EXHIBIT K
FORM OF
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
COMMON STOCK AND WARRANT PURCHASE AGREEMENT, dated as of May 8, 2001
(this "Agreement"), by and between SIGA TECHNOLOGIES, INC., a Delaware
corporation, having its principal place of business located at 000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 (the "Company"), each entity named on a
signature page hereto (each, a "Buyer") (each agreement with a Buyer being
deemed a separate and independent agreement between the Company and such Buyer,
except that each Buyer acknowledges and consents to the rights granted to each
other Buyer under such agreement and the Transaction Agreements, as defined
below, referred to therein).
W I T N E S S E T H
WHEREAS, the Company wishes to sell to the Buyer, and the Buyer is
willing to buy from the Company, subject to the terms and conditions set forth
herein, the number of shares of Common Stock, par value $.0001 per share (the
"Common Stock"), of the Company, determined as provided herein, based on the
Purchase Price specified on the Buyer's signature page (the "Purchase Price"),
out of the Total Purchase Price (as defined below); and
WHEREAS, in connection with the purchase of such shares of Common
Stock, the Company will issue to the Buyer warrants to purchase additional
shares of Common Stock, as contemplated by the terms of this Agreement (the
"Warrants");
NOW, THEREFORE, for and in consideration of the premises and the
mutual agreement contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. PURCHASE AND SALE; MUTUAL DELIVERIES.
(a) Upon the following terms and conditions, the Company shall
issue and sell to the Buyer and the Buyer shall purchase from the Company that
number of shares of Common Stock equal to (i) the Purchase Price divided by (ii)
the Per Share Price. Such shares (the "Purchased Shares") shall be issued to the
Buyer on the Closing Date against receipt of the Purchase Price. The shares
shall be evidenced by one or more certificates representing such Purchased
Shares issued in the name of the Buyer, bearing substantially the following
legend:
THE SECURITIES REPRESENTED HEREBY (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), 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
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) As used herein, each of the following terms has the meaning
set forth below, unless the context otherwise requires:
(i) "Affiliate" means, with respect to a specific Person
referred to in the relevant provision, another Person who or which controls or
is controlled by or is under common control with such specified Person.
(ii) "Certificates" means the certificates representing the
Purchased Shares and the Warrants, each duly executed by the Company and issued
on the Closing Date in the name of the Buyer.
(iii) "Closing Bid Price" means the closing bid price during
regular trading hours of the Common Stock (in U.S. Dollars) on the Principal
Trading Market, as reported by the Reporting Service.
(iv) "Closing Date" means the date of the closing of the
purchase and sale of the Purchased Shares, as provided herein.
(v) "Escrow Agent" means the escrow agent identified in the
Joint Escrow Instructions attached hereto as Annex II (the "Joint Escrow
Instructions").
(vi) "Escrow Funds" means the Purchase Price delivered to the
Escrow Agent as contemplated by Section 1(c) hereof.
(vii) "Escrow Property" means the Escrow Funds and the
Certificates delivered to the Escrow Agent as contemplated by Section 1(c)
hereof.
(viii) "Per Share Price" means 80% of the average Closing Bid
Price for the thirty (30) trading days ending on the trading day immediately
before the Closing Date.
(ix) "Person" means any living person or any entity, such as,
but not necessarily limited to, a corporation, partnership or trust.
(x) "Principal Trading Market" means The Nasdaq SmallCap
Market.
(xi) "Registrable Shares" means the aggregate of (A) the
Purchased Shares and (B) the Warrant Shares then held by the Buyer or then
subject to issuance upon exercise of any outstanding Warrant.
(xii) "Registration Rights Agreement" means the Registration
Rights Agreement between the Company and the Buyer, substantially in the form of
Annex III attached hereto, being executed simultaneously herewith.
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(xiii) "Reporting Service" means Bloomberg LP or if that
service is not then reporting the relevant information regarding the Common
Stock, a comparable reporting service of national reputation selected by the
Buyers subscribing for a majority of the Total Purchase Price and reasonably
acceptable to the Company.
(xiv) "Securities" means the Purchased Shares, the Warrants
and the Warrant Shares.
(xv) "Total Purchase Price" means the aggregate Purchase
Prices for all Buyers, which shall not be less than $300,000 and not more than
$850,000.
(xvi) "Transaction Agreements" means this Agreement, the
Joint Escrow Instructions, the Registration Rights Agreement and the Warrants
and includes all ancillary documents referred to in those agreements.
(xvii) "Warrant Shares" means the shares of Common Stock
issuable upon exercise of the Warrant, where the number of such shares is equal
to the number of Purchased Shares
(c) The following provisions shall apply to the payment of the
Purchase Price and the delivery of the Certificates.
(i) The Buyer shall pay the Purchase Price for the Purchased
Shares by delivering immediately available good funds in United States Dollars
to the Escrow Agent no later than the date prior to the Closing Date. Payment
into escrow of the Purchase Price shall be made by wire transfer of funds to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
For credit to the account of Xxxxxxx & Xxxxxx LLP
Account No.: [To be provided to the Buyer by Xxxxxxx & Prager
LLP]
Re: Siga 2001 Transaction
(ii) On the Closing Date, the Company shall deliver the
Certificates, each duly executed on behalf of the Company and issued in the name
of the Buyer, to the Escrow Agent.
(iii) By signing this Agreement, each of the Buyer and the
Company, subject to acceptance by the Escrow Agent, agrees to all of the terms
and conditions of, and becomes a party to, the Joint Escrow Instructions, all of
the provisions of which are incorporated herein by this reference as if set
forth in full.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Buyer that, except as provided in Annex IV
attached hereto:
(a) The Company has the corporate power and authority to enter
into this Agreement and to perform its obligations hereunder. The execution and
delivery by the Company of this Agreement and the consummation by the Company of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company. This Agreement has been duly
executed and delivered by the Company and constitute the valid and binding
obligation of the Company enforceable against it in accordance with its terms,
subject to the effects of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and to general
equitable principles.
(b) There are no preemptive rights of any shareholder of the
Company, as such, to acquire the Purchased Shares or the Warrants. No party has
a currently exercisable right of first refusal which would be applicable to any
or all of the transactions contemplated by the Transaction Agreements.
(c) Except as set forth in the SEC Documents (as hereinafter
defined), there is no pending, or to the knowledge of the Company, threatened,
judicial, administrative or arbitral action, claim, suit, proceeding or
investigation which might affect the validity or enforceability of this
Agreement or which involves the Company and which if adversely determined, could
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(d) No consent or approval of, or exemption by, or filing with,
any party or governmental or public body or authority is required in connection
with the execution, delivery and performance under this Agreement or any of the
other Transaction Agreements or the taking of any action contemplated hereunder
or thereunder, except such authorizations, approvals and consents that have been
obtained.
(e) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation.
(f) The execution, delivery and performance of this Agreement and
each of the other Transaction Agreements by the Company, the issuance of the
Securities, and the consummation of the transactions contemplated hereby and by
the other Transaction Agreements, will not (i) violate any provision of the
Company's articles of incorporation or bylaws, each as currently in effect, (ii)
violate, conflict with or result in the breach of any of the terms of, or give
any other contracting party the right to terminate, or constitute (or with
notice or lapse of time or both constitute) a default under, any material
contract or other agreement to which the Company is a party or by or to which
the Company or any of the Company's assets or properties may be bound or
subject, (iii) violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body by which the Company, or
the assets
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or properties of the Company are bound, (iv) to the Company's knowledge, violate
any statute, law or regulation applicable to the Company's business.
(g) Each of the other Transaction Agreements, and the
transactions contemplated thereby, have been duly and validly authorized by the
Company, and the Warrants and each of the other Transaction Agreements (assuming
due execution, to the extent relevant, by the other party or parties thereto),
when executed and delivered by the Company, will be, valid and binding
agreements of the Company enforceable in accordance with their respective terms,
subject as to enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium, and other similar laws affecting the enforcement of
creditors' rights generally.
(h) None of the SEC Documents contained, at the time they were
filed, any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements made
therein in light of the circumstances under which they were made, not
misleading. Since March 1, 2000, the Company has timely filed all requisite
forms, reports and exhibits thereto required to be filed by the Company with the
SEC.
(i) Since December 31, 2000 (the "Last Audited Date"), there has
been no material adverse change and no material adverse effect on the business,
operations, financial condition or results of operations of the Company and its
subsidiaries taken as a whole, except as disclosed in the SEC Documents. Since
the Last Audited Date, except as provided in the Company's SEC Documents, the
Company has not (i) incurred or become subject to any material liabilities
(absolute or contingent) except liabilities incurred in the ordinary course of
business consistent with past practices; (ii) discharged or satisfied any
material lien or encumbrance or paid any material obligation or liability
(absolute or contingent), other than current liabilities paid in the ordinary
course of business consistent with past practices; (iii) declared or made any
payment or distribution of cash or other property to shareholders with respect
to its capital stock, or purchased or redeemed, or made any agreements to
purchase or redeem, any shares of its capital stock; (iv) sold, assigned or
transferred any other tangible assets, or canceled any debts or claims, except
in the ordinary course of business consistent with past practices; (v) suffered
any substantial losses or waived any rights of material value, whether or not in
the ordinary course of business, or suffered the loss of any material amount of
existing business; (vi) made any changes in employee compensation, except in the
ordinary course of business consistent with past practices; or (vii) experienced
any material problems with labor or management in connection with the terms and
conditions of their employment.
(j) There is no fact known to the Company (other than general
economic conditions known to the public generally or as disclosed in the SEC
Documents) that has not been disclosed in writing to the Buyer (which disclosure
may have been made subject to the Buyer's execution of a written confidentiality
agreement) that (i) would reasonably be expected to have a material adverse
effect on the business, operations, financial condition or results of operations
of the Company and its subsidiaries taken as a whole, (ii) would reasonably be
expected to materially and adversely affect the ability of the Company to
perform its obligations pursuant to any of the Transaction Agreements, or (iii)
would reasonably be expected to materially and adversely affect the value of the
rights granted to the Buyer in the Transaction Agreements.
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(k) There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending or, to the
knowledge of the Company, threatened against or affecting the Company, wherein
an unfavorable decision, ruling or finding would have a material adverse effect
on the business, operations, financial condition or results of operations of the
Company and its subsidiaries taken as a whole or the transactions contemplated
by any of the Transaction Agreements or which would adversely affect the
validity or enforceability of, or the authority or ability of the Company to
perform its obligations under, any of the Transaction Agreements.
(l) Except as set forth in Section 2(f), no Event of Default (or
its equivalent term), as defined in the respective agreement to which the
Company is a party, and no event which, with the giving of notice or the passage
of time or both, would become an Event of Default (or its equivalent term) (as
so defined in such agreement), has occurred and is continuing, which would have
a material adverse effect on the business, operations, financial condition or
results of operations of the Company and its subsidiaries taken as a whole.
(m) The Company has no liabilities or obligations other than
those disclosed in the Transaction Agreements or the SEC Documents or those
incurred in the ordinary course of the Company's business since the Last Audited
Date, or which individually or in the aggregate, do not or would not have a
material adverse effect on the business, operations, financial condition or
results of operations of the Company and its subsidiaries taken as a whole. No
event or circumstances has occurred or exists with respect to the Company or its
properties, business, operations, condition (financial or otherwise), or results
of operations, which, under applicable law, rule or regulation, requires public
disclosure or announcement prior to the date hereof by the Company but which has
not been so publicly announced or disclosed. There are no proposals currently
under consideration or currently anticipated to be under consideration by the
Board of Directors or the executive officers of the Company which proposal would
(x) change the certificate of incorporation or other charter document or by-laws
of the Company, each as currently in effect, with or without shareholder
approval, which change would reduce or otherwise adversely affect the rights and
powers of the shareholders of the Common Stock or (y) materially or
substantially change the business, assets or capital of the Company, including
its interests in subsidiaries.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby
represents and warrants to the Company that:
(a) If not an individual, (i) the Buyer has the corporate power
and authority to enter into this Agreement and to perform its obligations
hereunder, and (ii) the execution and delivery by the Buyer of this Agreement,
and the consummation by the Buyer of the transactions contemplated hereby, have
been duly authorized by all necessary corporate action on the part of the Buyer.
This Agreement has been duly executed and delivered by the Buyer and constitutes
the valid and binding obligation of the Buyer, enforceable against the Buyer in
accordance with its terms, subject to the effects of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and to general equitable principles.
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(b) The execution, delivery and performance by the Buyer of this
Agreement, and the consummation of the transactions contemplated hereby, do not
and will not breach or constitute a default under any applicable law or
regulation or of any agreement, judgment, order, decree or other instrument
binding on the Buyer.
(c) The Buyer has such knowledge and prior substantial investment
experience in financial and business matters, including investment in non-listed
and non-registered securities, and, either has read the SEC Documents and
evaluated the merits and risks of investment in the Company and the Securities,
or has had the opportunity to engage the services of an investment advisor,
attorney or accountant to read such SEC Documents and to evaluate such merits
and risks.
(d) The Buyer is an "accredited investor" as that term is defined
in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities Act").
(e) The Buyer and its advisors, if any, have been furnished with
all materials relating to the business, finances and operations of the Company
and materials relating to the offer and sale of the Purchased Shares which have
been requested by the Buyer, including those set forth on Annex IV hereto. The
Buyer and its advisors, if any, have been afforded the opportunity to ask
questions of the Company and have received complete and satisfactory answers to
any such inquiries. Without limiting the generality of the foregoing, the Buyer
has also had the opportunity to obtain and to review the SEC Documents,
including, but not limited to, (1) Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2000, (2) Schedule SC 14f-1 Statement of Change in
Control filed April 9, 2001, and Registration Statement on Form S-8, as filed on
February 26, 2001.
(f) The Buyer is acquiring the Purchased Shares, the Warrants and
the Warrant Shares solely for the Buyer's own account for investment and not
with a view to or for sale in connection with a distribution of any of the
Securities.
(g) The Buyer does not have a present intention to sell the
Securities, nor a present arrangement or intention to effect any distribution of
any of the Securities to or through any person or entity for purposes of
selling, offering, distributing or otherwise disposing of any of the Securities.
(h) The Buyer may be required to bear the economic risk of the
investment indefinitely because none of the Securities may be sold, hypothecated
or otherwise disposed of unless subsequently registered under the Securities Act
and applicable state securities laws or an exemption from registration is
available. Any resale of any of the Securities can be made only pursuant to (i)
a registration statement under the Securities Act which is effective and current
at the time of sale or (ii) a specific exemption from the registration
requirements of the Securities Act. In claiming any such exemption, the Buyer
will, prior to any offer or sale or distribution of any Securities advise the
Company and, if requested, provide the Company with a favorable written opinion
of counsel, in form and substance satisfactory to
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counsel to the Company, as to the applicability of such exemption to the
proposed sale or distribution.
(i) The Buyer understands that the exemption afforded by Rule 144
promulgated by the Securities and Exchange Commission under the Securities Act
("Rule 144") will not become available for at least one year from the date of
payment for the Securities and any sales in reliance on Rule 144, if then
available, can be made only in accordance with the terms and conditions of that
rule, including, among other things, a requirement that the Company then be
subject to, and current, in its periodic filing requirements under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, among
other things, a limitation on the amount of shares of Common Stock that may be
sold in specified time periods and the manner in which the sale can be made;
that, while the Company's Common Stock is registered under the Exchange Act and
the Company is presently subject to the periodic reporting requirements of the
Exchange Act, there can be no assurance that the Company will remain subject to
such reporting obligations or current in its filing obligations; and that, in
case Rule 144 is not applicable to a disposition of the Securities, compliance
with the registration provisions of the Securities Act or some other exemption
from such registration provisions will be required.
(j) The Buyer understands that legends shall be placed on the
certificates evidencing the Securities to the effect that the Securities have
not been registered under the Securities Act or applicable state securities laws
and appropriate notations thereof will be made in the Company's stock books.
Stop transfer instructions will be placed with the transfer agent of the
securities constituting the Common Stock.
4. COVENANTS OF THE COMPANY. The Company hereby further represents
to or covenants and agrees with the Buyer as follows:
(a) The Company has furnished or made available to the Buyer true
and correct copies of all registration statements, reports and documents,
including proxy statements (other than preliminary proxy statements), filed with
the Securities and Exchange Commission (the "SEC") by or with respect to the
Company since December 31, 1999 and prior to the date of this Agreement,
pursuant to the Securities Act or the Exchange Act (collectively, the "SEC
Documents"). The SEC Documents are the only filings made by the Company since
December 31, 1999 pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act or pursuant to the Securities Act. The Company has filed all
reports, schedules, forms, statements and other documents required to be filed
by it under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act since
January 1, 1999 and prior to the date of this Agreement. The Company meets the
"Registrant Requirement" for eligibility to use Form S-3 under the Securities
Act in order to register the Company's Common Stock for resales.
(b) The Company has not provided to the Buyer any information
which according to applicable law, rule or regulation, should have been
disclosed publicly prior to the date hereof by the Company but which has not
been so disclosed. As of their respective dates, the SEC Documents complied, and
all similar documents filed with the SEC prior to the Closing Date will comply,
in all material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and rules and regulations of the SEC
promulgated
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thereunder and other federal, state and local laws, rules and regulations
applicable to such SEC Documents, and no document similar to the SEC Documents
filed by the Company with the SEC prior to the Closing Date will contain, any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Documents, as of the
dates thereof, complied, and all similar documents filed with the SEC prior to
the Closing Date will comply, as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC and other applicable rules and regulations with respect thereto. Such
financial statements were prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except (i) as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to the extent
they may not include footnotes or may be condensed or summary statements as
permitted by Form 10-Q of the SEC) and fairly present in all material respects
the financial position of the Company and its consolidated subsidiaries as of
the dates thereof and the consolidated results of operations and cash flows for
the periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
(c) The Company will issue to the Buyer on the Closing Date,
transferable divisible Warrants to purchase up to the number of shares of Common
Stock equal to the Purchased Shares. Such Warrants shall bear an exercise price
per share of Common Stock equal to 110% of the average Closing Bid Prices of a
share of Common Stock for the five (5) trading days ending on the trading day
immediately preceding the Closing Date. The Warrants shall be exercisable
immediately upon issuance and thereafter until the last day of the month in
which the seventh anniversary of the Closing Date occurs and shall otherwise be
substantially in the form attached hereto as Annex I.
(d) (i) The Company shall enter into the Registration Rights
Agreement with the Buyer.
(ii) Except for periods during which the Registration
Statement contemplated by the Registration Rights Agreement is effective or
subject to a Permitted Suspension Period (as defined in the Registration Rights
Agreement), during the period from the Closing Date through the date when all
Purchased Shares have been sold and either the Warrants have expired or all of
the Warrants have been exercised and all of the Warrant Shares have been sold,
the Buyer shall have piggy-back registration rights with respect to the
Registrable Shares, subject to the conditions set forth below. If at any time
during that period, 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 Buyer and the Buyer 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 Buyer's Registrable Shares in
such registration statement. If the Buyer exercises such election, the
Registrable Shares so designated shall be included in the registration statement
at no cost or expense to the Buyer (other than any commissions payable to the
broker effecting the sale, which would be borne by the Buyer). If, in connection
with any underwritten offering for the account of the Company the managing
underwriter or underwriters thereof
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(collectively, the "Underwriter") shall impose a limitation on the number of
shares of Common Stock which may be included in the registration statement
because, in the Underwriter's judgement, such limitation is necessary to effect
an orderly public distribution of securities covered thereby, then the Company
shall be obligated to include in such registration only such limited portion of
the Registrable Shares for which such Buyer has requested inclusion hereunder as
the Underwriter shall permit. Any exclusion of Registrable Shares shall be made
pro rata among the Buyers seeking to include Registrable Shares, in proportion
to the number of Registrable Shares sought to be included by such holders;
provided, however, that the Company shall not exclude any Registrable Shares
unless the Company has first excluded all outstanding securities the holders of
which are not entitled by right to inclusion of securities in such registration
statement; and provided further, however, that, after giving effect to the
immediately preceding proviso, any exclusion of Registrable Shares shall be made
pro rata with holders of other securities having the right to include such
securities in such registration statement. The Buyer's piggy-back registration
rights under this Section 4(d) shall expire at such time as the Buyer can sell
all of the Registrable Shares under Rule 144 without volume or other
restrictions or limit.
(e) If (i) the Buyer, other than by reason of its gross
negligence or willful misconduct, becomes involved in any capacity in any
action, proceeding or investigation brought by any stockholder of the Company,
in connection with or as a result of the consummation of the transactions
contemplated by this Agreement, or if such Buyer impleaded in any such action,
proceeding or investigation by any Person, or (ii) the Buyer, other than by
reason of its gross negligence or willful misconduct or by reason of its trading
of the Common Stock in a manner that is illegal under the federal securities
laws or other actions, becomes involved in any capacity in any action,
proceeding or investigation brought by the Commission against or involving the
Company or in connection with or as a result of the consummation of the
transactions contemplated by this Agreement, or if the Buyer is impleaded in any
such action, proceeding or investigation by any Person, then in any such case,
the Company will reimburse the Buyer for its reasonable legal and other expenses
(including the cost of any investigation and preparation) incurred in connection
therewith, as such expenses are incurred. In addition, other than with respect
to any such matter in which the Buyer is a named party, the Company will pay the
Buyer the charges, as reasonably determined by the Buyer, for the time of any
officers or employees of the Buyer, if any, devoted to appearing and preparing
to appear as witnesses, assisting in preparation for hearings, trials or
pretrial matters, or otherwise with respect to inquiries, hearing, trials, and
other proceedings relating to the subject matter of this Agreement. The
reimbursement obligations of the Company under this paragraph shall be in
addition to any liability which the Company may otherwise have, shall extend
upon the same terms and conditions to any Affiliates of the Buyers who are
actually named in such action, proceeding or investigation, and partners,
directors, agents, employees and controlling persons (if any), as the case may
be, of the Buyers and any such Affiliate, and shall be binding upon and inure to
the benefit of any successors, assigns, heirs and personal representatives of
the Company, the Buyers and any such Affiliate and any such Person. The Company
also agrees that neither the Buyer nor any such Affiliate, partners, directors,
agents, employees or controlling persons shall have any liability to the Company
or any person asserting claims on behalf of or in right of the Company in
connection with or as a result of the consummation of the Transaction Agreements
except to
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the extent that any losses, claims, damages, liabilities or expenses incurred by
the Company result from the gross negligence or willful misconduct of the Buyer
or any such Affiliate.
5. CLOSING DATE.
(a) The Closing Date shall occur on the date which is the first
NYSE trading day after each of the conditions contemplated by Sections 6 and 7
hereof shall have either been satisfied or been waived by the party in whose
favor such conditions run.
(b) The closing of the purchase and issuance of Purchased Shares
shall occur on the Closing Date at the offices of the Escrow Agent and shall
take place no later than 3:00 P.M., New York time, on such day or such other
time as is mutually agreed upon by the Company and the Buyer.
(c) Notwithstanding anything to the contrary contained herein,
the Escrow Agent will be authorized to release the Escrow Funds to the Company
and to others and to release the other Escrow Property on the relevant Closing
Date upon satisfaction of the conditions set forth in Sections 6 and 7 hereof
and as provided in the Joint Escrow Instructions.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. The Buyer
understands that the Company's obligation to sell the Securities to the Buyer
pursuant to this Agreement on the Closing Date is conditioned upon:
(a) Delivery by the Buyer to the Escrow Agent of good funds as
payment in full of an amount equal to the Purchase Price for the Purchased
Shares in accordance with this Agreement;
(b) The accuracy on such Closing Date of the representations and
warranties of the Buyer contained in this Agreement, each as if made on such
date, and the performance by the Buyer on or before such date of all covenants
and agreements of the Buyer required to be performed on or before such date; and
(c) There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or requiring
any consent or approval which shall not have been obtained.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE. The Company
understands that the Buyer's obligation to purchase the Securities on the
Closing Date is conditioned upon:
(a) The execution and delivery of this Agreement and the other
Transaction Agreements by the Company;
(b) Delivery by the Company to the Escrow Agent of the
Certificates in accordance with this Agreement;
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(c) The accuracy in all material respects on such Closing Date of
the representations and warranties of the Company contained in this Agreement,
each as if made on such date, and the performance by the Company on or before
such date of all covenants and agreements of the Company required to be
performed on or before such date;
(d) There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or requiring
any consent or approval which shall not have been obtained; and
(e) From and after the date hereof to and including such Closing
Date, trading in securities generally on the New York Stock Exchange shall not
have been suspended or limited, nor shall there be any major outbreak or
escalation of hostilities involving the United States that in either case in the
reasonable judgment of the Buyer makes it impracticable to purchase the
Securities.
8. NOTICES. Any notice required or permitted hereunder shall be
given in writing (unless otherwise specified herein) and shall be deemed
effectively given on the earliest of
(a) the date delivered, if delivered by personal delivery as
against written receipt therefor or by confirmed facsimile transmission,
(b) the seventh business day after deposit, postage prepaid, in
the United States Postal Service by registered or certified mail, or
(c) the third business day after mailing by domestic or
international express courier, with delivery costs and fees prepaid,
in each case, addressed to each of the other parties thereunto entitled at the
following addresses (or at such other addresses as such party may designate by
ten (10) days' advance written notice similarly given to each of the other
parties hereto):
COMPANY: SIGA TECHNOLOGIES, INC.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
ATTN: President
Telephone No.: (000) 000-0000
Facsimile No.: (212)
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxxx Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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BUYER: At the address set forth on the signature page of this
Agreement.
with a copy to:
Xxxxxxx & Xxxxxx, LLP
00 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
ESCROW AGENT: Xxxxxxx & Xxxxxx LLP
00 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No. (000) 000-0000
9. GOVERNING LAW: MISCELLANEOUS.
(a) This Agreement shall be governed by and interpreted in
accordance with 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 exclusive
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 Agreement 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 Buyer 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.
(b) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(c) This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties hereto.
(d) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
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(e) A facsimile transmission of this signed Agreement shall be
legal and binding on all parties hereto.
(f) This Agreement may be signed in one or more counterparts,
each of which shall be deemed an original.
(g) The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(h) If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
(i) This Agreement may be amended only by an instrument in
writing signed by the party to be charged with enforcement thereof.
(j) This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The Company's and
the Buyer's representations and warranties herein shall survive the execution
and delivery of this Agreement and the delivery of the Certificates and the
payment of the Purchase Price, and shall inure to the benefit of the Buyer and
the Company and their respective successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
Buyer (if an entity, by one of its officers thereunto duly authorized) as of the
date set forth below.
PURCHASE PRICE OF BUYER: $
------------------------------
Address (Printed Name of Buyer)
------------------------------
By:_________________Telecopier No. _________
------------------------------------
Printed Name and Title
Jurisdiction of Incorporation
or Organization
As of the date set forth below, the undersigned hereby accepts this Agreement
and represents that the foregoing statements are true and correct and that it
has caused this Securities Agreement to be duly executed on its behalf.
SIGA TECHNOLOGIES, INC.
By: __________________________
Title:________________________
Date:________________, 2001
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