AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the “Agreement”),
made in New York, New York as of January
22, 2007, between SIGA Technologies, Inc., a Delaware corporation
(the “Company”), and Dr. Dennis
E. Hruby (“Executive”).
WHEREAS, the Company desires to employ Executive
as its Chief Scientific Officer, and
Executive desires to accept such employment on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the mutual
covenants and agreements hereinafter set forth, the Company and
Executive agree as follows:
1. Term. Unless earlier terminated in accordance with
Section 4 hereof, the term of this Agreement shall be the
three-year period commencing as of the date hereof and ending on
January 22, 2010 (the “Term”),
with each year of the Term beginning on January 23 (each year
of the Term, a “Term Year”).
2. Employment.
(a) Employment by the Company; Director
. Executive agrees to be employed by
the Company during the Term upon the terms and subject to the
conditions set forth in this Agreement. Executive shall serve as
the Chief Scientific Officer of the Company and shall report to the
Board of Directors and Chief Executive Officer of the
Company.
(b) Performance of Duties . Throughout his employment with the Company,
Executive shall faithfully and diligently perform Executive’s
duties in conformity with the directions of the Company and serve
the Company to the best of Executive’s ability. Except as
permitted pursuant to Section 2(c) below, Executive shall devote
his full business time and best efforts to the business and affairs
of the Company. In his capacity as the Chief Scientific Officer of
the Company, Executive shall have such duties and responsibilities
as he may be assigned by the Board of Directors and Chief Executive
Officer of the Company not inconsistent with his position as Chief
Scientific Officer of the
Company.
(c) Appointment at Oregon State
University . Executive
shall be permitted to continue with his part-time appointment as a
faculty member of Oregon State University, provided that such
duties do not interfere with his duties as Chief Scientific Officer
of the Company and subject in all cases to ongoing approval of the
Board of Directors of the Company.
3. Compensation and Benefits
.
(a) Base Salary . The Company agrees to pay to Executive a base
salary (“Base Salary”) at the annual rate of $250,000,
subject to any cost of living adjustments as
may be approved
by the Board of Directors of the Company. Payments of the Base
Salary shall be payable in equal installments in accordance with
the Company’s standard payroll practices.
(b) Annual Bonus . The Company may, in its sole discretion, pay
to Executive an annual cash bonus of up to fifty percent (50%) of
his Base Salary, but in any event will pay an annual cash bonus of
no less than twenty five percent (25%) of his Base Salary. The
Company may also, in its sole discretion, pay to Executive an
additional bonus in an amount to be determined by the Board of
Directors in its sole discretion. Such additional bonus, if any,
may be payable in cash or options to purchase Common Stock or
restricted shares of Common Stock, as determined by the Board of
Directors in its sole discretion. Any such cash bonus shall be
paid, and any such options or restricted shares shall be issued, no
later than March 15 of the year following the year in which the
Board of Directors determined such bonus, or, if later, by the date
that is 2½ months following the end of the Company’s
fiscal year in which the Board of Directors determined such
bonus.
(c) Benefits and Perquisites . Executive shall be entitled to participate in,
to the extent Executive is otherwise eligible under the terms
thereof, the benefit plans and programs, and receive the benefits
and perquisites, generally provided by the Company to senior
executives of the Company, including without limitation family
medical insurance (subject to applicable employee contributions).
Executive shall be entitled to receive vacation days in accordance
with Company policy, such days to be accrued in accordance with
Company policy.
(d) Business Expenses . The Company agrees to reimburse Executive for
all reasonable and necessary travel, business entertainment and
other business expenses incurred by Executive in connection with
the performance of his duties under this Agreement. Such
reimbursements shall be made by the Company on a timely basis upon
submission by Executive of vouchers in accordance with the
Company’s standard procedures.
(e) Indemnification . The Company shall indemnify Executive, to the
fullest extent permitted by its certificate of incorporation, for
any and all liabilities to which he may be subject as a result of,
in connection with or arising out of his employment by the Company
hereunder, as well as the costs and expenses (including reasonable
attorneys’ fees) of any legal action brought or threatened to
be brought against him or the Company as a result of, in connection
with or arising out of such employment or board service. Executive
shall be entitled to the full protection of any insurance policies
which the Company may elect to maintain generally for the benefit
of its officers.
(f) No Other Compensation or Benefits;
Payment . The
compensation and benefits specified in this Section 3 and in
Section 5 of this Agreement shall be in lieu of any and all other
compensation and benefits. Payment of all compensation and benefits
to Executive specified in this Section 3 and in Section 5 of this
Agreement (i) shall be made in accordance with the relevant Company
policies in effect from time to time to the extent the same are
consistently applied, including normal payroll practices, and (ii)
shall be subject to all legally required and customary
withholdings.
(g) Cessation of Employment . In the
event Executive shall cease to be employed by the Company for any
reason, Executive’s compensation and benefits shall
cease
on the date of
such event, except as otherwise specifically provided herein or in
any applicable employee benefit plan or program or as required by
law.
4. Termination of Employment
. Executive’s employment
hereunder may be terminated prior to the end of the Term under the
following circumstances.
(a) Death . Executive’s employment hereunder shall
terminate upon Executive’s death.
(b) Executive Becoming Totally Disabled
. The Company may terminate
Executive’s employment hereunder at any time after Executive
becomes “Totally Disabled.” For purposes of this
Agreement, Executive shall be “Totally Disabled” in the
event Executive is unable to perform the duties and
responsibilities contemplated under this Agreement for a period of
either (A) 120 consecutive days or (B) 6 months in any 12-month
period due to physical or mental incapacity or impairment. During
any period that Executive fails to perform Executive’s duties
hereunder as a result of incapacity due to physical or mental
illness (the “Disability Period”), Executive shall
continue to receive the compensation and benefits provided by
Section 3 of this Agreement until Executive’s employment
hereunder is terminated; provided, however, that the amount of base
compensation and benefits received by Executive during the
Disability Period shall be reduced by the aggregate amounts, if
any, payable to Executive under any disability benefit plan or
program provided to Executive by the Company.
(c) Termination by the Company for Cause
. The Company may terminate
Executive’s employment hereunder for Cause at any time after
providing written notice to Executive. For purposes of this
Agreement, the term “Cause” shall mean any of the
following: (i) Executive’s neglect or failure or refusal to
perform his duties under this Agreement (other than as a result of
total or partial incapacity due to physical or mental illness);
(ii) any act by or omission of Executive constituting gross
negligence or willful misconduct in connection with the performance
of his duties that could reasonably be expected to materially
injure the reputation, business or business relationships of the
Company or any of its affiliates; (iii) perpetration of an
intentional and knowing fraud against or affecting the Company or
any of its affiliates or any customer, client, agent, or employee
thereof; (iv) the commission by or indictment of Executive for (A)
a felony or (B) any misdemeanor involving moral turpitude, deceit,
dishonesty or fraud (“indictment,” for these purposes,
meaning a United States-based indictment, probable cause hearing or
any other procedure pursuant to which an initial determination of
probable or reasonable cause with respect to such offense is made);
(v) the breach of a covenant set forth in Section 6; or (vi) any
other material breach of this Agreement.
(d) Termination by the Company Without
Cause . The Company may
terminate Executive’s employment hereunder at any time for
any reason or no reason by giving Executive thirty (30) days prior
written notice of the termination. Following any such notice, the
Company may reduce or remove any and all of Executive’s
duties, positions and titles with the Company.
(e) Termination by Executive for Good
Reason . Executive may terminate his employment hereunder for
Good Reason at any time after providing written notice to the
Company. For purposes of this Agreement, the term “Good
Reason” shall mean any of the
following: (i)
the Company fails to pay the compensation described in Section 3(a)
of this Agreement (in accordance with, and subject to, such
provisions); (ii) Executive no longer holds the office of Chief
Scientific Officer or offices of equivalent
stature, or his functions and/or duties as Chief Scientific Officer
are materially diminished; or (iii)
Executive’s job site is relocated to a location which is more
than fifty (50) miles from Corvallis Oregon, unless the parties
mutually agree to such relocation.
(f) Termination Upon a Change in Control
. If the Company terminates
Executive’s employment hereunder without Cause within 90 days
after the occurrence of the Change in Control Executive shall be
entitled to the payments provided for by Section 5(d). For purposes
of this Agreement, a “Change in Control” shall be
conclusively deemed to have occurred if any of the following shall
have taken place:
(i) the consummation of a transaction or a series
of related transactions pursuant to which any “person”
(as such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934 (“Exchange Act”), other
than the Executive, his designee(s) or “affiliate(s)”
(as defined in Rule 12b-2 under the Exchange Act), is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing forty percent (40%) or more of the combined
voting power of the Company’s then outstanding
securities;
(ii) stockholders of the Company approve a merger or
consolidation of the Company with any other entity, other than a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than eighty
percent (80%) of the combined voting power of the voting securities
of the Company or such surviving entity outstanding immediately
after such merger or consolidation; or
(iii) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale
or disposition by the Company of, or the Company sells or disposes
of, all or substantially all of the Company’s
assets.
(g) Termination by Executive Without Good
Reason . Executive may
terminate his employment hereunder at any time for any reason or no
reason by giving the Company thirty (30) days prior written notice
of the termination. Following any such notice, the Company may
reduce or remove any and all of Executive’s duties, positions
and titles with the Company, and any such reduction or removal
shall not constitute Good Reason.
5. Compensation Following Termination
. In the event that
Executive’s employment hereunder is terminated, Executive
shall be entitled only to the following compensation and benefits
upon such termination:
(a) General . On any termination of Executive’s
employment prior to the end of the Term, Executive shall be
entitled to the following (collectively, the “Standard
Termination Payments”):
(i) any accrued but unpaid Base Salary for services
rendered through the date of termination; provided, however, that
in the event Executive’s employment is terminated pursuant to
Section 4(b), the amount of Base Salary received by Executive
during the Disability Period shall be reduced by the aggregate
amounts, if any, payable to Executive under any disability benefit
plan or program provided to Executive by the Company;
(ii)
any vacation accrued to the date of
termination, in accordance with Company policy;
(iii) any accrued but unpaid expenses through the
date of termination required to be reimbursed in accordance with
Section 3(d) of this Agreement; and
(iv) any benefits to which he may be entitled upon
termination pursuant to the plans, programs and grants referred to
in Section 3(c) hereof in accordance with the terms of such plans,
programs and grants.
(b) Termination Prior to the Expiration of the Term
by Reason of Death or Executive Becoming Totally Disabled;
Termination Prior to the Expiration of the Term by the Company for
Cause; Termination Prior to the Expiration of the Term by Executive
Without Good Reason . In
the event that Executive’s employment is terminated prior to
the expiration of the Term (i) by reason of Executive’s death
pursuant to Section 4(a) or Executive becoming Totally Disabled
pursuant to Section 4(b), (ii) by the Company for Cause pursuant to
Section 4(c) or (iii) by Executive without Good Reason pursuant to
Section 4(g), Executive (or his estate, as the case may be) shall
be entitled only to the Standard Termination Payments.
(c) Termination Prior to the Expiration of the Term
by the Company Without Cause; Termination Prior to the Expiration
of the Term by Executive for Good Reason . In the event that Executive’s employment
is terminated prior to the expiration of the Term by the Company
without Cause pursuant to Section 4(d) or by Executive for Good
Reason pursuant to Section 4(e), Executive shall be entitled only
to the following:
(i) the Standard Termination Payments;
and
(ii) the continued payment of the Base Salary (as
determined pursuant to Section 3(a)) for two years
(such sums to be paid at the times and in
the amounts such Base Salary would have been paid had
Executive’s employment not terminated); provided, however,
that if necessary to comply with Section 409A(a)(2)(B)(i) of the
Internal Revenue Code of 1986, as amended (the “Code”),
and applicable administrative guidance and regulations, the payment
of such sums shall be made as follows: (A) no payments shall be
made for a six-month period following the date of termination, (B)
an amount equal to six months of Base Salary shall be paid in a
lump sum six months following the date of termination, and (C)
during the period beginning six months following the date of
termination through the remainder of the twelve-month period,
payment of the Base Salary shall be made at the times and in the
amounts such Base Salary would have been paid had Executive’s
employment not terminated.
(iii) the Company shall take all such action as is
necessary such that all stock options and other stock-based grants
to Executive shall, immediately and irrevocably vest and become
exercisable as of the date of termination and shall remain
exercisable for a period of not less than two (2) years from the
date of termination.
(d) Termination Upon a Change of Control
. In the event that the Company
terminates Executive’s employment upon a Change in Control
other than for Cause pursuant to Section 4(f), Executive shall be
entitled only to the following:
(i) the Standard Termination Payments;
(ii) the continued payment of the Base Salary (as
determined pursuant to Section 3(a)) for two years (such sums to be
paid at the times and in the amounts such Base Salary would have
been paid had Executive’s employment not terminated);
provided, however, that if necessary to comply with Section
409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended
(the “Code”), and applicable administrative guidance
and regulations, the payment of such sums shall be made as follows:
(A) no payments shall be made for a six-month period following the
date of termination, (B) an amount equal to six months of Base
Salary shall be paid in a lump sum six months following the date of
termination, and (C) during the period beginning six months
following the date of termination through the remainder of the
twelve-month period, payment of the Base Salary shall be made at
the times and in the amounts such Base Salary would have been paid
had Executive’s employment not terminated; and
(iii) the Company shall take all such action as is
necessary such that all stock options and other stock-based grants
to Executive shall, immediately and irrevocably vest and become
exercisable as of the date of termination and shall remain
exercisable for a period of not less than two (2) years from the
date of termination.
(e) Effect of Material Breach of Section 6 on
Compensa