EXHIBIT 11
THESE SECURITIES INCLUDING ANY UNDERLYING SECURITIES (THE "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 PHARMACEUTICALS, 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
PHARMACEUTICALS, 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 January 31, 2005 (the "Expiration
Date"), Two Hundred Twenty-six Thousand Eighty-seven (226,087) fully paid and
nonassessable shares of the Company's Common Stock, par value $.0001 per share
(the "Common Stock") at an initial exercise price per share (the "Exercise
Price") of $3.4059 per share, subject to further adjustment as set forth herein.
This Warrant is being issued pursuant to the terms of that certain Securities
Purchase Agreement, dated as of January 31, 2000 (the "Securities Purchase
Agreement"), to which the Company and Holder (or Holder's predecessor in
interest) are parties. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Securities Purchase 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 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 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, except that the Holder may apply
all or a portion of the previously unapplied aggregate Warrant Purchase Price
specified on the signature page of the Securities Purchase Agreement
against the amount so payable pursuant to such exercise. 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 Securities Purchase Agreement or of the other Transaction
Agreements, in no event (except (i) after the Maturity Date of the Debentures,
(ii) as specifically provided in this Warrant as an exception to this provision,
or (iii) while there is outstanding a tender offer for any or all of the shares
of the Company's Common Stock) shall the Holder be entitled to exercise this
Warrant, or shall the Company have either the obligation to issue shares upon
such exercise of all or any portion of this Warrant or the right to require the
Holder to exercise this Warrant as contemplated by Section 2.3 hereof, 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
unconverted portion of the Debentures or 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. COMPANY OPTION TO REQUIRE EXERCISE. If, but only if, both
(i) the Registration Statement is currently effective, and
(ii) the closing bid price for the Common Stock, as reported by
Bloomberg, LP or, if not so reported, as reported by the securities
exchange or automated quotation system on which the Common Stock is
listed or on the over-the-counter market, for each of any fifteen (15)
consecutive trading days is at least two hundred percent (200%) of the
Exercise Price (as the same may be adjusted as contemplated by the
terms of this Warrant),
the Company will have the right by written notice (the "Required
Exercise Notice") to the Holder to require the Holder to exercise all or a
portion of the unexercised portion of this Warrant in accordance with its terms
(except that such requirement shall not be deemed to require the Holder to
exercise the Warrant in a manner inconsistent with the provisions of Section 2.2
hereof). The Company's right to issue a Required
Exercise Notice shall expire at the close of the fifth trading day after the
last day in such consecutive trading day period in which the closing bid price
was at or above the standard referred to in clause (ii) of this Section 2.3. The
shares which are the subject of the Required Exercise Notice are referred to as
the "Required Shares." To the extent the Holder does not exercise this Warrant
for the Required Shares within five (5) business days after the Holder's receipt
of the Required Exercise Notice, the Holder's rights under this Warrant with
respect to the unexercised portion of the Required Shares shall expire.
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 DILUTION.
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 Market Price of the Common Stock (as
defined below) for the five (5) trading days immediately following the
fifth trading day after the Record Date, and the denominator of which is
the Average Market 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. As used herein, the term "Average Market
Price of the Common Stock" means the average closing bid price of a share
of Common Stock, as reported by Bloomberg, LP or, if not so reported, as
reported on the over-the-counter market for the relevant period.
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) In addition to the registration rights referred to in the
preceding provisions of Section 7.2(a), effective after the expiration of
the effectiveness of the Registration Statement as contemplated by the
Registration Rights Agreement, the Holder shall have piggy-back
registration rights with respect to the Warrant Shares then held by the
Holder or then subject to issuance upon exercise of this Warrant
(collectively, the "Remaining Warrant Shares"), subject to the conditions
set forth below. If, at any time after the Registration Statement has
ceased to be effective, the Company participates (whether voluntarily or by
reason of an obligation to a third party) in the registration of any shares
of the Company's stock (other than a registration on Form S-4 or Form S-8),
the Company shall give written notice thereof to the Holder and the Holder
shall have the right, exercisable within ten (10) business days after
receipt of such notice, to demand inclusion of all or a portion of the
Holder's Remaining Warrant Shares in such registration statement. If the
Holder exercises such election, the Remaining Warrant Shares so designated
shall be included in the registration statement at no cost or expense to
the Holder (other than any costs or commissions which would be borne by the
Holder under the terms of the Registration Rights Agreement). The Holder's
rights under this Section 7 shall expire at such time as the Holder can
sell all of the Remaining Warrant Shares under Rule 144 without volume or
other restrictions or limit.
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 PHARMACEUTICALS, INC.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
and with a copy to:
Xxxxxx Xxxxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(ii) if to the Holder, to:
Xxxxxx Xxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone No.: ( ) ___-____
Telecopier No.: ( ) ___-____
with a copy to:
Xxxxxxx & Xxxxxx LLP, Esqs.
00 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, 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 of even date herewith contain 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
31th day of January, 2000.
SIGA PHARMACEUTICALS, INC.
By: /s/ Xxxxxx Xxxxxx
--------------------
Name: Xxxxxx Xxxxxx
-----------------
Its: Chairman
-----------------
Attest:
/s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
----------------
Title: CEO
---------------
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, par value $.0001 per share,
of SIGA PHARMACEUTICALS, INC. and tenders herewith payment in accordance with
Section 1 of said Common Stock Purchase Warrant.
Please deliver the stock certificate to:
Dated:
--------------------------
--------------------------------
[Name of Holder]
By:
-----------------------------
/ / CASH: $__________________
Less: CREDIT FOR PREVIOUSLY
UNAPPLIED WARRANT PURCHASE PRICE:
$__________________
CURRENT PAYMENT: $__________________
AMENDMENT AGREEMENT
TO COMMON STOCK PURCHASE WARRANT
This AMENDMENT AGREEMENT TO COMMON STOCK PURCHASE WARRANT (this
"AMENDMENT") is made as of May 15, 2003, between SIGA Technologies, Inc.,
previously known as SIGA Pharmaceuticals, Inc., a Delaware corporation ("SIGA"),
and XXXXXX XXXXXX (the "HOLDER"). This Amendment No. 1 amends certain provisions
of the Common Stock Purchase Warrant, between SIGA and the Holder, dated as of
January 31, 2000 (the "WARRANT"). Capitalized terms used but not defined herein
shall have the respective meanings assigned to them in the Warrant.
WHEREAS, the Holder has requested that the Expiration Date of the
Warrant be extended;
WHEREAS, SIGA is willing to extend the Expiration Date; and
WHEREAS, SIGA and the Holder desire to amend the Warrant as provided
in this Amendment.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, intending legally to be bound, hereby agree
as follows:
1. The first portion of the first sentence of Section 1 of the
Warrant which reads "is hereby granted the right to purchase at any time until
5:00 P.M., New York City time, on January 31, 2005 (the "Expiration Date")" is
hereby amended to read as follows, "is hereby granted the right to purchase at
any time until 5:00 p.m., New York City time, on November 28, 2008 (the
"Expiration Date")."
[SIGNATURE PAGE FOLLOWS IMMEDIATELY]
IN WITNESS WHEREOF, XXXX has caused this Amendment to be duly executed
and the Holder has duly executed this Amendment, all as of the date and year
first written above.
SIGA TECHNOLOGIES, INC.
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: XXXXXX X. XXXXXXXX
Title: CHIEF FINANCIAL OFFICER
ACTING CEO
Holder:
Xxxxxx Xxxxxx
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