EXHIBIT 12
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
SIGA TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
1. ISSUANCE; CERTAIN DEFINITIONS. In consideration of good and
valuable consideration, the receipt of which is hereby acknowledged by SIGA
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), XXXXXX XXXXXX or
registered assigns (the "Holder") is hereby granted the right to purchase at any
time until 5:00 P.M., New York City time, on August 31, 2008, (the "Expiration
Date"), Thirty-four Thousand Nintey-one (34,091) fully paid and nonassessable
shares of the Company's Common Stock, $.0001 par value per share (the "Common
Stock"), at an initial exercise price per share (the "Exercise Price") of $3.552
per share, subject to further adjustment as set forth herein. This Warrant is
being issued pursuant to the terms of that certain Common Stock and Warrant
Purchase Agreement, dated as of August 31, 2001 (the "Agreement"), to which the
Company and Holder (or Xxxxxx's predecessor in interest) are parties.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Agreement.
2. EXERCISE OF WARRANTS.
2.1 GENERAL. This Warrant is exercisable in whole or in part
at any time and from time to time. Such exercise shall be effectuated by
submitting to the Company (either by delivery to the Company or by facsimile
transmission as provided in Section 8 hereof) a completed and duly executed
Notice of Exercise (substantially in the form attached to this Warrant
Certificate) as provided in this paragraph. The date such Notice of Exercise is
faxed to the Company shall be the "Exercise Date," provided that, if this
Warrant has been fully exercised, the Holder of this Warrant tenders this
Warrant Certificate to the Company within five (5) business days thereafter. The
Notice of Exercise shall be executed by the Holder of this Warrant and shall
indicate the number of shares then, being purchased pursuant to such exercise.
Upon surrender of this Warrant Certificate, if relevant, with, together with
appropriate payment of the Exercise Price for the shares of Common Stock
purchased, the Holder shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased. The Exercise Price per share of
Common Stock for the shares then being exercised shall be payable in cash or by
certified or official bank check or wire transfer. The Holder shall be deemed
to be the holder of the shares issuable to it in accordance with the provisions
of this Section 2.1 on the Exercise Date.
2.2 LIMITATION ON EXERCISE. Notwithstanding the provisions of
this Warrant, the Agreement or of the other Transaction Agreements, in no event
(except (i) as specifically provided in this Warrant as an exception to this
provision, (ii) while there is outstanding a tender offer for any or all of the
shares of the Company's Common Stock, or (iii) at the Holder's option, on at
least sixty-five (65) days' advance written notice from the Holder) shall the
Holder be entitled to exercise this Warrant, or shall the Company have the
obligation to issue shares upon such exercise of all or any portion of this
Warrant (and the Company shall not have the right to require a Mandatory
Exercise, as defined below), to the extent that, after such exercise the sum of
(1) the number of shares of Common Stock beneficially owned by the Holder and
its affiliates (other than shares of Common Stock which may be deemed
beneficially owned through the ownership of the unexercised portion of the
Warrants), and (2) the number of shares of Common Stock issuable upon the
exercise of the Warrants with respect to which the determination of this proviso
is being made, would result in beneficial ownership by the Holder and its
affiliates of more than 9.99% of the outstanding shares of Common Stock (after
taking into account the shares to be issued to the Holder upon such exercise).
For purposes of the proviso to the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), except as otherwise provided
in clause (1) of such sentence. The Holder, by its acceptance of this Warrant,
further agrees that if the Holder transfers or assigns any of the Warrants to a
party who or which would not be considered such an affiliate, such assignment
shall be made subject to the transferee's or assignee's specific agreement to be
bound by the provisions of this Section 2.2 as if such transferee or assignee
were the original Holder hereof.
2.3 MANDATORY EXERCISE.
(a) COMPANY'S RIGHT TO ISSUE MANDATORY EXERCISE NOTICE. Subject to
the terms of this Section 2.3, at its option, the Company may, by written notice
(a "Mandatory Exercise Notice") given to the Holder, accelerate the Expiration
Date for all or a portion of the then unexercised shares covered by this Warrant
to a date (the "Mandatory Expiration Date") which is at least fifteen (15)
business days after the date the Mandatory Exercise Notice is given. The
exercise of the Warrant contemplated by the Mandatory Exercise Notice is
referred to as the "Mandatory Exercise." The number of shares specified in the
Mandatory Exercise Notice is referred to as the "Mandatory Exercise Shares." The
Company may issue a Mandatory Exercise Notice if, and only if, all of the
following requirements are met:
(i) REGISTRATION STATEMENT AVAILABLE. The Registration
Statement must have been effective and available for the resale of all of
the shares of Common Stock issuable upon the Mandatory Exercise at all
times during the ten (10) consecutive trading days ending on the trading
day immediately before the Company issues a Mandatory Exercise Notice (such
ten trading days, the "Mandatory Period") and at all
times from the issuance of the Mandatory Exercise Notice through and
including the Mandatory Expiration Date.
(ii) REQUIRED COMMON STOCK MARKET PRICE. The Closing
Bid Price of the Common Stock for each trading day of the Mandatory Period
shall be at least $5.25 (adjusted to take into account any stock split
effected after the Closing Date).
(iii) REQUIRED COMMON STOCK VOLUME. The average trading
volume of the Common Stock during the Mandatory Period shall be at least
100,000 shares per trading day (adjusted to take into account any stock
split effected after the Closing Date, except that with respect to a
reverse stock split, the adjustment shall not be greater than a ratio of
1:4).
(iv) CONVERSION LIMITATION. Neither the Mandatory
Exercise Shares nor the exercise of the Warrant contemplated by the
Mandatory Exercise Notice shall be inconsistent with the provisions of
Section 2.2 hereof, which provisions shall apply to Mandatory Exercise. If
the Mandatory Exercise Notice provides for a number of Mandatory Exercise
Shares which exceeds the number contemplated by Section 2.2, such Mandatory
Exercise Notice shall be deemed automatically adjusted and revised to refer
only to the maximum number of shares contemplated by said Section 2.2.
(b) HOLDER'S EXERCISE. Upon the proper issuance of a Mandatory
Exercise Notice, the Holder may, on or before the Mandatory Expiration Date,
exercise this Warrant for all or any of the Mandatory Exercise Shares at the
Exercise Price. The Mandatory Exercise Shares as to which the Holder does not
exercise this Warrant on or before the Mandatory Expiration Date are referred to
as the "Unexercised Shares." To the extent the Holder does not exercise this
Warrant with respect to any Unexercised Shares, the Holder's rights under this
Warrant with respect to the Unexercised Shares shall expire as of the close of
business on the Mandatory Expiration Date.
3. RESERVATION OF SHARES. The Company hereby agrees that at all
times during the term of this Warrant there shall be reserved for issuance upon
exercise of this Warrant such number of shares of its Common Stock as shall be
required, for issuance upon exercise of this Warrant (the "Warrant Shares").
4. MUTILATION OR LOSS OF WARRANT. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated Warrant shall thereupon become void.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set forth herein.
6. PROTECTION AGAINST XXXXXXXX AND OTHER ADJUSTMENTS.
6.1 ADJUSTMENT MECHANISM. If an adjustment of the Exercise
Price is required pursuant to this Section 6, the Holder shall be entitled to
purchase such number of additional shares of Common Stock as will cause (i) the
total number of shares of Common Stock Holder is entitled to purchase pursuant
to this Warrant, multiplied by (ii) the adjusted Exercise Price per share, to
equal (iii) the dollar amount of the total number of shares of Common Stock
Holder is entitled to purchase before adjustment multiplied by the total
Exercise Price before adjustment.
6.2 CAPITAL ADJUSTMENTS. In case of any stock split or
reverse stock split, stock dividend, reclassification of the Common Stock,
recapitalization, merger or consolidation, or like capital adjustment affecting
the Common Stock of the Company, the provisions of this Section 6 shall be
applied as if such capital adjustment event had occurred immediately prior to
the date of this Warrant and the original Exercise Price had been fairly
allocated to the stock resulting from such capital adjustment; and in other
respects the provisions of this Section shall be applied in a fair, equitable
and reasonable manner so as to give effect, as nearly as may be, to the purposes
hereof. A rights offering to stockholders shall be deemed a stock dividend to
the extent of the bargain purchase element of the rights.
6.3 ADJUSTMENT FOR SPIN OFF. If, for any reason, prior to the
exercise of this Warrant in full, the Company spins off or otherwise divests
itself of a part of its business or operations or disposes all or of a part of
its assets in a transaction (the "Spin Off") in which the Company does not
receive compensation for such business, operations or assets, but causes
securities of another entity (the "Spin Off Securities") to be issued to
security holders of the Company, then
(a) the Company shall cause (i) to be reserved Spin Off Securities
equal to the number thereof which would have been issued to the Holder had all
of the Holder's unexercised Warrants outstanding on the record date (the "Record
Date") for determining the amount and number of Spin Off Securities to be issued
to security holders of the Company (the "Outstanding Warrants") been exercised
as of the close of business on the trading day immediately before the Record
Date (the "Reserved Spin Off Shares"), and (ii) to be issued to the Holder on
the exercise of all or any of the Outstanding Warrants, such amount of the
Reserved Spin Off Shares equal to (x) the Reserved Spin Off Shares multiplied by
(y) a fraction, of which (I) the numerator is the amount of the Outstanding
Warrants then being exercised, and (II) the denominator is the amount of the
Outstanding Warrants; and
(b) the Exercise Price on the Outstanding Warrants shall be adjusted
immediately after consummation of the Spin Off by multiplying the Exercise Price
by a
fraction (if, but only if, such fraction is less than 1.0), the numerator of
which is the average Closing Bid Price of the Common Stock for the five (5)
trading days immediately following the fifth trading day after the Record Date,
and the denominator of which is the average Closing Bid Price of the Common
Stock on the five (5) trading days immediately preceding the Record Date; and
such adjusted Exercise Price shall be deemed to be the Exercise Price with
respect to the Outstanding Warrants after the Record Date.
7. TRANSFER TO COMPLY WITH THE SECURITIES ACT; REGISTRATION RIGHTS.
7.1 TRANSFER. This Warrant has not been registered under the
Securities Act of 1933, as amended, (the "Act") and has been issued to the
Holder for investment and not with a view to the distribution of either the
Warrant or the Warrant Shares. Neither this Warrant nor any of the Warrant
Shares or any other security issued or issuable upon exercise of this Warrant
may be sold, transferred, pledged or hypothecated in the absence of an effective
registration statement under the Act relating to such security or an opinion of
counsel satisfactory to the Company that registration is not required under the
Act. Each certificate for the Warrant, the Warrant Shares and any other security
issued or issuable upon exercise of this Warrant shall contain a legend on the
face thereof, in form and substance satisfactory to counsel for the Company,
setting forth the restrictions on transfer contained in this Section.
7.2 REGISTRATION RIGHTS.
(a) Reference is made to the Registration Rights Agreement. The
Company's obligations under the Registration Rights Agreement and the other
terms and conditions thereof with respect to the Warrant Shares, including, but
not necessarily limited to, the Company's commitment to file a registration
statement including the Warrant Shares, to have the registration of the Warrant
Shares completed and effective, and to maintain such registration, are
incorporated herein by reference.
(b) Reference is made to Section 4(d) of the Agreement regarding
piggy-back registration rights covering, among other things, the Warrant Shares.
The terms and conditions of said Section 4(d) are incorporated herein by
reference.
8. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage pre-paid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission,
or, if mailed, two days after the date of deposit in the United States mails, as
follows:
(i) if to the Company, to;
SIGA TECHNOLOGIES, INC.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
ATTN: Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx, Xxxx, Xxxxxxx, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(ii) if to the Holder, to:
Xxxxxx Xxxxxx
c/o 00 Xxxx 00 Xx.
Xxx Xxxx, XX 00000
Telephone No.: ( ) -
Telecopier No.: ( ) -
with a copy to:
Xxxxxxx & Xxxxxx LLP, Esqs.
00 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Any party may be notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
9. SUPPLEMENTS AND AMENDMENTS; WHOLE AGREEMENT. This Warrant may be
amended or supplemented only by an instrument in writing signed by the parties
hereto. This Warrant contains the full understanding of the parties hereto with
respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein and therein.
10. GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of New York for contracts to be wholly
performed in such state and without giving effect to the principles thereof
regarding the conflict of laws. Each of the parties consents to the jurisdiction
of the federal courts whose districts encompass any part of the City of New York
or the state courts of the State of New York sitting in the City of New York in
connection with any dispute arising under this Warrant and hereby waives, to the
maximum extent permitted by law, any objection, including
any objection based on FORUM NON CONVENIENS, to the bringing of any such
proceeding in such jurisdictions. To the extent determined by such court, the
Company shall reimburse the Holder for any reasonable legal fees and
disbursements incurred by the Buyer in enforcement of or protection of any of
its rights under any of the Transaction Agreements.
11. COUNTERPARTS. This Warrant may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
12. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Warrant are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the
31st day of August, 2001.
SIGA TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Xxxxxx X. Xxxxxxxx
-----------------------------
(Print Name)
VP/CFO
-----------------------------
(Title)
NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant Certificate dated as of _________________, ___, to
purchase ___________ shares of the Common Stock, $.0001 par value, of SIGA
TECHNOLOGIES, INC. and tenders herewith payment in accordance with Section 1 of
said Common Stock Purchase Warrant.
It is the intention of the Holder to comply with the provisions of Section
2.2 of the Warrant regarding certain limits on the Holder's right to exercise
thereunder. Based on the analysis on the attached Worksheet Schedule, the Holder
believe this exercise complies with the provisions of said Section 2.2.
Nonetheless, to the extent that, pursuant to the exercise effected hereby, the
Holder would have more shares than permitted under said Section, this notice
should be amended and revised, ab initio, to refer to the exercise which would
result in the issuance of shares consistent with such provision. Any exercise
above such amount is hereby deemed void and revoked.
Please deliver the stock certificate to:
Dated:
----------------------------
-----------------------------------
[Name of Xxxxxx]
By:
-------------------------------
/ / CASH: $_________________
8/27/01
NOTICE OF EXERCISE OF WARRANT
WORKSHEET SCHEDULE
1. Current Common Stock holdings of Holder and Affiliates __________
2. Shares to be issued on current exercise __________
3. Other shares eligible to be acquired without restriction __________
4. Total [sum of Lines 1 through 3] __________
5. Outstanding shares of Common Stock __________
6. Adjustments to Outstanding __________
a. Shares from Line 1 not included in Line 5 __________
b. Shares to be issued per Line 2 __________
c. Total Adjustments [Lines 6a and 6b] __________
7. Total Adjusted Outstanding [Lines 5 plus 6c] __________
8. Holder's Percentage (Line 4 divided by Line 7] _____%
[Note: Line 8 not to be above 9.99%]
