may be
applicable to any other holder of such securities) after, the effective date of
such registration statement, if and to the extent requested by the managing
underwriter or underwriters.
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(b) Further Restrictions. Purchaser agrees that if (i) there is material
non-public information regarding the Company which the Board of Directors of the
Company determines not to be in the Company's best interest to disclose and
which the Company is not otherwise required to disclose, or (ii) there is a
material business opportunity available to the Company which the Board
determines not to be in the Company's best interest to disclose, or (iii) there
is a material business opportunity available to the Company and the Board
determines that the Company's ability to pursue such opportunity would be
materially and adversely affected by a registered public offering of the
Company's Securities, then the Company may postpone filing a registration
statement requested pursuant to Section 2 for a period not to exceed sixty (60)
days, provided that the Company may not postpone its obligations as permitted
under this Section 4(b) more than once in any twelve (12) month period.
5. Registration Procedures
Whenever the Purchaser has requested that any Registrable Securities be
registered pursuant to Section 2 or 3 of this Agreement, the Company will:
(a) in connection with a request pursuant to Section 2, prepare and
file with the Securities and Exchange Commission (the "Commission"), not
later than thirty (30) days after receipt of a request to file a
registration statement with respect to Registrable Securities, a
registration statement on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate for the sale of
Registrable Securities in accordance with the intended method or methods of
distribution thereof, and use its best efforts to cause such registration
statement to become effective as promptly as practicable thereafter;
provided, that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to one counsel
selected by the Purchaser copies of all such documents proposed to be
filed;
(b) in connection with a registration pursuant to Section 2, prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period
of not less than six (6) months or such shorter period which will terminate
when all Registrable Securities covered by such registration statement have
been sold (but not before the expiration of the applicable period referred
to in Section 4(3) of the Act and Rule 174 thereunder, if applicable), and
comply with the provisions of the Act with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended method or methods of disposition by the
sellers thereof set forth in such registration statement or prospectus to
the extent provided in this Section 5;
(c) as soon as reasonably possible, furnish to the Purchaser copies of
the registration statement as filed and each amendment and supplement
thereto (in each case including all exhibits thereto), as many copies of
the prospectus included in such
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registration statement and any amendments or supplements thereto as the
Purchaser may reasonably request (including each preliminary prospectus)
and such other documents as the Purchaser may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by the
Purchaser;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions in the United States of America as the Purchaser reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable the Purchaser to consummate the
disposition in such jurisdictions of the Registrable Securities; provided,
that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (d), (ii) subject itself to taxation in any
such jurisdiction, or (iii) take any action that would subject it to the
service of process in suits other than as to matters and transactions
relating to the sale of the Registrable Securities or any violation of
state securities laws in any jurisdiction where it is not now so subject;
(e) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the Purchaser or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Securities subject to the proviso contained
in paragraph (d) above;
(f) notify the Purchaser, at any time when a prospectus relating
thereto is required to be delivered under the Act, of the happening of any
event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will promptly prepare a
supplement or amendment to such prospectus so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(g) notify the Purchaser of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent the entry of
such stop order or to remove it if entered;
(h) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions (including
obtaining customary opinions of counsel for the Company) as are reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities;
(i) make available at all reasonable times and in a reasonable manner
for inspection by the Purchaser, any underwriter participating in any
disposition pursuant to
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such registration statement, and any attorney, accountant or other agent
retained by the Purchaser or underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), and cause the
officers, directors and employees of the Company to supply all information
reasonably requested by any such Inspector in connection with such
registration statement prior to its effectiveness. Records which the
Company determines, in good faith, to be confidential and which the Company
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction. The
Purchaser agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential
by the Company;
(j) use its best efforts to obtain a comfort letter from the Company's
independent public accountants in customary form and covering such matters
of the type customarily covered by comfort letters with respect to
offerings of such type as the Purchaser reasonably requests;
(k) otherwise comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon
as reasonably practicable, an earnings statement covering a period of 12
months, beginning within 3 months after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 thereunder;
(l) cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued
by the Company are then listed; and
(m) cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD") and in the
performance of any due diligence investigation by any Inspector (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD).
The Company may require the Purchaser to furnish to the Company such
information regarding the distribution of such Securities as the Company may
from time to time reasonably request in writing.
The Purchaser agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 5(f) hereof, it will
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until the
Purchaser's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 5(f) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the prospectus may be resumed. If so
directed by the Company,
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the Purchaser will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in its possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective pursuant to this Agreement (including the period referred to in
Section 5(b)) by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 5(f) hereof to and
including the date when the Purchaser shall have received the copies of the
supplemented or amended or amended prospectus contemplated by Section 5(f)
hereof or shall have received the Advice.
6. Registration Expenses
All expenses incident to the Company's performance of or compliance with
this Agreement, including without limitation, all registration and filing fees
and expenses (including those for filings made with the NASD), fees and expenses
of compliance with securities or blue sky laws (including fees and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities), rating agency fees, printing expenses, messenger and delivery
expenses, internal expenses (including, without limitation, all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange and quotation system on
which similar securities issued by the Company are then listed, and fees and
disbursements of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit and "comfort" letters
required by or incidental to such performance), securities acts liability
insurance (if the Company elects in its discretion to obtain such insurance),
the fees and expenses of any special experts retained by the Company in
connection with such registration, fees and expenses of other persons retained
by the Company, the reasonable fees and expenses of a single counsel for the
holders of Registrable Securities incurred in connection with each registration
hereunder and any reasonable out-of-pocket expenses of the Purchaser (all such
expenses being herein called "Registration Expenses"), will be borne by the
Company. The Purchaser shall bear the expense of any broker's commission or
underwriter's discount or commission relating to such registration and sale.
7. Indemnification; Contribution
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law (i) the Purchaser, (ii) each
person who controls the Purchaser (within the meaning of the Act), (iii) any
investment advisor thereof or financial agent or counsel therefor, and (iv) the
officers, directors, partners, employees, representatives and/or agents, as
applicable, of each person described in the foregoing clauses (i) through (iii),
from and against any and all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus (or any
amendments or supplements thereto), including any document incorporated by
reference therein, or caused by any omission or alleged omission to state
therein a material fact
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required to be stated therein or necessary to make the statements therein (in
case of a prospectus or preliminary prospectus, in light of the circumstances
under which they were made) not misleading, except insofar as the same are
caused by, contained in, or, with respect to any material omission, omitted
from, any information with respect to such indemnified party furnished in
writing to the Company by such indemnified party expressly for use therein or
caused by such indemnified party's failure to deliver a copy of the registration
statement or prospectus or any amendment or supplement thereto as required by
the Securities Act or the rules or regulations thereunder (so long as the
Company has complied with its obligations under Section 5(c) hereof), or caused
by the use of a prospectus or preliminary prospectus or any amendment or
supplement thereto by such indemnified party after receipt of notice from the
Company that it should no longer be used (so long as the Company has complied
with its obligations under Sections 5(c) and (f) hereof). The Company will also
indemnify and hold harmless (A) any underwriters of the Registrable Securities,
(B) each person who controls such underwriters (within the meaning of the Act),
and (C) the officers, directors, partners, employees, representatives and/or
agents of each person described in the foregoing clauses (A) and (B), to the
same extent as provided above with respect to the indemnification of the
Purchaser.
(b) Indemnification by the Purchaser. In connection with any registration
statement in which the Purchaser is participating, the Purchaser will furnish to
the Company in writing such information with respect to it as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and agrees to indemnify and hold harmless, to the full extent
permitted by law (i) the Company, (ii) each person who controls the Company
(within the meaning of the Act), and (iii) the officers, directors, partners,
employees, representatives and/or agents of each person described in the
foregoing clauses (i) and (ii), from and against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of a material fact or any omission or alleged omission of a material fact
required to be stated in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or necessary to make
the statements therein (in the case of a prospectus or preliminary prospectus,
in the light or the circumstances under which they were made) not misleading, to
the extent, but only to the extent, that such untrue statement or omission is
contained in, or with respect to any material omission, omitted from, any
information with respect to the Purchaser so furnished in writing by the
Purchaser or any agent of the Purchaser expressly for use therein. The Purchaser
will also indemnify and hold harmless (A) any underwriters of the Registrable
Securities, (B) each person who controls such underwriters (within the meaning
of the Act), (C) each other holder of the Company's securities selling
securities pursuant to such registration statement (provided that such holder
has agreed in writing to indemnify the Purchaser to the same extent) and (D) the
officers, directors, partners, employees, representatives and/or agents of each
person described in the foregoing clauses (A) through (C), to the same extent as
provided above with respect to the indemnification of the Company. In no event
shall the liability of the Purchaser be greater in amount than the dollar amount
of
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the proceeds received by the Purchaser upon the sales of Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such person will claim indemnification or contribution
pursuant to this Agreement (but the failure to give such notice will not affect
the right to indemnification or contribution hereunder unless, and only to the
extent that, the indemnifying party is materially prejudiced by such failure).
The indemnifying party shall not have the right to assume the defense of such
action or proceeding on behalf of such indemnified party, it being understood,
however, that the indemnifying parties shall not, in connection with any one
such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) in any one
jurisdiction at any time for all such indemnified parties, unless in the
reasonable judgment of an indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels. Any
indemnified party shall also have the right to employ separate counsel in any
such action and participate in the defense thereof at such indemnified party's
expense. The indemnifying party will not be subject to any liability for any
settlements made without its consent, which consent shall not be unreasonably
withheld. No indemnifying party shall, without the consent of such indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which such indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability for claims that are the subject matter of such proceeding.
(d) Contribution. If for any reason the indemnity provided for in this
Section 7 is unavailable to, or is insufficient to hold harmless, an indemnified
party, then the indemnifying party, in lieu of indemnifying such party, shall
contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and the indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other hand, shall be determined by reference to, among
other things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, the
indemnifying party or the indemnified party; and the parties'
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relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 7(c), any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Participation in Underwritten Registrations
No person may participate in any underwritten registration hereunder unless
such person (a) agrees to sell such person's securities on the basis provided in
any underwriting agreements approved by the persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
9. Rule 144 Reporting
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Act and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"); and
(c) furnish to the Purchaser forthwith upon request a written
statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Act and the Exchange Act, a copy
of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as the Purchaser may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Purchaser to sell any Registrable Securities
without registration.
10. Miscellaneous
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(a) Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Delaware, without reference to its conflicts of law
principles.
(b) No Inconsistent Agreements. The Company represents and warrants that it
has not previously entered into, and covenants that it will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Purchaser in this Agreement.
(c) Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
No party may assign any of such party's rights, interests or obligations
hereunder without the prior written consent of the other parties hereto;
provided, however, that the Purchaser may assign any or all of its rights,
interests and obligations hereunder (i) in connection with the concurrent sale
or transfer of Registrable Securities, or (ii) to a successor entity to the
Purchaser pursuant to a reorganization of the Purchaser, provided, in case of
each assignment pursuant to clause (i) or (ii) above, that (A) the Company
receives notice of such assignment and (B) this Agreement may only be assigned
if, prior to such assignment, such assignee shall assume all of the applicable
assignor's obligations hereunder. Purchaser and the Company agree that, in the
case of any assignment by Purchaser referred to above made in accordance with
this Section 9(c), all references to "Purchaser" in this Agreement shall be
deemed to refer to each holder of Registrable Securities and Restricted
Securities (including Purchaser to the extent Purchaser continues to hold any
shares of Registrable Securities or Restricted Securities) and in such event any
and all rights which Purchaser may be entitled to exercise under this Agreement
shall be deemed to be exercisable by holders of more than 50% of all shares of
Registrable Securities outstanding at the time of any such exercise.
(d) Entire Agreement. This Agreement, the Purchase Agreement and the
Technology Transfer Agreement dated as of the date hereof between the parties
hereto constitute the full and complete agreement between the parties hereto
with respect to the subject matter hereof and thereof and supersedes all
previous oral and written and all contemporaneous oral negotiations,
commitments, writings and understandings.
(e) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless pursuant to a written agreement between the Company and the holders of
more than 50% of the Registrable Securities.
(f) Notices, Etc. All notices, requests, demands, consents and other
communications required or permitted to be given or made hereunder shall be in
writing and shall be deemed to have been duly given or made if delivered
personally, or sent by a
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nationally recognized overnight delivery service or by telecopy or similar
facsimile transmission, or mailed by prepaid registered or certified mail,
return receipt requested, to the other party at the respective address set forth
below (or to such other address as a party shall designate for itself by written
notice given or made in accordance herewith):
(i) if to the Purchaser, at:
MedImmune, Inc.
00 X. Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxx
(ii) if to the Company, at:
SIGA Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. xx Xxxxx
Any such notice, request, demand, consent or other communication shall be deemed
delivered and given or made on the fifth business day after the date of mailing,
if mailed by registered or certified mail, or on the second business day after
the date of transmittal, if sent by overnight delivery service or by telecopy or
similar facsimile transmission (provided such telecopy or transmission is
followed promptly by the mailing of the original of such notice), or on the date
of delivery, if delivered personally.
(g) Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to the Purchaser, upon any breach or default of the Company
under this Agreement, shall impair any such right, power or remedy of the
Purchaser nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring.
(h) Remedies. Each party, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement or other equitable
remedies. The parties agree that monetary damages would not be adequate
compensation for any loss incurred by reason of breach by it of the provisions
of this Agreement and hereby agree to waive (to the extent permitted by law) the
defense in any action for specific performance that a remedy of law would be
adequate.
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(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(j) Severability. In the event that any provision of this Agreement becomes
or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said
provision, it being intended that all of the rights and privileges of the
Purchaser shall be enforceable to the fullest extent permitted by law.
(k) Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
(l) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy. [Remainder of page
intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
MEDIMMUNE, INC.
By: /s/ Xxxxx Xxxx
----------------------------
Name: Xxxxx Xxxx
Title: President
SIGA PHARMACEUTICALS, INC.
By: /s/ Xxxxx xx Xxxxx
----------------------------
Name: Xxxxx xx Xxxxx
Title: Chairman and CEO
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