CONSULTING AGREEMENT AND RELEASE
Exhibit 10.1
AGREEMENT AND RELEASE, dated as of October 13, 2018 (“this Agreement”),
between and among Xx. Xxxx X. Xxxx, M.D., an individual residing in the State of New York (“Xx. Xxxx”), and SIGA Technologies, Inc., a Delaware corporation (the “Company”), (Xx. Xxxx and the Company being referred to, collectively, as the “Parties”).
WHEREAS, Xx. Xxxx and the Company are parties to that certain Amended and Restated Employment Agreement, dated as if October 13, 2016
(the “Amended Employment Agreement”);
WHEREAS, this Agreement is intended to supersede any prior agreements or understandings, including the Amended Employment Agreement,
except to the extent expressly otherwise provided herein;
WHEREAS, Xx. Xxxx and the Company have agreed that following the date hereof Xx. Xxxx shall continue to serve as Chairman of the Board
of the Company, but shall cease to serve as an employee of the Company effective October 13, 2018 (the “Separation Date”);
WHEREAS, Xx. Xxxx and the Company have agreed that following the Separation Date, Xx. Xxxx will provide consulting services to the
Company and its affiliates, on the terms provided in this Agreement; and
WHEREAS, the previously-awarded equity grant under the Amended Employment Agreement will continue to vest, subject to and based on Xx.
Xxxx’x service as a consultant pursuant hereto, and consistent with the currently applicable terms and vesting schedules.
NOW, THEREFORE, in consideration of and reliance on the mutual
promises, terms and conditions set forth herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged by each of the Parties, the Parties
hereby agree as follows:
1. Consulting Arrangement with Xx. Xxxx
x. Xx. Xxxx hereby resigns his employment with the
Company, effective as of the Separation Date.
b. Xx. Xxxx and the Company agree that, after the
Separation Date, Xx. Xxxx will provide, as an independent contractor, consulting services as described in this Section 1 in consideration for the annual payment to Xx. Xxxx of $200,000.00, payable quarterly in equal installments and commencing no later than thirty (30) days following the complete execution and delivery of this Agreement and expiration of any applicable rescission periods, and in the event this Agreement is not
revoked pursuant to Section 11 below (each individually a “Consulting Payment” and collectively the
“Consulting Payments”). Xx. Xxxx agrees to provide the consulting services described below
from October 13, 2018 for a period of two (2) years (the “Consulting Period”). During the Consulting Period, Xx. Xxxx shall devote a portion of his business time to
assisting the Company and its affiliates on expanded indications for TPOXX and other business development opportunities as requested by the Company, as well as transition matters and other services reasonably within his knowledge and expertise, in
each case as assigned by the Chief Executive Officer of the Company or his designees and, in each case, in a manner Xx. Xxxx determines is consistent with his ongoing outside business and personal activities (collectively, the “Services”).
1
c. Xx. Xxxx acknowledges, understands and agrees that
(i) the Company is not required to (and will not) withhold federal or state income taxes from any compensation paid to Xx. Xxxx as a consultant hereunder, or to otherwise comply with any state or federal law concerning the collection of income
taxes at the source of payment of wages, (ii) he is responsible to pay, in accordance with applicable law, all of his federal, state and local taxes with respect to his performance of this Agreement and (iii) he may be liable for self-employment
(social security) tax in respect of his compensation hereunder in accordance with applicable law.
d. Xx. Xxxx shall provide the Services and otherwise
perform his obligations under this Agreement as an independent contractor and not as an employee of the Company or any affiliate, notwithstanding any service as an officer or director of the Company or any affiliate of the Company. Xx. Xxxx
acknowledges and agrees that he will not entitled to any benefits provided by the Company to its employees, such as an email address, or dedicated office or support services. Xx. Xxxx shall have no power or authority to act for, represent or bind
the Company or any affiliate of the Company. Although Xx. Xxxx shall be free to engage in other business activities, he shall not, without the Company's prior written consent, enter into any activity, employment or business arrangement that
directly and materially conflicts with Xx. Xxxx'x obligations under this Agreement. If such a conflict arises, the Company shall be entitled to terminate the Agreement.
2. Releases
a. In consideration of his engagement as a consultant hereunder, and the consideration he may earn in respect thereof, the sufficiency of which is hereby acknowledged, Xx. Xxxx, on behalf of himself and his heirs, executors,
administrators, successors and assigns, voluntarily, knowingly, and willingly unconditionally releases and forever discharges the Company, its parents, subsidiaries and affiliates, the Company’s benefit plans, programs and arrangements, and their
administrators, functionaries and fiduciaries, together with all of the foregoing persons’ or entities’ present or former officers, directors, partners, shareholders, employees and agents and each of the foregoing persons’ or entities’
predecessors, successors, and assigns, family members of the aforementioned people, and any other person with whom Xx. Xxxx has come in contact solely as a result of his employment with the Company (collectively, “Related Persons”), from any and all charges, complaints, claims (including claims for attorneys’ fees and costs), promises,
agreements, controversies, causes of action and demands of any nature whatsoever, known or unknown, suspected or unsuspected, which against any of them Xx. Xxxx or Xx. Xxxx’x heir, executors, administrators, successors or assigns ever had, now
have, or hereafter can, shall, or may have by reason of any matter whatsoever arising from the beginning of time to the time this Agreement is executed by Xx. Xxxx. This release is a general release and includes, but is not limited to, any
rights or claims relating in any way to Xx. Xxxx’x employment relationship with the Company, or the separation therefrom, any rights or claims relating to or arising under any statute or regulation, including Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act, the Equal Pay Act of 1963, 42 U.S.C. Section 1981, the Family and
Medical Leave Act, each as amended, the New York State Human Rights Law, the New York City Human Rights Law, or any other federal, state or local law, regulation, ordinance or common law, or under any policy, agreement, understanding, or promise,
written or oral, formal or informal, between the Company and Xx. Xxxx.
2
b. Xx. Xxxx acknowledges his understanding that by signing this Agreement he is giving up any right to become, and he is promising not to consent to become, a member of any class in a case in which claims are asserted against the Company or
any Related Person that are related in any way to Xx. Xxxx’x employment with or termination of employment from the Company, and that involve events that occurred on or before the date he signed this Agreement. If, without his prior knowledge and
consent, Xx. Xxxx is made a member of a class in any such proceeding, he will opt out of the class at the first opportunity afforded to him after learning of his inclusion. In this regard, Xx. Xxxx will execute, without objection or delay, an
“opt-out” form presented to him either by the court in which such proceeding is pending or by counsel for the Company or any Related Person who is made a defendant in any such proceeding.
c. The foregoing Release does not preclude Xx. Xxxx from bringing an action to enforce the terms of this Agreement and shall not affect the rights of Xx. Xxxx to coverage for indemnification under Section 3(f) of the Amended Employment
Agreement or any other pre-existing indemnification rights, obligations or arrangement or insurance policies.
d. In consideration of the benefits to the Company provided for in this Agreement, the sufficiency of which are hereby acknowledged, the Company, on its behalf and, to the extent within the Company’s power and authority, on behalf of the
Related Persons, voluntarily, knowingly and willingly releases and forever discharges Xx. Xxxx from any and all charges, complaints, claims, promises, agreements, controversies, causes of action and demands of any nature whatsoever, known or
unknown, suspected or unsuspected, which against Xx. Xxxx the Company and the Related Persons ever had, now have or hereafter can, shall or may have by reason of any matter whatsoever arising from the beginning of time to the time Xx. Xxxx signs
this Agreement. Notwithstanding the foregoing, and for the avoidance of doubt, nothing herein shall be construed to release Xx. Xxxx from (i) any claims for enforcement of this Agreement, (ii) any claim, action, liabilities or damages arising out
of any fraud or criminal conduct by Xx. Xxxx, (iii) any violation of this Agreement, or (iv) any violation of Section 6(c) of the Amended Employment Agreement.
e. Within thirty days following the end of the Consulting Period and conditioned on the Company not being in breach of its obligations to Xx. Xxxx hereunder, Xx. Xxxx shall execute a supplemental “bring-down” release of claims provided by
the Company in a form substantially similar to the release in this Section 2 (including, for the avoidance of doubt, the carve-outs set forth in this Section 2).
3. Covenant Not to Xxx
x. Xx. Xxxx covenants not to bring any claims released in Section 2 above before any court, arbitrator or other tribunal in any jurisdiction, whether as a claim, cross-claim or counterclaim. The Company, or any of the Related Persons, may
plead this Agreement as a complete bar to any released claim brought in derogation of this covenant not to xxx. This provision does not, however, preclude Xx. Xxxx from bringing an action to enforce the terms of this Agreement.
3
b. The Company, on its behalf and on behalf of the Related Persons, covenants not to bring any claims released in Section 2 above before any court, arbitrator or other tribunal in any jurisdiction, whether as a claim, cross-claim or
counterclaim. Xx. Xxxx may plead this Agreement as a complete bar to any released claim brought in derogation of this covenant not to xxx. This provision does not, however, preclude Company from bringing an action to enforce the terms of this
Agreement. The Company represents that it has not assigned to any person or entity any claims related to Xx. Xxxx’x employment with the Company or covered by this Agreement, and hereby covenants not to do so in the future.
c. By signing this Agreement, Xx. Xxxx represents that he has not commenced any action or proceeding arising out of the matters released hereby; that he has not assigned to any person or entity any claims related to his employment with the
Company or covered by this Agreement, and that he will not do so in the future; and that he will not seek or be entitled to any personal recovery in any action or proceeding that may be commenced on his behalf. If any legal action covered by
this Agreement presently exists or is started by Xx. Xxxx, or by someone else on Xx. Xxxx’x behalf, against the Company or any of the Related Persons, Xx. Xxxx agrees promptly to withdraw such action, and all claims asserted therein, with
prejudice.
4. Acknowledgement of Receipt of Compensation and of Repayment
a. Xx. Xxxx affirms that he has been paid or has received all compensation, wages, reimbursable expenses, leave and benefits due to him by the Company as of and through the Separation Date. Xx. Xxxx and the Company expressly understand and
agree that the payments and benefits provided by Section 1 to Xx. Xxxx under this Agreement is in addition to any and all amounts to which he might otherwise be entitled from the Company as of the date this Agreement is executed. Xx. Xxxx
expressly waives any right or claim he may have to severance or separation pay, bonuses or any other benefits, other than any pension benefits, which he has already accrued through the date upon which his employment with the Company concluded.
Xx. Xxxx affirms that he has been granted any leave, if applicable, to which he was entitled under the Family and Medical Leave Act or related state or local leave or disability accommodation laws.
b. Prior to receiving any of the payment provided by Section 1, and as a condition thereto, Xx. Xxxx shall have repaid the Company or Related Persons any money advanced to him by the Company or Related Persons by way of any advance
account. Additionally, Xx. Xxxx represents that to his knowledge he has not used any Company sponsored or provided accounts, including credit cards, to incur any expenses for products or services that are for his personal benefit or for any
other non-business purpose, and on or before his Separation Date, he will return the Company credit card in his possession.
4
5. Return and Nondisclosure of Company Information and Other Materials/Property
a. “Company Information” as used in this Agreement means all (i) confidential, personal, or
private information of the Company or any of its Related Persons, including without limitation any notes, documents, correspondence, memoranda, diaries, or audio or video tapes and recordings concerning or related to the Company or any Related
Persons and/or information received from third parties under confidential conditions, and (ii) other technical, business, personal, or financial information or data, formulas, computer programs, devices, methods, techniques, processes, personnel
data, customer specific information, confidential customer lists, production and sales information, supplier specific information, cost information, marketing plans and strategies, or other data or information that constitutes a trade secret
belonging or relating to the Company or that is otherwise treated as being confidential by the Company.
b. Xx. Xxxx represents that prior to receiving any of the payment provided by Section 1, he has to the best of his knowledge returned to the Company all Company Information, including all photocopies, extracts and summaries thereof, and any
such information stored electronically on tapes, computer hard-drives, diskettes, CD-ROMs, DVDs, handheld devices, or otherwise, without limitation, mailing lists, reports, files, memoranda, records and software; and that he has returned all
company property, including identification cards, credit cards, door and file keys and access cards, computer access codes or disks and instructional manuals, cell phone, Blackberry, office equipment, and other physical or personal property, work
product, correspondence, and reports which he received or prepared or helped prepare in connection with his employment with the Company, and he will not retain any copies, duplicates, reproductions, or excerpts thereof.
c. Prior to or upon delivery of this Agreement by him, Xx. Xxxx shall turn over to the Company all audio or visual tapes and recordings, transcriptions, notes, documents, correspondence, memoranda, diaries, or other documents, both
originals and all copies duplicates, reproductions or excerpts thereof, whether or not deemed Company Information, that to his knowledge are in his possession, or in the possession of his attorneys, representatives, agents, or any other person or
entity, relating to, concerning or involving his employment at the Company, including but not limited to any such tapes, recordings and transcriptions of conversations, statements or discussions by or among personnel of the Company.
d. Xx. Xxxx agrees that he will not, without first obtaining the Company’s written permission or as otherwise arising during his provision of Services, at any time (i) disclose any Company Information to anyone; or (ii) use any Company
Information for his own benefit or for the benefit of any other person, firm, operation or entity unrelated to the Company. Xx. Xxxx further agrees that he will not, without first obtaining the Company’s written permission, at any time (i)
disclose the existence or contents of any of the materials referred to and described in Section 5(c) above to anyone; or (ii) use (or seek to use) the contents of such materials for his own benefit or for the benefit of any other person, firm,
operation or entity unrelated to the Company.
e. Notwithstanding the foregoing Xx. Xxxx will be permitted to remove from the Company’s or affiliates archives and data bases (i) his contact data base and calendar and (ii) his files relating to his personal activities. During the
Consulting Period, the Company will arrange for the forwarding of all non-business related emails addressed to Xx. Xxxx at his Company or affiliate e-mail addresses to an email account or accounts designated by Xx. Xxxx.
5
6. Confidentiality
a. Xx. Xxxx acknowledges that, in the course of his employment with the Company, he had access to personal and/or confidential information regarding the business of the Company and of the business and personal affairs of Related Persons.
Xx. Xxxx agrees that, for all times hereafter, he will not divulge or make any other unauthorized use, directly or indirectly, or otherwise disclose, communicate, or make known to any other entity or person, any personal, business or other
information in each case of a confidential nature and acquired by him as a result of his employment by the Company or service as a consultant hereunder, concerning the Company or any Related Person, absent the express written consent of the
Company or such Related Person, respectively.
b. Xx. Xxxx further agrees that he will not make, write, publish, produce, or in any way participate directly or indirectly in placing into the public domain any statement, opinion, or information with respect to the Company or Related
Persons with whom Xx. Xxxx has been associated solely as a result of his employment or with whom he has been assigned to work, except in each case (i) information that is expressly required to be disclosed by court order, subpoena, or other
governmental process or (ii) statements or opinions that are not otherwise in breach of this Agreement. However, in no instance will Xx. Xxxx provide any personal, Company Information, or confidential information either by testifying or
providing an affidavit in the absence of compulsory legal or regulatory process. The foregoing prohibitions shall include, without limitation, directly or indirectly publishing (or causing, participating in, assisting or providing any statement,
opinion or information in connection with the publication of) any diary, memoir, letter, story, photograph, interview, article, essay, account, or description (whether fictionalized or not) concerning any of the foregoing, publication being
deemed to include any presentation or reproduction of any written, verbal, visual, electronic, or digital material in any communication medium, including, but not limited to, any book, magazine, newspaper, theatrical product, or movie, television
or radio programming or commercial, or any Internet publication or discussion group. In addition to any and all other remedies available to the Company or the persons or entities identified above for any violation of this Agreement, in the event
that Xx. Xxxx materially breaches the terms of this Section 6, Xx. Xxxx agrees to immediately remit and disgorge to the Company any and all payments or other consideration paid or payable to him in connection with or as a result of engaging in
any of the above acts, as well as all monies paid to him under this Agreement, plus interest together with the reasonable attorneys’ fees and costs incurred by the Company or the persons or entities identified above for enforcing the terms of
this provision. Notwithstanding anything herein to the contrary and for the avoidance of doubt, any repayment by Xx. Xxxx pursuant to this Section 6(b) shall not be duplicative of any repayment obligation pursuant to Section 7.
6
c. Xx. Xxxx agrees that, in the event he receives any request for Company Information, whether by court order, subpoena or other judicial or administrative process or otherwise, prior to responding to such request, he will promptly notify
the General Counsel of the Company, or the General Counsel’s designee, at least twenty (20) days in advance of the date designated for the production or furnishing of such materials, or as far in advance of such date as circumstances permit if
notification within a twenty-day period is not possible. Xx. Xxxx further agrees to cooperate in a reasonable manner with any efforts by or on behalf of the Company, including permitting the Company to participate with counsel of its choice, to
modify, limit, quash or take other appropriate action in connection with any such subpoena, discovery demand, legal process, or other request for Company Information. The provision also applies to any request directed to Xx. Xxxx, whether by
court order, subpoena or other judicial or administrative process or otherwise, for this Agreement, to the extent that such disclosure is permitted by law.
d. Xx. Xxxx agrees that, in the event he is approached by anyone requesting any Company Information about the Company and/or Related Persons, he will not divulge any such information and will immediately contact the General Counsel of the
Company, or the General Counsel’s designee, to report such contact and take all steps directed by the General Counsel or her designee to prevent disclosure of any such information.
e. Xx. Xxxx acknowledges that the confidentiality obligations set forth in his Amended Employment Agreement shall remain in full force and effect at all times following his departure from the Company, that he will abide by its terms, and
that nothing in this Agreement shall relieve Xx. Xxxx of his obligations under those Agreements.
f. Notwithstanding any of the provisions of this agreement, Xx. Xxxx is hereby advised and understands that in accordance with 18 U.S.C. § 1833(b), an individual may not be held criminally or civilly liable under any federal or state trade
secret law for disclosure of a trade secret: (i) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; and/or (ii) in a
complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade
secret to his or her attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court
order.
g. Xx. Xxxx agrees that neither he nor any agent acting on his behalf will contact any employee of the Company, by telephone or otherwise, to discuss any subject or matter relating to Company Information or the Company’s business, including
personnel issues, policies, or actions, except that Xx. Xxxx or his counsel may contact the General Counsel regarding matters related to his employment and the termination thereof and Xx. Xxxx may contact Company personnel in the course of
performing the Services (including, without limitation, with respect to any matters for which Xx. Xxxx was responsible while employed by the Company).
7. Injunctive/Equitable Relief
Xx. Xxxx understands and agrees that any violation of Sections 5 or 6 of this Agreement will result in irreparable loss and harm to the
Company and/or Related Persons that cannot reasonably or adequately be compensated by monetary damages in an action at law and, accordingly, that the Company and/or Related Persons will be entitled to injunctive relief, specific performance and
other equitable relief to prevent or cure any breach or threatened breach thereof, without the necessity of posting any bond or security or proving the inadequacy of money damages; however, the remedies provided for in this Section are cumulative
and in addition to other rights and remedies the Company may have, and no action for such equitable relief shall be deemed to waive the Company’s right to recover damages in an action at law. Additionally, Xx. Xxxx understands and agrees that if
he materially breaches any of the foregoing provisions contained in Sections 5 or 6, he will be obligated to repay with interest the payment made to him pursuant to Section 1 of this Agreement, and that the release contained in Section 2 and the
covenant not to xxx contained in Section 3 will remain in full force and effect. Notwithstanding anything herein to the contrary and for the avoidance of doubt, any repayment by Xx. Xxxx pursuant to this Section 7 shall not be duplicative of any
repayment obligation pursuant to Section 6(b).
7
8. No Solicitation of Company Employees; Non-Competition
a. Xx. Xxxx agrees that he will not during the Consulting Period entice, encourage, persuade, or solicit (or attempt to entice, encourage, persuade, or solicit) any employees of the Company either to terminate employment with the Company or
to become employed as an employee or independent contractor by him or by any business that he may become employed by or affiliated with in any way subsequent to his employment by the Company.
b. Xx. Xxxx agrees that during the term of this Agreement, he shall not, directly or indirectly, enter the employ of, or render any services to, any person, firm or corporation engaged in any business competitive with the business of the
Company or of any of its subsidiaries. Xx. Xxxx shall further neither engage in such business on his own account nor become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer,
principal, agent, employee, trustee, consultant, or in any other relationship capacity, provided,
however, that nothing contained in this Section 8(b) shall be deemed to prohibit Xx. Xxxx from
acquiring, solely as an investment, up to five percent (5%) of the outstanding shares of capital stock of any public corporation.
9. Cooperation With the Company
Xx. Xxxx agrees to reasonably cooperate with the Company in all investigations, litigation and arbitrations of any kind, to assist and
cooperate in the preparation and review of documents and in meetings with the Company’s attorneys, and to provide truthful testimony as a witness or a declarant in connection with any present or future court, administrative agency, or arbitration
proceeding involving the Company and with respect to which Xx. Xxxx has relevant information. The Company will reimburse Xx. Xxxx, upon production of appropriate receipts and in accordance with its policies, reasonable business and out of pocket
expenses (air transportation, hotel, and similar expenses at the same business level available to Xx. Xxxx prior to his separation) incurred by Xx. Xxxx in connection with such assistance. All receipts for such expenses must be presented for
reimbursement within 45 days after the expenses are incurred in providing such assistance.
10. Non-Disparagement
Xx. Xxxx agrees that he will not at any time make any verbal or written statement, whether in public or in private, that disparages in
any way the Company’s integrity, business reputation, or performance, or disparages any of the Company’s directors, officers, or employees or any of the Related Persons. It shall not, however, be a violation of this Section for any person to make
truthful statements (i) when required to do so by a court of law or arbitrator, by any governmental agency having supervisory authority over the Company’s business or by any administrative or legislative body (including a committee thereof) with
actual or apparent jurisdiction to order such person to divulge, disclose or make accessible such information; or (ii) to the extent necessary with respect to any litigation, arbitration or mediation involving this Agreement, including, but not
limited to, enforcement of this Agreement.
8
11. Rights of Consultation and Review
a. The Company advises Xx. Xxxx to consult with an attorney of his choosing prior to signing this Agreement. Xx. Xxxx understands and agrees that he has the right and has been given the opportunity to review this Agreement and that he
has entered into this Agreement freely and voluntarily.
b. The Parties acknowledge that Xx. Xxxx has twenty-one (21) calendar days to consider the terms of this Agreement, although he may sign it sooner if he wishes. The Parties further acknowledge that once Xx. Xxxx has signed this Agreement,
he has seven (7) additional days from the date he signed it to revoke his consent by delivering (by hand or overnight courier) written notice of revocation to the General Counsel, SIGA Technologies, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000. This Agreement will not become effective until the eighth (8th) day after Xx.
Xxxx has signed and returned it, assuming that Xx. Xxxx has not revoked his consent to it during such time. Any such revocation must be made in a signed letter executed by Xx. Xxxx and received by the Company at its principal address no later
than 5:00 p.m. local time on the seventh (7th) day after Xx. Xxxx has executed this Agreement. Xx. Xxxx understands that, if he revokes this Agreement, this
Agreement and his eligibility to receive any payment and/or benefit under it will not be effective or enforceable.
12. No Admission of Liability
a. The Company’s offer to Xx. Xxxx of this Agreement and its execution, the payment set forth herein and the other terms of this Agreement are not intended as, and shall not be construed as, any admission, acknowledgement or concession of:
(i) liability, wrongdoing or improper conduct by the Company or any of the Related Persons; or (ii) the merit of any claim or contention asserted by Xx. Xxxx against the Company or any of the Related Persons.
b. Neither this Agreement, nor any term or provision hereof, shall be construed to affect any position of the Company in any other litigation, dispute or proceeding. This Agreement, and its terms and provisions, shall be without prejudice
to, and may not be used against, the Company in any other litigation, dispute or proceeding.
13. Miscellaneous
a. Complete and current Agreement. This Agreement constitutes the full, complete and final understanding of each of the Parties with respect to the subject
matter contained herein; constitutes the full, complete and final terms and provisions on which they have agreed; and fully supersedes any prior agreements between the Parties with respect to the subject matter contained herein, except for the
provisions of Sections 3.5, 3(f), 6(c) and of the Employment Agreement. None of the Parties has made any representations, warranties or promises other than those expressly set forth in this Agreement.
9
b. Binding effect. This Agreement shall be binding upon and shall inure to the benefit of each of the Parties and their respective heirs, distributees, executors,
administrators, legal representatives, successors and assigns. The Company may assign its rights, together with its obligations, hereunder (i) to any affiliate or (ii) to third parties in connection with any sale, transfer, or other disposition
of all or substantially all of its business or assets; in any event the obligations of the Company hereunder shall be binding on its successors or assigns, whether by merger, consolidation or acquisition of all or substantially all of its
business or assets.
c. Representations and warranties. The Company represents and warrants that (i) the execution, delivery and performance of this Agreement has been fully and
validly authorized by all necessary corporate action (including, without limitation, by any action required to be taken by the board of directors of the Company); (ii) the officer signing this Agreement on behalf of the Company is duly authorized
to do so; and (iii) the execution, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or decree or any agreement, plan or corporate governance document to which the Company or any affiliate
is a party or by which it is bound.
d. Governing law and exclusive jurisdiction for disputes. This Agreement shall be construed under, governed by, and enforced in accordance with the laws of the
State of New York, applied without regard to choice-of-law rules. Each of the Parties agrees that the Supreme Court of the State of New York, County of New York, or in the event that federal court subject matter exists, the United States
District Court for the Southern District of New York, shall have sole and exclusive jurisdiction and venue for bringing any legal action or proceedings involving the enforcement of this Agreement or the adjudication of any dispute over its terms
and conditions. Each of the Parties consents to such exclusive jurisdiction and venue in these New York courts for the foregoing purposes and waives any objection or defense to such jurisdiction or venue on the grounds that these New York courts
are an inconvenient forum.
e. Legal Representation and drafting. Each of the Parties acknowledge and agree that each was represented by counsel of its and his choosing throughout the
negotiation of this Agreement; that each of the Parties is entering into this Agreement freely and knowingly; and that the provisions of this Agreement reflect the joint draftsmanship of counsel for the Parties.
f. Modification and waiver. No modification, amendment, change or waiver of this Agreement, in whole or in part, shall be binding or enforceable unless reduced to
writing and signed and acknowledged by each of Parties.
g. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions contained in this Agreement is held to be excessively broad as to
duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.
10
h. No reliance on the Company. Xx. Xxxx represents and acknowledges that in considering and reviewing this Agreement, he has not relied upon any representation or
statement by the Company or its officers, employees or agents regarding the subject matter or effect of this Agreement other than those expressly set forth in this Agreement.
i. Notice. Any notice, request or similar communication with respect to this Agreement shall be transmitted in writing, by e-mail and first-class mail, to the
Parties through their respective representatives as follows:
To Xx. Xxxx:
Xxxx X. Xxxx, M.D.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
To the Company:
Xxxxxxx Xxxxx, PhD.
Chief Executive Officer
SIGA Technologies, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
j. Counterparts. This Agreement may be executed and delivered in counterparts, each of which shall be deemed an original but all of which shall constitute one
and the same instrument; and each of the Parties may evidence its execution of this Agreement by delivery of scanned or faxed copies of its or his signature, with the same effect as the delivery of an original signature.
k. Section Headings. Section and headings in this Agreement are included for convenience of reference only and shall not be a part of this Agreement
for any other purpose.
l. Execution. This Agreement is not effective or binding on either of the Parties until signed by both Parties.
m. Legal Fees. The Company shall pay the reasonable attorney’s fees incurred by Xx. Xxxx in connection with this Agreement.
11
n. Section 409A. This Agreement is intended to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) and shall be interpreted, construed and administered in accordance therewith. Notwithstanding
anything in this Agreement to the contrary, in the event that Xx. Xxxx is deemed to be a “specified employee” within the meaning of Section 409A(a)(2)(B)(i), no payments hereunder that are “deferred compensation” subject to Section 409A shall be
made to Xx. Xxxx prior to the date that is six (6) months after your Separation Date or, if earlier, Xx. Xxxx’x date of death; provided that the Parties shall consult and review any exceptions otherwise available to provide for any earlier
payments. Following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the first payroll date following the date that is six (6) months after Xx. Xxxx’x separation from service. To the extent that
any reimbursements are taxable to Xx. Xxxx, any such reimbursement payment due to Xx. Xxxx shall be paid to Xx. Xxxx in all events on or before the last day of Xx. Xxxx’x taxable year following the taxable year in which the related expense was
incurred. The reimbursements are not subject to liquidation or exchange for another benefit and the amount of such benefits and reimbursements that Xx. Xxxx receives in one taxable year shall not affect the amount of such benefits or
reimbursements that Xx. Xxxx receives in any other taxable year. For purposes of Section 409A, each installment payment, if applicable, provided under this Agreement shall be treated as a separate payment. If the Consulting Payments pursuant to
this Agreement give rise to any adverse tax consequences under Section 409A, then the Company shall make such additional payments to Xx. Xxxx (the “409A Gross Up Payments”) as are necessary to provide Xx. Xxxx with enough funds to pay the additional taxes, interest, and penalties imposed by Section 409A (collectively, the “409A Tax”), as well as any additional taxes, including but not limited to additional 409A Tax, attributable to or resulting from
the payment of the 409A Gross Up Payments, with the end result that Xx. Xxxx shall be in the same position with respect to his tax liability as he would have been in if no 409A Tax had ever been imposed. The Company shall make any payments
required by this paragraph promptly upon written notice from by Xx. Xxxx but in no event later than the last day of Xx. Xxxx’x taxable year next following Xx. Xxxx’x taxable year in which the 409A Tax is remitted to the Internal Revenue Service
or any other applicable taxing authority.
o. Notice and Cure. In the event of any alleged breach by Xx. Xxxx of the provisions of this Agreement, the Company shall provide Xx. Xxxx with written notice and
a period of ten (10) days to respond to and cure any such alleged breach (to the extent then curable).
IN WITNESS WHEREOF, and intending to be legally bound by this Agreement, the Parties have duly executed this Agreement as of the date
first written above.
| /s/ Xx. Xxxx X. Xxxx | |
|
Xx. Xxxx X. Xxxx
|
|
|
SIGA Technologies, Inc.
|
|
|
|
|
| /s/ Xxxxxxx Xxxxx, PhD, CEO | |
|
Xxxxxxx Xxxxx, PhD, CEO
|
|
12
