Exhibit 10.1
EXECUTION VERSION
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of July 2,
2004, between SIGA Technologies, Inc., a Delaware corporation (the
"Corporation"), and Xx. Xxxxxxx Xxxxxx (the "Executive").
WHEREAS, the Corporation desires to employ Executive and Executive desires
to accept such employment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual agreements and covenants hereinafter set forth, the parties hereto agree
to the terms and conditions of this Agreement as follows:
1. Employment for Term. The Corporation hereby employs Executive and
Executive hereby accepts employment with the Corporation for the period
beginning on July 2, 2004 and ending on the third anniversary thereof (the
"Initial Term"), or upon the earlier termination of such term pursuant to
Section 7. Unless one party provides the other party with at least three (3)
months advance notice of its desire not to renew the term of Executive's
employment hereunder, the term of Executive's employment with the Corporation
shall continue for an additional three (3) years following the end of the
Initial Term (the "Renewal Term") except upon the earlier termination of such
term pursuant to Section 7 (such term of employment upon any such earlier
termination, being hereinafter referred to as the "Term"). The termination of
Executive's employment under this Agreement shall end the Initial Term or
Renewal Term, as applicable, but shall not terminate Executive's or the
Corporation's other agreements in this Agreement, except as otherwise provided
herein.
2. Position and Duties.
(a) During the Initial Term and the Renewal Term, if applicable,
Executive shall serve as the Chief Executive Officer of the Corporation. During
the Term, Executive shall also hold such additional positions and titles as the
Board of Directors of the Corporation (the "Board") may determine from time to
time with the agreement of Executive, which agreement shall not be unreasonably
withheld or delayed.
(b) Performance of Duties. Throughout the Term, Executive shall
faithfully and diligently perform Executive's duties in conformity with the
directions of the Corporation and serve the Corporation to the best of
Executive's ability. Except for the permitted services and commitments that
Executive may perform and fulfill during the course of his employment with the
Corporation as more fully described on Schedule A attached hereto, Executive
shall devote Executive's entire working time to the business and affairs of the
Corporation, subject to vacations and sick leave in accordance with Corporation
policy and as otherwise permitted herein. Notwithstanding anything to the
contrary in this Section 2(b), so long as such activities do not preclude or
render unlawful Executive's employment by the Corporation or otherwise
materially inhibit the performance of his duties under this Agreement or
materially impair the business of the Corporation, Executive (i) may make
personal investments which are not in conflict with his duties to the
Corporation and manage personal and family financial and legal affairs, (ii) may
continue to serve on any board of directors on which he is known by the Board
of Directors of the Corporation to be serving on the effective date of this
Agreement, as specified in Schedule A hereto, (iii) may serve as a director of
(or hold a similar position with) any corporation, trade association, or
charitable organization with the approval of the Board of Directors of the
Corporation, and (iv) may serve as a consultant or provide consulting services
to the entities described on Schedule A as further described therein.
3. Compensation.
(a) Base Salary. The Corporation shall pay Executive a base salary,
beginning on the first day of the Term and ending on the last day of the Term,
of not less than $250,000 per annum, payable at least monthly on the
Corporation's regular pay cycle for professional employees (the "Base Salary");
(b) Stock Options. On the date hereof, the Corporation shall grant
Executive an option to purchase an aggregate of 2,500,000 shares of common
stock, par value $.0001 per share, of the Corporation ("Common Stock"), which
shall vest with respect to 500,000 shares on the date hereof; with respect to
the next 1,000,000 shares, an additional 166,666 shares shall vest on the end of
each six (6) month period after the commencement of the Initial Term until the
end of the sixth six (6) month period at which time 166,667 shares shall vest,
in each case at an exercise price of $1.30 per share, and pursuant to a Stock
Option Grant Agreement of even date herewith between the Corporation and
Executive, in substantially the form attached hereto as Exhibit A (the "Time
Vested Options"), and in the event Executive's employment hereunder continues
during the Renewal Term, with respect to the balance of 1,000,000 shares of
Common Stock, an additional 166,666 shares shall vest at the end of each six (6)
month period commencing at the beginning of the Renewal Term until the end of
the sixth six (6) month period at which time 166,667 shares shall vest, in each
case at the same exercise price as described above, and pursuant to the Stock
Option Grant Agreement attached hereto as Exhibit A (the "Renewal Term
Options"). The Renewal Term Options shall be treated as Time Vested Options in
the event of any termination of employment or Change in Control under Section 7
which occurs anytime after the commencement of the Renewal Term (the "Renewal
Date"). In addition, Executive shall be entitled to additional options as set
forth on Exhibit B, which shall also be pursuant to and subject to the terms and
conditions of a Stock Option Grant Agreement, substantially in the form of
Exhibit C (the "Milestone Options").
(c) Other and Additional Compensation. The preceding sections
establish the minimum compensation during the Term and shall not preclude the
Board from awarding Executive a higher salary or any bonuses or stock options in
the discretion of the Board during the Term at any time.
4. Employee Benefits. During the Term, Executive shall be entitled to the
employee benefits including five (5) weeks vacation (to be taken at a time or
times mutually agreed by Executive and the Corporation), 401(k) plan, health
plan and other insurance benefits made generally available by the Corporation to
employees of the Corporation.
5. Expenses. The Corporation shall reimburse Executive for actual
out-of-pocket expenses incurred by him in the performance of his services for
the Corporation upon the receipt of appropriate documentation of such expenses.
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6. Place of Performance. Executive shall be based in Florida but Executive
may perform his duties from whatever location Executive may reasonably
determine; provided that such location allows him to perform his duties and
obligations hereunder. In addition, should the Corporation and Executive agree
to a different location from which Executive is to perform his duties hereunder,
such change of location shall not cause a breach hereunder or be treated as a
Good Reason (as defined herein).
7. Termination of Employment.
(a) Termination. The Corporation may terminate Executive's
employment for Cause (as defined below), in which case the provisions of Section
7(b) of this Agreement shall apply. The Executive's employment shall
automatically terminate in the event of Executive's death, in which case the
provisions of Section 7(c) of this Agreement shall apply. The Corporation or the
Executive may also terminate Executive's employment in the event of Executive's
Disability (as defined below), in which case the provisions of Section 7(d) of
this Agreement shall apply. The Corporation may also terminate the Executive's
employment for any other reason by written notice to Executive, in which case
the provisions of Section 7(f) of this Agreement shall apply. The Executive may
terminate his employment for Good Reason (as defined below), in which event the
provisions of Section 7(e) shall apply. The Executive may also terminate the
Executive's employment for any other reason by providing written notice to the
Corporation, in which case the provisions of Section 7(g) shall apply.
(b) Termination for Cause. In the event that Executive's employment
hereunder is terminated during the Initial Term (or Renewal Term, if applicable)
(x) by the Corporation for Cause (as defined below), then the Corporation shall
pay to Executive only the Base Salary due and payable through such date of
termination. For purposes of this Agreement, "Cause" shall mean (i) conviction
of any crime (whether or not involving the Corporation) constituting a felony in
the jurisdiction involved; (ii) engaging in any act which, in each case,
subjects, or if generally known would subject, the Corporation to public
ridicule or embarrassment; (iii) gross neglect or gross misconduct in the
performance of Executive's duties hereunder; (iv) willful failure or refusal to
perform such duties as may reasonably be delegated to Executive; or (v) material
breach of any provision of this Agreement by Executive; provided, however, that
a termination pursuant to clause (iii), (iv), or (v) shall not become effective
unless the Executive fails to cure such neglect, misconduct, failure or refusal
to perform, or breach within twenty (20) days after written notice from the
Corporation, such notice to describe such neglect, misconduct, failure or
refusal to perform, or breach. No termination for Cause shall, in and of itself,
cause Executive to lose any stock options (either Time Vested Options or
Milestone Options) which have vested, and the treatment of the Time Vested
Options and the Milestone Options shall be in accordance with the relevant
Option Agreement.
(c) Termination by Reason of Death. In the event that Executive's
employment hereunder is terminated during the Initial Term (or Renewal Term, if
applicable) due to Executive's death, then the Corporation shall pay to
Executive only the Base Salary due and payable up to the time of Executive's
Death. The treatment of the Time Vested Options and Milestone Options shall be
in accordance with the relevant Option Agreement.
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(d) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from Executive's
duties hereunder on a full time basis for either (i) ninety (90) days within any
three hundred sixty-five (365) day period, or (ii) sixty (60) consecutive days,
the Corporation may terminate Executive's employment hereunder for "Disability".
In that event, the Corporation shall pay to Executive only the Base Salary due
and payable through such date of termination plus the lesser of Executive's
Total Annual Compensation (as defined below) for the remainder of the Initial
Term (or Renewal Term, if applicable) or Executive's Total Annual Compensation
(as defined below) for one year (the "Severance Amount"). The Severance Amount
shall, at the Corporation's sole discretion, be paid either in (x) one (1) lump
sum payment within thirty (30) days of the termination date or (y) over time in
accordance with the Corporation's existing payroll practices. During any period
that Executive fails to perform Executive's duties hereunder as a result of
incapacity due to physical or mental illness (a "Disability Period"), Executive
shall continue to receive the compensation and benefits provided by Section 3 of
this Agreement until Executive's employment hereunder is terminated; provided,
however, that the amount of compensation and benefits received by Executive
during the Disability Period and thereafter shall be reduced by the aggregate
amounts, if any, payable to Executive under disability benefit plans and
programs of the Corporation or under the Social Security disability insurance
program. The treatment of the Time Vested Options and Milestone Options shall be
in accordance with the relevant Option Agreement. "Total Annual Compensation"
means the aggregate Base Salary plus all bonuses paid to Executive during the
twelve (12) month period preceding the commencement of the Executive's
Disability or the date of termination of employment if termination is not due to
Disability, which, in any event, shall not be less than Four Hundred Thousand
Dollars ($400,000.00).
(e) Termination by Executive For Good Reason. In the event that
Executive's employment hereunder is terminated by the Executive for Good Reason
(as defined below) during the Initial Term (or Renewal Term, if applicable),
then the Corporation shall pay Executive his Base Salary due and payable through
the date of termination plus the Severance Amount. "Good Reason" shall mean if
the Executive terminates his employment because the Corporation has (i)
materially reduced Executive's duties during the Initial Term (or Renewal Term,
if applicable), or (ii) materially breached its obligations hereunder,
including, but not limited to, the obligations under Section 20, or under any
Option Agreement after written notice and failure to cure such breach within
twenty (20) days after such written notice, or (iii) failed to adhere to legal
and regulatory compliance requirements after written notice from Executive and
failure to cure within twenty (20) days of such written notice; provided that,
it shall not be Good Reason if such failure to adhere to any such legal or
regulatory requirement or the Corporation's ability to cure any such failure is
primarily in or under the control of Executive. The treatment of the Time Vested
Options and Milestone Options shall be in accordance with the relevant Option
Agreement.
(f) Termination by Corporation For Any Other Reason. In the event
that Executive's employment hereunder is terminated by the Corporation during
the Term for any reason other than as provided in Sections 7(b)-(e) or (h) of
this Agreement, then the Corporation shall pay to Executive the Base Salary due
and payable through such date of termination plus the Severance Amount. During
the period in which Executive receives severance pay under this Section 7(f),
the Time Vested Options shall continue to vest. The Milestone Options shall vest
in
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accordance with the relevant Stock Option Agreement. Notwithstanding anything to
the contrary contained herein, in the event that Executive shall materially
breach Section 8 of this Agreement, in addition to any other remedies the
Corporation may have in the event Executive breaches this Agreement, the
Corporation's obligation pursuant to this Section 7(f) to make severance
payments shall cease the stock options shall expire, and Executive's rights with
respect to severance pay and the stock option shall terminate and shall be
forfeited. The entitlement to severance pay and option vesting and
exercisability hereunder shall not be affected by, or reduced by virtue of, any
subsequent employment, or income, that Executive may obtain.
(g) In the event that Executive's employment hereunder is terminated
by the Executive for any reason other than as provided in Sections 7(c)-(e) of
this Agreement, then the Corporation shall pay to Executive only the Base Salary
due and payable through the date of termination. The treatment of Time Vested
Options and Milestone Options shall be in accordance with the relevant Option
Agreement.
(h) Termination by Executive upon Change in Control. If anytime
within ninety (90) days prior to or within twelve (12) months after a Change in
Control, (i) Executive's employment is terminated by the Corporation or
surviving organization, or (ii) if Executive is no longer the Chief Executive
Officer or its equivalent of the surviving organization or the Corporation is
not the surviving organization and Executive elects to terminate his employment
with Corporation as a result of such Change in Control, the Corporation shall
pay to Executive the Base Salary due and payable through such date of
termination and, in lieu of any further compensation and benefits for the
balance of the Term, severance pay equal to the greater of one year of Total
Annual Compensation and Total Annual Compensation for the remainder of the
Initial Term (or Renewal Term, if applicable), which severance pay shall be paid
commencing with such date of termination at the times and in equal consecutive
amounts such Total Annual Compensation amounts would have been paid if Executive
had remained employed by the Corporation for the period immediately following
the date of termination as if such amount were Executive's Base Salary, and all
unvested options (other than Renewal Term Options, unless in the Renewal Term),
other than the Milestone Options, shall be, and become, vested on the date of
termination and shall continue to be exercisable during the remaining term of
the Option Agreement. All Milestone Options shall be treated in accordance with
the relevant Option Agreement. Notwithstanding the foregoing, if Executive's
employment is terminated other than for Cause or by the Executive other than for
Good Reason and a Change of Control occurs within one year thereafter, then, at
such Change of Control, Executive shall be entitled to the amounts set forth in
this Section 7(h) as if he were employed by the Corporation at the time of the
Change of Control. Section 7(h) shall not apply and the Corporation shall have
no obligations pursuant to this Section 7(h) if Executive is terminated for
Cause or leaves other than for Good Reason. For purposes of this Agreement:
(i) "Change in Control" shall mean any of the following
occurrences:
the acquisition by any individual, entity, or
group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) (the "Acquiring
Person"), other than (i) the Corporation, (ii) any
of its Subsidiaries, (iii) any shareholder of the
Corporation as of the date hereof
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which, together with its affiliates, related
parties, associates or associated entities, own or
control 10% or more of the equity securities of
the Corporation as of the date hereof or (iv) any
of such shareholders' affiliates or designees
which, together with its affiliates, related
parties, associates or associated entities, own or
control 10% or more of equity securities of the
corporation as of the date hereof, of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 35% or more
of the combined voting power or economic interests
of the then outstanding voting securities of the
Corporation entitled to vote generally in the
election of directors; or
the approval by the stockholders of the
Corporation of a reorganization, merger, or
consolidation, in each case, with respect to which
all or substantially all of the individuals and
entities who were the respective beneficial owners
of the voting securities of the Corporation
immediately prior to such reorganization, merger,
or consolidation do not, following such
reorganization, merger, or consolidation,
beneficially own, directly or indirectly, more
than 50% of the combined voting power of the then
outstanding voting securities entitled to vote
generally in the election of directors of the
Corporation resulting from such reorganization,
merger, or consolidation; provided, however, that
a merger, consolidation or reorganization effected
to implement a recapitalization of the Corporation
(or similar transaction) in which no "Acquiring
Person" acquires more than 50% of the combined
voting power of the Corporation's then outstanding
securities shall not constitute a Change in
Control; or
the sale or other disposition of assets
representing 50% or more of the assets of the
Corporation in one transaction or series of
related transactions; or
a "Hostile Takeover" as hereinafter defined is
declared.
(ii) "Hostile Takeover" shall mean any Change in Control which
at any time is declared by at least a majority of the Board, directly or
indirectly, to be hostile or not in the best interests of the Corporation,
or in which an attempt is made (irrespective of whether successful) to
wrest control away from the incumbent
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management of the Corporation and, with respect to which, the Board makes
efforts to resist.
(i) Effect of Change in Control. Upon the Approval Date of a Change
in Control, all options on shares of Common Stock which have vested pursuant to
this Agreement shall, irrespective of any provision of any Option Agreement,
immediately and irrevocably vest and become exercisable as of the Approval Date
(defined below) and shall continue to be exercisable during the remaining term
of the relevant Option Agreement, and Executive and his estate may by five (5)
days advance written notice to the Corporation, irrespective of whether
Executive is then employed by the Corporation or then living, and solely at the
election of Executive or his estate, require the Corporation to, within thirty
(30) days after a request by Executive or his estate, file a Form S-8 (or other
appropriate form) with the Securities and Exchange Commission ("SEC")
registering for resale all shares underlying stock options granted to Executive
with all fees and expenses of such filing being paid by the Corporation. The
Corporation shall use commercially reasonable efforts to cause such registration
statement to become effective as soon as practicable. Upon the Approval Date (as
defined below) involving any agreement, transaction, or event which, when given
effect, will constitute a Change in Control, the options granted under this
Agreement shall vest and become exercisable and shall continue to be exercisable
during the remaining term of the relevant Option Agreement in accordance with
the following and consistent with the relevant Option Agreement and related
Stock Option Plan notwithstanding any other provision herein to the contrary:
If the Corporation will be the surviving
organization pursuant to the Change in Control and
cash, securities, or other property will be
exchanged for shares of Common Stock, all of the
Time Vested Options that were to vest during the
Initial Term shall immediately vest and be
exercisable if the Approval Date occurs prior to
the Renewal Date, all of the Renewal Term Options
that were to vest during the Renewal Term shall
immediately vest and be exercisable if the
Approval Date occurs after the Renewal Date, and
the Milestone Options which have not yet vested
shall continue to vest in accordance with the
relevant Option Agreement;
If the Corporation will not be the surviving
organization pursuant to the Change in Control,
all of the Time Vested Options that are to vest
during the Initial Term shall immediately vest and
become exercisable if the Approval Date occurs
prior to the Renewal Date, all of the Renewal
Options that are to vest during the Renewal Term
shall vest immediately and become exercisable if
the Approval Date occurs after the Renewal Date,
and fifty percent (50%) of any Milestone Options
that have not yet vested as of the Approval Date
but for which the Initial Triggering
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Events (as defined below) have occurred, shall
vest and become exercisable upon the Approval
Date.
For purposes of this Agreement, "Approval Date"
means the date on which any necessary corporate
action, including, but not limited to, shareholder
approval or board of director approval, has been
obtained in connection with any agreement,
transaction, or other event which, when given
effect, will constitute a Change in Control.
"Triggering Event" means, with respect to any
Milestone Options described on Exhibit B, the
Triggering Event described in subparagraph (a) of
each Milestone Option shown on Exhibit B attached
hereto.
(j) Release. The Corporation shall have the right to
condition the payment of any severance, continued
vesting of options, and/or provision of benefits
pursuant to this Agreement upon the delivery by
Executive to the Corporation of a release in form
and substance satisfactory to the Corporation of
any and all claims Executive may have against the
Corporation and its directors, officers,
employees, subsidiaries, affiliates, stockholders
(in their capacity as stockholders), successors,
assigns, agents and representatives arising out of
or related to Executive's employment by the
Corporation and the termination of such
employment.
8. Confidentiality, Ownership, and Covenants. Executive acknowledges and
agrees that the Corporation would not consummate the transactions contemplated
hereby without the assurance that Executive will not engage in any of the
activities prohibited by this Section 8, and will otherwise comply with this
Section 8, for the periods set forth herein. Executive agrees to restrict his
actions as provided for in this Section 8. Executive further acknowledges that
the scope and duration of the covenants set forth in this Section 8 are
reasonable in light of the specific nature and duration of the transactions
contemplated hereby. In consideration thereof, Executive agrees that he will not
assert in any forum that the provisions of this Section 8 prevent him from
earning a living or otherwise are void or unenforceable or should be held void
or unenforceable.
(a) "Corporation Information" and "Inventions" Defined. "Corporation
Information" means all information, knowledge or data of or pertaining to (i)
the Corporation, its employees and all work undertaken on behalf of the
Corporation, and (ii) any other person, firm, corporation or business
organization with which the Corporation may do business during the Term and
relating to the business of the Corporation, that (as to both (i) and (ii)
above) is not in the public domain (and whether relating to methods, processes,
techniques, discoveries, pricing, marketing or any other matters). "Inventions"
collectively refers to any and all inventions, trade secrets, ideas, processes,
formulas, source and object codes, data, programs, other works of authorship,
know-how, improvements, research, discoveries, developments, designs, and
techniques regarding any of the foregoing and relating to the business of the
Corporation.
(b) Confidentiality. (i) Executive hereby recognizes that the value
of all trade secrets and other proprietary data and all other information of the
Corporation not in the public
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domain disclosed by the Corporation in the course of his employment with the
Corporation may be attributable substantially to the fact that such confidential
information is maintained by the Corporation in strict confidentiality and
secrecy and would be unavailable to others without the expenditure of
substantial time, effort or money. Executive, therefore, except as provided in
the next two sentences, covenants and agrees that all Corporation Information
shall be kept secret and confidential at all times during the Term and for the
five (5) year period after the end of the Term and shall not be used or divulged
by him outside the scope of his employment as contemplated by this Agreement,
except as the Corporation may otherwise expressly authorize by action of the
Board. In the event that Executive is requested in a judicial, administrative or
governmental proceeding to disclose any of the Corporation Information,
Executive will promptly so notify the Corporation so that the Corporation may
seek a protective order of other appropriate remedy and/or waive compliance with
this Agreement. If disclosure of any of the Corporation Information is required,
Executive may furnish the material so required to be furnished, but Executive
will furnish only that portion of the Corporation Information that legally is
required.
(ii) Executive also hereby agrees to keep the terms of this
Agreement confidential to the same extent that the Corporation maintains such
confidentiality (except with regard to any disclosure by the Corporation
required under applicable securities laws).
(c) Ownership of Inventions, Patents and Technology. Executive
hereby assigns to the Corporation all of Executive's rights (including patent
rights, copyrights, trade secret rights, and all other rights throughout the
world), title and interest in and to Inventions, whether or not patentable or
registrable under copyright or similar statutes, made or conceived or reduced to
practice or learned by Executive, either alone or jointly with others, during
the course of the performance of services for the Corporation. Executive shall
also assign to, or as directed by, the Corporation, all of Executive's right,
title and interest in and to any and all Inventions, the full title to which is
required to be in the United States government of any of its agencies. The
Corporation shall have all right, title and interest in all research and work
product produced by Executive as an employee of the Corporation, including, but
not limited to, all research materials and lab books.
(d) Non-Competition Period Defined. "Non-Competition Period" means
the period beginning at the end of the Term and ending one (1) year after the
end of the Term.
(e) Covenants Regarding the Term and Non-Competition Period.
Executive acknowledges and agrees that his services pursuant to this Agreement
are unique and extraordinary; that the Corporation will be dependent upon
Executive for research, development and marketing expertise; and that he will
have access to and control of confidential information of the Corporation.
Executive further acknowledges that the business of the Corporation is
international in scope and cannot be confined to any particular geographic area.
Executive further acknowledges that the scope and duration of the restrictions
set forth in this Section 8(e) are reasonable in light of the specific nature
and duration of the transactions contemplated hereby. In order to induce the
Corporation to enter the Agreement, Executive covenants and agrees that, subject
to Section 8(h), during the Term and the Non-Competition Period Executive shall
not unless with written consent of the Corporation:
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(i) engage in any business directly related to the research
and development of the specific products or processes in which the
Corporation is engaged in during the Term (collectively the "Prohibited
Activity") in the world for his own account;
(ii) become interested in any individual, corporation,
partnership or other business entity (a "Person") engaged in any
Prohibited Activity in the world, directly or indirectly, as an
individual, partner, shareholder, officer, director, principal, agent,
employee, trustee, consultant or in any other relationship or capacity;
provided, however, that Executive may own directly or indirectly, solely
as an investment, securities of any Person which are traded on any
national securities exchange if Executive (x) is not a controlling person
of, or a member of a group which controls, such person or (y) does not,
directly or indirectly, own 5% or more of any class of securities of such
person; or
(iii) directly or indirectly hire, employ or retain any person
who at any time during the last two months of the Term was an employee of
the Corporation or directly or indirectly solicit, entice, induce or
encourage any such person to become employed by any other person.
(f) Remedies. Executive hereby acknowledges that the covenants and
agreements contained in Section 8 are reasonable and valid in all respects and
that the Corporation is entering into this Agreement, inter alia, on such
acknowledgement. If Executive breaches, or threatens to commit a breach, of any
of the restrictive covenants set forth in this Agreement (the "Restrictive
Covenants"), the Corporation shall have the following rights and remedies, each
of which rights and remedies shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Corporation under
law or in equity: (i) the right and remedy to have the Restrictive Covenants
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Corporation and that money damages will not provide an
adequate remedy to the Corporation; and (ii) the right and remedy to require
Executive to account for and pay over to the Corporation such damages as are
recoverable at law as the result of any transactions constituting a breach of
any of the Restrictive Covenants.
(g) Jurisdiction. The parties intend to and hereby confer
jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Covenants. If the courts of
any one or more such jurisdictions hold the Restrictive Covenants wholly
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties that such determination not bar or in any way affect
the Corporation's right to the relief provided above in the courts of any other
jurisdiction, within the geographical scope of such Covenants, as to breaches of
such Covenants in such other respective jurisdiction such Covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
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(h) Executive's agreements and covenants under Section 8 shall
automatically terminate if (i) the Corporation ends the Term without Cause or
(ii) Executive resigns for Good Reason as provided in Section 7(e).
9. Successors and Assigns.
(a) Executive. This Agreement is a personal contract, and the rights
and interests that the Agreement accords to Executive may not be sold,
transferred, assigned, pledged, encumbered, or hypothecated by him. All rights
and benefits of Executive shall be for the sole personal benefit of Executive,
and no other person shall acquire any right, title or interest under this
Agreement by reason of any sale, assignment, transfer, claim or judgement or
bankruptcy proceedings against Executive. Except as so provided, this Agreement
shall inure to the benefit of and be binding upon Executive and his personal
representatives, distributes and legatees.
(b) The Corporation. This Agreement shall be binding upon the
Corporation and inure to the benefit of the Corporation and of its successors
and assigns, including (but not limited to) any corporation that may acquire all
or substantially all of the corporation's assets or business or into or with
which the Corporation may be consolidated or merged. In the event that the
Corporation sells all or substantially all of its assets, merges or
consolidates, otherwise combines or affiliates with another business, dissolves
and liquidates, or otherwise sells or disposes of substantially all of its
assets, the Corporation's obligations under this Agreement shall cease if the
successor to the Corporation, the purchaser or acquirer either of the
Corporation or of all or substantially all of its assets, or the entity with
which the Corporation has affiliated, shall enter into an agreement with
Executive with mutually acceptable terms under which it agrees to assume in
writing the Corporation's obligations under this Agreement and to equitably
convert all options under this Agreement (and deliver and executed copy of such
assumption to Executive), in which case such successor or purchaser, but not the
Corporation, shall thereafter be the only party obligated to perform the
obligations that remain to be performed on the part of the Corporation under
this Agreement.
10. Entire Agreement. This Agreement represents the entire agreement
between the parties concerning Executive's employment with the Corporation and
supersedes all prior negotiations, discussions, understanding and agreements,
whether written or oral, between Executive and the Corporation relating to the
subject matter of this Agreement.
11. Amendment or Modification, Waiver. No provision of this Agreement may
be amended or waived unless such amendment or waiver is agreed to in writing
signed by Executive and by a duly authorized officer of the Corporation. No
waiver by any party to this Agreement or any breach by another party of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same time, any prior time or any subsequent time.
12. Notices. Any notice to be given under this Agreement shall be in
writing and delivered personally or sent by overnight courier or registered or
certified mail, postage prepaid, return receipt requested, addressed to the
party concerned at the address indicated below, or to such other address of
which such party subsequently may give notice in writing:
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If to Executive: Xxxxxxx Xxxxxx, M.D.
0000 00xx Xxxxx, XX
Building No. One, #l04
Naples, FL 341 16
with a copy to: Katz, Teller, Xxxxx & Xxxx
2400 Chemed Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
If to the Corporation: SIGA Technologies, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Any notice delivered personally or by overnight courier shall be deemed given on
the date delivered and any notice sent by registered or certified mail, postage
prepaid, return receipt requested, shall be deemed given on the date mailed.
13. Severability. If any provision of this Agreement or the application of
any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid and unenforceable shall not be affected, and each provision of this
Agreement shall be validated and shall be enforced to the fullest extent
permitted by law. If for any reason any provision of this Agreement containing
restrictions is held to cover an area or to be for a length of time that is
unreasonable or in any other way is construed to be too broad or to any extent
invalid, such provision shall not be determined to be entirely null, void and of
no effect; instead, it is the intention and desire of both the Corporation and
Executive that, to the extent that the provision is or would be valid or
enforceable under applicable law, any court of competent jurisdiction shall
construe and interpret or reform this Agreement to provide for a restriction
having the maximum enforceable area, time period and such other constraints or
conditions (although not greater than those contained currently contained in
this Agreement) as shall be valid and enforceable under the applicable law.
14. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
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15. Headings. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience of reference, and no provision of
this Agreement is to be construed by reference to the heading of any section or
paragraph.
16. Withholding Taxes. All salary, benefits, reimbursements and any other
payments to Executive under this Agreement shall be subject to all applicable
payroll and withholding taxes and deductions required by any law, rule or
regulation of and federal, state or local authority.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together constitute one and same instrument.
18. Other Obligations. Executive represents and warrants that neither
Executive's employment with the Corporation nor Executive's performance of
Executive's obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other obligations, legal or otherwise, which Executive may
have. Executive covenants that he shall perform his duties hereunder in a
professional manner and not in conflict or violation, or otherwise inconsistent
with other obligations legal or otherwise, which Executive may have.
19. Applicable Law; Arbitration. The validity, interpretation and
enforcement of this Agreement and any amendments or modifications hereto shall
be governed by the laws of the State of New York, as applied to a contract
executed within and to be performed in such State. The parties agree that any
disputes shall be definitively resolved by binding arbitration before in
accordance with the Rules of the American Arbitration Association, with the
arbitration hearing to be held in New York, New York. The parties hereby consent
to the jurisdiction to the federal courts of the Southern District of New York
or, if there shall be no jurisdiction, to the state courts located in New York
County, New York, to enforce any arbitration award rendered with respect
thereto. Each party shall choose one neutral arbitrator and the two neutral
arbitrators shall choose a third neutral arbitrator. All costs and fees related
to such arbitration (and judicial enforcement proceedings, if any) shall be
borne and allocated by and between the parties as the arbitrators decide is
appropriate, with the intent that the party who is the most unsuccessful should
bear most (or all) of said costs and fees.
20. Regulatory Compliance. The Corporation shall implement any reasonable
audit procedures or controls and take such other acts reasonably recommended by
the Corporation's Audit Committee, Chief Financial Officer, or Executive if such
procedures or controls are reasonably required to ensure regulatory compliance,
and the Corporation shall timely make all necessary filings required under
applicable laws and regulations, including, but not limited to, the
Xxxxxxxx-Xxxxx Act.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SIGA TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
Acting Chief Executive Officer and
Chief Financial Officer
/s/ Xxxxxxx Xxxxxx, M.D.
----------------------------------
Xxxxxxx Xxxxxx, M.D.
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