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Exhibit 10.2
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE
SECURITIES
ACT OF 1933, AS AMENDED, OR ANY OTHER SECURITIES LAWS, AND
SUCH
SECURITIES
MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN
THE
ABSENCE OF SUCH REGISTRATION UNDER SAID ACT AND LAWS OR AN
EXEMPTION
THEREFROM.
SIGA TECHNOLOGIES, INC.
COMMON
STOCK PURCHASE WARRANT
1.
Issuance; Certain Definitions .
1.1
In
consideration of good and valuable consideration, the receipt of
which is hereby acknowledged by SIGA TECHNOLOGIES, INC.
, a Delaware corporation (the "Company"), MacAndrews & Forbes
LLC, a Delaware limited liability corporation, or its registered
assigns, is hereby granted the right to purchase at any time until
5:00 P.M., New York City time, on the Expiration Date, 238,000
fully paid and nonassessable shares of Common Stock, at an initial
exercise price per share (the “Exercise Price”) of
$3.06 per share, subject to adjustment as set forth
herein. The shares of Common Stock issued upon exercise
of this Warrant, as adjusted from time to time pursuant to Section
6 hereof, are referred to as “Warrant
Shares.” This Warrant is being issued pursuant to
the terms and conditions of the Commitment Letter.
1.2
As
used in this Warrant, the following terms have the respective
meanings set forth below:
"Actual
Minimum" has the meaning assigned to it in Section 11.2
hereof.
"Affiliate"
means, with respect to any specified Person, (i) any other
Person 50% or more of whose Outstanding voting securities are
directly or indirectly owned, controlled or held with the
power to vote by such specified Person or (ii) any other
Person directly or indirectly controlling, controlled by or
under direct or indirect common control with such specified
Person. For purposes of this definition, the term
"control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of a Person by virtue of ownership of voting
securities, by contract or otherwise.
"Appraisal
Procedure" means the following procedure to determine the fair
market value, as to any security, for purposes of the
definition of "Fair Market Value" or the fair market value, as
to any other property (in either case, the "Valuation
Amount"). The Valuation Amount shall be determined
in good faith jointly by the Board of Directors and the
Holder; provided
, however ,
that if such parties are not able to agree on the Valuation
Amount within a reasonable period of time (not to exceed 20
Business Days) the Valuation Amount shall be determined by an
investment banking firm of national reputation, which firm
shall be reasonably acceptable to the Board of Directors
and the Holder. If the Board of Directors and the
Holder are unable to agree upon an acceptable investment
banking firm within 10
days
after the date either party proposed that one be selected, the
investment banking firm will be selected by an arbitrator
located in New York City, New York, selected by the American
Arbitration Association (or if such organization ceases to
exist, the arbitrator shall be chosen by a court of competent
jurisdiction). The arbitrator shall select the
investment banking firm (within 10 days of his appointment)
from a list, jointly prepared by the Board of Directors and
the Holder, of not more than six investment banking firms of
national reputation in the United States, of which no more
than three may be named by the Board of Directors and no more
than three may be named by the Holder. The
arbitrator may consider, within the 10-day period allotted,
arguments from the parties regarding which investment banking
firm to choose, but the selection by the arbitrator shall be
made in its sole discretion from the list of
six. The Board of Directors and the Holder shall
submit their respective valuations and other relevant data to
the investment banking firm, and the investment banking firm
shall, within 30 days of its appointment, make its own
determination of the Valuation Amount. The
determination of the final Valuation Amount by such investment
banking firm shall be final and binding upon the
parties. The Company shall pay all of the fees and
expenses of the investment banking firm and arbitrator (if
any) used to determine the Valuation Amount. If
required by any such investment banking firm or arbitrator,
the Company shall execute a retainer and engagement letter
containing reasonable terms and conditions, including, without
limitation, customary provisions concerning the rights of
indemnification and contribution by the Company in favor of
such investment banking firm or arbitrator and its officers,
directors, partners, employees, agents and
Affiliates.
"Board
of Directors" means the board of directors of the
Company.
"Business
Day" means any day that is not a Saturday or Sunday or a day
on which banks are required or permitted to be closed in the
State of New York.
"Commitment
Letter" means the Commitment Letter by and between the Company
and MacAndrews & Forbes LLC, dated June 19,
2008.
"Common
Stock" means the Common Stock of the Company, par value
$0.0001 per share, as constituted on the Original Issue Date,
and any capital stock into which such Common Stock may
thereafter be changed, and shall also include (i) capital
stock of the Company of any other class (regardless of how
denominated) issued to the holders of shares of any Common
Stock upon any reclassification thereof which is not preferred
as to dividends or liquidation over any other class of stock
of the Company and which is not subject to redemption and (ii)
shares of common stock of any successor or acquiring
corporation received by or distributed to the holders of
Common Stock of the Company in the circumstances contemplated
by Section 6.5 hereof.
"Company"
has the meaning assigned to it in Section 1.1
hereof.
"Designated
Office" has the meaning assigned to it in Section 11.3
hereof.
"Excluded
Stock" has the meaning assigned to it in Section 6.10
hereof.
"Exercise
Date" has the meaning assigned to it Section 2.1(a)
hereof.
"Exercise
Price" means, in respect of a share of Common Stock at any
date herein specified, the initial Exercise Price set forth in
Section 1.1 hereof, as adjusted from time to time pursuant to
Section 6 hereof.
"Expiration
Date" means June 19, 2012.
"Fair
Market Value" means, as to any security, the Twenty Day
Average of the average closing prices of such security's sales
on all domestic securities exchanges on which such security
may at the time be listed, or, if there have been no sales on
any such exchange on any day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of
such day, or, if on any day such security is not so listed,
the average of the highest bid and lowest asked prices on such
day in the domestic over-the-counter market as reported by the
National Quotation Bureau, Incorporated, or any similar or
successor organization (and in each such case excluding any
trades that are not bona fide, arm's length
transactions). If at any time such security is not
listed on any domestic securities exchange or quoted on the
domestic over-the-counter market, the "Fair Market Value" of
such security shall be the fair market value thereof as
determined in accordance with the Appraisal Procedure, using
any appropriate valuation method, assuming an arms-length sale
to an independent party.
"Form
of Assignment" has the meaning assigned to it in Section 4.1
hereof.
"Governmental
Entity" means any national, federal, state, municipal, local,
territorial, foreign or other government or any department,
commission, board, bureau, agency, regulatory authority or
instrumentality thereof, or any court, judicial,
administrative or arbitral body or public or private
tribunal.
"Holder"
means (a) with respect to this Warrant, the Person in whose
name the Warrant set forth herein is registered on the books
of the Company maintained for such purpose and (b) with
respect to any other Warrant or Warrant Shares, the Person in
whose name such Warrant or Warrant Shares is registered on the
books of the Company maintained for such purpose.
"Issuable
Minimum" has the meaning assigned to it in Section 11.2
hereof.
"Lien"
means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security
interest, easement or encumbrance, or preference, priority or
other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the
foregoing, and the filing of, or agreement to give, any
financing statement perfecting a security interest under the
Uniform Commercial Code or comparable law of any
jurisdiction).
"Notice
of Exercise" has the meaning assigned to it in Section 2.1(a)
hereof.
"Original
Issue Date" means June 19, 2008.
"Original
Warrants" means the Warrants originally issued by the Company
on June 19, 2008, pursuant to the Commitment
Letter.
"Outstanding"
means, (a) when used with reference to Common Stock, at any
date as of which the number of shares thereof is to be
determined, all issued shares of Common Stock, except shares
then owned or held by or for the account of the Company or any
Subsidiary, and shall include all shares issuable in respect
of Outstanding scrip or any certificates representing
fractional interests in shares of Common Stock and (b) when
used with reference to Warrants, at any date as of which the
number thereof is to be determined, all issued
Warrants.
"Permitted
Transferee" means (i) any Affiliate of the Holder, including,
without limitation, directors, executives and officers of the
Holder, (ii) any member of the family of any Affiliate of the
Holder, including any such Person's spouse and descendants and
any trust, partnership, corporation, limited liability company
or other entity for the benefit of such spouse and/or
descendants to whom or which any of the Securities have been
transferred by any such Person for estate or tax planning
purposes, (iii) any charity or foundation to which the
Securities have been transferred by the Holder or any Person
or entity described in clause (i) or (ii) above for estate or
tax planning or charitable purposes, or (iv) the beneficiary
of any bona fide pledge by the Holder of any of the
Securities.
"Person"
means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, incorporated
organization, association, corporation, institution,
Governmental Entity or any other entity.
"Registration
Rights Agreement" means the Registration Rights Agreement by
and between the Company and MacAndrews & Forbes LLC
(formerly known as MacAndrews & Forbes Holdings Inc.),
dated August 13, 2003, as amended from time to
time.
"Reserved
Spin Off Securities" has the meaning assigned to it in Section
6.2 hereof.
"SEC"
means the U.S. Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other
federal securities laws.
"Securities
Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same
shall be in effect at the time.
"Spin
Off Securities" has the meaning assigned to it in Section 6.2
hereof.
"Subsidiary"
means, with respect to any Person, any corporation,
association trust, limited liability company, partnership,
joint venture or other business association or entity (i) at
least 50% of the Outstanding voting securities of which are at
the time owned or controlled directly or indirectly by such
Person or (ii) with respect to which the Company possesses,
directly or indirectly, the power to direct or cause the
direction of the affairs or management of such
Person.
"Transfer"
means any disposition of any Warrant or Warrant Shares or of
any interest therein, which would constitute a "sale" thereof
within the meaning of the Securities Act.
"Twenty
Day Average" means, with respect to any prices and in
connection with the calculation of Fair Market Value, the
average of such prices over the 20 Business Days
ending
on the Business Day immediately prior to the day as of which
Fair Market Value is being determined.
"Warrant
Price" means an amount equal to (i) the number of Warrant
Shares being purchased upon exercise of this Warrant pursuant
to Sections 1 and 2 hereof, multiplied by (ii) the Exercise
Price.
"Warrant
Shares" has the meaning assigned to it in Section 1.1
hereof.
"Warrants"
means the Original Warrants and all Warrants issued upon
transfer, division or combination of, or in substitution for,
the Original Warrants, or any other such Warrant subsequently
issued to the Holder. All Warrants shall at all
times be identical as to terms and conditions, except as to
the Warrant Shares for which they may be exercised and their
date of issuance.
2.
Exercise of Warrants .
2.1
Manner of Exercise .
(a)
This
Warrant is exercisable in whole or in part at any time and from
time to time on any Business Day from and after the Original Issue
Date and at any time until 5:00 P.M., New York time, on the
Expiration Date. Such exercise shall be effectuated by
submitting to the Company at its Designated Office (i) a completed
and duly executed written notice of the Holder's election to
exercise this Warrant (a "Notice of Exercise") (substantially in
the form attached to this Warrant as Annex A )
indicating the Warrant Shares then being purchased pursuant to such
exercise, together with this Warrant and (ii) payment to the
Company of the Warrant Price. The date on which such
delivery and payment shall have taken place being sometimes
referred to as the "Exercise Date."
(b)
Upon
receipt by the Company of such Notice of Exercise, surrender of
this Warrant and payment of the Warrant Price (in accordance with
Section 2.1(c) hereof), the Holder shall be entitled to receive as
promptly as practicable, and in any event within five Business Days
thereafter, a certificate or certificates for Warrant Shares so
purchased in such denomination or denominations as the exercising
Holder shall reasonably request in the Notice of Exercise,
registered in the name of the Holder or, subject to Section 4
hereof, such other name as shall be designated in the Notice of
Exercise, together with cash in lieu of any fraction of a share, as
provided in Section 2.3 hereof. If this Warrant shall
have been exercised in part, the Company shall, at the time of
delivery of the certificate or certificates representing the
Warrant Shares being issued, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the remaining
Warrant Shares underlying this Warrant. Such new Warrant
shall in all other respects be identical to this
Warrant. This Warrant shall be deemed to have been
exercised and such certificate or certificates of Warrant Shares
shall be deemed to have been issued, and the Holder or any other
Person so designated to be named therein shall be deemed to have
become a holder of record of such Warrant Shares for all purposes,
as of the Exercise Date.
(c)
Payment
of the Warrant Price shall be made at the option of the Holder by
one or more of the following methods: (i) by delivery of a
certified or official bank
check
or by wire transfer of immediately available funds in the amount of
such Warrant Price payable to the order of the Company, (ii) by
instructing the Company to withhold a number of Warrant Shares then
issuable upon exercise of this Warrant with an aggregate Fair
Market Value equal to such Warrant Price, (iii) by surrendering to
the Company shares of Common Stock previously acquired by the
Holder with an aggregate Fair Market Value equal to such Warrant
Price, or (iv) any combination of the foregoing. In the
event of any withholding of Warrant Shares or surrender of Common
Stock pursuant to clause (ii), (iii) or (iv) above where the number
of shares whose Fair Market Value is equal to the Warrant Price is
not a whole number, the number of shares withheld by or
surrendered to the Company shall be rounded up to the nearest
whole share and the Company shall make a cash payment to the Holder
based on the incremental fraction of a share being so withheld by
or surrendered to the Company in an amount determined in accordance
with Section 2.3 hereof.
2.2
Payment of Taxes . All Warrant Shares issuable
upon the exercise of this Warrant pursuant to the terms hereof
shall be validly issued, fully paid and nonassessable, issued
without violation of any preemptive or similar rights of any
stockholder of the Company and free and clear of all
Liens. The Company shall pay all expenses in connection
with, and all taxes and other governmental charges that may be
imposed with respect to, the issue or delivery
thereof. The Company shall not, however, be required to
pay any tax or governmental charge which may be issuable upon
exercise of this Warrant payable in respect of any Transfer
involved in the issue and delivery of Warrant Shares in a name
other than that of the holder of the Warrants to be exercised, and
no such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Company the amount of
any such tax, or has established to the satisfaction of the Company
that such tax has been paid.
2.3
Fractional Shares . The Company shall not be
required to issue a fractional share of Common Stock upon exercise
of any Warrant. As to any fraction of a share that the
Holder of one or more Warrants, the rights under which are
exercised in the same transaction, would otherwise be entitled to
purchase upon such exercise, the Company shall pay to such Holder
an amount in cash equal to such fraction multiplied by the Fair
Market Value of one share of Common Stock on the Exercise
Date.
3.
Reservation and Authorization of Common Stock
. The Company shall at all times during the term of this
Warrant reserve for issuance upon exercise of the then outstanding
balance of this Warrant such number of shares of its Common Stock
as shall be required for issuance of the Warrant
Shares. Before taking any action that would result in an
adjustment in the number of Warrant Shares for which this Warrant
is exercisable or in the Exercise Price, the Company shall obtain
all such authorizations or exemptions thereof, or consents thereto,
as may be necessary from any public regulatory body or bodies
having jurisdiction over such action. If any Warrant
Shares required to be reserved for issuance upon exercise of
Warrants require registration or qualification with any
Governmental Entity (other than under the Securities Act or any
state securities law) before such shares may be so issued, the
Company will in good faith and as expeditiously as possible and at
its expense endeavor to cause such shares to be duly
registered. Before taking any action that would cause an
adjustment reducing the Exercise Price below the then par value (if
any) of the shares of Common Stock deliverable upon exercise of the
Warrant or that would cause the
number
of Warrant Shares issuable upon exercise of the Warrant to exceed
(when taken together with all other Outstanding shares of Common
Stock) the number Warrant Shares that the Company is authorized to
issue, the Company will take any corporate action that, in the
opinion of its counsel, is necessary in order that the Company may
validly and legally issue the full number of fully paid and
non-assessable shares of Common Stock issuable upon exercise of the
Warrant at such adjusted exercise price. !
4.
Transfer, Assignment, Division, Combination, Mutilation or Loss of
Warrant .
4.1
Transfer or Assignment of Warrant . Subject to
the limitations set forth in Section 7 hereof, upon (a) surrender
of this Warrant to the Company at its Designated Office accompanied
by a Form of Assignment annexed hereto as Annex B (each,
a “Form of Assignment”) duly executed and funds
sufficient to pay any applicable transfer tax, and (b) delivery of
an opinion of counsel to the Holder reasonably satisfactory to the
Company to the effect that, in the opinion of such counsel, the
transfer is exempt from the registration requirements of the
Securities Act (provided that no such opinion shall be required in
the event of a Transfer to a Permitted Transferee), the Company
shall, without charge, execute and deliver a new Warrant registered
in the name of the assignee named in the Form of Assignment at the
address, and evidencing the right to purchase the shares of Common
Stock, specified in the Form of Assignment, and the Warrant
represented by this Warrant shall promptly be
cancelled.
4.2
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.
4.3
Division and Combination . Subject to compliance
with the applicable provisions of this Warrant, this Warrant may be
divided or combined with other Warrants upon presentation hereof at
the Designated Office, together with a written notice specifying
the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject
to compliance with the applicable provisions of this Warrant as to
any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
4.4
Expenses . The Company shall prepare, issue and
deliver at its own expense any new Warrant or Warrants required to
be issued hereunder.
4.5
Maintenance of Books . The Company agrees to
maintain, at the Desi
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