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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
SIGA Technologies, Inc.
----------------------------
(Name of issuer)
Common Stock, par value $0.0001 per share
---------------------------------------------
(Title of class of securities)
826917-10-6
-----------------
(CUSIP number)
Barry F. Schwartz
35 East 62nd Street
New York, New York 10021
(212) 572-8600
------------------------------------
(Name, address and telephone number of person
authorized to receive notices and communications)
January 8, 2004
------------------------
(Date of event which requires
filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box |_|.
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
(Continued on following pages)
Page 1 of 10
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CUSIP No. 826917-10-6 13D Page 2 of 10 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Mafco Holdings Inc.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 5,535,385
BENEFICIALLY
OWNED BY ------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
5,535,385
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,535,385
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.0%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CUSIP No. 826917-10-6 13D Page 3 of 10 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
MacAndrews & Forbes Holdings Inc.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 5,535,385
BENEFICIALLY
OWNED BY ------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
WITH
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
5,535,385
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,535,385
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.0%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CUSIP No. 826917-10-6 13D Page 4 of 10 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
TransTech Pharma, Inc.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |_|
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
5,208,333
------------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY
OWNED BY ------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 5,208,33
WITH
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,208,333
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.7%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
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This statement ("Amendment No. 2") amends and supplements the
statement on Schedule 13D, dated August 13, 2003, filed by Mafco Holdings
Inc., a Delaware corporation ("Mafco"), and MacAndrews & Forbes Holdings Inc.,
a Delaware corporation ("Holdings") (the "Schedule 13D"), relating to the
shares of common stock, par value $0.0001 per share ("Common Stock"), of SIGA
Technologies, Inc., a Delaware corporation (the "Company"). This Amendment No.
2 is being filed by Mafco, Holdings and TransTech Pharma, Inc., a Delaware
corporation ("TransTech"), with respect to shares of Common Stock that may be
deemed to be beneficially owned by the Reporting Persons (as defined below).
The Company has its principal executive offices at 420 Lexington Avenue, Suite
601, New York, New York 10170. Capitalized terms used herein shall have the
meanings ascribed to them in the Schedule 13D unless otherwise defined herein.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
The following is added to the response to Item 3:
On January 8, 2004, as more fully described in Item 4 below,
the Reporting Persons purchased securities of the Company for an aggregate
amount of $6,840,595, which funds (i) Mafco and Holdings obtained from cash on
hand, and (ii) TransTech obtained from the proceeds of a private placement of
its equity securities.
Item 4. Purpose of Transaction.
----------------------
The following is added to the response to Item 4:
On January 8, 2004, following approval of the Company's
stockholders in accordance with Rule 4350, (A) Holdings purchased (x)
1,278,191 shares of Common Stock at a price of $1.44 per share and (y) the
Tranche B-2 Warrant, for no additional consideration, to purchase 639,095
shares of Common Stock, for an aggregate purchase price of $1,840,595, and (B)
TransTech purchased (x) 3,472,222 shares of Common Stock at a price of $1.44
per share and (y) the TransTech Warrant, for no additional consideration, to
purchase 1,736,111 shares of Common Stock, for an aggregate purchase price of
$5,000,000. A copy of the Tranche B-2 Warrant is attached hereto as Exhibit 20
and a copy of the TransTech Warrant is attached hereto as Exhibit 21. The
descriptions of the Tranche B-2 Warrant and the TransTech Warrant are
qualified in their entirety by reference to the Tranche B-2 Warrant and the
TransTech Warrant, respectively.
Pursuant to the Purchase Agreement, as amended by the TransTech
Assignment Letter Agreement, Holdings appointed Paul G. Savas to the Board of
Directors of the Company as the Holdings Representative, and TransTech
appointed Adnan M. M. Mjalli, Ph.D. to the Board of Directors of the Company
as the TransTech Representative.
Page 5 of 10
Item 5. Interest in Securities of the Issuer.
------------------------------------
The response to Item 5(a) - (b) is amended by deleting the
first, second and third paragraphs thereof and substituting the following in
lieu thereof:
Based upon information contained in the Proxy Statement dated
December 5, 2003, there were 18,676,851 shares of Common Stock outstanding as
of November 26, 2003.
As a result of the transactions described in Item 4, the
Reporting Persons (other than TransTech) may be deemed to share beneficial
ownership of 5,535,385 shares of Common Stock, representing approximately
22.0% of the Common Stock deemed to be outstanding as of January 8, 2004
(which includes certain shares of Common Stock deemed to be beneficially owned
by the Reporting Persons (other than TransTech) but not outstanding). The
Reporting Persons (other than TransTech) have shared power to vote and dispose
of the shares of Common Stock that they own or would own upon exercise of the
Warrants held by such Reporting Persons.
In addition, TransTech may be deemed to have beneficial
ownership of 5,208,333 shares of Common Stock, representing approximately
20.7% of the Common Stock deemed to be outstanding as of January 8, 2004
(which includes certain shares of Common Stock deemed to be beneficially owned
by TransTech but not outstanding). TransTech has sole power to vote and
dispose of the shares of Common Stock that it owns or would own upon exercise
of the TransTech Warrant.
The following is added to the response to Item 5(a)-(b):
As of January 8, 2004, although the number of shares of Common
Stock that may be deemed to be beneficially owned by each of Messrs. Schwartz
and Slotkin remained the same, as a result of the transactions described in
Item 4, each of their deemed beneficial ownership decreased from approximately
0.3% to approximately 0.2% of the Common Stock deemed to be outstanding (which
includes certain shares of Common Stock deemed to be beneficially owned by
Messrs. Schwartz or Slotkin, as applicable, but not outstanding).
As of January 8, 2004, although the number of shares of Common
Stock that may be deemed to be beneficially owned by Mr. Drapkin, who is also
a Director of TransTech, remained the same, as a result of the transactions
described in Item 4, his deemed beneficial ownership decreased from
approximately 8.9% to approximately 7.2% of the Common Stock deemed to be
outstanding as of such date (which includes certain shares of Common Stock
deemed to be beneficially owned by Mr. Drapkin but not outstanding).
As of January 8, 2004, although the number of shares of Common
Stock that may be deemed to be beneficially owned by Mr. Gittis remained the
same, as a result of the transactions described in Item 4, his deemed
beneficial ownership decreased from approximately 5.3% to approximately 4.3%
of the Common Stock deemed to be outstanding as of such date (which includes
certain shares of Common Stock deemed to be beneficially owned by Mr. Gittis
but not outstanding).
As of January 8, 2004, although the number of shares of Common
Stock that may be deemed to be beneficially owned by Dr. Rose remained the
same, as a result of the transactions described in Item 4, his deemed
beneficial ownership decreased from approximately 4.1% to approximately 3.3%
of the Common Stock deemed to be outstanding as of such date (which includes
certain shares of Common Stock deemed to be beneficially owned by Dr. Rose but
not outstanding).
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
----------------------------------------
The seventh paragraph, describing the Drapkin Warrants and the
Drapkin Options, is amended by deleting it in its entirety and substituting
the following in lieu thereof:
Mr. Drapkin holds a warrant (the "Investor Warrant") to
purchase up to 347,826 shares of Common Stock at an exercise price of $3.4059
per share, and a warrant (the "September 2001 Investor Warrant" and, together
with the Investor Warrant, the "Drapkin Warrants") to purchase up to 30,500
shares of Common Stock at an exercise price of $3.552 per share. The September
2001 Investor Warrant provides that, with certain limited exceptions, it is
not exercisable if, as a result of such exercise, the number of shares of
Common Stock beneficially owned by Mr. Drapkin and his affiliates (other than
shares of Common Stock which may be deemed beneficially owned through the
ownership of the unexercised portion of such warrant) would exceed 9.99% of
the outstanding shares of Common Stock. The Company may require the Drapkin
Warrants to be exercised (subject to the 9.99% limitation with respect to the
September 2001 Investor Warrant) if certain conditions set forth in the
Drapkin Warrants have been fulfilled. In addition, Mr. Drapkin holds options
(the "Drapkin Options") pursuant to the Company's Amended and Restated 1996
Incentive and Non-Qualified Stock Option Plan, dated August 15, 2001, to
purchase 1,125,000 shares of Common Stock at an exercise price of $2.50 per
share.
The ninth paragraph, describing the Gittis Warrants, is amended
by deleting it in its entirety and substituting the following in lieu thereof:
Mr. Gittis holds a warrant (the "2000 Gittis Warrant") to
purchase up to 226,087 shares of Common Stock at an exercise price of $3.4059
per share and a warrant (the "2001 Gittis Warrant" and, together with the 2000
Gittis Warrant, the "Gittis Warrants") to purchase up to 34,091 shares of
Common Stock at an exercise price of $3.552 per share. The 2001 Gittis Warrant
provides that, within certain limited exceptions, it is not exercisable if, as
a result of such exercise, the number of shares of Common Stock beneficially
owned by Mr. Gittis and his affiliates (other than shares of Common Stock
which may be deemed beneficially owned through the ownership of the
unexercised portion of such warrant) would exceed 9.99% of the outstanding
shares of Common Stock. The Company may require the Gittis Warrants to be
exercised (subject to the 9.99% limitation with respect to the 2001 Gittis
Warrant) if certain conditions set forth in the Gittis Warrants have been
fulfilled.
The following is added to the response to Item 6:
On January 8, 2004, TransTech executed a joinder agreement (the
"Joinder") to the Registration Rights Agreement. A copy of the Joinder is
attached hereto as Exhibit 22. The description of the Joinder is qualified in
its entirety by reference to the Joinder.
Item 7. Material to be Filed as Exhibits.
---------------------------------
Exhibits 20 through 22 are added to the response to Item 7.
Exhibit 20 Tranche B-2 Common Stock Purchase Warrant.
Exhibit 21 TransTech Common Stock Purchase Warrant.
Exhibit 22 Joinder to Registration Rights Agreement by
TransTech.
SIGNATURES
----------
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information in this statement is true, complete and
correct.
Dated: January 8, 2004
MAFCO HOLDINGS INC.
MACANDREWS & FORBES HOLDINGS INC.
By: /s/ Barry F. Schwartz
Name: Barry F. Schwartz
Title: Executive Vice President
and General Counsel
Dated: January 8, 2004
TRANSTECH PHARMA, INC.
By: /s/ William V. Buccella
Name: William V. Buccella
Title: Senior Vice President -
Legal Affairs and Secretary
EXHIBIT INDEX
Exhibits 20 through 22 are added to the response to the Exhibit
Index as follows:
Exhibit Document
------- --------
20 Tranche B-2 Common Stock Purchase Warrant.
21 TransTech Common Stock Purchase Warrant.
22 Joinder to Registration Rights Agreement by TransTech.
Exhibit 20
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 Holdings Inc., a Delaware
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, 639,095 fully paid and nonassessable shares of Common Stock, at an
initial exercise price per share (the "Exercise Price") of $2.00 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 Purchase Agreement.
1.2 As used in this Warrant, the following terms have the
respective meanings set forth below:
"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.
"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 11.2
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 January 8, 2011.
"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
representative bid and asked prices quoted on The Nasdaq SmallCap Market as of
4:00 P.M., New York City time, on such day, or, if on any day such security is
not quoted on The Nasdaq SmallCap Market, 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 Nasdaq National
Market or 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.
"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 January 8, 2004.
"Original Warrants" means the Warrants originally issued by the
Company on January 8, 2004, pursuant to the Purchase Agreement.
"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.
"Purchase Agreement" means the Securities Purchase Agreement by and
between the Company and MacAndrews & Forbes Holdings Inc., dated August 13,
2003.
"Registration Rights Agreement" means the Registration Rights
Agreement by and between the Company and MacAndrews & Forbes Holdings Inc.,
dated August 13, 2003.
"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 Designated Office, books for the registration and transfer of the
Warrants.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or
equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
6. Protection Against Dilution and Other Adjustments.
6.1 Adjustment of Number of Shares Purchasable. Upon any
adjustment of the Exercise Price as provided in Sections 6.3 through 6.6
hereof, the Holders of the Warrants shall thereafter be entitled to purchase
upon the exercise thereof, at the Exercise Price resulting from such
adjustment, the number of shares of Common Stock (calculated to the nearest
1/100th of a share) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
issuable on the exercise hereof immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment.
6.2 Adjustment Upon Spin Off. If, at any time or from time to
time after the Original Issue Date, the Company shall spin off or otherwise
divest itself of a part of its business or operations or dispose of all or of
a part of its assets in a transaction in which the Company does not receive
compensation for such business, operations or assets, but causes securities of
another entity (the "Spin Off Securities") to be issued to security holders of
the Company, then the Company shall cause (i) to be reserved a number of Spin
Off Securities (the "Reserved Spin Off Securities") equal to the number of
Spin Off Securities that would have been issued to the Holder had all of the
Holder's Outstanding Warrants on the record date for determining the number of
Spin Off Securities to be issued to stockholders of the Company been exercised
as of the close of business on the trading day immediately before such record
date, and (ii) to be issued to the Holder on the exercise of all or any of the
Outstanding Warrants, a number of Reserved Spin Off Securities equal to (x)
the Reserved Spin Off Securities multiplied by (y) a fraction, the numerator
of which shall be the amount of the Outstanding Warrants then being exercised,
and the denominator of which shall be the amount of the Outstanding Warrants.
6.3 Upon Stock Dividends, Subdivisions or Splits. If, at any
time or from time to time after the Original Issue Date, the number of shares
of Common Stock Outstanding is increased by a stock dividend payable in shares
of Common Stock or by a subdivision or split-up of shares of Common Stock,
then, following the record date for the determination of holders of Common
Stock entitled to receive such stock dividend, or to be affected by such
subdivision or split-up, the Exercise Price shall be appropriately decreased
by multiplying the Exercise Price by a fraction, the numerator of which is the
number of shares of Common Stock Outstanding immediately prior to, and the
denominator of which is the number of shares of Common Stock Outstanding
immediately after, such increase in Outstanding shares.
6.4 Upon Combinations or Reverse Stock Splits. If, at any time
or from time to time after the Original Issue Date, the number of shares of
Common Stock Outstanding is decreased by a combination or reverse stock split
of the Outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then, following the record date to determine shares affected by
such combination or reverse stock split, the Exercise Price shall be
appropriately increased by multiplying the Exercise Price by a fraction, the
numerator of which is the number of shares of Common Stock Outstanding
immediately prior to, and the denominator of which is the number of shares of
Common Stock Outstanding immediately after, such decrease in Outstanding
shares.
6.5 Upon Reclassifications, Reorganizations, Consolidations or
Mergers. If, at any time or from time to time after the Original Issue Date,
there is any capital reorganization of the Company, any reclassification of
the stock of the Company (other than a change in par value or from par value
to no par value or from no par value to par value or as a result of a stock
dividend or subdivision, split-up or combination of shares), or any
consolidation or merger of the Company with or into another Person (where the
Company is not the surviving Person or where there is a change in or
distribution with respect to the Common Stock), each Warrant shall after such
reorganization, reclassification, consolidation, or merger be exercisable for
the kind and number of shares of stock or other securities or property of the
Company or of the successor Person resulting from such consolidation or
surviving such merger, if any, to which the holder of the Warrant Shares
deliverable (immediately prior to the time of such reorganization,
reclassification, consolidation or merger) upon exercise of such Warrant would
have been entitled upon such reorganization, reclassification, consolidation
or merger. The provisions of this clause shall similarly apply to successive
reorganizations, reclassifications, consolidations, or mergers. The Company
shall not effect any such reorganization, reclassification, consolidation or
merger unless, prior to the consummation thereof, the successor Person (if
other than the Company) resulting from such reorganization, reclassification,
consolidation or merger, shall assume, by written instrument, the obligation
to deliver to the Holders of the Warrant such shares of stock, securities or
assets, which, in accordance with the foregoing provisions, such Holders shall
be entitled to receive upon such conversion.
6.6 Upon Issuance of Common Stock. If, at any time or from time
to time after the Original Issue Date, the Company shall issue any shares of
Common Stock, options to purchase or rights to subscribe for Common Stock,
securities by their terms convertible into or exchangeable for Common Stock,
or options to purchase or rights to subscribe for such convertible or
exchangeable securities, other than Excluded Stock, without consideration or
for consideration per share less than either (x) the Exercise Price in effect
immediately prior to such issuance or (y) the Fair Market Value per share of
the Common Stock immediately prior to such issuance, then such Exercise Price
shall forthwith be lowered to a price equal to the price obtained by
multiplying:
(i) the Exercise Price in effect immediately prior to the
issuance of such Common Stock, options, rights or securities by
(ii) a fraction of which (x) the numerator shall be the sum of
(A) the number of shares of Common Stock Outstanding on a
fully-diluted basis immediately prior to such issuance and (B) the
number of additional shares of Common Stock which the aggregate
consideration for the number of shares of Common Stock so offered
would purchase at the greater of the Exercise Price in effect
immediately prior to such issuance or the Fair Market Value per share
of Common Stock and (y) the denominator shall be the number of shares
of Common Stock Outstanding on a fully-diluted basis immediately
after such issuance.
6.7 Provisions Applicable to Adjustments. For purposes of any
adjustment of the Exercise Price pursuant to Section 6.6 hereof, the following
provisions shall be applicable:
(i) In the case of the issuance of Common Stock for cash in a
public offering or private placement, the consideration shall be
deemed to be the amount of cash paid therefor before deducting
therefrom any discounts, commissions or placement fees payable by the
Company to any underwriter or placement agent in connection with the
issuance and sale thereof.
(ii) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the Valuation Amount as
determined in accordance with the Appraisal Procedure.
(iii) In the case of the issuance of options to purchase or
rights to subscribe for Common Stock, securities by their terms
convertible into or exchangeable for Common Stock, or options to
purchase or rights to subscribe for such convertible or exchangeable
securities (except for options to acquire Excluded Stock):
(A) the aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to purchase or
rights to subscribe for Common Stock shall be deemed to have
been issued at the time such options or rights were issued and
for a consideration equal to the consideration (determined in
the manner provided in subparagraphs (i) and (ii) above), if
any, received by the Company upon the issuance of such options
or rights plus the minimum purchase price provided in such
options or rights for the Common Stock covered thereby;
(B) the aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been
issued at the time such securities, options, or rights were
issued and for a consideration equal to the consideration
received by the Company for any such securities and related
options or rights (excluding any cash received on account of
accrued interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by the Company
upon the conversion or exchange of such securities or the
exercise of any related options or rights (the consideration in
each case to be determined in the manner provided in paragraphs
(i) and (ii) above);
(C) on any change in the number of shares or exercise
price of Common Stock deliverable upon exercise of any such
options or rights or conversions of or exchanges for such
securities, other than a change resulting from the
anti-dilution provisions thereof, the Exercise Price shall
forthwith be readjusted to such Exercise Price as would have
been obtained had the adjustment made upon the issuance of such
options, rights or securities not converted prior to such
change or options or rights related to such securities not
converted prior to such change been made upon the basis of such
change;
(D) upon the expiration of any options to purchase or
rights to subscribe for Common Stock which shall not have been
exercised, the Exercise Price computed upon the issuance
thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall,
upon such expiration, be recomputed as if the only additional
shares of Common Stock issued were the shares of Common Stock,
if any, actually issued upon the exercise of such options to
purchase or rights to subscribe for Common Stock, and the
consideration received therefor was the consideration actually
received by the Company for the issue of the options to
purchase or rights to subscribe for Common Stock that were
exercised, plus the consideration actually received by the
Company upon such exercise; and
(E) no further adjustment of the Exercise Price adjusted
upon the issuance of any such options, rights, convertible
securities or exchangeable securities shall be made as a result
of the actual issuance of Common Stock on the exercise of any
such rights or options or any conversion or exchange of any
such securities.
6.8 Deferral in Certain Circumstances. In any case in which the
provisions of this Section 6 shall require that an adjustment shall become
effective immediately after a record date of an event, the Company may defer
until the occurrence of such event (a) issuing to the Holder of any Warrant
exercised after such record date and before the occurrence of such event the
shares of capital stock issuable upon such exercise by reason of the
adjustment required by such event and issuing to such Holder only the shares
of capital stock issuable upon such exercise before giving effect to such
adjustments, and (b) paying to such Holder any amount in cash in lieu of a
fractional share of capital stock pursuant to Section 2.3 above; provided,
however, that the Company shall deliver to such Holder an appropriate
instrument or due bills evidencing such Holder's right to receive such
additional shares or such cash.
6.9 Appraisal Procedure. In any case in which the provisions of
this Section 6 shall necessitate that the Appraisal Procedure be utilized for
purposes of determining an adjustment to the Exercise Price, the Company may
defer until the completion of the Appraisal Procedure and the determination of
the adjustment (a) issuing to the Holder of any Warrant exercised after the
date of the event that requires the adjustment and before completion of the
Appraisal Procedure and the determination of the adjustment, the shares of
capital stock issuable upon such exercise by reason of the adjustment required
by such event and issuing to such Holder only the shares of capital stock
issuable upon such exercise before giving effect to such adjustment and (b)
paying to such Holder any amount in cash in lieu of a fractional share of
capital stock pursuant to Section 2.3 above; provided, however, that the
Company shall deliver to such Holder an appropriate instrument or due bills
evidencing such Holder's right to receive such additional shares or such cash.
6.10 Exceptions. This Section 6 shall not apply to (a)
securities offered to the public pursuant to a public offering; (b) securities
issued to employees or directors of the Company pursuant to an employee stock
option plan or stock incentive plan approved by the Board of Directors; or (c)
securities Outstanding as of the date hereof (provided that the terms of such
securities will not be modified in any manner following the date hereof)
(collectively, "Excluded Stock").
6.11 Notice of Adjustment of Exercise Price. Whenever the
Exercise Price is adjusted as herein provided:
(i) the Company shall compute the adjusted Exercise Price in
accordance with this Section 6 and shall prepare a certificate signed
by the treasurer or chief financial officer of the Company setting
forth the adjusted Exercise Price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate
shall forthwith be filed at each Designated Office; and
(ii) a notice stating that the Exercise Price has been adjusted
and setting forth the adjusted Exercise Price shall forthwith be
prepared by the Company and mailed to all Holders at their last
addresses as they shall appear in the warrant register.
7. Transfer to Comply with the Securities Act; Registration Rights.
7.1 Transfer. This Warrant has not been registered under the
Securities Act and has been issued to the Holder for investment and not with a
view to the distribution of either the Warrant or the Warrant Shares. Neither
this Warrant nor any of the Warrant Shares or any other security issued or
issuable upon exercise of this Warrant may be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement under the
Securities Act relating to such security or an opinion of counsel satisfactory
to the Company that registration is not required under the Securities Act;
provided, that, no registration statement or opinion of counsel shall be
required in the event of a Transfer to a Permitted Transferee. Each Warrant,
the Warrant Shares and any other security issued or issuable upon exercise of
this Warrant shall contain a legend on the face thereof, in substantially the
following form by which the Holder (and any transferee thereof) shall be
bound:
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.
7.2 Registration Rights. Reference is made to the Registration
Rights Agreement. The Company's obligations under the Registration Rights
Agreement and the other terms and conditions thereof with respect to the
Warrant Shares, including, but not limited to, the Company's commitment to
file registration statements including the Warrant Shares, to have the
registration of the Warrant Shares completed and effective, and to maintain
such registration, are incorporated herein by reference.
8. Notice Of Corporate Actions; Taking Of Record; Transfer Books.
8.1 Notices of Corporate Actions. In case:
(a) of the Company granting to all of the holders of its Common
Stock rights or warrants to subscribe for or purchase any shares of capital
stock of any class; or
(b) of any reclassification of the Common Stock (other than a
subdivision or combination of the Outstanding shares of Common Stock), or of
any consolidation, merger or share exchange to which the Company is a party
and for which approval of any stockholders of the Company is required, or of
the sale or transfer of all or substantially all of the assets of the Company;
or
(c) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(d) of the commencement by the Company or any Subsidiary of a
tender offer for all or a portion of the Outstanding shares of Common Stock
(or the amending of any such tender offer to change the maximum number of
shares being sought or the amount or type of consideration being offered
therefor);
then the Company shall cause to be filed at each office or agency maintained
for such purpose, and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the warrant register, at least 30 days prior
to the applicable record, effective or expiration date hereinafter specified,
a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or granting of rights or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record who will be entitled to such dividend, distribution, rights or warrants
are to be determined, (y) the date on which such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, share
exchange, sale, transfer, dissolution, liquidation or winding up, or (z) the
date on which such tender offer commenced, the date on which such tender offer
is scheduled to expire unless extended, the consideration offered and the
other material terms thereof (or the material terms of the amendment thereto).
Such notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action on the Exercise
Price and the number and kind or class of shares or other securities or
property which shall be deliverable or purchasable upon the occurrence of such
action or deliverable upon exercise of the Warrants. Neither the failure to
give any such notice nor any defect therein shall affect the legality or
validity of any action described in clauses (a) through (d) of this Section
8.1.
8.2 Taking of Record. In the case of all dividends or other
distributions by the Company to the holders of its Common Stock with respect
to which any provision of hereof refers to the taking of a record of such
holders, the Company will in each such case take such a record and will take
such record as of the close of business on a Business Day.
8.3 Closing of Transfer Books. The Company shall not at any
time, except upon dissolution, liquidation or winding up of the Company, close
its stock transfer books or Warrant transfer books so as to result in
preventing or delaying the exercise or transfer of any Warrant.
9. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage pre-paid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission,
or, if mailed, two days after the date of deposit in the United States mails,
as follows:
(i) if to the Company, to:
SIGA Technologies, Inc.
420 Lexington Avenue, Suite 601
New York, New York 10170
Attention: Thomas N. Konatich
Telephone No.: (212) 672-9100
Facsimile No.: (212) 697-3130
with a copy (which shall not constitute notice) to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
Attention: James A. Grayer, Esq.
Facsimile No.: (212) 715-8000
(ii) if to the Holder, to:
MacAndrews & Forbes Holdings Inc.
35 East 62nd Street
New York, New York 10021
Attention: Barry F. Schwartz, Esq.
Facsimile No.: (212) 572-8435
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10035
Attention: Franklin M. Gittes, Esq. and
Alan C. Myers, Esq.
Facsimile No.: (212) 735-2000
Any party may be given notice in accordance with this Section 9, unless such
party designates another address or person for receipt of notice hereunder.
10. No Impairment; Regulatory Compliance And Cooperation; Notice Of
Expiration. The Company shall not by any action, including, without
limitation, amending its charter documents or through any reorganization,
reclassification, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other similar voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of the Holder against impairment.
11. Miscellaneous.
11.1 Successors and Assigns. This Warrant shall inure to the
benefit of and be binding upon the successors and assigns of the Company, the
Holder and their respective successors and assigns. The Holder's rights under
this Warrant may be assigned, in whole or in part, to (a) any Permitted
Transferee, and any Permitted Transferee shall be deemed to be a Holder for
all purposes hereunder or (b) any transferee of a Warrant, or, if applicable,
any portion of a Warrant, that represents (x) the greater of (A) 10% of the
Warrant Shares exercisable by such transferor on the date of such transfer and
(B) 34,149 Warrant Shares (subject to adjustment as set forth herein) or (y)
if the transferor shall then hold Warrants representing less than 34,149
Warrant Shares (subject to adjustment as set forth herein), all of the
Warrants held by such transferor, and any such transferee shall be deemed to
be a Holder for all purposes hereunder.
11.2 Designated Office. As long as any of the Warrants remain
Outstanding, the Company shall maintain an office or agency, which may be the
principal executive offices of the Company (the "Designated Office"), where
the Warrants may be presented for exercise, registration of transfer, division
or combination as provided in this Warrant. Such Designated Office shall
initially be the office of the Company at 420 Lexington Avenue, Suite 601, New
York, New York 10170. The Company may from time to time change the Designated
Office to another office of the Company or its agent within the United States
by notice given to all registered Holders at least 10 Business Days prior to
the effective date of such change.
11.3 Supplements and Amendments; Whole Agreement. This Warrant
may be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant, the Purchase Agreement and the Registration
Rights Agreement contain the full understanding of the parties hereto with
respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein and therein.
11.4 Governing Law; Jurisdiction; Waiver Of Jury Trial. The
internal laws, and not the laws of conflicts (other than Section 5-1401 of the
General Obligations Law of the State of New York), of New York shall govern
the enforceability and validity of this Warrant, the construction of its terms
and the interpretation of the rights and duties of the Company. Any suit,
action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Warrant or the transactions
contemplated hereby may be brought in any federal or state court located in
the County and State of New York, and the Company hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding which
is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on the company
anywhere in the world, whether within or without the jurisdiction of any such
court. The Company hereby irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of or related to this Warrant or the
transactions contemplated hereby.
11.5 Remedies. Each Holder of Warrants, in addition to being
entitled to exercise its rights granted by law, including recovery of damages,
shall be entitled to specific performance of its rights provided under this
Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Warrant and shall waive, in an action for specific
performance, the defense that a remedy at law would be adequate.
11.6 Limitation of Liability. No provision hereof and no
enumeration herein of the rights or privileges of the Holder hereof, shall
give rise to any liability of such Holder to pay the Exercise Price for any
Warrant Shares other than pursuant to an exercise of this Warrant or any
liability as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
11.7 Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Warrant.
11.8 Descriptive Headings. Descriptive headings of the several
sections of this Warrant are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Warrant has been executed as of the 8th day
of January, 2004.
SIGA TECHNOLOGIES, INC.
By: /s/ Thomas N. Konatich
Name: Thomas N. Konatich
Title: Acting Chief Executive
Officer
ANNEX A
NOTICE OF EXERCISE OF WARRANT
[To be executed only upon exercise of Warrant]
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant dated as of January 8, 2004, to purchase ___ shares
of common stock, par value $0.0001 per share (the "Warrant Shares"), of SIGA
TECHNOLOGIES, INC. and tenders herewith payment in accordance with Sections 1
and 2 of such Warrant. The undersigned further requests, in accordance with
Section 2.1(b) of the Warrant, that certificates for the Warrant Shares hereby
purchased (and any securities or other property issuable upon exercise) be
issued in the name of and delivered to ______________ and, if such Warrant
Shares are not all of the Warrant Shares issuable upon exercise of the
Warrant, that a new Warrant of like tenor be issued for the balance of the
Warrant Shares.
_______________________________
(Name of Registered Owner)
_______________________________
(Signature of Registered Owner)
_______________________________
(Street Address)
_______________________________
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
ANNEX B
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Warrant.)
FOR VALUE RECEIVED ___________________________________ hereby sells,
assigns and transfers unto _________________________________________________
____________________________________________________________________________
(Please print name and address of transferee)
the Warrants represented by this Warrant, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
___________________________ attorney-in-fact, with full power of substitution,
to transfer the within Warrant on the books of SIGA TECHNOLOGIES, INC. to give
effect to the transfer made hereby.
Date: _____________, ____
_________________________________
Signature
NOTICE: The signature on this assignment must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
Exhibit 21
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"), TransTech Pharma, Inc., a Delaware 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, 1,736,111 fully
paid and nonassessable shares of Common Stock, at an initial exercise price
per share (the "Exercise Price") of $2.00 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 Purchase Agreement.
1.2 As used in this Warrant, the following terms have the
respective meanings set forth below:
"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.
"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 11.2
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 January 8, 2011.
"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
representative bid and asked prices quoted on The Nasdaq SmallCap Market as of
4:00 P.M., New York City time, on such day, or, if on any day such security is
not quoted on The Nasdaq SmallCap Market, 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 Nasdaq National
Market or 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.
"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 January 8, 2004.
"Original Warrants" means the Warrants originally issued by the
Company on January 8, 2004, pursuant to the Purchase Agreement.
"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.
"Purchase Agreement" means the Securities Purchase Agreement by and
between the Company and MacAndrews & Forbes Holdings Inc., dated August 13,
2003.
"Registration Rights Agreement" means the Registration Rights
Agreement by and between the Company and MacAndrews & Forbes Holdings Inc.,
dated August 13, 2003.
"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 Designated Office, books for the registration and transfer of the
Warrants.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or
equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
6. Protection Against Dilution and Other Adjustments.
6.1 Adjustment of Number of Shares Purchasable. Upon any
adjustment of the Exercise Price as provided in Sections 6.3 through 6.6
hereof, the Holders of the Warrants shall thereafter be entitled to purchase
upon the exercise thereof, at the Exercise Price resulting from such
adjustment, the number of shares of Common Stock (calculated to the nearest
1/100th of a share) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
issuable on the exercise hereof immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment.
6.2 Adjustment Upon Spin Off. If, at any time or from time to
time after the Original Issue Date, the Company shall spin off or otherwise
divest itself of a part of its business or operations or dispose of all or of
a part of its assets in a transaction in which the Company does not receive
compensation for such business, operations or assets, but causes securities of
another entity (the "Spin Off Securities") to be issued to security holders of
the Company, then the Company shall cause (i) to be reserved a number of Spin
Off Securities (the "Reserved Spin Off Securities") equal to the number of
Spin Off Securities that would have been issued to the Holder had all of the
Holder's Outstanding Warrants on the record date for determining the number of
Spin Off Securities to be issued to stockholders of the Company been exercised
as of the close of business on the trading day immediately before such record
date, and (ii) to be issued to the Holder on the exercise of all or any of the
Outstanding Warrants, a number of Reserved Spin Off Securities equal to (x)
the Reserved Spin Off Securities multiplied by (y) a fraction, the numerator
of which shall be the amount of the Outstanding Warrants then being exercised,
and the denominator of which shall be the amount of the Outstanding Warrants.
6.3 Upon Stock Dividends, Subdivisions or Splits. If, at any
time or from time to time after the Original Issue Date, the number of shares
of Common Stock Outstanding is increased by a stock dividend payable in shares
of Common Stock or by a subdivision or split-up of shares of Common Stock,
then, following the record date for the determination of holders of Common
Stock entitled to receive such stock dividend, or to be affected by such
subdivision or split-up, the Exercise Price shall be appropriately decreased
by multiplying the Exercise Price by a fraction, the numerator of which is the
number of shares of Common Stock Outstanding immediately prior to, and the
denominator of which is the number of shares of Common Stock Outstanding
immediately after, such increase in Outstanding shares.
6.4 Upon Combinations or Reverse Stock Splits. If, at any time
or from time to time after the Original Issue Date, the number of shares of
Common Stock Outstanding is decreased by a combination or reverse stock split
of the Outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then, following the record date to determine shares affected by
such combination or reverse stock split, the Exercise Price shall be
appropriately increased by multiplying the Exercise Price by a fraction, the
numerator of which is the number of shares of Common Stock Outstanding
immediately prior to, and the denominator of which is the number of shares of
Common Stock Outstanding immediately after, such decrease in Outstanding
shares.
6.5 Upon Reclassifications, Reorganizations, Consolidations or
Mergers. If, at any time or from time to time after the Original Issue Date,
there is any capital reorganization of the Company, any reclassification of
the stock of the Company (other than a change in par value or from par value
to no par value or from no par value to par value or as a result of a stock
dividend or subdivision, split-up or combination of shares), or any
consolidation or merger of the Company with or into another Person (where the
Company is not the surviving Person or where there is a change in or
distribution with respect to the Common Stock), each Warrant shall after such
reorganization, reclassification, consolidation, or merger be exercisable for
the kind and number of shares of stock or other securities or property of the
Company or of the successor Person resulting from such consolidation or
surviving such merger, if any, to which the holder of the Warrant Shares
deliverable (immediately prior to the time of such reorganization,
reclassification, consolidation or merger) upon exercise of such Warrant would
have been entitled upon such reorganization, reclassification, consolidation
or merger. The provisions of this clause shall similarly apply to successive
reorganizations, reclassifications, consolidations, or mergers. The Company
shall not effect any such reorganization, reclassification, consolidation or
merger unless, prior to the consummation thereof, the successor Person (if
other than the Company) resulting from such reorganization, reclassification,
consolidation or merger, shall assume, by written instrument, the obligation
to deliver to the Holders of the Warrant such shares of stock, securities or
assets, which, in accordance with the foregoing provisions, such Holders shall
be entitled to receive upon such conversion.
6.6 Upon Issuance of Common Stock. If, at any time or from time
to time after the Original Issue Date, the Company shall issue any shares of
Common Stock, options to purchase or rights to subscribe for Common Stock,
securities by their terms convertible into or exchangeable for Common Stock,
or options to purchase or rights to subscribe for such convertible or
exchangeable securities, other than Excluded Stock, without consideration or
for consideration per share less than either (x) the Exercise Price in effect
immediately prior to such issuance or (y) the Fair Market Value per share of
the Common Stock immediately prior to such issuance, then such Exercise Price
shall forthwith be lowered to a price equal to the price obtained by
multiplying:
(i) the Exercise Price in effect immediately prior to the
issuance of such Common Stock, options, rights or securities by
(ii) a fraction of which (x) the numerator shall be the sum of
(A) the number of shares of Common Stock Outstanding on a
fully-diluted basis immediately prior to such issuance and (B) the
number of additional shares of Common Stock which the aggregate
consideration for the number of shares of Common Stock so offered
would purchase at the greater of the Exercise Price in effect
immediately prior to such issuance or the Fair Market Value per share
of Common Stock and (y) the denominator shall be the number of shares
of Common Stock Outstanding on a fully-diluted basis immediately
after such issuance.
6.7 Provisions Applicable to Adjustments. For purposes of any
adjustment of the Exercise Price pursuant to Section 6.6 hereof, the following
provisions shall be applicable:
(i) In the case of the issuance of Common Stock for cash in a
public offering or private placement, the consideration shall be
deemed to be the amount of cash paid therefor before deducting
therefrom any discounts, commissions or placement fees payable by the
Company to any underwriter or placement agent in connection with the
issuance and sale thereof.
(ii) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the Valuation Amount as
determined in accordance with the Appraisal Procedure.
(iii) In the case of the issuance of options to purchase or
rights to subscribe for Common Stock, securities by their terms
convertible into or exchangeable for Common Stock, or options to
purchase or rights to subscribe for such convertible or exchangeable
securities (except for options to acquire Excluded Stock):
(A) the aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to purchase or
rights to subscribe for Common Stock shall be deemed to have
been issued at the time such options or rights were issued and
for a consideration equal to the consideration (determined in
the manner provided in subparagraphs (i) and (ii) above), if
any, received by the Company upon the issuance of such options
or rights plus the minimum purchase price provided in such
options or rights for the Common Stock covered thereby;
(B) the aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been
issued at the time such securities, options, or rights were
issued and for a consideration equal to the consideration
received by the Company for any such securities and related
options or rights (excluding any cash received on account of
accrued interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by the Company
upon the conversion or exchange of such securities or the
exercise of any related options or rights (the consideration in
each case to be determined in the manner provided in paragraphs
(i) and (ii) above);
(C) on any change in the number of shares or exercise
price of Common Stock deliverable upon exercise of any such
options or rights or conversions of or exchanges for such
securities, other than a change resulting from the
anti-dilution provisions thereof, the Exercise Price shall
forthwith be readjusted to such Exercise Price as would have
been obtained had the adjustment made upon the issuance of such
options, rights or securities not converted prior to such
change or options or rights related to such securities not
converted prior to such change been made upon the basis of such
change;
(D) upon the expiration of any options to purchase or
rights to subscribe for Common Stock which shall not have been
exercised, the Exercise Price computed upon the issuance
thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall,
upon such expiration, be recomputed as if the only additional
shares of Common Stock issued were the shares of Common Stock,
if any, actually issued upon the exercise of such options to
purchase or rights to subscribe for Common Stock, and the
consideration received therefor was the consideration actually
received by the Company for the issue of the options to
purchase or rights to subscribe for Common Stock that were
exercised, plus the consideration actually received by the
Company upon such exercise; and
(E) no further adjustment of the Exercise Price adjusted
upon the issuance of any such options, rights, convertible
securities or exchangeable securities shall be made as a result
of the actual issuance of Common Stock on the exercise of any
such rights or options or any conversion or exchange of any
such securities.
6.8 Deferral in Certain Circumstances. In any case in which the
provisions of this Section 6 shall require that an adjustment shall become
effective immediately after a record date of an event, the Company may defer
until the occurrence of such event (a) issuing to the Holder of any Warrant
exercised after such record date and before the occurrence of such event the
shares of capital stock issuable upon such exercise by reason of the
adjustment required by such event and issuing to such Holder only the shares
of capital stock issuable upon such exercise before giving effect to such
adjustments, and (b) paying to such Holder any amount in cash in lieu of a
fractional share of capital stock pursuant to Section 2.3 above; provided,
however, that the Company shall deliver to such Holder an appropriate
instrument or due bills evidencing such Holder's right to receive such
additional shares or such cash.
6.9 Appraisal Procedure. In any case in which the provisions of
this Section 6 shall necessitate that the Appraisal Procedure be utilized for
purposes of determining an adjustment to the Exercise Price, the Company may
defer until the completion of the Appraisal Procedure and the determination of
the adjustment (a) issuing to the Holder of any Warrant exercised after the
date of the event that requires the adjustment and before completion of the
Appraisal Procedure and the determination of the adjustment, the shares of
capital stock issuable upon such exercise by reason of the adjustment required
by such event and issuing to such Holder only the shares of capital stock
issuable upon such exercise before giving effect to such adjustment and (b)
paying to such Holder any amount in cash in lieu of a fractional share of
capital stock pursuant to Section 2.3 above; provided, however, that the
Company shall deliver to such Holder an appropriate instrument or due bills
evidencing such Holder's right to receive such additional shares or such cash.
6.10 Exceptions. This Section 6 shall not apply to (a)
securities offered to the public pursuant to a public offering; (b) securities
issued to employees or directors of the Company pursuant to an employee stock
option plan or stock incentive plan approved by the Board of Directors; or (c)
securities Outstanding as of the date hereof (provided that the terms of such
securities will not be modified in any manner following the date hereof)
(collectively, "Excluded Stock").
6.11 Notice of Adjustment of Exercise Price. Whenever the
Exercise Price is adjusted as herein provided:
(i) the Company shall compute the adjusted Exercise Price in
accordance with this Section 6 and shall prepare a certificate signed
by the treasurer or chief financial officer of the Company setting
forth the adjusted Exercise Price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate
shall forthwith be filed at each Designated Office; and
(ii) a notice stating that the Exercise Price has been adjusted
and setting forth the adjusted Exercise Price shall forthwith be
prepared by the Company and mailed to all Holders at their last
addresses as they shall appear in the warrant register.
7. Transfer to Comply with the Securities Act; Registration Rights.
7.1 Transfer. This Warrant has not been registered under the
Securities Act and has been issued to the Holder for investment and not with a
view to the distribution of either the Warrant or the Warrant Shares. Neither
this Warrant nor any of the Warrant Shares or any other security issued or
issuable upon exercise of this Warrant may be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement under the
Securities Act relating to such security or an opinion of counsel satisfactory
to the Company that registration is not required under the Securities Act;
provided, that, no registration statement or opinion of counsel shall be
required in the event of a Transfer to a Permitted Transferee. Each Warrant,
the Warrant Shares and any other security issued or issuable upon exercise of
this Warrant shall contain a legend on the face thereof, in substantially the
following form by which the Holder (and any transferee thereof) shall be
bound:
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.
7.2 Registration Rights. Reference is made to the Registration
Rights Agreement. The Company's obligations under the Registration Rights
Agreement and the other terms and conditions thereof with respect to the
Warrant Shares, including, but not limited to, the Company's commitment to
file registration statements including the Warrant Shares, to have the
registration of the Warrant Shares completed and effective, and to maintain
such registration, are incorporated herein by reference.
8. Notice Of Corporate Actions; Taking Of Record; Transfer Books.
8.1 Notices of Corporate Actions. In case:
(a) of the Company granting to all of the holders of its Common
Stock rights or warrants to subscribe for or purchase any shares of capital
stock of any class; or
(b) of any reclassification of the Common Stock (other than a
subdivision or combination of the Outstanding shares of Common Stock), or of
any consolidation, merger or share exchange to which the Company is a party
and for which approval of any stockholders of the Company is required, or of
the sale or transfer of all or substantially all of the assets of the Company;
or
(c) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(d) of the commencement by the Company or any Subsidiary of a
tender offer for all or a portion of the Outstanding shares of Common Stock
(or the amending of any such tender offer to change the maximum number of
shares being sought or the amount or type of consideration being offered
therefor);
then the Company shall cause to be filed at each office or agency maintained
for such purpose, and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the warrant register, at least 30 days prior
to the applicable record, effective or expiration date hereinafter specified,
a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or granting of rights or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record who will be entitled to such dividend, distribution, rights or warrants
are to be determined, (y) the date on which such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, share
exchange, sale, transfer, dissolution, liquidation or winding up, or (z) the
date on which such tender offer commenced, the date on which such tender offer
is scheduled to expire unless extended, the consideration offered and the
other material terms thereof (or the material terms of the amendment thereto).
Such notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action on the Exercise
Price and the number and kind or class of shares or other securities or
property which shall be deliverable or purchasable upon the occurrence of such
action or deliverable upon exercise of the Warrants. Neither the failure to
give any such notice nor any defect therein shall affect the legality or
validity of any action described in clauses (a) through (d) of this Section
8.1.
8.2 Taking of Record. In the case of all dividends or other
distributions by the Company to the holders of its Common Stock with respect
to which any provision of hereof refers to the taking of a record of such
holders, the Company will in each such case take such a record and will take
such record as of the close of business on a Business Day.
8.3 Closing of Transfer Books. The Company shall not at any
time, except upon dissolution, liquidation or winding up of the Company, close
its stock transfer books or Warrant transfer books so as to result in
preventing or delaying the exercise or transfer of any Warrant.
9. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage pre-paid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission,
or, if mailed, two days after the date of deposit in the United States mails,
as follows:
(i) if to the Company, to:
SIGA Technologies, Inc.
420 Lexington Avenue, Suite 601
New York, New York 10170
Attention: Thomas N. Konatich
Telephone No.: (212) 672-9100
Facsimile No.: (212) 697-3130
with a copy (which shall not constitute notice) to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
Attention: James A. Grayer, Esq.
Facsimile No.: (212) 715-8000
(ii) if to the Holder, to:
TransTech Pharma, Inc.
4170 Mendenhall Oaks Parkway
Suite 110
High Point, North Carolina 27265
Attention: William V. Buccella, Esq.
Facsimile No.: (336) 841-0333
Any party may be given notice in accordance with this Section 9, unless such
party designates another address or person for receipt of notice hereunder.
10. No Impairment; Regulatory Compliance And Cooperation; Notice Of
Expiration. The Company shall not by any action, including, without
limitation, amending its charter documents or through any reorganization,
reclassification, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other similar voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of the Holder against impairment.
11. Miscellaneous.
11.1 Successors and Assigns. This Warrant shall inure to the
benefit of and be binding upon the successors and assigns of the Company, the
Holder and their respective successors and assigns. The Holder's rights under
this Warrant may be assigned, in whole or in part, to (a) any Permitted
Transferee, and any Permitted Transferee shall be deemed to be a Holder for
all purposes hereunder or (b) any transferee of a Warrant, or, if applicable,
any portion of a Warrant, that represents (x) the greater of (A) 10% of the
Warrant Shares exercisable by such transferor on the date of such transfer and
(B) 34,149 Warrant Shares (subject to adjustment as set forth herein) or (y)
if the transferor shall then hold Warrants representing less than 34,149
Warrant Shares (subject to adjustment as set forth herein), all of the
Warrants held by such transferor, and any such transferee shall be deemed to
be a Holder for all purposes hereunder.
11.2 Designated Office. As long as any of the Warrants remain
Outstanding, the Company shall maintain an office or agency, which may be the
principal executive offices of the Company (the "Designated Office"), where
the Warrants may be presented for exercise, registration of transfer, division
or combination as provided in this Warrant. Such Designated Office shall
initially be the office of the Company at 420 Lexington Avenue, Suite 601, New
York, New York 10170. The Company may from time to time change the Designated
Office to another office of the Company or its agent within the United States
by notice given to all registered Holders at least 10 Business Days prior to
the effective date of such change.
11.3 Supplements and Amendments; Whole Agreement. This Warrant
may be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant, the Purchase Agreement and the Registration
Rights Agreement contain the full understanding of the parties hereto with
respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein and therein.
11.4 Governing Law; Jurisdiction; Waiver Of Jury Trial. The
internal laws, and not the laws of conflicts (other than Section 5-1401 of the
General Obligations Law of the State of New York), of New York shall govern
the enforceability and validity of this Warrant, the construction of its terms
and the interpretation of the rights and duties of the Company. Any suit,
action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Warrant or the transactions
contemplated hereby may be brought in any federal or state court located in
the County and State of New York, and the Company hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding which
is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on the company
anywhere in the world, whether within or without the jurisdiction of any such
court. The Company hereby irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of or related to this Warrant or the
transactions contemplated hereby.
11.5 Remedies. Each Holder of Warrants, in addition to being
entitled to exercise its rights granted by law, including recovery of damages,
shall be entitled to specific performance of its rights provided under this
Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Warrant and shall waive, in an action for specific
performance, the defense that a remedy at law would be adequate.
11.6 Limitation of Liability. No provision hereof and no
enumeration herein of the rights or privileges of the Holder hereof, shall
give rise to any liability of such Holder to pay the Exercise Price for any
Warrant Shares other than pursuant to an exercise of this Warrant or any
liability as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
11.7 Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Warrant.
11.8 Descriptive Headings. Descriptive headings of the several
sections of this Warrant are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Warrant has been executed as of the 8th day
of January, 2004.
SIGA TECHNOLOGIES, INC.
By: /s/ Thomas N. Konatich
Name: Thomas N. Konatich
Title: Acting Chief Executive
Officer
ANNEX A
NOTICE OF EXERCISE OF WARRANT
[To be executed only upon exercise of Warrant]
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant dated as of January 8, 2004, to purchase ___ shares
of common stock, par value $0.0001 per share (the "Warrant Shares"), of SIGA
TECHNOLOGIES, INC. and tenders herewith payment in accordance with Sections 1
and 2 of such Warrant. The undersigned further requests, in accordance with
Section 2.1(b) of the Warrant, that certificates for the Warrant Shares hereby
purchased (and any securities or other property issuable upon exercise) be
issued in the name of and delivered to ______________ and, if such Warrant
Shares are not all of the Warrant Shares issuable upon exercise of the
Warrant, that a new Warrant of like tenor be issued for the balance of the
Warrant Shares.
_______________________________
(Name of Registered Owner)
_______________________________
(Signature of Registered Owner)
_______________________________
(Street Address)
_______________________________
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
ANNEX B
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Warrant.)
FOR VALUE RECEIVED ___________________________________ hereby sells,
assigns and transfers unto _________________________________________________
____________________________________________________________________________
(Please print name and address of transferee)
the Warrants represented by this Warrant, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
___________________________ attorney-in-fact, with full power of substitution,
to transfer the within Warrant on the books of SIGA TECHNOLOGIES, INC. to give
effect to the transfer made hereby.
Date: _____________, ____
_________________________________
Signature
NOTICE: The signature on this assignment must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
Exhibit 22
JOINDER AGREEMENT
TO SIGA TECHNOLOGIES, INC.
REGISTRATION RIGHTS AGREEMENT
The undersigned (the "Joining Party") acquired certain shares of
Common Stock and Warrants of SIGA Technologies, Inc., a Delaware corporation
(the "Company"), on January 8, 2004. As a condition to receiving such shares
of Common Stock and such Warrants, the Joining Party hereby agrees to be bound
by all provisions of that certain Registration Rights Agreement (the
"Registration Rights Agreement"), dated August 13, 2003, by and between the
Company and MacAndrews & Forbes Holdings Inc., a Delaware Corporation, as a
party thereto in the capacity of a Holder. Capitalized terms used but not
defined herein shall have the meanings set forth in the Registration Rights
Agreement.
[Execution Page Follows]
IN WITNESS WHEREOF, the Joining Party has executed this joinder
agreement to become party to the Registration Rights Agreement as January 8,
2004.
JOINING PARTY
TransTech Pharma, Inc.
By: /s/ William V. Buccella
Name: William V. Buccella
Title: Senior Vice President -
Legal Affairs