SIGA lied to PIP when it agreed to negotiate in good faith, then acted in bad faith in its negotiations.
SIGA lied when it told PIP its agreements would be "as good as a license agreement and would guarantee PharmAthene, a minimum, a license if negotiations for a merger fell through."
SIGA (i.e. Drapkin) lied to the Delaware Chancery Court in its testimony saying PIP had no interest in securing a license agreement.
Delaware Supreme Court affirmed each of these findings of fact originally made by the Chancery Court.
With opportunity to establish value of contract expectation damages, why would Parsons set low bar for SIGA's liability when it acted in Bad Faith? Wouldn't that encourage others to follow SIGA's path and ignore obligation to negotiate in good faith?
...but by the same standards PIP never protected their purported rights by removing "non-binding" from the LATS. They chose to launch a pre-emptive suit bfr. the termination date had expired and were already in merger discussions with another entity during the same period. Bad faith on PIP's part had never been raised especially by SIGA's defence, although the facts were there.
Check your facts: PIP was private at that time. Merger discussions I believe you are referring to are those that resulted in PIP going through reverse merger with blank check company after its attempt to reverse merge with SIGA failed. The introduction and discussion of this merger (which was completed in 2007) did not begin until day after PIP received notice of termination from SIGA. Notice it was the blank check company not PharmAthene that was in negotiations.
From SEC Proxy Filing of the blank check company filed Feb. 9, 2007:
On October 4, 2006, PharmAthene received from SIGA a notice of termination of the Merger Agreement in accordance with the terms thereof.
On October 5, 2006, Mr. Kinley was contacted by counsel to PharmAthene. The management of HAQ had previously worked with Counsel to PharmAthene on several healthcare investments and public companies. During the call, PharmAthenes counsel inquired if HAQ had committed to an acquisition. Mr. Kinley responded that HAQ was in negotiations with another healthcare company, but it had not yet signed a definitive agreement to merge. PharmAthene’s counsel inquired whether HAQ would consider discussing a possible business combination with PharmAthene. There were no pre-existing relationships between any of our initial stockholders and any insiders of PharmAthene. There are no direct business relations between any of the officers, directors or principal stockholders of HAQ and any of the officers, directors or principal stockholders of PharmAthene. However, counsel to PharmAthene also serves as counsel to a company on which John Pappajohn and Derace Schaffer, MD serve as members of the Board of Directors and of which Wayne Schellhammer is the President and Chief Executive Officer.
SIGA's defense has always been that there is no contract, no agreement, no obligation to negotiate in good faith and therefore no (or very little liability). Court soundly rejected this on basis of LATS inclusion in both the Bridge Loan Agreement, and Merger Agreement that included the LATS and the language requiring both parties negotiate in good faith in accordance with the terms of the LATS.
Lies and good/bad faith have been taken into account. The bottom line is calculation of damages. Parsons got it wrong (unacceptable to Supreme Court) last time, he'll get it right this time. No fuss, no muss just a reasonable ruling on reliance. SIGA has been consistently been beat up by short sellers..PIP holders, welcome to the club.