SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT
Exhibit
27
This
SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made
and entered into as of April 30, 2009, by and between SIGA TECHNOLOGIES, INC., a
Delaware corporation (the “Company”), and
MACANDREWS & FORBES LLC, a Delaware limited liability company (the “Purchaser”).
RECITALS
WHEREAS, the Company and the Purchaser
are parties to that certain Letter Agreement dated as of June 19, 2008, as
amended pursuant to that certain Extension Agreement, dated as of the date
hereof (as amended, the “Letter
Agreement”);
WHEREAS, pursuant to the terms of the
Letter Agreement, the Purchaser provided an investment commitment to invest in
the Company, at either party’s option, up to $8,000,000, in exchange for (i)
Company common stock (the “Common Stock”) at a
per share price equal to the lesser of (A) $3.06 and (B) the average of the
volume-weighted average price per share for the 5 trading days immediately
preceding the funding of such investment commitment, and (ii) warrants (the
“Consideration
Warrants”) to purchase 40% of the number of Company shares acquired by
the Purchaser, exercisable at 115% of the Common Stock purchase price on such
funding date (the “Consideration Warrant
Shares”);
WHEREAS, on April 29, 2009 and pursuant
to the terms of the Letter Agreement, the Company notified the Purchaser that it
intends to exercise its right to cause the Purchaser to invest $1,500,000 in the
Company, which amount represents 490,196 shares of Common Stock (the “Shares”);
and
WHEREAS, pursuant to the terms of the
Letter Agreement, the Company previously issued to the Purchaser warrants to
purchase 238,000 shares of Common Stock (the “Commitment
Warrants”);
NOW THEREFORE in consideration of the
premises and mutual covenants contained in this Agreement and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Company and the Purchaser agree as follows:
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1.
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Purchase
and Sale of Securities.
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(a) Purchase and Sale of
Securities. Subject to the terms and conditions hereof, at the
Closing (as herein defined), the Company shall issue and sell to the Purchaser,
and the Purchaser shall purchase from the Company, the Shares and Consideration
Warrants, at a purchase price per Share of $3.06, for an aggregate amount of
$1,500,000 (the “Purchase
Price”).
(b) Exemption. Based
in part on the representations and warranties of the Purchaser set forth herein,
the offer and sale of the Shares and Consideration Warrants hereunder, and upon
exercise of the Consideration Warrants, the Consideration Warrant Shares, are
being made in reliance upon the exemption from registration set forth in Section
4(2) of the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the “Securities Act”), or
such other exemptions from the registration requirements of the
Securities
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Act
as may be available with respect to the investment in the Shares and
Consideration Warrants to be made hereunder.
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2.
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Closings
and Deliverables.
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(a) Payment. At
the Closing (as defined herein), the Purchaser will deliver the Purchase Price
to the Company via wire transfer in immediately available funds to the account
designated in writing by the Company to the Purchaser.
(b) Closing. The
closing of the purchase and sale of the Shares and Consideration Warrants shall
be deemed for all purposes to have taken place at 11:00 (EST) on the date hereof
(the “Closing
Date”), at the offices of the Company (the “Closing”).
(c) Deliverables. At
the Closing, or as soon as is reasonably practicable thereafter the Company
shall deliver one fully completed and executed Warrant Agreement representing
the Consideration Warrants in the form attached as Exhibit A
hereto.
3. Representations
and Warranties by the Company. The Company hereby
represents and warrants to the Purchaser, as of the date hereof, as
follows:
(a) Incorporation and
Qualification. The Company has been duly organized and is
validly existing as a corporation and in good standing under the laws of the
State of Delaware with the requisite corporate power and authority to own and
use its properties and assets and to carry on its business as currently
conducted.
(b) Authority. The
Company has the requisite corporate power and authority to enter into this
Agreement and to issue and deliver the Shares and, upon exercise of the
Consideration Warrants, issue and deliver, the Consideration Warrant
Shares. The execution and delivery of this Agreement, and upon
exercise of the Consideration Warrants, the issuance and delivery of the
Consideration Warrant Shares thereunder, have been duly and validly authorized
by all necessary corporate action by the Company. This Agreement has
been duly and validly executed and delivered by and on behalf of the Company and
constitutes a valid, legal and binding agreement, enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
general equitable principles, bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors’ rights
generally. Upon exercise of the Warrant Agreement in accordance with
its terms, including payment of the Exercise Price (as defined therein) for the
Consideration Warrant Shares to be issued thereunder in full, the Consideration
Warrant Shares issued thereunder will be duly authorized, validly issued, fully
paid and non-assessable.
(c) Brokers and
Finders. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of the Company who might be entitled to any fee or commission from the Company,
the Purchaser or any of their respective affiliates upon consummation of the
transactions contemplated by this Agreement except as may be noted and disclosed
to the Purchaser.
4. Representations
and Warranties of the Purchaser. The Purchaser represents and
warrants to the Company, as of the date hereof, as follows:
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(a) Power. The
Purchaser has been duly organized, is validly existing and is in good standing
under the laws of its state of incorporation, with all limited liability company
power and authority to execute, deliver and perform its obligations under the
Agreement.
(b) Authority. The
Purchaser has the requisite power and authority to enter into this Agreement,
and upon exercise of the Consideration Warrants, receive the Consideration
Warrant Shares. The execution and delivery of this Agreement and the
acquiring of the Shares and Consideration Warrants hereunder and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary action by the Purchaser. This Agreement
has been duly and validly executed and delivered by or on behalf of the
Purchaser and constitutes a valid, legal and binding agreement, enforceable
against the Purchaser in accordance with its terms, except as enforceability may
be limited by general equitable principles, bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws affecting creditors’ rights
generally.
(c) Investment in
Securities. The Purchaser:
(i) is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares representing an investment
decision like that involved in the acquiring of the Shares and Consideration
Warrants, including investments in securities issued by the Company and
comparable entities, and has requested, received, reviewed and considered all
information it deems relevant in making an informed decision to acquire the
Shares and Consideration Warrants;
(ii) is
acquiring the Shares and Consideration Warrants in the ordinary course of its
business and for its own account for investment only and with no present
intention or view toward the public sale or distribution thereof, and no
arrangement or understanding exists with any other persons regarding the public
sale or distribution of any Shares and/or Consideration Warrants;
and
(iii) will
not, directly or indirectly, except in compliance with the Securities Act, the
rules and regulations promulgated thereunder and such other securities or blue
sky laws as may be applicable, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Shares and Consideration Warrants.
(d) Exemptions. The
Purchaser understands that the Shares and Consideration Warrants are being
issued to it in reliance upon specific exemptions from the registration
requirements of Securities Act, the rules and regulations and state securities
laws, and that the Company is relying upon the truth and accuracy of, and the
Purchaser’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility of the
Purchaser to acquire the Shares and Consideration Warrants.
(e) Investment
Risk. The Purchaser understands that its investment in the
Shares and Consideration Warrants involves a significant degree of risk and that
the market price of the Common Stock has been and continues to be volatile, that
no representation is being made
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as
to the future value of the Common Stock and that the Purchaser has carefully
read and considered the matters set forth in public filings made by the Company
with the Securities and Exchange Commission (“SEC”). The
Purchaser has the knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of an investment in the Shares
and Consideration Warrants and has the ability to bear the economic risks of an
investment in the Shares and Consideration Warrants. The Purchaser
has had a reasonable opportunity to review the Company’s public filings with the
SEC, to ask questions of the Company and its representatives; and the Company
has answered all inquiries that the Purchaser or the Purchaser’s representatives
have put to it, and all such inquiries have been answered to the full
satisfaction of the Purchaser.
(f) Restrictions on
Securities. The Shares and Consideration Warrants may only be
disposed of in compliance with state and federal securities laws. In connection
with any transfer of Shares and/or Consideration Warrants other than pursuant to
an effective registration statement, the Company may require the Purchaser to
provide to the Company an opinion of counsel selected by the Purchaser, the form
and substance of which opinion shall be reasonably satisfactory to the Company,
to the effect that such transfer does not require registration of such
transferred Shares and/or Consideration Warrants under the Act. The Purchaser
agrees to the imprinting of a legend on the Shares and Consideration Warrants in
the following or substantially similar form:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER SECURITIES LAWS, AND SUCH
SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION UNDER THE SAID ACT AND LAWS OR AN EXEMPTION
THEREFROM.
(g) Reliance. The
Purchaser is not relying on the Company or any of its employees or agents with
respect to the legal, tax, economic and related considerations as to an
investment in the Shares and Consideration Warrants, and the Purchaser has
relied on the advice of, or has consulted with, only its own advisors as it
deems necessary or advisable.
(h) No General
Solicitation. The Purchaser is not aware of, is in no way relying on, and
did not become aware of the offering of the Shares and Consideration Warrants
through or as a result of, any form of general solicitation or general
advertising including, without limitation, any article, notice, advertisement or
other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, in connection with the offering of the
Shares and Consideration Warrants and is not subscribing for Shares and
Consideration Warrants and did not become aware of the offering of the Shares
and Consideration Warrants through or as a result of any seminar or meeting to
which the Purchaser was invited by, or any solicitation of a subscription by, a
person not previously known to the Purchaser in connection with investments in
securities generally.
(i) No Endorsement of
Securities. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Shares and
Consideration Warrants.
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(j) Brokers and
Finders. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of the Purchaser who might be entitled to any fee or commission from the
Purchaser, the Company or any of their respective affiliates upon consummation
of the transactions contemplated by this Agreement except as may be noted and
disclosed to the Company.
(k) Company’s Representations
and Warranties. Except as set forth in Section 3, the Company
makes, and has made, no representation or warranty, express or implied, at law
or in equity, in respect of any of the assets, liabilities or operations of the
Company or any of its subsidiaries, and any such other representations or
warranties are hereby expressly disclaimed. Specifically, but in no
way limiting the foregoing sentence, the Purchaser agrees and acknowledges that
the Company disclaims any representation or warranty, and the Purchaser agrees
that the Company shall not have any liability, with respect to any information
concerning the Company or any of its subsidiaries not expressly represented or
warranted to in this Agreement.
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5.
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Indemnification.
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(a) Survival of Representations
and Warranties. The representations and warranties made hereunder shall
survive the Closing for a period of one (1) year thereafter (the “Expiration
Date”). Notwithstanding the preceding sentence, any
representation or warranty in respect of which an indemnity may be sought hereof
shall survive the time at which it would otherwise terminate pursuant to the
preceding sentence, if a claim for indemnification shall have been given to the
party against whom such indemnity may be sought prior to the Expiration
Date.
(b) Company
Indemnification. The Company agrees to indemnify and hold
harmless, to the fullest extent permitted by law, but without duplication, the
Purchaser, including its officers, directors, employees, partners,
representatives and agents (each of the foregoing persons being a “Purchaser Indemnified
Person”), from and against any and all losses, claims, damages,
liabilities, costs and expenses (including documented and reasonable attorneys’
fees) (collectively, “Losses”), actually
incurred by a Purchaser Indemnified Person arising out of or based upon a
material breach by the Company of any its representations or warranties
contained in the Agreement or in any agreement, instrument or document delivered
by the Company hereunder.
(c) Purchaser
Indemnification. The Purchaser agrees and covenants to hold harmless and
indemnify the Company, including its officers, directors, employees, partners,
representatives and agents (each of the foregoing persons being a “Company Indemnified
Person”), from
and against any and all Losses to which such Company Indemnified Person may
become subject under the Securities Act or otherwise which arises out of or is
based in any manner upon a material breach by the Purchaser of any its
representations or warranties contained in the Agreement or in any agreement,
instrument or document delivered by the Purchaser hereunder.
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6. Registration
Rights. The
Company grants registration rights to the Purchaser under the following terms
and conditions:
(a) If
the Company shall receive from the Purchaser a written request that the Company
effect a registration of the Shares, Consideration Warrant Shares and all shares
of Common Stock underlying the Commitment Warrants and issued thereunder
(collectively the “Registrable
Securities”) it shall as soon as reasonably practicable effect such
registration as may be so requested and as would permit or facilitate the sale
and distribution of all the Registrable Securities of the Purchaser as specified
in such written request ; provided, however, that the
Company shall not be obliged to take any action to effect any such
registration:
(i) In
any particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities
Act;
(ii) During
the period starting with the date thirty (30) days prior to the Company’s
estimated date of filing of, and ending on the date three (3) months
immediately following the effective date of, any registration statement
pertaining to securities of the Company sold by the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
(iii) After
the Company has effected an aggregate of three (3) registrations pursuant
to this Section 6(a) or 6.2(b), provided that (x) such registrations have been
declared or ordered effective and (y) the offerings thereunder are not
interfered with by any stop order, injunction, order or requirement of the SEC
or other agency or court of competent jurisdiction; or
(iv) If
the Company shall furnish to the Purchaser a certificate signed by the Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors it would (A) be materially detrimental to the Company or its
stockholders, (B) materially interfere with a significant acquisition, corporate
reorganization, or other similar transaction involving the Company, or (C)
require premature disclosure of material information that the Company has a bona
fide business purpose for preserving as confidential, if a registration
statement (a “Registration
Statement”) were to be filed in the near future, then the Company’s
obligation to register, qualify or comply under this Section 6(a) shall be
deferred for a period not to exceed ninety (90) days from the date of
receipt of written request from Purchaser, provided, however, that in such
event, (x) the Purchaser shall be entitled to withdraw such request and retain
its rights under this Section 6(a) and (y) the Company shall not utilize this
right more than once in any twelve (12) month period.
(b) If,
at any time, the Company shall determine to proceed with the preparation and
filing of a Registration Statement pursuant to the Securities Act in connection
with the proposed offer and sale of any of its securities by it or any of its
security holders (other than a Registration
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Statement
on Form X-0, X-0, or other limited purpose form), the Company will give written
notice of its determination to the Purchaser. Upon receipt of a
written request from the Purchaser, within ten (10) days after receipt of any
such notice from the Purchaser, the Company will cause the Registrable
Securities requested by the Purchaser to be included in such Registration
Statement, all to the extent required to permit the sale or other disposition by
the Purchaser, of such shares. The obligation of the Company under
this Section 6(b) shall be limited as to three registration statements to which
it applies, unless the Effectiveness Period (as defined below) has ended,
provided that there shall be no duplication, and any Registrable Securities which are already included in a
Registration Statement (other than a Registration Statement which has been
withdrawn) may not be included in any other Registration
Statement. Notwithstanding the foregoing, the
Company shall have the right to postpone or withdraw any registration effected
pursuant to this Section 6(b). In addition, if any
registration effected pursuant to Section 6(a) or this Section 6(b) is a registered public offering
involving an underwriting, the Company shall so advise the Purchaser
in response to the written
request received pursuant to Section 6(a) or as part of the written notice given
pursuant to this Section 6(b). In such event, the right
of the Purchaser to include Registrable Securities in such registration pursuant
to Section 6(a) or
this Section 6(b) shall be conditioned upon the
Purchaser’s execution of an underwriting agreement upon customary terms with the
underwriter or underwriters selected by the Company. Furthermore, if
the lead underwriter advises the Company that marketing factors require a
limitation (or elimination) of shares held by the Purchaser to be underwritten, the number of
Registrable Securities that may be included in such Registration Statement and
underwritten, if any, shall be allocated among the
Purchaser and other holders, if any, of registration rights requesting
registration in proportion, as nearly as practicable, to the respective number
of shares held by them and for which they have registration rights on the date
the Company gives the notice specified in Section 6(a) or this Section 6(b).
(c) The
Company will maintain the Registration Statement or post-effective amendment
filed under the terms of this Agreement effective under the Securities Act until
the earlier of (i) the date that all of the Registrable Securities have been
sold pursuant to such Registration Statement or (ii) all Registrable Securities
have been otherwise transferred to persons who may trade such shares without
restriction under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such securities not bearing a
restrictive legend. The Company
shall respond as promptly as possible, but in no event later than fifteen
(15) business days, to any comments received from the SEC with respect to the
Registration Statement or any amendment thereto and as promptly as possible
provide the Purchaser with true and complete copies of all correspondence from
and to the SEC relating to the Registration Statement.
(d) All
fees, disbursements and out-of-pocket expenses and costs incurred by the Company
in connection with the preparation and filing of the Registration Statement, in
making filings with FINRA, and in complying with applicable federal securities
and Blue Sky laws (including, without limitation, all attorneys’ fees of the
Company) shall be borne by the Company. The Purchaser shall bear the
cost of underwriting and/or brokerage discounts, fees and commissions, if any,
applicable to the Registrable Securities being registered and the fees and
expenses of their counsel. The Company shall use its commercial
reasonable efforts to qualify any of the Consideration Warrant Shares and shares
of Common Stock underlying the Commitment Warrants issued thereunder for sale in
such states as the Purchaser reasonably
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designates. However,
the Company shall not be required to qualify in any state which will require an
escrow or other restriction relating to the Company, or which will require the
Company to qualify to do business in such state or require the Company to file
therein any general consent to service of process.
(e) Certificates
evidencing the Registrable Securities shall not contain any legend: (i) while a
Registration Statement covering the resale of such security is effective under
the Securities Act if the registered holder has undertaken to only sell in
accordance with the prospectus delivery and other requirements of the
Registration Statement and Securities Act, (ii) following any sale of such
Registrable Securities pursuant to Rule 144, (iii) if such Registrable
Securities are eligible for legend removal under Rule 144(k) or (iv) if such
legend is not required under applicable requirements of the Securities Act
(including judicial interpretations and pronouncements issued by the staff of
the SEC). The Company shall cause its counsel to issue a legal
opinion to the Company’s transfer agent promptly after the effectiveness of the
Registration Statement (in the case of item (i) herein) or upon request of the
Purchaser (in the case of items (ii), (iii) or (iv) herein) if required by the
Company’s transfer agent to effect the removal of the legend
hereunder. If all or any of the Consideration Warrants or Commitment
Warrants are exercised at a time when there is an effective registration
statement to cover the resale of the underlying shares thereof, or if such
underlying shares may be sold under Rule 144(k) or if such legend is not
otherwise required under applicable requirements of the Securities Act
(including judicial interpretations thereof), then such underlying shares shall
be issued free of all legends. The Company agrees that following the
effectiveness of the Registration Statement or at such time as such legend is no
longer required under this Section 6(e), it will, promptly following the
delivery by the Purchaser to the Company’s transfer agent of a certificate
representing Registrable Securities accompanied by appropriate stock power or
other required documentation, as applicable, issued with a restrictive legend,
deliver or cause to be delivered to the Purchaser a certificate representing
such shares that is free from all restrictive and other legends, in each case
without charge to the Purchaser other than customary transfer fees which may be
charged by the transfer agent or broker-dealer. The Company may not
make any notation on its records or give instructions to any transfer agent of
the Company that enlarge the restrictions on transfer set forth in this Section
6(e).
(f) The
Company will prepare and make available to the Purchaser and make publicly
available in accordance with Rule 144(c) such information as is required for the
Purchaser to sell the Registrable Securities under Rule 144. The
Company further covenants that it will take such further action as the Purchaser
may reasonably request, all to the extent required from time to time to enable
the Purchaser to sell such Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144,
including causing its counsel to issue such customary legal opinions as may be
reasonably requested by the Purchaser in connection with such
sales. In addition, the Purchaser shall be entitled to three
piggyback registration rights under Section 6(b) above.
(g) In
the case of each registration effected by the Company pursuant to this Section
6, the Company will keep the Purchaser advised in writing as to the initiation
of each registration and as to the completion thereof. At its
expense, the Company will:
(i) Prepare
and file with the SEC such amendments and supplements to such
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registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to a disposition of all securities covered by such registration
statement;
(ii) Notify
the Purchaser, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or incomplete in light of the circumstances then existing, and at
the request of the Purchaser, prepare and furnish to it a reasonable number of
copies of a supplement to, or an amendment of, such prospectus as may be
necessary so that, as thereafter delivered to the Purchaser, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or incomplete in light of the circumstances then
existing; provided that, for not more
than ten (10) consecutive business days (or a total of not more than thirty (30)
calendar days in any 12-month period), the Company may delay the disclosure of
material non-public information concerning the Company the public disclosure of
which at the time is not, in the good faith opinion of the Company, in the best
interests of the Company and which may, based on the written advice of outside
counsel, be delayed under applicable law or regulation (an “Allowed Delay”);
provided, further, that the
Company shall promptly (a) notify the Purchaser in writing of the existence of
(but in no event, without the prior written consent of the Purchaser, shall the
Company disclose to the Purchaser any of the facts or circumstances regarding)
material non-public information giving rise to an Allowed Delay and (b) advise
the Purchaser in writing to cease all sales under such registration statement
until the termination of the Allowed Delay;
(iii) Use
its commercially reasonable efforts to prevent the issuance of any stop order or
other suspension of effectiveness of a registration statement, and, if such an
order is issued, to obtain the withdrawal of such order at the earliest possible
moment and to notify the Purchaser (and, in the event of an underwritten
offering, the managing underwriter) of the issuance of such order and the
resolution thereof; and
(iv) Otherwise
use its commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC.
(h) To
the extent the Purchaser includes any Registrable Securities in a registration
statement pursuant to the terms hereof, the Company will indemnify and hold
harmless the Purchaser and its directors and officers from and against, and will
reimburse the Purchaser and/or its directors and officers with respect to, any
and all loss, damage, liability, cost and expense to which the Purchaser may
become subject under the Securities Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are caused by any untrue statement or
alleged untrue statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which
they
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were
made, not misleading; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
damage, liability, cost or expense arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by the Purchaser in writing specifically
for use in the preparation thereof.
(i) To
the extent the Purchaser includes any Registrable Securities in a registration
statement pursuant to the terms hereof, the Purchaser will indemnify and hold
harmless the Company, its directors and officers, and will reimburse the
Company, its directors and officers with respect to any and all loss, damage,
liability, cost or expense to which the Company and/or its directors and
officers may become subject under the Securities Act or otherwise, insofar as
such losses, damages, liabilities, costs or expenses are caused by any untrue
statement or alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was so made in reliance upon and in conformity with written
information furnished by or on behalf of the Purchaser specifically for use in
the preparation thereof.
(j) To
the extent any indemnification by an indemnifying party is prohibited or limited
by law, the indemnifying party agrees to make the maximum contribution with
respect to any amounts for which it would otherwise be liable hereunder to the
extent permitted by law, provided that (i) no contribution shall be made under
circumstances where the indemnifying party would not have been liable for
indemnification pursuant to the provisions hereof, (ii) no seller of securities
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any seller of
securities who was not guilty of such fraudulent misrepresentation and (iii) the
amount of the contribution together with any other payments made in respect of
such loss, damage, liability or expense by any seller of securities shall be
limited to the net amount of proceeds received by such seller from the sale of
such securities.
(k) The
Purchaser will cooperate with the Company in connection with this Agreement,
including supplying within ten (10) days upon request all information and
executing and returning any documents requested by the Company which are
required to enable the Company to perform its obligations to register the
Shares, the Consideration Warrant Shares and shares of Common Stock underlying
the Commitment Warrants. The Purchaser’s failure to provide any documents
required by this Section 6(k) prior to the date on which the Registration
Statement can be declared effective (by SEC clearance, passage of time, or
otherwise) shall relieve the Company of its obligation to register the
Purchaser’s Registrable Securities until such time as the Company files another
Registration Statement hereunder.
-10-
7. Miscellaneous.
(a) Entire
Agreement. This Agreement, together with the Warrant Agreement and
the Warrant Agreement for the Commitment Warrants, constitutes the entire
agreement and understanding of the parties with respect to the transactions
contemplated hereby and thereby and supersede all prior agreements and
understandings with respect hereto or thereto, whether written or
oral.
(b) No Waiver; Modifications in
Writing. No failure or delay by a party in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. Except as otherwise expressly provided herein with respect to
any right of indemnification, the remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to any party at law
or in equity or otherwise. No waiver of or consent to any departure
by a party from any provision of this Agreement shall be effective unless signed
in writing by the parties entitled to the benefit thereof. No
amendment, modification or termination of any provision of this Agreement shall
be effective unless signed in writing by all parties. Any amendment, supplement
or modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure from the terms of
any provision of this Agreement, shall be effective only in the specific
instance and for the specific purpose for which made or given.
(c) Execution in
Counterparts. This Agreement may be executed in two
counterparts and by the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the
same Agreement. Signature by facsimile or electronic PDF file
shall constitute original signatures.
(d) Binding Effect;
Assignment. The rights and obligations of the parties under
this Agreement may not be assigned or otherwise transferred to any other person,
without the prior written consent of the other party hereto. Except
as expressly provided in this Agreement, this Agreement shall not be construed
so as to confer any right or benefit upon any person other than the parties to
this Agreement, their respective permitted heirs, representatives, executors,
successors and assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Company, the Purchaser and their respective
permitted heirs, representatives, executors, successors and
assigns.
(e) Governing
Law. This Agreement shall be deemed to be a contract made
under and shall be governed by and construed in accordance with the internal
laws of the State of New York without reference to the principles of conflict of
laws.
-11-
(f) Consent to Jurisdiction and
Service of Process. Any suit, action or proceeding arising out of or
relating to the Agreement or the transactions contemplated hereby may be
instituted in any federal court situated in the State of New York or any state
court of the State of New York, and each party agrees not to assert, by way of
motion, as a defense or otherwise, in any such suit, action or proceeding, any
claim that it is not subject personally to the jurisdiction of such court, that
the suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that the Agreement or the
subject matter hereof or thereof may not be enforced in or by such
court. Each party further irrevocably submits to the jurisdiction of
such court in any such suit, action or proceeding. Nothing herein
contained shall be deemed to affect the right of any party to serve process in
any manner permitted by law or to commence legal proceedings or otherwise
proceed against any other party in any other jurisdiction.
(g) Severability. Any
provision hereof that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by law, the parties hereto waive any provision of law that
renders any such provision prohibited or unenforceable in any
respect.
(h) Headings. The
Article, Section and subsection headings used or contained in this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
(i) Expenses. Each party
shall bear its own fees, costs and expenses in connection with the execution,
delivery and performance of the Agreement.
(j) Publicity. The
parties agree that no public release or announcement concerning the Agreement or
the transactions contemplated hereby shall be made without advance review and
approval by each party hereto, except as otherwise required by applicable law,
and which review and approval shall not be unreasonably withheld or
delayed.
(k) Enforcement. The
Purchaser acknowledges that the Company will be irreparably damaged if the
provisions of this Agreement applicable to the Purchaser are not specifically
enforced. If the Purchaser shall default in any of its obligations
under this Agreement or if any representation or warranty made by or on behalf
of the Purchaser in this Agreement or in any certificate, report or other
instrument delivered under or pursuant to any term hereof or thereof shall be
untrue or misleading as of the date made, the Company may proceed to protect and
enforce its rights by suit in equity or action at law (without the posting of
any bond and without proving that damages would be inadequate), whether for the
specific performance of any term contained in this Agreement, injunction against
the breach of any such term or in furtherance of the exercise of any power
granted in this Agreement, or to enforce any other legal or equitable right of
the Company or to take any one of more of such actions. The Company
shall be permitted to enforce specifically the terms and provisions hereof in
any court of the United States or any state thereof or any other court having
jurisdiction, this being in addition to any other remedy to which the Company
may be entitled at law or in equity or otherwise.
-12-
(l) Further Assurances.
Each party shall execute and deliver such documents, instruments and agreements
and take such further actions as may be reasonably required or desirable to
carry out the provisions of this Agreement and the transactions contemplated
hereby, and each of the parties hereto shall cooperate with each other in
connection with the foregoing.
[SIGNATURE
PAGE FOLLOWS]
-13-
COUNTERPART
SIGNATURE PAGE
IN
WITNESS WHEREOF, the undersigned has duly executed this Securities Purchase and
Registration Rights Agreement as of the date first above written.
|
PURCHASER:
|
|||
|
MACANDREWS
& FORBES LLC
|
|||
|
By:
|
/s/ Xxxxx X. Xxxxxxxx | ||
|
Name:
|
Xxxxx X. Xxxxxxxx | ||
|
Title:
|
Executive Vice Chairman | ||
|
Address:
|
|||
|
00
Xxxx 00xx
Xxxxxx
|
|||
|
Xxx
Xxxx, XX 00000
|
|||
|
Federal
Taxpayer Identification Number:
|
|||
| 00-0000000 | |||
-14-
COUNTERPART
SIGNATURE PAGE
IN
WITNESS WHEREOF, the undersigned has duly executed this Securities Purchase and
Registration Rights Agreement as of the date first above written.
|
SIGA
TECHOLOGIES, INC.
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxx | ||
|
Name:
|
Xxxxxx Xxxxxx | ||
|
Title:
|
Chief Financial Officer | ||
-15-
