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As filed with the Securities and Exchange Commission on May 10, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
SIGA Technologies, Inc.
(Exact Name of Registrant as Specified in Its Charter)
---------------------------
Delaware 13-3864870
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
420 Lexington Avenue
Suite 620
New York, New York 10170
(212) 672-9100
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive office)
----------------------------
Joshua D. Schein, Ph.D.
Chief Executive Officer
SIGA Technologies, Inc.
420 Lexington Avenue
Suite 620
New York, New York 10170
(Name and Address of Agent
For Service)
(212) 672-9100
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Lawrence B. Fisher, Esq.
Orrick, Herrington & Sutcliffe LLP
666 Fifth Avenue
New York, New York 10103
(212) 506-5000 (Phone) (212) 506-5151 (Fax)
Approximate date of commencement of proposed sale to the public: From time to
time as determined by the Selling Stockholders.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [__]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [__]
CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities To To Be Offering Aggregate Registration
Be Registered Registered(1) Price Per Offering Fee
Share (2) Price (2)
- -------------------------------------------------------------------------------
Common Stock, $0.0001 2,833,391 $4.16 $11,786,907 $3,112
par value shares
- -------------------------------------------------------------------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers such indeterminate number of shares of
common stock as may be required to prevent dilution resulting from stock
splits, stock dividends or similar events.
(2) Estimated solely for the purpose of computing the amount of the
registration fee, based on the average of the high and low prices for
SIGA Technologies, Inc.'s common stock as reported on the Nasdaq SmallCap
Market on May 8, 2000 in accordance with Rule 457(c) under the Securities
Act of 1933, as amended.
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to completion, dated May 10, 2000
2,833,391 Shares
SIGA Technologies, Inc.
Common Stock
-----------------
Shares of common stock of SIGA Technologies, Inc. are being offered by
this prospectus. The shares will sold from time to time by the selling
stockholders named in this prospectus. The prices at which such selling
stockholders may sell the shares will be determined by the prevailing market
price for the shares or in negotiated transactions. We will not receive any
proceeds from the sale of shares of common stock by the selling stockholders but
we will receive proceeds from the exercise of warrants held by certain of the
selling stockholders. Our shares are traded on the Nasdaq SmallCap Market under
the symbol "SIGA." The last reported sale price for the shares on the Nasdaq
SmallCap Market on May 8, 2000 was $4.06 per share.
-----------------
Investing in the shares involves a high degree of risk. For more
information, please see "Risk Factors" beginning on page 7.
-----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined whether
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-----------------
The date of this prospectus is May 10, 2000
TABLE OF CONTENTS
Page
About this Prospectus.......................................... 3
Where You Can Find More Information............................ 3
Forward-Looking Statements..................................... 4
About SIGA Technologies, Inc................................... 5
Recent Developments............................................ 6
Risk Factors................................................... 7
Use of Proceeds................................................ 10
Selling Stockholders........................................... 11
Plan of Distribution........................................... 14
Legal Matters.................................................. 17
Experts........................................................ 17
2
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC"). The prospectus relates to
2,833,391 shares of our common stock which the selling stockholders named in
this prospectus may sell from time to time. We will not receive any of the
proceeds from these sales but we will receive proceeds from the exercise of
warrants held by certain selling stockholders. We have agreed to pay the
expenses incurred in registering the shares, including legal and accounting
fees.
The shares have not been registered under the securities laws of any state
or other jurisdiction as of the date of this prospectus. Brokers or dealers
should confirm the existence of an exemption from registration or effectuate
such registration in connection with any offer and sale of the shares.
This prospectus describes certain risk factors that you should consider
before purchasing the shares. See "Risk Factors" beginning on page 7. You should
read this prospectus together with the additional information described under
the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
Federal securities law requires us to file information with the SEC
concerning our business and operations. We file annual, quarterly and special
reports, proxy statements and other information with the SEC. You can read and
copy these documents at the public reference facility maintained by the SEC at
Judiciary Plaza, 450 Fifth Street, NW, Room 1024, Washington, DC 20549. You can
also copy and inspect such reports, proxy statements and other information at
the regional offices of the SEC located at Seven World Trade Center, 13th Floor,
New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661.
Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public on the
SEC's web site at http://www.sec.gov. You can also inspect our reports, proxy
statements and other information at the offices of the Nasdaq Stock Market.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information that we incorporate by
reference is considered to be part of this prospectus, and later information
that we file with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"):
1. Our Annual Report on Form 10-KSB/A for the year ended December 31, 1999.
2. The Definitive Proxy Statement for the Annual Meeting of SIGA on
Schedule 14A, dated January 14, 2000.
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3. The description of our common stock contained in our registration
statement on Form 8-A under Section 12 of the Exchange Act, dated September 5,
1997, including any amendment or reports filed for the purpose of updating such
description.
This prospectus is part of a registration statement we filed with the SEC
(Registration No. 333-______). You may request a free copy of any of the above
filings by writing or calling Thomas Konatich, Chief Financial Officer, SIGA
Technologies, Inc., 420 Lexington Avenue, Suite 620, New York, New York 10170,
(212) 672-9100.
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement to this prospectus. We have not
authorized anyone else to provide you with different information. The selling
stockholders should not make an offer of these shares in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any supplement to this prospectus is accurate as of any date other
than the date on the cover page of this prospectus or any supplement.
FORWARD-LOOKING STATEMENTS
This prospectus and the other reports we have filed with the SEC, contain
"forward-looking statements" within the meaning of Section 27A of the Securities
Act of 1933, as amended (the "Securities Act"), and Section 21E of the Exchange
Act. The words or phrases "can be", "expects", "may affect", "may depend",
"believes", "estimate", "project", and similar words and phrases are intended to
identify such forward-looking statements. Such forward-looking statements are
subject to various known and unknown risks and uncertainties and we caution you
that any forward-looking information provided by or on behalf of Siga is not a
guarantee of future performance. Our actual results could differ materially from
those anticipated by such forward-looking statements due to a number of factors,
some of which are beyond our control, in addition to those risks discussed in
"Risk Factors" in this prospectus and in our other public filings, press
releases and statements by our management, including (i) the volatile and
competitive nature of the biotechnology and Internet industries, (ii) changes in
domestic and foreign economic and market conditions, and (iii) the effect of
federal, state and foreign regulation on our businesses. All forward-looking
statements are current only as of the date on which such statements were made.
We do not undertake any obligation to publicly update any forward-looking
statement to reflect events or circumstances after the date on which any such
statement is made or to reflect the occurrence of unanticipated events.
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ABOUT SIGA TECHNOLOGIES, INC.
SIGA Technologies, Inc. is a development stage company with interests in
biotechnology and the Internet. Siga Research Labs, (SRL), our biotechnology
division, is focused on the discovery, development and commercialization of
vaccines, antibiotics and novel anti-infectives for serious infectious diseases.
SRL's lead vaccine candidate is for the prevention of group A streptococcal
pharyngitis or "strep throat." SRL is developing a technology for the mucosal
delivery of its vaccines which may allow those vaccines to activate the immune
system at the mucus lined surfaces of the body -- the mouth, the nose, the lungs
and the gastrointestinal and urogenital tracts -- the sites of entry for most
infectious agents. SRL's anti-infectives programs, aimed at the increasingly
serious problem of drug resistance, are designed to block the ability of
bacteria to attach to human tissue, the first step in the infection process.
We are currently developing, PeerFinder(TM), a third generation instant
messenger, which we believe will make the Internet more interactive by enabling
meaningful conversation within peer groups or between like-minded individuals.
As a complement to users' normal surfing habits, PeerFinder(TM) will provide
instant messaging technology for peer-to-peer communication across Web sites,
servicing the Internet's rapidly growing collection of online communities. By
combining the search for content with real-time conversation, users will be able
to easily locate information, transact business, solicit product reviews or
simply converse with like-minded individuals on the topics of their interest.
Our Technologies
Vaccine Technologies: Mucosal Immunity and Vaccine Delivery
Using proprietary technology licensed from The Rockefeller University
("Rockefeller"), Siga is developing certain commensal bacteria ("commensals") as
a means to deliver mucosal vaccines. Commensals are harmless bacteria that
naturally inhabit the body's surfaces with different commensals inhabiting
different surfaces, particularly the mucosal surfaces. Our vaccine candidates
utilize genetically engineered commensals to deliver antigens from a variety of
pathogens to the mucosal immune system.
PeerFinder(TM)
PeerFinder(TM) is an Internet-based application that is being developed to
allow registered users viewing any given Web site to see and communicate with:
(i) all other members of the same peer group wherever they are on the Web, (ii)
all other registered users simultaneously viewing the same site and (iii) all of
the people in the registered users buddy list. The product will enable both
group and private communication in a small discussion box that overlays the Web
site being viewed. The product is being designed to facilitate a more natural
form of conversation that is both content driven and spontaneous. We believe
PeerFinder(TM) will make the Internet more interactive by enabling group or
private communication that is not restricted to any particular Web site or chat
room, but will complement the users' normal Web browsing habits. PeerFinder(TM)
is expected to have the following features:
Peer groups - Users will sign up with a particular peer or interest group
when they register. Users will be notified when other members of their peer
groups are online and can
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communicate with them even if they are at a different Web site. Users will be
able to converse with their peers simultaneously or in one-on-one environments.
Siteseers - Users will be notified of other PeerFinder(TM) users who are
on the same Web site they are on and will be able to communicate with each other
in either group or one-to-one discussion.
Buddy list - Users will be notified when their self selected "buddies" are
online and will be able to communicate with them no matter where they are on the
Web.
Video, Audio, and Multimedia Streaming - Users will be able to select one
of several video, audio or multimedia feeds within the PeerFinder(TM) box to
watch and/or listen to.
Our principal executive offices are located at 420 Lexington Avenue, Suite
620, New York, New York 10170. Our telephone number is (212) 672-9100. The
information included on our web site is not intended to be part of this
prospectus.
RECENT DEVELOPMENTS
In January, 2000 we completed a private placement of an aggregate principal
amount of $1,500,000 6% convertible debentures and 1,043,478 warrants. We
received net proceeds of $1,499,674 from the total $1,552,174 gross proceeds.
The debentures are convertible into common stock at $1.4375 per share. Interest
at the rate of 6% per annum is payable on the principal of each convertible
debenture on conversion or at maturity. At our option, interest may be paid in
cash or common stock at the conversion price then in effect. The warrants have a
term of five years and are exercisable at $3.4059 per share. We can require the
holder to exercise the warrants within five days under the following
circumstances: (i) a registration statement is effective; and (ii) the closing
bid price for our common stock for each of any 15 consecutive trading days is at
least 200% of the exercise price of such warrants. If the holder does not
exercise the warrants after notice is given, the unexercised warrants will
expire. In connection with the placement of the debentures and warrants, we
recorded debt discount of approximately $1.0 million. This amount represents the
value of the warrants calculated using the Black-Scholes valuation model. The
discount will be amortized over the term of debentures.
In connection with this transaction, we issued warrants to purchase a
total of 275,000 shares of our common stock to the placement agent and the
investors' counsel (or their respective designees). These warrants have a term
of five years and are exercisable at $1.45 per share.
The terms of the convertible debentures and the warrants issued in
connection with the January 2000 transaction specify that, with limited
exceptions, a holder cannot convert its debenture or exercise its warrant to the
extent that such conversion or exercise would result in the holder and its
affiliates then owning more than 9.99% of the then outstanding common stock. The
limited exceptions include the existence of a tender offer for our common stock.
On March 28, 2000 we completed a private placement of an aggregate of
600,000 shares of common stock and 450,000 warrants. We received net proceeds of
$2,883,000 from the total gross proceeds of $3,000,000. The warrants have a term
of three years; 210,000 warrants are exercisable at $5.00 per share, 120,000 are
exercisable at $6.375 per share and 120,000 are exercisable at $6.90 per share.
Under certain circumstances, we can redeem the warrants.
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RISK FACTORS
In this section, we highlight the significant risks associated with our
business and operations. Investing in our common stock involves a high degree of
risk. You should be able to bear a complete loss of your investment. To
understand the level of risk, you should carefully consider the following risk
factors, as well as the other information found in this prospectus, when
evaluating an investment in the shares.
WE HAVE INCURRED OPERATING LOSSES SINCE OUR INCEPTION AND EXPECT TO INCUR
NET LOSSES AND NEGATIVE CASH FLOW FOR THE FORESEEABLE FUTURE. We incurred net
losses of $2.2 million for the year ended December 31, 1997, $6.6 million for
the year ended December 31, 1998 and $3.6 million for the year ended December
31, 1999. As of December 31, 1999 and December 31, 1998, our accumulated deficit
was $14.7 million and $11.0 million, respectively. We expect to continue to
incur significant operating and capital expenditures and, as a result, we will
need to generate significant revenues to achieve and maintain profitability. We
cannot guarantee that we will achieve sufficient revenues for profitability.
Even if we do achieve profitability, we cannot guarantee that we can sustain or
increase profitability on a quarterly or annual basis in the future. If revenues
grow slower than we anticipate, or if operating expenses exceed our expectations
or cannot be adjusted accordingly, our business, results of operations and
financial condition will be materially and adversely affected. Because our
strategy includes acquisitions of other businesses, acquisition expenses and any
cash used to make these acquisitions will reduce our available cash.
UNCERTAINTY OF AVAILABILITY OF ADDITIONAL FUNDING. We will require
substantial additional funds to conduct and sponsor research and development
activities related to our biopharmaceutical and Internet businesses, to conduct
pre-clinical and clinical testing, and to market our products. We intend to seek
such additional funding through collaborative arrangements and through public or
private financings. There can be no asurance that additional financing will be
available, or, if available, that such additional financing will be available,
or, if available that such additional financing will be available on terms
acceptable to us.
WE ARE IN VARIOUS STAGES OF PRODUCT DEVELOPMENT AND THERE CAN BE NO
ASSURANCE OF SUCCESSFUL COMMERCIALIZATION. Our research and development programs
are at an early stage of development. The United States Food and Drug
Administration has not approved any of our biopharmaceutical product candidates.
Any drug candidates developed by us will require significant additional research
and development efforts, including extensive pre-clinical and clinical testing
and regulatory approval, prior to commercial sale. We cannot be sure our
approach to drug discovery will be effective or will result in the development
of any drug. We cannot expect that any drugs that do result from our research
and development efforts will be commercially available for many years.
WE HAVE LIMITED EXPERIENCE IN CONDUCTING PRE-CLINICAL TESTING AND CLINICAL
TRIALS. Even if we receive initially positive pre-clinical results, such results
do not mean that similar results will be obtained in the later stages of drug
development, such as additional pre-clinical testing or human clinical trials.
All of our potential drug candidates are prone to the risks of failure inherent
in pharmaceutical product development, including the possibility that none of
our drug candidates will or can
o be safe, non-toxic and effective;
o otherwise meet applicable regulatory standards;
o receive the necessary regulatory approvals;
o develop into commercially viable drugs;
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o be manufactured or produced economically and on a large scale;
o be successfully marketed;
o be reimbursed by government or private consumers; and
o achieve customer acceptance.
In addition, third parties may preclude us from marketing our drugs
through enforcement of their proprietary rights. Or, third parties may succeed
in marketing equivalent or superior drug products. Our failure to develop safe,
commercially viable drugs would have a material adverse effect on our business,
financial condition and results of operations.
WE FACE DIFFICULTIES TYPICALLY ENCOUNTERED BY DEVELOPMENT STAGE COMPANIES
IN NEW AND RAPIDLY EVOLVING MARKETS BECAUSE OF OUR NEW INTERNET INITIATIVE. We
have recently begun developing PeerFinder(TM), a third generation instant
messenger. An investor purchasing our common stock must therefore consider the
risks and difficulties frequently encountered by early stage companies in new
and rapidly evolving markets, such as online commerce. These risks include our
ability to:
o develop our web site;
o acquire rights to content for our web site;
o create a customer base;
o respond to changes in a rapidly evolving and unpredictable business
environment;
o maintain current and develop new strategic relationships;
o manage growth;
o continue to develop and upgrade our technology; and
o attract, retain and motivate qualified personnel.
We cannot assure you that any services or products developed by us,
independently or with collaborative partners, will achieve market acceptance.
THE BIOPHARMACEUTICAL AND INTERNET MESSENGING MARKETS IN WHICH WE COMPETE
AND WILL COMPETE ARE HIGHLY COMPETITIVE. The biopharmaceutical industry is
characterized by rapid and significant technological change. Our success will
depend on our ability to develop and apply our technologies in the design and
development of our product candidates and to establish and maintain a market for
our product candidates. There also are many companies, both public and private,
including major pharmaceutical and chemical companies, specialized biotechnology
firms, universities and other research institutions engaged in developing
pharmaceutical and biotechnology products. Many of these companies have
substantially greater financial, technical, research and development, and human
resources than us. Competitors may develop products or other technologies that
are more effective than any that are being developed by us or may obtain FDA
approval for products more rapidly than us. If we commence commercial sales of
products, we still must compete in the manufacturing and marketing of such
products, areas in which we have no experience. Many of these companies also
have manufacturing facilities and established marketing capabilities that would
enable such companies to market competing products through existing channels of
distribution. The Internet messenging market is highly competitive. This market
may experience pricing and margin pressure, which as a result, could adversely
affect our operating results and financial position. A number of companies offer
products and services that target the same market that we target. The Internet
market is characterized by an increasing number of entrants due to low start-up
costs. Some of our competitors and potential competitors have larger technical
staffs, more established and larger marketing and sales organizations and
significantly greater financial resources than us. Our competitors may develop
products that are superior to ours or that achieve greater market acceptance.
Our future success will depend significantly upon our ability to increase our
share of our target market and to sell additional products, product enhancements
and services to our customers. We may not be able to compete successfully, and
competition may result in decreases in:
o the prices we receive for our products and services;
o our revenues;
o our profit margins; or
o our market share.
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Any of these decreases could adversely affect our business and results of
operations.
IN ORDER TO COMPETE SUCCESSFULLY, WE MUST KEEP PACE WITH THE RAPID CHANGES
INVOLVING TECHNOLOGY AND THE INTERNET. The Internet and technology industry is
characterized by rapid technological advances, changes in customer requirements
and frequent new product and services introductions and enhancements. Our future
success will depend upon our ability to enhance our proposed products and
services and to develop and introduce new products and services that keep pace
with technological developments, respond to the growth in the Internet,
encompass evolving customer requirements and achieve market acceptance. Any
failure on our part to anticipate or respond adequately to technological
developments and customer requirements, or any significant delays in product
development or introduction, could result in a loss of competitiveness,
revenues, profit margins or market share. There is no assurance that new
products or product enhancements which we develop will achieve market
acceptance.
WE MAY BE SUBJECT TO LITIGATION AND INFRINGEMENT CLAIMS. The technology
that we use to develop our products, and those that we incorporate in our
products, may be subject to claims that they infringe the patents or proprietary
rights of others. The risk of this occurring will tend to increase as the
biotechnology and software industries expand, more patents are issued and other
companies attempt to develop mucosal vaccines and anti-infectives programs.
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As is typical in the biotechnology and software industries, we have
received, and we will probably receive in the future, notices from third parties
alleging patent infringement. We believe that we are not infringing the patent
rights of any such third party.
We may, however, be involved in future lawsuits alleging patent
infringement or other intellectual property rights violations. In addition,
litigation may be necessary to:
o assert claims of infringement;
o enforce our patents;
o protect our trade secrets or know-how; or
o determine the enforceability, scope and validity of the proprietary
rights of others.
We may be unsuccessful in defending or pursuing these lawsuits. Regardless
of the outcome, litigation can be very costly and can divert management's
efforts. An adverse determination may subject us to significant liabilities or
require us to seek licenses to other parties' patents or proprietary rights. We
may also be restricted or prevented from manufacturing or selling our products.
Further, we may not be able to obtain the necessary licenses on acceptable
terms, if at all.
WE MAY HAVE DIFFICULTY MANAGING OUR GROWTH. We expect to continue to
experience significant growth in the number of our employees and the scope of
our operations. This growth has placed, and may continue to place, a significant
strain on our management and operations. Our ability to manage this growth will
depend upon our ability to broaden our management team and our ability to
attract, hire and retain skilled employees. Our success will also depend on the
ability of our officers and key employees to continue to implement and improve
our operational and other systems and to hire, train and manage our employees.
WE DEPEND ON KEY EMPLOYEES IN A COMPETITIVE MARKET FOR SKILLED PERSONNEL.
We are highly dependent on the principal members of our management, operations
and scientific staff, including Joshua D. Schein, our Chief Executive Officer.
The loss of any of these persons' services would have a material adverse effect
on our business. We have entered into employment agreements with seven
individuals who we consider to be key employees. We do not maintain a key person
life insurance policy on the life of any employee.
Our future success also will depend in part on the continued service of
our key scientific, software, bioinformatics and management personnel and our
ability to identify, hire and retain additional personnel, including customer
service, marketing and sales staff. We experience intense competition for
qualified personnel. We may not be able to continue to attract and retain
personnel necessary for the development of our business.
OUR ACTIVITIES INVOLVE HAZARDOUS MATERIALS AND MAY SUBJECT US TO
ENVIRONMENTAL REGULATORY LIABILITIES. Our biopharmaceutical research and
development involves the controlled use of hazardous and radioactive materials
and biological waste. We are subject to federal, state and local laws and
regulations governing the use, manufacture, storage, handling and disposal of
these materials and certain waste products. Although we believe that our safety
procedures for
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handling and disposing of these materials comply with legally prescribed
standards, the risk of accidental contamination or injury from these materials
cannot be completely eliminated. In the event of an accident, we could be held
liable for damages, and this liability could exceed our resources.
We believe that we are in compliance in all material respects with
applicable environmental laws and regulations and currently do not expect to
make material additional capital expenditures for environmental control
facilities in the near term. However, we may have to incur significant costs to
comply with current or future environmental laws and regulations.
SALES OF SHARES ELIGIBLE FOR FUTURE SALE COULD IMPAIR OUR STOCK PRICE.
Sales of a substantial number of shares of common stock in the public market, or
the perception that sales could occur, could adversely affect the market price
for our common stock. This offering will result in additional shares of our
common stock being available on the public market. These factors could also make
it more difficult to raise funds through future offerings of common stock.
USE OF PROCEEDS
The net proceeds from the sale of the securities will be received by the
selling stockholders. We will not receive any of the proceeds from the sale of
the securities by the selling stockholders. We will receive proceeds from the
exercise of the warrants held by certain of the selling stockholders.
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SELLING STOCKHOLDERS
The table below sets forth information regarding ownership of our common
stock by the selling stockholders on March 20, 2000 and the shares of common
stock to be sold by them under this prospectus. Beneficial ownership is
determined in accordance with SEC rules and includes voting or investment power
with respect to the securities. Except as indicated by footnote, and subject to
applicable community property laws, the persons named in the table have sole
voting and investment power with respect to all shares of common stock shown as
beneficially owned by them. SEC rules require that the number of shares of
common stock outstanding used in calculating the percentage for each listed
person includes the shares of common stock underlying convertible debentures and
warrants held by such person that are exercisable within 60 days of March 20,
2000. In the case of selling stockholders who own convertible debentures, the
number of shares owned prior to the offering includes the number of shares which
would be issued upon conversion in payment of all accrued interest through
maturity in January 2002. Therefore, the number of shares of common stock for
some listed persons may include shares that are not subject to purchase during
the 60 day period. The number of shares included in this table for some of the
selling stockholders may ultimately be more than the number of shares actually
held by such selling stockholders. The number of shares registered for resale by
each of Donald G. Drapkin, Howard Gittis, Lenore Katz, J. Jay Lobell, Frank J.
and Mary Ann Loccisano, Alfons Melohn and Midnight Magic Investments under this
prospectus is equal to 110% of the amount specified in the table below, to take
into account certain possible variations in the conversion rate of the
convertible debentures owned by each of such selling stockholders.
We have filed with the SEC, under the Securities Act of 1933, a
registration statement on Form S-3, of which this prospectus forms a part, with
respect to the resale of the securities from time to time on the Nasdaq SmallCap
Market or in privately-negotiated transactions and have agreed to prepare and
file such amendments and supplements to the registration statement as may be
necessary to keep the registration statement effective until the earlier of (i)
_______, 2002, (ii) the date on which all the shares of common stock may be sold
under SEC Rule 144(k) (assuming exercise of all applicable warrants and
conversion of all applicable debentures), or (iii) the date on which the selling
stockholders have sold all of the shares of common stock.
Securities Owned
Securities Owned Prior to Offering After Offering
Shares of
Common Number of Percent
Shares of Percent of Stock Shares of of
Name of Selling Common Common Offered Common Common
Stockholder Stock Stock Hereby Stock Stock
Donald G. Drapkin 737,391(1) 9.97 737,391 0 *
Gabriel M. Cerrone 271,500(2) 3.95 210,000 61,500 *
Fahnestock & Co., 52,500(3) * 52,500 0 *
Inc.
Howard Gittis 509,804(4) 7.15 479,304 30,500 *
Lenore Katz 73,740(5) 1.10 73,740 0 *
Samuel Krieger 6,250(6) * 6,250 0 *
Ronald Nussbaum 6,250(7) * 6,250 0 *
12
J. Jay Lobell 147,478(8) 2.17 147,478 0 *
Frank J. Loccisano 120,609(9) 1.78 110,609 10,000 *
and MaryAnne
Loccisano
Alfons Melohn 516,174(10) 7.20 516,174 0 *
Open-i Media, Inc. 125,000 1.88 125,000 0 *
Midnight Magic 213,478(11) 3.14 147,478 66,000 *
Investments
- -------------------
* Less than one percent
(1) Consists of 389,565 shares of common stock issuable upon conversion
of convertible debentures and 347, 826 shares of common stock
issuable upon exercise of warrants.
(2) Consists of 210,000 shares of common stock issuable upon exercise of
warrants.
(3) Consists of 52,500 shares of common stock issuable upon exercise of
warrants.
(4) Consists of 253,217 shares of common stock issuable upon conversion
of convertible debentures and 226,087 shares of common stock issuable
upon exercise of warrants.
(5) Consists of 38,957 shares of common stock issuable upon conversion of
convertible debentures and 34,783 shares of common stock upon
exercise of warrants.
(6) Consists of 6,250 shares of common stock issuable upon exercise of
warrants.
(7) Consists of 6,250 shares of common stock issuable upon issuance of
warrants.
(8) Consists of 77,913 shares of common stock issuable upon exercise of
convertible debentures and 69,565 shares of common stock issuable
upon exercise of warrants.
(9) Consists of 58,435 shares of common stock issuable upon conversion of
convertible debentures and 52,174 shares of common stock issuable
upon exercise of warrants.
(10) Consists of 272,696 shares of common stock issuable upon conversion
of convertible debentures and 243,478 shares of common stock issuable
upon exercise of warrants.
(11) Consists of 77,913 shares of common stock issuable upon conversion of
convertible debentures and 69,565 shares of common stock issuable
upon exercise of warrants.
13
The information provided in the table above with respect to the selling
stockholders has been obtained from such selling stockholders.
Except as otherwise disclosed above or in documents incorporated herein by
reference, the selling stockholders, except for Open-i Media, Inc. have not
within the past three years had any position, office or other material
relationship with us or any of our predecessors or affiliates. In October 1999,
we entered into an agreement with Open-i Media for the development and
acquisition of the source code for a client/server chat and instant messaging
internet application. According to the agreement, as development milestones are
reached, we will pay Open-i Media a combination of $200,000 and 125,000 shares
of common stock. In March 2000, we entered into an additional agreement with
Open-i Media for development and consultation. We will pay Open-i $280,000 in
cash and shares of common stock against certain development milestones to be
achieved in 2000. Because the selling stockholders may sell all or some portion
of the shares of common stock beneficially owned by them, only an estimate
(assuming the selling stockholders sell all of the shares offered hereby) can be
given as to the number of shares of common stock that will be beneficially owned
by the selling stockholders after this offering. In addition, the selling
stockholders may have sold, transferred or otherwise disposed of, or may sell,
transfer or otherwise dispose of, at any time or from time to time since the
dates on which they provided the information regarding the shares beneficially
owned by them, all or a portion of the shares beneficially owned by them in
transactions exempt from the registration requirements of the Securities Act.
14
PLAN OF DISTRIBUTION
This prospectus covers the sale of shares of common stock from time to
time by the selling stockholders named in the table below. The selling
stockholder will act independently of us in making decisions with respect to the
timing, manner and size of each sale. The sales may be made on one or more
exchanges or in the over-the-counter market or otherwise, at prices and at terms
then prevailing or at prices related to the then current market price, or in
negotiated transactions. The selling stockholder may effect such transactions by
selling the shares to or through broker-dealers. The shares may be sold by one
or more of, or a combination of, the following:
o a block trade in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by such broker-dealer
for its account pursuant to this prospectus;
o an exchange distribution in accordance with the rules of such exchange;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
o in privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. In effecting
sales, broker-dealers engaged by the selling stockholder may arrange for other
broker-dealers to participate in the resales.
The selling stockholder may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
such transactions, broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with the selling stockholder. The
selling stockholder also may sell shares short and redeliver the shares to close
out such short positions. The selling stockholder may enter into option or other
transactions with broker-dealers which require the delivery to the broker-dealer
of the shares. The broker-dealer may then resell or otherwise transfer such
shares pursuant to this prospectus.
The selling stockholders also may loan or pledge the shares to a
broker-dealer. The broker-dealer may sell the shares so loaned, or upon a
default the broker-dealer may sell the pledged shares pursuant to this
prospectus. Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from the selling stockholder.
Broker-dealers or agents may also receive compensation from the purchasers of
the shares for whom they act as agents or to whom they sell as principals, or
both. Compensation as to a particular broker-dealer might be in excess of
customary commissions and will be in amounts to be negotiated in connection with
the sale. Broker-dealers or agents and any other participating broker-dealers or
the selling stockholders may be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act in connection with sales of the shares.
15
Accordingly, any such commission, discount or concession received by them and
any profit on the resale of the shares purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act. Because the
selling stockholders may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act, the selling stockholders will be subject to
the prospectus delivery requirements of the Securities Act. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 promulgated under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus. The selling stockholders have advised us that they
have not entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities. There is
no underwriter or coordinating broker acting in connection with the proposed
sale of shares by the selling stockholders.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to our common stock for a period of two
business days prior to the commencement of such distribution. In addition, the
selling stockholders will be subject to applicable provisions of the Exchange
Act and the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares of our common stock by the selling stockholders. We will make copies of
this prospectus available to the selling stockholders and have informed them of
the need for delivery of copies of this prospectus to purchasers at or prior to
the time of any sale of the shares.
We will file a supplement to this prospectus, if required, pursuant to
Rule 424(b) under the Securities Act upon being notified by the selling
stockholders that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. Such supplement will disclose:
o the name of the selling stockholder and of the participating
broker-dealer(s);
o the number of shares involved;
o the price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
o that such broker-dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in this prospectus; and
o other facts material to the transaction.
16
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. We have agreed
to indemnify certain selling stockholders against certain liabilities, including
liabilities under the Securities Act of 1933, as amended, in connection with the
offering of the shares or to contribute to payments which such selling
stockholders may be required to make in respect thereof. The selling
stockholders may agree to indemnify certain persons, including broker-dealers
and agents, against certain liabilities in connection with the offering of the
shares, including liabilities arising under the Securities Act.
17
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed
upon for Siga by Orrick, Herrington & Sutcliffe LLP.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-KSB of Siga Technologies, Inc. for the year ended
December 31, 1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses of the
sale and distribution of the securities being registered, all of which are being
borne by us.
Amount
Securities and Exchange Commission filing fee. $3,112
Printing expenses............................. 2,000
Legal Fees and Expenses....................... 10,000
Accounting Fees and Expenses.................. 5,000
Miscellaneous................................. 3,888
-----------
Total..................................... $24,000
=======
All of the amounts shown are estimates except for the fee payable to the
Securities and Exchange Commission.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers, as well as other employees and
individuals, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by any such person
in connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee or agent to the Registrant. The
Delaware General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Article IX of the Registrant's Certificate of Incorporation and Article VII of
the Registrant's Bylaws provides for indemnification by the Registrant of its
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit. The Registrant's Certificate of Incorporation
provides for such limitation of liability.
II-1
ITEM 16. EXHIBITS
The following is a list of exhibits filed as part of this registration
statement.
Exhibit
Number Description and Method of Filing
--------- ----------------------------------------
3.1 Restated Certificate of Incorporation of the Registrant
5 Opinion of Orrick, Herrington & Sutcliffe LLP
23.1 Consent of Orrick, Herrington & Sutcliffe LLP
(included in the opinion filed as Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (See Page II-4)
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sale; are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii)to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply
if the registration statement is on Form S-3, and the information required
to be, included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
II-2
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by the final adjudication
of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Siga
Technologies, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, New York on May 9, 2000.
Siga Technologies, Inc.
By: /s/ Joshua D. Schein
-----------------------
Joshua D. Schein, Ph.D.
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose signatures appear
below each severally constitutes and appoints Joshua D. Schein and Judson A.
Cooper, and each of them, as true and lawful attorneys-in-fact and agents, with
full powers of substitution and resubstitution, for them in their name, place
and stead, in any and all capacities, to sign any and all amendments (including
pre-effective and post-effective amendments) to this registration statement and
to sign any registration statement (and any post-effective amendments) relating
to the same offering as this registration statement that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933, and to file the
same, with all exhibits, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they might or could do in
person, hereby ratifying and confirming all which said attorneys-in-fact and
agents, or any of them, or their substitute or substitutes, may lawfully do, or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title of Capacities Date
/s/ Joshua D. Schein Chief Executive May 9, 2000,
- ------------------------
Joshua D. Schein, Ph.D. Officer,
Secretary and
Director
/s/ Judsen A. Cooper Chairman of the Board May 9, 2000,
- ------------------------ and Executive Vice
Judson A. Cooper President
/s/ Thomas Konatich Chief Financial May 9, 2000,
- ------------------------ Officer
Thomas Konatich
/s/ Jeffrey Rubin Director May 9, 2000,
- ----------------------
Jeffrey Rubin
Director
- ----------------
Scott Eagle
/s/ Thomas N. Lanier Director May 9, 2000,
- ------------------------
Thomas N. Lanier
II-4
EXHIBIT INDEX
Exhibit
Number
3.1 Restated Certificate of Incorporation of the Registrant
5 Opinion of Orrick, Herrington & Sutcliffe LLP
23.1 Consent of Orrick, Herrington & Sutcliffe LLP (included in the
opinion filed as Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (See Page II-4)
- -------------------------------------------------------------------------------
RESTATED
CERTIFICATE OF INCORPORATION
OF
SIGA TECHNOLOGIES, INC.
A Delaware Corporation
Siga Technologies, Inc. a corporation organized and existing under the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: The name of the Corporation is Siga Technologies, Inc. and the name
under which the Corporation was originally incorporated was Siga
Pharmaceuticals, Inc. The date of filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was December
28, 1995.
SECOND: The Restated Certificate of Incorporation of Siga Pharmaceuticals,
Inc. in the form attached hereto as Exhibit A restates and integrates but does
not further amend the Certificate of Incorporation of Siga Technologies, Inc.,
and there is no discrepancy between the provisions of the Corporation's
Certificate of Incorporation as heretofore amended or supplemented and the
provisions of the Restated Certificate of Incorporation attached hereto, which
has been duly adopted in accordance with the provisions of Section 245 of the
General Corporation Law of the State of Delaware by the unanimous consent of the
directors of the Corporation dated April 25th, 2000.
THIRD: The Restated Certificate of Incorporation so adopted reads in full
as set forth in Exhibit A attached hereto and incorporated herein by this
reference.
IN WITNESS WHEREOF, I have hereunto set my hand as Chief Executive Officer
of Siga Technologies, Inc. and hereby affirm under penalties of perjury that the
foregoing is my act and deed and the facts herein stated are true, and
accordingly have hereunto set forth my hand this 25th day of April, 2000
/s/ Joshua D. Schein
Joshua D. Schein
Chief Executive Officer
1
RESTATED
CERTIFICATE OF INCORPORATION
OF
SIGA TECHNOLOGIES, INC.
FIRST: The name of the Corporation is Siga Technologies, Inc. (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, County of New Castle 19805. The name
of the registered agent of the Corporation at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a Corporation may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is sixty million (60,000,000), of which fifty million
(50,000,000) shares of the par value of One Hundredth of One Cent ($0.0001)
each, amounting in the aggregate to Five Thousand Dollars ($5,000), shall be
Common Stock, and of which ten million (10,000,000) shares of the par value of
One Hundredth of One Cent ($0.0001) each, amounting in the aggregate to One
Thousand Dollars ($1,000), shall be Preferred Stock.
The Board of Directors shall have the authority to fix by Resolution the
voting powers (full, limited, multiple, fractional or none), designations,
preferences, qualifications, privileges, limitations, restrictions, options,
conversion rights and other special or relative rights of the Preferred Stock or
any class or series thereof prior to or concurrently with the issuance of such
shares.
There shall be no cumulative voting rights for the Common Stock.
The holders of the Common Stock and the Preferred Stock shall be entitled
to dividends, when, as and if declared by the Board of Directors of the
Corporation, payable at such time or times as the Board of Directors may
determine.
Subject to the determination of the Board of Directors with regard to the
Preferred Stock, in the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, all remaining
assets and funds of the Corporation available for distribution to its
stockholders shall be distributed in equal amounts per share and without
preference or priority of one class of common stock over the other.
Any action may be taken by the stockholders of the Corporation by their
written consent without a stockholders' meeting.
No stockholder of this Corporation shall by reason of his holding shares
of any class have any preemptive or preferential right to purchase or subscribe
to any shares of any class of this Corporation, now or hereafter to be
authorized, or any notes, debentures, bonds, or other securities convertible
into or carrying options or warrants to purchase shares of any class, now or
hereafter to be authorized, whether or not the issuance of any such shares, or
such notes, debentures, bonds or other securities, would adversely affect the
dividend or voting rights of such stockholder, other than such rights, if any,
as the board of directors, in its discretion from time to time may grant, and at
such price as the Board of Directors in its discretion may fix; and the Board of
Directors may issue shares of any class of this Corporation, or any notes,
debentures, bonds, or other securities convertible into or carrying options or
warrants to purchase shares of any class, without offering any such shares of
any class, either in whole or in part, to the existing stockholders of any
class.
FIFTH: The number of directors of the Corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the by-laws of the
Corporation. No election of directors need be by ballot unless the by-laws so
provide.
SIXTH: The Corporation hereby expressly elects not to be governed by
Section 203 of the General Corporation Law of Delaware.
SEVENTH: No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that this provision shall not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the General Corporation Law of Delaware, or
(iv) from any transaction from which the director derived an improper personal
benefit.
EIGHTH: The Corporation shall indemnify, in accordance with and to the full
extent now or hereafter permitted by law, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, an action by or in the right of the
Corporation), by reason of his acting as a director of the Corporation (and the
Corporation, in the discretion of the Board, may so indemnify a person by reason
of the fact that he is or was an officer or employee of the Corporation or is or
was serving at the request of the Corporation in any other capacity for or on
behalf of the Corporation) against any liability or expense actually and
reasonably incurred by such person in respect thereof; provided, however, that,
the Corporation shall not be obligated to indemnify any such person (i) with
respect to proceedings, claims or actions initiated or brought voluntarily by
such person and not by way of defense, or (ii) for any amounts paid in
settlement of an action effected without the prior written consent of the
Corporation to such settlement. Such indemnification is not exclusive of any
other right to indemnification provided by law, agreement or otherwise.
NINTH: No amendment to or repeal of Article Seven or Article Eight of this
Certificate of Incorporation shall apply to or have any effect on the rights of
any individual referred to in Article Seven or Article Eight for or with respect
to acts or omissions of such individual occurring prior to such amendment or
repeal.
TENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the State of Delaware
may, on the application in a summary way of this Corporation or of any creditor
or stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of Title 8 of
the Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
ELEVENTH: The Board of Directors shall have power without the assent or
vote of the stockholders to make, alter, amend, change, add to or repeal the
by-laws of the Corporation.
TWELFTH: The Corporation shall have perpetual existence.
IN WITNESS WHEREOF, I have hereunto set my hand this 24th day of April,
2000.
SIGA TECHNOLOGIES, INC.
By: /s/Joshua D. Schein
------------------------
Name:Joshua D. Schein
Title: Chief Executive
Officer
May 4, 2000
Siga Technologies, Inc.
420 Lexington Avenue - Suite 620
New York, New York 10170
Re: Siga Technologies, Inc.
Registration Statement on Form S-3
We have acted as counsel to Siga Technologies, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"). The Registration Statement relates to the sale by certain selling
stockholders of the Company of up to 2,833,391 shares of the Company's Common
Stock (the "Shares"). This opinion is being furnished in accordance with the
requirements of item 16 of Form S-3 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the issuance of the Shares.
Based on such review, we are of the opinion that the Shares have been duly
authorized, and if, as and when sold in accordance with the Registration
Statement and the related prospectus (as amended and supplemented through the
date of sale) will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus which is part of the Registration Statement.
In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Act, the rules and
regulations of the Securities and Exchange Commission promulgated thereunder, or
Item 509 of Regulation S-K. This opinion letter is rendered as of the date first
written above and we disclaim any obligation to advise you of facts,
circumstances, events or developments which hereafter may be brought to our
attention and which may alter, affect or modify the opinion expressed herein.
Our opinion is expressly limited to the matters set forth above and we render no
opinion, whether by implication or otherwise, as to any other matters relating
to the Company or the Shares.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 18, 2000, except for Note 13
which is as of March 30, 2000, relating to the financial statements, which
appear in Siga Technologies, Inc.'s Annual Report on Form 10-KSB/A for the year
ended December 31, 1999. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
New York, NY
May 9, 2000