Exhibit 4.2
SERIES 2003-1 WARRANT
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY OR ACQUIRABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE OFFERED, SOLD, ASSIGNED OR TRANSFERRED, IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
SALE IS EXEMPT FROM REGISTRATION UNDER SUCH ACT AND IS IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS UNLESS SUCH REGISTRATION IS NOT
REQUIRED.
Warrant to Purchase _________ Shares of Common Stock of
SPECTRUM PHARMACEUTICALS, INC.
THIS IS TO CERTIFY THAT _______________________, or registered
assigns (the "Holder"), is entitled, at any time prior to the Expiration Date
(as hereinafter defined), to purchase from Spectrum Pharmaceuticals, Inc. a
Delaware corporation (the "Company"), the Warrant Shares (as hereinafter defined
and subject to adjustment as provided herein), in whole or in part, at a
purchase price of $4.75 per share, all on and subject to the terms and
conditions hereinafter set forth.
1. DEFINITIONS. As used in this Warrant, the following terms have
the respective meanings set forth below:
"Additional Shares of Common Stock" means any shares of Common Stock
issued by the Company after the Closing Date.
"Affiliate" means any person or entity that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a person or entity, as such terms are used in and construed
under Rule 144 under the Securities Act. With respect to a Holder of Warrants,
any investment fund or managed account that is managed on a discretionary basis
by the same investment manager as such holder will be deemed to be an Affiliate
of such Holder.
"Appraised Value" means, in respect of any share of Common Stock on
any date herein specified, the fair saleable value of such share of Common Stock
(determined without giving effect to the discount for (i) a minority interest or
(ii) any lack of liquidity of the Common Stock or to the fact that the Company
may have no class of equity registered under the Exchange Act) as of the last
day of the most recent fiscal month ending prior to such date specified, based
on the value of the Company, as determined by a nationally recognized investment
banking firm selected by the Company's Board of Directors and having no prior
relationship with 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.
"Change of Control" means the (i) acquisition by an individual or
legal entity or group (as defined in Rule 13-d of the Exchange Act) of more than
one-half of the voting rights or equity interests in the Company; (ii) sale,
conveyance, or other disposition of all or substantially all of the assets,
property or business of the Company, (iii) any reorganization of the Company's
capital, or (iv) the merger into or consolidation with any other corporation
(other than a wholly owned subsidiary corporation) or effectuation of any
transaction or series of related transactions where holders of the Company's
voting securities prior to such transaction or series of transactions fail to
continue to hold at least 50% of the voting power of the Company.
"Closing Date" means August 13, 2003.
"Commission" means the Securities and Exchange Commission or any
other federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" means (except where the context otherwise indicates)
the Common Stock, $0.001 par value per share, of the Company as constituted on
the Closing Date, and any capital stock into which such Common Stock may
thereafter be changed or converted, 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 Common Stock upon any reclassification thereof which is
also not preferred as to dividends or assets on 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 4.3.
"Current Market Price" means, in respect of any share of Common
Stock on any date herein specified, if there shall not then be a public market
for the Common Stock, the higher of (a) the book value per share of Common Stock
on such date and (b) the Appraised Value per share of Common Stock at such date,
or if there shall then be a public market for the Common Stock, the higher of
(y) the book value per share of Common Stock on such date, and (z) the average
of the daily market prices for 20 consecutive Trading Days immediately preceding
such date. The daily market price for each such Trading Day shall be (i) the
last sale price on such day on the principal stock exchange on which such Common
Stock is then listed or admitted to trading, (ii) if no sale takes place on such
day on any such exchange, the average of the last reported closing bid and asked
prices on such day as officially quoted on any such exchange, (iii) if the
Common Stock is not then listed or admitted to trading on any stock exchange,
the average of the last reported closing bid and asked prices on such day in the
over-the-counter market, as furnished by the National Association of Securities
Dealers Automatic Quotation System or the National Quotation Bureau, Inc., (iv)
if neither such corporation at the time is engaged in the business of reporting
such prices, as furnished by any similar firm then engaged in such business, or
(v) if there is no such firm, as furnished by any member of the NASD selected
mutually by the holder of this Warrant and the Company or, if they cannot agree
upon such selection, as selected by two such members of the NASD, one of which
shall be selected by holder of this Warrant and one of which shall be selected
by the Company.
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"Current Warrant Price" means, in respect of a share of Common Stock
at any date herein specified, the price at which a share of Common Stock may be
purchased pursuant to this Warrant on such date. Until the Current Warrant Price
is adjusted pursuant to the terms herein, the initial Current Warrant Price
shall be $4.75 per share.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Exercise Period" means the period during which this Warrant is
exercisable pursuant to Section 2.1.
"Expiration Date" means August 13, 2008.
"GAAP" means generally accepted accounting principles in the United
States of America as from time to time in effect.
"NASD" means the National Association of Securities Dealers, Inc.,
or any successor corporation thereto.
"Other Property" has the meaning set forth in Section 4.3.
"Person" means any individual, sole proprietorship, partnership,
joint venture, trust, incorporated organization, association, corporation,
limited liability company, institution, public benefit corporation, entity or
government (whether federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
"Restricted Common Stock" means shares of Common Stock which are, or
which upon their issuance upon the exercise of any Warrant would be required to
be, evidenced by a certificate bearing the restrictive legend set forth in
Section 3.2.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Trading Day" means any day on which the primary market on which
shares of Common Stock are listed is open for trading.
"Transfer" means any disposition of any Warrant or Warrant Shares or
of any interest in either thereof, which would constitute a sale thereof within
the meaning of the Securities Act.
"Warrants" means this Warrant and all warrants issued upon transfer,
division or combination of, or in substitution for, any thereof. All Warrants
shall at all times be identical as to
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terms and conditions and date, except as to the number of shares of Common Stock
for which they may be exercised.
"Warrant Price" means an amount equal to (i) the number of shares of
Common Stock being purchased upon exercise of this Warrant pursuant to Section
2.1, multiplied by (ii) the Current Warrant Price.
"Warrant Shares" means any one or more of the shares of Common Stock
to be purchased upon the exercise hereof, subject to adjustment as provided
herein.
2. EXERCISE OF WARRANT.
2.1. Manner of Exercise. (a) From and after the Closing Date, and
until 5:00 P.M., New York time, on the Expiration Date (the "Exercise Period"),
the Holder may exercise this Warrant, on any Business Day, for all or any part
of the number of shares of Warrant Shares purchasable hereunder.
(b) In order to exercise this Warrant, in whole or in part,
the Holder shall deliver to the Company at its principal office or at the office
or agency designated by the Company pursuant to Section 10, (i) a written notice
of Xxxxxx's election to exercise this Warrant, which notice shall specify the
number of shares of Warrant Shares to be purchased, (ii) payment of the Warrant
Price as provided herein, and (iii) this Warrant. Such notice shall be
substantially in the form of the subscription form appearing at the end of this
Warrant as Exhibit A, duly executed by the Holder or its agent or attorney. Upon
receipt thereof, the Company shall, as promptly as reasonably practicable, and
in any event within five Business Days thereafter, execute or cause to be
executed and deliver or cause to be delivered to the Holder a certificate or
certificates representing the aggregate number of Warrant Shares issuable upon
such exercise, together with cash in lieu of any fraction of a share, as
hereinafter provided. The stock certificate or certificates so delivered shall
be, to the extent possible, in such denomination or denominations as the Holder
shall request in the notice and shall be registered in the name of the Holder or
such other name as shall be designated in the notice. This Warrant shall be
deemed to have been exercised and such certificate or certificates 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
shares for all purposes, as of the date when the notice, together with the
payment of the Warrant Price and this Warrant, is received by the Company as
described above. If this Warrant shall have been exercised in part, the Company
shall, at the time of delivery of the certificate or certificates representing
Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the
Holder to purchase the unpurchased shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or at the request of the Holder, appropriate notation may be made on
this Warrant and the same returned to the Holder.
(c) Payment of the Warrant Price may be made at the option
of the Holder by: (i) certified or official bank check payable to the order of
the Company, or (ii) wire transfer to the account of the Company. All shares of
Common Stock issuable upon the exercise of this Warrant pursuant to the terms
hereof shall be validly issued and, upon payment of the Warrant Price, shall be
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fully paid and nonassessable and not subject to any preemptive rights. The
Company shall pay all expenses in connection with, and all transfer, stamp or
similar taxes and other governmental charges that may be imposed with respect
to, the issue or deliver thereof, provided, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance of any certificates for Warrant Shares or Warrants in a
name other than the name of the Holder.
(d) Except for the provisions with respect to the Rights
Agreement set forth in Section 4.7 hereof, prior to the exercise of this
Warrant, the Holder shall not be entitled to any rights as a stockholder of the
Company with respect to the Warrant Shares, including, without limitation, the
right to vote such Warrant Shares, receive dividends or other distributions
thereon or to be notified of stockholder meetings, except as set forth herein.
2.2. 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 which 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 an amount in cash equal to
the Current Market Price per share of Common Stock on the date of exercise,
multiplied by such fraction.
2.3. Restrictions on Exercise Amount. Notwithstanding any contrary
or inconsistent provision hereof, the Holder may not acquire a number of Warrant
Shares to the extent that, upon such exercise, the number of shares of Common
Stock then beneficially owned by such holder and its Affiliates and any other
persons or entities whose beneficial ownership of Common Stock would be
aggregated with the Holder's for purposes of Section 13(d) of the Exchange Act
(including shares held by any "group" of which the holder is a member) exceeds
9.95%* of the total number of shares of Common Stock of the Company then issued
and outstanding (such limitation being herein referred to as the "Beneficial
Ownership Cap"); provided, however, that the Holder may acquire a number of
Warrant Shares that would cause the Holder to exceed the Beneficial Ownership
Cap upon 61 days' prior written notice of its intent thereof to the Company. For
purposes hereof, "group" has the meaning set forth in Section 13(d) of the
Exchange Act and applicable regulations of the Securities and Exchange
Commission, and the percentage held by the holder shall be determined in a
manner consistent with the provisions of Section 13(d) of the Exchange Act. The
Company shall have no obligation to verify compliance with this Section 2.3,
other than to issue Warrant Shares in accordance with the exercise notice of
each Holder. It shall be the responsibility of each Holder to determine such
Holder's compliance with the Beneficial Ownership Cap, and the Holder's exercise
notice shall be deemed a representation of the Holder that the number of shares
of Common Stock to be acquired pursuant to such exercise notice shall be in
compliance with the Beneficial Ownership Cap.
3. TRANSFER, DIVISION AND COMBINATION.
3.1. Transfer. The Warrants and the Warrant Shares shall be freely
transferable, subject to compliance with all applicable laws, including, but not
limited to the Securities Act. Transfer of this Warrant and all rights
hereunder, in whole or in part, shall be registered on the books
* 4.9% for the Warrant issued to Cranshire Capital
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of the Company to be maintained for such purpose, upon surrender of this Warrant
at the principal office of the Company referred to in Section 12.2 or the office
or agency designated by the Company pursuant to Section 10, together with a
written assignment of this Warrant substantially in the form of Exhibit B hereto
duly executed by the Holder or its agent or attorney and funds sufficient to pay
any transfer taxes payable upon the making of such transfer. Upon such surrender
and, if required, such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in the
denomination specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. The acceptance of the new Warrant
or Warrants by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of this Warrant.
Notwithstanding anything herein to the contrary, this Warrant may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws. Following a transfer that complies with the
requirements of this Section 3.1, the Warrant may be exercised by a new Holder
for the purchase of shares of Common Stock regardless of whether the Company
issued or registered a new Warrant on the books of the Company.
3.2. Restrictive Legend. Unless the resale of the Warrant Shares
has been registered under the Securities Act of 1933, as amended, each
certificate for Warrant Shares initially issued upon the exercise of this
Warrant, and each certificate for Warrant Shares issued to any subsequent
transferee of any such certificate, shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS
AMENDED, AND MAY NOT BE OFFERED, SOLD, ASSIGNED OR
TRANSFERRED, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE COMPANY THAT SUCH SALE IS EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND IS IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS UNLESS SUCH
REGISTRATION IS NOT REQUIRED."
3.3. Division and Combination; Expenses; Books. This Warrant may be
divided or combined with other Warrants upon presentation hereof at the
aforesaid office or agency of the Company, 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
Section 3.1 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. The Company shall prepare, issue and deliver at its own
expense the new Warrant or Warrants under this Section 3. The Company agrees to
maintain, at its aforesaid office or agency, books for the registration and the
registration of transfer of the Warrants.
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4. ADJUSTMENTS. The number of shares of Common Stock for which
this Warrant is exercisable, and the price at which such shares may be purchased
upon exercise of this Warrant, shall be subject to adjustment from time to time
as set forth in this Section 4. The Company shall give the Holder notice of any
event described below which requires an adjustment pursuant to this Section 4 in
accordance with Sections 5.1 and 5.2.
4.1 Stock Dividends, Subdivisions and Combinations. If at any time
while this Warrant is outstanding the Company shall:
i. take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, additional shares of Common Stock,
ii. subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, or
iii. combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock,
then:
(1) the number of shares of Common Stock acquirable upon
exercise of this Warrant immediately after the
occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record
holder of the same number of shares of Common Stock that
would have been acquirable under this Warrant
immediately prior to the occurrence of such event would
own or be entitled to receive after the happening of
such event, and
(2) the Warrant Price shall be adjusted to equal:
(A) the Current Warrant Price in effect immediately
prior to the occurrence of such event multiplied
by the number of shares of Common Stock into which
this Warrant is exercisable immediately prior to
the adjustment, divided by
(B) the number of shares of Common Stock into which
this Warrant is exercisable immediately after such
adjustment.
Any adjustment made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution, and any
adjustment pursuant to clauses (ii) or (iii) of this paragraph shall become
effective immediately after the effective date of such subdivision or
combination.
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4.2 Fractional Interests. In computing adjustments under this
Section 4, all calculations shall be made to the nearest 1/100th of a share.
4.3 Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets.
a. If, during the Exercise Period, there shall occur a
Change of Control and, pursuant to the terms of such Change of Control, shares
of common stock of the successor or acquiring corporation, or any cash, shares
of stock or other securities or property of any nature whatsoever (including
warrants or other subscription or purchase rights) in addition to or in lieu of
common stock of the successor or acquiring corporation ("Other Property"), are
to be received by or distributed to the holders of Common Stock of the Company,
then the Holder of this Warrant shall have the right thereafter to receive, upon
the exercise of the Warrant, the number of shares of common stock of the
successor or acquiring corporation or of the Company, if it is the surviving
corporation, and the Other Property receivable upon or as a result of such
Change of Control by a holder of the number of shares of Common Stock into which
this Warrant is exercisable immediately prior to such event.
b. In case of any such Change of Control, the successor or
acquiring corporation (if other than the Company) shall expressly assume the due
and punctual observance and performance of each and every covenant and condition
of contained in this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined by resolution of the Board of Directors of
the Company) in order to provide for adjustments of shares of the Common Stock
into which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in Section 4.
4.4 Other Action Affecting Common Stock. In case at any time or
from time to time the Company shall take any action in respect of its Common
Stock, then, unless such action will not have a materially adverse effect upon
the rights of the holder of this Warrant, the number of shares of Common Stock
or other stock into which this Warrant is exercisable and/or the purchase price
thereof shall be adjusted in such manner as may be equitable in the
circumstances.
4.5 Certain Limitations. Notwithstanding anything herein to the
contrary, the Company agrees not to enter into any transaction which, by reason
of any adjustment hereunder, would cause the Current Warrant Price to be less
than the par value per share of Common Stock.
4.6 Stock Transfer Taxes. The issue of stock certificates upon
exercise of this Warrant shall be made without charge to the holder for any tax
in respect of such issue.
4.7 Rights Distributed Under Rights Agreement. Capitalized terms
used in this Section 4.7 and which are not otherwise defined herein shall have
the meanings ascribed to them in the Rights Agreement (the "Rights Agreement")
dated as of December, 13, 2000, between the Company and U.S. Stock Transfer
Corporation. While the Rights Agreement or any other poison pill, rights plan or
similar arrangement (each, a "Rights Plan") shall be in effect:
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a. A Holder who exercises any portion of this Warrant
before the Distribution Date or before any Rights Certificates or similar right
(each a "Right") shall be evidenced by a separate rights certificate or before
any Right shall otherwise be transferable otherwise than in connection with the
transfer of the Warrant Shares (the date of the occurrence of any of the
foregoing being referred to herein as a "Rights Distribution Date") will
receive, upon exercise of this Warrant, in addition to the Warrant Shares
issuable upon exercise of this Warrant, one Right for each such Warrant Share.
b. A Holder who exercises any portion of this Warrant after
a Rights Distribution Date shall receive, upon exercise of this Warrant, in
addition to the Warrant Shares issuable upon exercise of this Warrant, such
number of Rights equal to the number of Rights such Holder would have held if,
immediately prior to the Rights Distribution Date, the portion of this Warrant
being exercised at such time had been exercised and the Warrant Shares issuable
upon such exercise were outstanding immediately prior to the Rights Distribution
Date. The Company shall issue to the Holder certificates evidencing such Rights,
no later than five business days following such exercise date. In the event the
applicable Rights Plan does not permit such Rights to be granted to each Holder,
the Corporation shall, in lieu of the Rights issuable pursuant to the
immediately preceding sentence, issue to each Holder an option, right or similar
arrangement giving each Holder the same rights and benefits as they would have
held upon the receipt of the applicable number of Rights.
5. NOTICES TO WARRANT HOLDERS.
5.1. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Current Warrant Price, or the number of shares
of Common Stock and the amount, if any of other property which at the time would
be received upon exercise of the Warrants owned by such Holder, the Company, at
its expense, shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to the Holder of this
Warrant a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The
Company shall, upon the written request at any time of the Holder of this
Warrant, furnish or cause to be furnished to such Holder a like certificate
setting forth (i) such adjustments and readjustments, (ii) the Current Warrant
Price at the time in effect and (iii) the number of shares of Common Stock and
the amount, if any, or other property which at the time would be received upon
the exercise of Warrants owned by such Holder.
5.2. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any
other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock of
the Company or any consolidation
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or merger of the Company with, or any sale, transfer or other disposition
of all or substantially all the property, assets or business of the
Company to, another corporation, or
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to the
Holder (i) at least 15 days' prior written notice of the record date shall
be selected for such dividend, distribution or right or for determining
rights to vote in respect of any such reorganization, reclassification,
merger, consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 15 days'
prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the
date on which any such record is to be taken for the purpose of such
dividend, distribution or right, the date on which the holders of Common
Stock shall be entitled to any such dividend, distribution or right, and
the amount and character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up is to take place and
the time, if any such time is to be fixed, as of which the holders of
Common Stock shall be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to the Holder at the last address of the
Holder appearing on the books of the Company and delivered in accordance
with Section 12.2. The failure to give any notice required by this Section
5.2 shall not invalidate any such corporate action.
5.3. Notice to Stockholders. The Holder shall be entitled to the
same rights to receive notice of corporation action as any holder of Common
Stock.
6. NO IMPAIRMENT. The Company shall not by any action, including,
without limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other 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. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (b) take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant, and (c) use its best efforts to
obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant. Upon the request of the
Holder, the Company will at any time during the period this
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Warrant is outstanding acknowledge in writing, in form satisfactory to the
Holder, the continuing validity of this Warrant and the obligations of the
Company hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK: REGISTRATION
WITH APPROVAL OF ANY GOVERNMENTAL AUTHORITY. From and after the Closing Date,
the Company shall at all times reserve and keep available for issue upon the
exercise of Warrants such number of its authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of all outstanding
Warrants. All shares of Common Stock which shall be so issuable, when issued
upon exercise of any Warrant and payment therefor in accordance with the terms
of such Warrant, shall be duly and validly issued and fully paid and
nonassessable, and not subject to preemptive rights. Before taking any action
which would cause an adjustment reducing the Current Warrant Price below the
then par value, if any, of the shares of Common Stock issuable upon exercise of
the Warrants, the Company shall take any corporate action which may be necessary
in order that the Company may validly and legally issue fully paid and
non-assessable shares of such Common Stock at such adjusted Current Warrant
Price. Before taking any action which would result in an adjustment in the
number of shares of Common Stock for which this Warrant is exercisable or in the
Current Warrant 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 thereof. If any shares of Common
Stock required to be reserved for issuance upon exercise of Warrants require
registration or qualification with any governmental authority under any federal
or state law before such shares may be so issued (other than as a result of a
prior or contemplated distribution by the Holder of this Warrant), the Company
will in good faith and as expeditiously as possible and at its expense endeavor
to cause such shares to be duly registered.
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS. 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 Section 4 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. The Company will 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. LOSS OR MUTILATION. Upon receipt by the Company from the
Holder of evidence reasonably satisfactory to it of the ownership of and the
loss, theft, destruction or mutilation of this Warrant and indemnity reasonably
satisfactory to it (it being understood that the written agreement of the
original Holder shall be sufficient indemnity) and in case of mutilation upon
surrender and cancellation hereof, the Company will execute and deliver in lieu
hereof a new Warrant of like tenor to the Holder; provided, however, that in the
case of mutilation, no indemnity shall be required if this Warrant in
identifiable form is surrendered to the Company for cancellation. Applicants for
a replacement Warrant under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable charges as
the Company may prescribe.
10. OFFICE OF THE COMPANY. 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
11
Company) where the Warrants may be presented for exercise, registration of
transfer, division or combination as provided in this Warrant.
11. LIMITATION OF LIABILITY. No provision hereof, in the absence
of affirmative action by the Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of the Holder hereof, shall give
rise to any liability of the Holder for the purchase price of any Common Stock,
whether such liability is asserted by the Company or by creditors of the
Company.
12. MISCELLANEOUS.
12.1. Nonwaiver and Expenses. No course of dealing or any delay or
failure to exercise any right hereunder on the part of the Holder shall operate
as a waiver of such right or otherwise prejudice Holder's rights, powers or
remedies. If the Company fails to make, when due, any payments provided for
hereunder, or fails to comply with any other provision of this Warrant, the
Company shall pay to the Holder such amounts as shall be sufficient to cover any
costs and expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights,
powers or remedies hereunder.
12.2. Notice Generally. All notices, requests, demands or other
communications provided for herein shall be in writing and shall be deemed to
have been given the next Business Day after being deposited with a nationally
recognized overnight courier such as Federal Express, or when personally
delivered, or successfully sent by facsimile transmission as evidenced by a fax
machine confirmation report thereof, addressed, as the case may be, to the
Holder at the address on the books and records of the Company, with a copy to
Xxxx Xxxxxxx, P.C., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Esq., Facsimile No. (000) 000-0000; or to the
Company, Spectrum Pharmaceuticals, Inc., at 000 Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Att'n: CEO, Fax No. (000) 000-0000; with a copy to Xxxxxx &
Xxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000,
Att'n: Xxxxx X. Xxxxxx, Esq., Fax No. 000-000-0000, or to such other person or
address as either party shall designate to the other from time to time in
writing forwarded in like manner.
12.3. Successors and Assigns. Subject to compliance with the
provisions of Section 3.1, this Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors of the Company and
the successors and assigns of the Holder. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this Warrant,
and shall be enforceable by any such Holder, but nothing in this Warrant shall
be construed to give any person or corporation or other entity, other than the
Company and the Holder and their respective successors and assigns, any legal or
equitable right, remedy or cause under this Warrant.
12.4. Amendment. This Warrant may be modified or amended or the
provisions of this Warrant waived with the written consent of the Company and
the Holder.
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12.5. 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 modified to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
12.6. Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant
12.7. Governing Law. This Warrant and the transactions contemplated
hereby shall be deemed to be consummated in the State of New York and shall be
governed by and interpreted in accordance with the local laws of the State of
New York without regard to the provisions thereof relating to conflict of laws.
The Company hereby irrevocably consents to the exclusive jurisdiction of the
State and Federal courts located in New York City, New York in connection with
any action or proceeding arising out of or relating to this Warrant. In any such
litigation the Company waives personal service of any summons, complaint or
other process and agrees that the service thereof may be made by certified or
registered mail directed to the Company at its address set forth in Section
12.2.
[SIGNATURE PAGE FOLLOWS:]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its duly authorized officer and attested by its Secretary.
Dated: August 13, 2003
SPECTRUM PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx, M.D.
Title: Chairman, Chief Executive
Officer and President
Attest:
By: /s/ Xxxx X. XxXxxxx
------------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President Finance and Strategic Planning and
Assistant Secretary
See Schedule 1 to the Common Stock and Warrant Purchase Agreement dated as of
August 13, 2003 (filed as Exhibit 10.1 to this Form 8-K) for name of each
purchaser receiving warrants and the number of warrants issued to each
Purchaser.
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant exercises this Warrant for the
purchase of shares of Common Stock of Spectrum Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and herewith makes payment therefor, all at the
price and on the terms and conditions specified in this Warrant and requests
that certificates for the shares of Common Stock hereby purchased (and any
securities or other property issuable upon such exercise) be issued in the name
of and delivered to and whose address is . [And, if such shares of
Common Stock shall not include all of the shares of Common Stock issuable as
provided in this Warrant, that a new Warrant of like tenor and date for the
balance of the shares of Common Stock issuable hereunder be delivered to the
undersigned.]
As of the date hereof, and assuming the accuracy of all information filed by the
Company with the Securities and Exchange Commission, the undersigned Holder
hereby certifies that the exercise of the referenced Warrant for the number of
Warrant Shares herein indicated will not put the undersigned Holder out of
compliance with the Beneficial Ownership Cap (as defined in the Warrant).
By signing below, the Holder warrants and represents that the Holder is an
"accredited investor" as that term is defined under Regulation D of the
Securities and Exchange Commission promulgated under the Securities Act of 1933,
as amended.
(Name of Registered Owner)
(Signature of Registered Owner)
(Street Address)
(State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the Warrant.
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant for the
purchase of shares of Spectrum Pharmaceuticals, Inc., a Delaware corporation,
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
Name and Address of Assignee
No. of Shares of Common Stock
and does hereby irrevocably constitute and appoint _______________
attorney-in-fact to register such transfer on the books of the Company,
maintained for the purpose, with full power of substitution in the premises.
Dated: Print Name:
Signature:
Witness:
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the Warrant in every particular.
