Contract
Exhibit 4.1
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY OR ACQUIRABLE UPON EXERCISE HEREOF HAVE NOT
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 REGISTRATION
UNDER SAID ACT IS NOT REQUIRED.
SPECTRUM PHARMACEUTICALS, INC.
WARRANT
Dated: April 28, 2008 | Number: SPPI 429 |
Spectrum Pharmaceuticals, Inc., a Delaware corporation (the “Company”), hereby certifies that,
for value received, Xxxx X. Xxxxx or his registered assigns (“Holder”), is entitled, subject to the
terms set forth below, to purchase from the Company up to a total of 50,000 shares of Common Stock,
$.001 par value per share (the “Common Stock”), of the Company (each such share, a “Warrant Share”
and all such shares, the “Warrant Shares”) at an exercise price equal to $1.79 per share (as
adjusted from time to time as provided in Section 7, the “Exercise Price”), at any time from and
including April 28, 2008 (the “Effective Date”) through and including April 27, 2013 (the
“Expiration Date”), in accordance with the vesting schedule set forth in Section 3 (b), subject to
the following terms and conditions:
(a) This Warrant may not be sold, transferred, assigned, pledged, hypothecated or otherwise
disposed, directly or indirectly, in whole or in part, without the prior written consent of the
Company. Any attempted sale, transfer, assignment, pledge, hypothecation or other disposition of
this Warrant, or any portion thereof, shall be void and without any force or effect; provided,
however, that, subject to compliance with any applicable securities laws, the Holder may transfer
this Warrant, or any portion thereof, without the prior written consent of the Company, if such
transfer is to (i) a spouse, child, grandchild, parent, sibling or custodian or trustee for the
benefit of any such relatives, or (ii) any shareholder or affiliate entity.
(b) The Company shall register the transfer of any portion of this Warrant in conformance with
Section 2(a) in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto duly completed and signed, to the Company at
the office specified in or pursuant to Section 10. Upon any such registration or transfer, a new
warrant to purchase Common Stock, in substantially the form of this Warrant (any such new warrant,
a “New Warrant”), evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred,
if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the
transferee thereof shall be deemed the acceptance of such transferee of all of the rights and
obligations of a holder of this Warrant.
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(c) This Warrant is exchangeable, upon the surrender hereof by the Holder to the office of the
Company specified in or pursuant to Section 10 for one or more New Warrants, evidencing in the
aggregate the right to purchase the number of Warrant Shares which may then be purchased hereunder.
(d) 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 REGISTRATION
UNDER SAID ACT IS NOT REQUIRED.”
(a) This Warrant shall be exercisable by the then registered Holder on any business day before
5:00 P.M., California time, at any time and from time to time on or after the Effective Date to and
including the Expiration Date. At 5:00 P.M., California time on the Expiration Date, the portion of
this Warrant not exercised prior thereto shall be and become void and of no value.
(b) This Warrant shall vest in accordance with the following schedule:
a. | Twenty-five (25%) percent of the shares
shall vest and become exercisable upon the Effective Date of the
warrant; and |
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b. | The remaining shares shall vest in
equal twenty-five (25%) percent increments every six months from
the Effective Date of the warrant thereafter. |
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In the event that the Consulting Agreement dated September 20, 2005,
as amended, by and between the Company and JTM Consulting, Inc.,
expires or is terminated by either party prior to any vesting date, no
further vesting will occur following such termination. |
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(c ) Upon surrender of this Warrant, with the Form of Election to Purchase attached hereto
duly completed and signed, to the Company at its address for notice set forth in Section 10 and
upon payment of the Exercise Price multiplied by the number of Warrant Shares that the Holder
intends to purchase hereunder, in the manner provided hereunder, all as specified by the Holder in
the Form of Election to Purchase, the Company shall promptly (and in any event, within four
business days) issue or cause to be issued and cause to be delivered to or upon the written order
of the Holder and in such name or names as the Holder may designate, a certificate for the Warrant
Shares issuable upon such exercise. Any person so designated by the Holder to receive Warrant
Shares shall be deemed to have become holder of record of such Warrant Shares as of the Date of
Exercise of this Warrant.
A. “Date of Exercise” means the date on which the Company shall have received (i) this Warrant
(or any New Warrant, as applicable), with the Form of Election to Purchase attached hereto (or
attached to such New Warrant) appropriately completed and duly signed, and (ii) payment of the
Exercise Price for the number of Warrant Shares so indicated by the holder hereof to be purchased.
(c) This Warrant shall be exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. If less than all of the Warrant Shares which may be
purchased under this Warrant are exercised at any time, the Company shall issue or cause to be
issued, at its expense, a New Warrant evidencing the right to purchase the remaining number of
Warrant Shares for which no exercise has been evidenced by this Warrant.
(d) 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 shares, receive dividends or other distributions thereon or be notified of
stockholder meetings (except as otherwise set forth in Section 7(f) herein).
(e) If by the tenth business day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section 3(b), then the Holder
will have the right to rescind such exercise.
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(a) If the Company, at any time while this Warrant is outstanding, (i) shall pay a stock
dividend (except scheduled dividends paid on outstanding preferred stock which contain a stated
dividend rate) or otherwise make a distribution or distributions on shares of its Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock into a larger
number of shares, or (iii) combine outstanding shares of Common Stock into a smaller number of
shares, the Exercise Price shall be multiplied by a fraction of which the numerator shall be the
number of shares of Common Stock (excluding treasury shares, if any) outstanding before such event
and the denominator shall be the number of shares of Common Stock (excluding treasury shares, if
any) outstanding after such event. Any adjustment made pursuant to this Section shall become
effective immediately after the record date for the determination of stockholders entitled to
receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision or combination, and shall apply to successive subdivisions and
combinations.
(b) In case of any reclassification of the Common Stock, any consolidation or merger of the
Company with or into another person, the sale or transfer of all or substantially all of the assets
of the Company or any compulsory share exchange pursuant to which the Common Stock is converted
into other securities, cash or property, then the Holder shall have the right thereafter to
exercise this Warrant only into the shares of stock and other
securities and property receivable upon or deemed to be held by holders of Common Stock following
such reclassification, consolidation, merger, sale, transfer or share exchange, and the Holder
shall be entitled upon such event to receive such amount of securities or property equal to the
amount of Warrant Shares such Holder would have been entitled to had such Holder exercised this
Warrant immediately prior to such reclassification, consolidation, merger, sale, transfer or share
exchange. The terms of any such consolidation, merger, sale, transfer or share exchange shall
include such terms so as to continue to give to the Holder the right to receive the securities or
property set forth in this Section 7(b) upon any exercise following any such reclassification,
consolidation, merger, sale, transfer or share exchange.
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(c) If the Company, at any time while this Warrant is outstanding, shall distribute to all
holders of Common Stock (and not to holders of this Warrant) evidences of its indebtedness or
assets or rights or warrants to subscribe for or purchase any security (excluding those referred to
in Sections 7(a), and (b)), other than as part of its dissolution or liquidation or the winding up
of its affairs, then in each such case the Exercise Price shall be determined by multiplying the
Exercise Price in effect immediately prior to the record date fixed for determination of
stockholders entitled to receive such distribution by a fraction of which the denominator shall be
the fair market value of a share of Common Stock determined as of the record date mentioned above,
and of which the numerator shall be the fair market value of a share of Common Stock determined as
of such record date less the fair market value at such record date of the portion of such assets or
evidence of indebtedness so distributed applicable to one outstanding share of Common Stock as
determined by the Company’s independent certified public accountants that regularly examines the
financial statements of the Company (an “Appraiser”).
(d) For the purposes of this Section 7, the following clauses shall also be applicable:
(i) | Record Date. In case the Company
shall take a record of the holders of its Common Stock for the
purpose of entitling them (A) to receive a dividend or other
distribution payable in Common Stock or in securities
convertible or exchangeable into shares of Common Stock, or (B)
to subscribe for or purchase Common Stock or securities
convertible or exchangeable into shares of Common Stock, then
such record date shall be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or the making of such
other distribution or the date of the granting of such right of
subscription or purchase, as the case may be. |
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(ii) | Treasury Shares. The number of
shares of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the
Company, and the disposition of any such shares shall be considered an
issue or sale of Common Stock. |
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(e) All calculations under this Section 7 shall be made to the nearest
cent or the nearest 1/100th of a share, as the case may be.
(f) If:
(i) | the Company shall declare a
dividend (or any other distribution) on its Common Stock; or |
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(ii) | the Company shall declare a
special nonrecurring cash dividend on or a redemption of its
Common Stock; or |
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(iii) | the Company shall authorize the
granting to all holders of the Common Stock rights or warrants
to subscribe for or purchase any shares of capital stock of any
class or of any rights; or |
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(iv) | the approval of any stockholders
of the Company shall be required in connection with any
reclassification of the Common Stock of the Company, any
consolidation or merger to which the Company is a party, any
sale or transfer of all or substantially all of the assets of
the Company, or any compulsory share exchange whereby the Common
Stock is converted into other securities, cash or property; or |
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(v) | the Company shall authorize the
voluntary dissolution, liquidation or winding up of the affairs
of the Company, |
then the Company shall cause to be mailed to each Holder at their last addresses as they shall
appear upon the Warrant Register, at least 30 calendar days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distributions, redemption, rights or warrants are to be determined or
(y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, 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,
sale, transfer, share exchange, dissolution, liquidation or winding up; provided, however, that the
failure to mail such notice or any defect therein or in the mailing thereof shall not affect the
validity of the corporate action required to be specified in such notice.
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10. Notices. Any and all notices or other communications or deliveries hereunder shall be in
writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile telephone number specified
in this Section prior to 5:00 p.m. (California time) on a business day, (ii) the business day after
the date of transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section later than 5:00 p.m. (California time) on any
date and earlier than 11:59 p.m. (California time) on such date, (iii) the business day following
the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon
actual receipt by the party to whom such notice is required to be given. The addresses for such
communications shall be: (i) if to the Company, to 000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000,
Attention: CEO, or to facsimile no. (000) 000-0000, or (ii) if to the Holder, to the Holder at the
address or facsimile number appearing on the Warrant Register or such other address or facsimile
number as the Holder may provide to the Company in accordance with this Section 10.
(a) Business or Financial Expertise. Holder has either (i) a pre-existing personal or
business relationship with the Company or any of its officers, directors or controlling persons
that is of a nature and duration which enables Holder to be aware of the character, business acumen
and general business and financial circumstances of the Company or (ii) by reason of Holder’s
business or financial expertise or the business or financial experience of his
professional advisors who are unaffiliated with and who are not compensated by the Company or any
affiliate or selling agent of the Company, directly or indirectly, the capacity to protect his own
interests in connection with his acquisition of the Warrant and the underlying Warrant Shares.
Holder is an “accredited investor” as defined in Rule 501 of Regulation D of the Securities Act of
1933, as amended (the “Securities Act”).
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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 REGISTRATION UNDER SAID ACT IS NOT REQUIRED.
(e) Rule 144. Holder is aware of the provisions of Rule 144, promulgated under the Securities
Act, which, in substance, permits limited public resale of “restricted securities” acquired,
directly or indirectly, from the issuer thereof (or from an affiliate of such issuer), in a
non-public offering subject to the satisfaction of certain conditions. Holder understands that the
Warrant Shares constitute “restricted securities” for the purposes of Rule 144.
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(g) Risk. Holder further understands that in the event all of the requirements of Rule 144
are not satisfied, registration under the Securities Act, compliance with Regulation A, or some
other registration exemption will be required; and that, notwithstanding the fact that Rule 144 is
not exclusive, the Staff of the SEC has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons and their respective
brokers who participate in such transactions do so at their own risk.
(a) This Warrant shall be binding on and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Warrant may be amended only in writing signed by
the Company and the Holder and their successors and assigns.
(b) Subject to Section 13(a), above, nothing in this Warrant shall be construed to give to any
person or corporation other than the Company and the Holder any legal or equitable right, remedy or
cause under this Warrant. This Warrant shall inure to the sole and exclusive benefit of the Company
and the Holder.
(c) This Warrant shall be governed by and construed and enforced in accordance with the
internal laws of the State of California without regard to the principles of conflicts of law
thereof. The Company and the Holder hereby irrevocably submit to the exclusive jurisdiction of the
state and federal courts sitting in Orange County, California, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, or that such
suit, action or proceeding is improper. Each of the Company and the Holder hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or
proceeding by receiving a copy thereof sent to it at the address in effect for notices to it under
this instrument and in the manner set forth in Section 10 above, and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law.
(d) The headings herein are for convenience only, do not constitute a part of this Warrant and
shall not be deemed to limit or affect any of the provisions hereof.
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(e) In case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt
in good faith to agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision
in this Warrant.
SPECTRUM PHARMACEUTICALS, INC. |
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By: | /S/ Xxxxxx X. Xxxxxxxxx, M.D. | |||
Name: | Xxxxxx X. Xxxxxxxxx, M.D. | |||
Title: | Chief Executive Officer and President | |||
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FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant)
Stock under the foregoing Warrant)
To Spectrum Pharmaceuticals, Inc.:
In accordance with the Warrant enclosed with this Form of Election to Purchase, the
undersigned hereby irrevocably elects to purchase shares of Common Stock (“Common
Stock”), $.001 par value per share, of Spectrum Pharmaceuticals, Inc. (the “Company”) encloses
herewith $ in cash, certified or official bank check or checks, which sum represents the
aggregate Exercise Price (as defined in the Warrant) for the number of shares of Common Stock to
which this Form of Election to Purchase relates, together with any applicable taxes payable by the
undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common Stock issuable upon this
exercise be issued in the name of:
PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER: |
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(Please print name and address) |
If the number of shares of Common Stock issuable upon this exercise shall not be all of the
shares of Common Stock which the undersigned is entitled to purchase in accordance with the
enclosed Warrant, the undersigned requests that a New Warrant (as defined in the Warrant)
evidencing the right to purchase the shares of Common Stock not issuable pursuant to the exercise
evidenced hereby be issued in the name of and delivered to:
(Please print name and address) |
By signing below, the Holder represents and warrants to the Company that the statements
contained in Section 12 are true and correct as of the date hereof, as if given on the date hereof.
Dated: ,
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Name of Holder: | |
(Print) | ||
(By:) | ||
(Name:) | ||
(Title:) | ||
(Signature must conform in all respects to name of holder as specified on the face of the Warrant) |
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FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the right represented by the Warrant enclosed with this Form of Assignment to
purchase shares of Common Stock of Spectrum Pharmaceuticals, Inc. to which the Warrant
relates and appoints attorney to transfer said right on the books of Spectrum
Pharmaceuticals, Inc. with full power of substitution in the premises.
Dated: ,
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(Signature must conform in all respects to name of holder as specified on the face of the Warrant) | ||
Address of Transferee | ||
In the presence of: |
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