CONFIDENTIAL Dr. Rajesh C. Shrotriya M.D. Chief Executive Officer Spectrum Pharmaceuticals, Inc. 157 Technology Drive Irvine, CA 92618 Dear Dr. Shrotriya:
Exhibit 1.1
May 26, 2009
CONFIDENTIAL
Xx. Xxxxxx X. Xxxxxxxxx M.D.
Chief Executive Officer
Spectrum Pharmaceuticals, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Chief Executive Officer
Spectrum Pharmaceuticals, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxxxxxx:
This letter (the “Agreement”) constitutes the agreement between Xxxxxx & Xxxxxxx, LLC
(“Xxxxxx” or the “Placement Agent”) and Spectrum Pharmaceuticals, Inc. (the
“Company”), that Xxxxxx shall serve as the exclusive placement agent for the Company, on a
“reasonable best efforts” basis, in connection with the proposed placement, to close on or prior to
May 29, 2009 (the “Placement”), of registered securities of the Company, consisting of
shares (the “Shares”) of the Company’s common stock, par value $.001 per share (the
“Common Stock”), and warrants to purchase shares of Common Stock (the “Warrants”
and together with the Shares, the “Securities”). The terms of such Placement and the
Securities shall be mutually agreed upon by the Company and the purchasers (each, a
“Purchaser” and collectively, the “Purchasers”) and nothing herein constitutes that
Xxxxxx would have the power or authority to bind the Company or any Purchaser or an obligation for
the Company to issue any Securities or complete the Placement. This Agreement and the documents
executed and delivered by the Company to the Purchasers in connection with the Placement shall be
collectively referred to herein as the “Transaction Documents.” The date of the
closing of the Placement shall be referred to herein as the “Closing Date.” The Company
expressly acknowledges and agrees that Xxxxxx’x obligations hereunder are on a reasonable best
efforts basis only and that the execution of this Agreement does not constitute a commitment by
Xxxxxx to purchase the Securities and does not ensure the successful placement of the Securities or
any portion thereof or the success of Xxxxxx with respect to securing any other financing on behalf
of the Company.
SECTION 1. COMPENSATION AND OTHER FEES.
As compensation for the services provided by Xxxxxx xxxxxxxxx, the Company agrees to pay to
Xxxxxx:
(A) A cash fee payable immediately upon (but only in the event of) the closing of the
Placement and equal to 5% of the aggregate gross proceeds raised in the Placement from the sale of
the Securities sold on the closing. At the Company’s option, the Company may enter arrangements
with one or more broker dealers pursuant to which such broker dealers shall be entitled to receive
up to, in the aggregate, 10% of the cash fee payable by the Company (0.5% of the aggregate gross
proceeds) solely under this clause (A).
(B) A cash fee payable within 48 hours of (but only in the event of) the receipt by the
Company of any proceeds from the exercise of the Warrants sold in the Placement equal to 5% of the
aggregate cash exercise price received by the Company upon such exercise, if any.
(C) The Company also agrees to reimburse Xxxxxx’x reasonable expenses (with
supporting invoices/receipts) up to a maximum of 1.0 % of the aggregate gross proceeds
raised in the Placement, but in
Xxxxxx & Xxxxxxx, LLC 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
Tel: 000 000 0000 Fax: 000 000 0000 xxx.xxxx.xxx Member: FINRA, SIPC
Tel: 000 000 0000 Fax: 000 000 0000 xxx.xxxx.xxx Member: FINRA, SIPC
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no event more than $25,000. Such reimbursement shall be payable immediately
upon (but only in the event of) the closing of the Placement.
SECTION 2. REGISTRATION STATEMENT.
The Company represents and warrants to, and agrees with, the Placement Agent that:
(A) The Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (Registration File No. 333-150260) under
the Securities Act of 1933, as amended (the “Securities Act”), which became effective on
May 5, 2008, for the registration under the Securities Act of the Securities. At the time of such
filing, the Company met the requirements of Form S-3 under the Securities Act. Such registration
statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under
the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the
Commission promulgated thereunder, a supplement to the form of prospectus included in such
registration statement relating to the placement of the Securities and the plan of distribution
thereof and has advised the Placement Agent of all further information (financial and other) with
respect to the Company required to be set forth therein. Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement, is hereinafter called the
“Registration Statement”; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the “Base Prospectus”; and the supplemented
form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule
424(b) (including the Base Prospectus as so supplemented) is hereinafter called the “Prospectus
Supplement.” Any reference in this Agreement to the Registration Statement, the Base Prospectus
or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by
reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or
before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be; and any reference in this Agreement to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules and other information which is
“contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the Registration Statement,
the Base Prospectus or the Prospectus Supplement, as the case may be. No stop order suspending the
effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus
Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated
or, to the Company’s actual knowledge, is threatened by the Commission. For purposes of this
Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act and the “Time of Sale Prospectus” means the preliminary prospectus, if any,
together with the free writing prospectuses, if any, used in connection with the Placement,
including any documents incorporated by reference therein.
(B) The Registration Statement (and any further documents to be filed with the Commission in
connection with the Placement) contains or will contain, as applicable, all exhibits and schedules
as required by the Securities Act. Each of the Registration Statement and any post-effective
amendment thereto, at the time it became effective, complied in all material respects with the
Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as
amended or supplemented, if applicable, will not, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading. The Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, each as of its respective date, comply in all material respects with the
Securities Act and the Exchange Act and the applicable Rules and Regulations. Each of the Base
Prospectus,
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the Time of Sale Prospectus, if any, and the Prospectus Supplement, as amended or
supplemented, did not and will not contain as of the date thereof any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. Notwithstanding the
foregoing, the Company makes no representation or warranty as to information contained in or
omitted from the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any,
or the Prospectus Supplement, including any amendments or supplements thereto, in reliance upon,
and in conformity with, written information furnished to the Company by or on behalf of Xxxxxx
expressly for use in the preparation thereof. The Incorporated Documents, when they were filed
with the Commission, conformed in all material respects to the requirements of the Exchange Act and
the applicable Rules and Regulations, and none of such documents, when they were filed with the
Commission, contained any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein (with respect to Incorporated Documents incorporated by
reference in the Base Prospectus or Prospectus Supplement), in light of the circumstances under
which they were made not misleading; and any further documents so filed and incorporated by
reference in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus Supplement,
when such documents are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and will
not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading. No post-effective amendment to the Registration Statement reflecting any facts or
events arising after the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed with the
Commission. There are no documents required to be filed with the Commission in connection with the
transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities
Act or (y) will not be filed within the requisite time period. There are no contracts or other
documents required to be described in the Base Prospectus, the Time of Sale Prospectus, if any, or
Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which
have not been described or filed as required.
(C) The Company is eligible to use free writing prospectuses in connection with the Placement
pursuant to Rules 164 and 433 under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities Act in connection with the
Placement has been, or will be, filed with the Commission in accordance with the requirements of
the Securities Act and the applicable rules and regulations of the Commission thereunder. Each
free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or used by the Company in connection
with the Placement complies or will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission thereunder. The Company
will not, without the prior consent of the Placement Agent, prepare, use or refer to, any free
writing prospectus.
(D) The Company has delivered, or will as promptly as practicable deliver, to the Placement
Agent complete conformed copies of the Registration Statement and of each consent and certificate
of experts, as applicable, filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits), the Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has
distributed and none of them will distribute, prior to the Closing Date, any offering material in
connection with the offering and sale of the Shares other than the Base Prospectus, the Time of
Sale Prospectus, if any, the Prospectus Supplement, the Registration Statement, copies of the
documents incorporated by reference therein and any other materials permitted by the Securities
Act.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Except as set forth under the
corresponding section of the Disclosure Schedules which Disclosure Schedules shall be deemed a part
hereof, the Company hereby makes the representations and warranties set forth below to the
Placement Agent.
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(A) Organization and Qualification. All of the direct and indirect subsidiaries
(individually, a “Subsidiary”) of the Company are set forth in the SEC Reports (as defined
below). The Company owns, directly or indirectly, all of the capital stock or other equity
interests of each Subsidiary free and clear of any “Liens” (which for purposes of this
Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal,
preemptive right or other restriction, other than restrictions imposed by applicable securities
laws), and, except as set forth in the SEC Reports, all the issued and outstanding shares of
capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase securities. The Company and each of the
Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization (as applicable),
with the requisite power and authority to own and use its properties and assets and to carry on its
business as currently conducted. Neither the Company nor any Subsidiary is in violation or default
of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign corporation or other entity in
each jurisdiction in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in (i) a material adverse effect on
the legality, validity or enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s
ability to perform in any material respect its obligations under any Transaction Document (any of
(i), (ii) or (iii), a “Material Adverse Effect”) and, to the Company’s actual knowledge, no
“Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit,
investigation or proceeding (including, without limitation, an investigation or partial proceeding,
such as a deposition), whether commenced or threatened) has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and
authority or qualification.
(B) Authorization; Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each of the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary action on the part of
the Company and no further action is required by the Company, its board of directors or its
stockholders in connection therewith other than in connection with the “Required Approvals”
(as defined in subsection 3(D) below). Each Transaction Document has been (or upon delivery will
have been) duly executed by the Company and, when delivered in accordance with the terms hereof and
thereof, will constitute the valid and binding obligation of the Company enforceable against the
Company in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of
creditors’ rights generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
(C) No Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company, the issuance and sale of the Securities and the consummation by the
Company of the other transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both would become a default)
under, result in the creation of any Lien upon any of the properties or assets of the Company or
any Subsidiary, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset
of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the Company or a
Subsidiary is subject (including federal and state securities laws and regulations), or by which
any property or
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asset of the Company or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material
Adverse Effect.
(D) Filings, Consents and Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any filing or registration
with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind, including, without
limitation, any Trading Market) in connection with the execution, delivery and performance by the
Company of the Transaction Documents, other than such filings as are required to be made under
applicable Federal and state securities laws, rules and regulations promulgated by the Company’s
Trading Market and rules and regulations promulgated by FINRA (collectively, the “Required
Approvals”).
(E) Issuance of the Securities; Registration. The Securities are duly authorized and,
when issued and paid for in accordance with the applicable Transaction Documents, will be duly and
validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized capital stock the maximum number of shares of
Common Stock issuable pursuant to the Transaction Documents. The issuance by the Company of the
Securities has been registered under the Securities Act and all of the Securities are freely
transferable and tradable by the Purchasers without restriction (other than any restrictions
arising solely from an act or omission of a Purchaser). The Securities are being issued pursuant
to the Registration Statement and the issuance of the Securities has been registered by the Company
under the Securities Act. The Registration Statement was declared effective on May 5, 2008 and is
available for the issuance of the Securities thereunder and the Company has not received any notice
that the Commission has issued or intends to issue a stop-order with respect to the Registration
Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, or intends or has threatened in writing
to do so. The “Plan of Distribution” section under the Registration Statement permits the issuance
and sale of the Securities hereunder. Upon receipt of the Securities, the Purchasers will have
good and marketable title to such Securities and the Shares will be freely tradable on the
“Trading Market” (which, for purposes of this Agreement shall mean the following markets or
exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the NYSE Amex
Equities Market or the New York Stock Exchange).
(F) Capitalization. The capitalization of the Company is as set forth in the
Prospectus, as updated by the SEC Reports. As of the date of this Agreement, the Company has not
issued any capital stock since it filed its most recently filed periodic report under the Exchange
Act, other than pursuant to the exercise of employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock
purchase plan and pursuant to the conversion or exercise of securities exercisable, exchangeable or
convertible into Common Stock (“Common Stock Equivalents”). No Person has any right of
first refusal, preemptive right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents. Except as disclosed in the SEC Reports, as
a result of the purchase and sale of the Securities, pursuant to equity compensation plans or
agreements filed as exhibits to the SEC Reports or pursuant to a prior agreement with Xxxxxx, there
are no outstanding options, warrants, script rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any
shares of Common Stock, or contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or
Common Stock Equivalents. The issuance and sale of the Securities will not obligate the Company to
issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will
not result in a right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under such securities. All of the outstanding shares of capital stock of
the Company are validly issued, fully paid and nonassessable, have been issued in compliance with
all federal and state securities laws, and none of
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such outstanding shares was issued in violation of any preemptive rights or similar rights to
subscribe for or purchase securities. No further approval or authorization of any stockholder, the
Board of Directors of the Company or others is required for the issuance and sale of the
Securities. There are no stockholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or, to the actual
knowledge of the Company, between or among any of the Company’s stockholders.
(G) SEC Reports; Financial Statements. The Company has complied in all material
respects with requirements to file all reports, schedules, forms, statements and other documents
filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company
was required by law to file such material) (the foregoing materials, including the exhibits thereto
and documents incorporated by reference therein, being collectively referred to herein as the
“SEC Reports”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of
the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(H) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date
of the latest audited financial statements included within the SEC Reports, except as specifically
disclosed in the SEC Reports, (i) there has been no event, occurrence or development that has had
or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has
not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent with past practice and (B)
liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or
required to be disclosed in filings made with the Commission, (iii) the Company has not altered its
method of accounting, (iv) the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity
securities to any officer, director or “Affiliate” (defined as any Person that, directly or
indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 144 under the Securities
Act), except pursuant to existing Company stock option plans. Except for the issuance of the
Securities contemplated by this Agreement or as set forth on Schedule 3(H), no event, liability or
development has occurred or exists with respect to the Company or its Subsidiaries or their
respective business, properties, operations or financial condition, that would be required to be
disclosed by the Company under applicable securities laws at the time this representation is made
that has not been publicly disclosed prior to the date that this representation is made.
(I) Litigation. Except as disclosed in the SEC Reports, there is no action, suit,
inquiry, notice of violation, Proceeding or investigation pending or, to the actual knowledge of
the Company, threatened against or affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i)
adversely affects or challenges the legality, validity or enforceability of any
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of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any Subsidiary, nor, to the Company’s actual knowledge, any director or officer
thereof, is or has been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty. There has not been,
and to the actual knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or, to the Company’s actual knowledge, any director or
officer of the Company. The Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any Subsidiary under the
Exchange Act or the Securities Act. None of the Company’s or its Subsidiaries’ employees is a
member of a union that relates to such employee’s relationship with the Company, and neither the
Company or any of its Subsidiaries is a party to a collective bargaining agreement, and the Company
and its Subsidiaries believe that their relationships with their employees are good. No executive
officer, to the actual knowledge of the Company, is, or is now expected to be, in violation of any
material term of any employment contract, confidentiality, disclosure or proprietary information
agreement or non-competition agreement, or any other contract or agreement or any restrictive
covenant, and, to the Company’s actual knowledge, the continued employment of each such executive
officer does not subject the Company or any of its Subsidiaries to any liability with respect to
any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S.
federal, state, local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except where the failure to be
in compliance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(J) Labor Relations. No material labor dispute exists or, to the actual knowledge of
the Company, is imminent with respect to any of the employees of the Company which could reasonably
be expected to result in a Material Adverse Effect.
(K) Compliance. Neither the Company nor any Subsidiary (i) is in default under or in
violation of (and no event has occurred that has not been waived that, with notice or lapse of time
or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation
of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not such default or violation
has been waived), (ii) is in violation of any order of any court, arbitrator or governmental body,
or (iii) is or has been in violation of any statute, rule or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws applicable to
its business and all such laws that affect the environment, except in each case as could not have a
Material Adverse Effect.
(L) Regulatory Permits. The Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not have or reasonably be expected to result
in a Material Adverse Effect (“Material Permits”), and neither the Company nor any
Subsidiary has received any notice of proceedings relating to the revocation or modification of any
Material Permit, except where such potential revocation or modification would not reasonably be
expected to result in a Material Adverse Effect.
(M) Title to Assets. The Company and the Subsidiaries have good and marketable title
in fee simple to all real property owned by them that is material to the business of the Company
and the Subsidiaries and good and marketable title in all personal property owned by them that is
material to the business of the Company and the Subsidiaries, in each case free and clear of all
Liens, except for Liens created under license or collaboration agreements relating to the Company’s
products or Intellectual Property Rights and Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property
by the Company and the Subsidiaries and Liens for the payment of federal, state or other taxes, the
payment of which is neither delinquent nor subject to penalties. Any real property and facilities
held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases of which
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the Company and the Subsidiaries are in compliance with the provisions thereof, except where
such non-compliance would not have a Material Adverse Effect.
(N) Patents and Trademarks. The Company and the Subsidiaries have, or have rights to
use, all patents, patent applications, trademarks, trademark applications, service marks, trade
names, trade secrets, inventions, copyrights, licenses and other similar intellectual property
rights necessary or material for use in connection with their respective businesses as described in
the SEC Reports and which the failure to so have could have a Material Adverse Effect
(collectively, the “Intellectual Property Rights”). To the actual knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property Rights of the Company which
would reasonably be expected to have a Material Adverse Effect. To the actual knowledge of the
Company, none of the Intellectual Property Rights used by the Company or any Subsidiary violates or
infringes upon the rights of any Person which would reasonably be expected to have a Material
Adverse Effect. The Company and its Subsidiaries have taken reasonable security measures to
protect the secrecy, confidentiality and value of all of their intellectual properties, except
where failure to do so could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(O) Insurance. The Company and the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent and
customary in the businesses in which the Company and the Subsidiaries are engaged, including, but
not limited to, directors and officers insurance coverage at least equal to the aggregate
subscription amount under the Transaction Documents. Neither the Company nor any Subsidiary has
any reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect.
(P) Transactions With Affiliates and Employees. Except as set forth in the SEC
Reports, none of the officers or directors of the Company is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the actual knowledge of the
Company, any entity in which any officer, director, or any such employee has a substantial interest
or is an officer, director, trustee or partner, in each case in excess of $120,000, other than for
(i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including stock option
agreements under any stock option plan of the Company.
(Q) Xxxxxxxx-Xxxxx. The Company is in material compliance with all provisions of the
Xxxxxxxx-Xxxxx Act of 2002 which are applicable to it as of the Closing Date.
(R) Certain Fees. Except as otherwise provided in this Agreement or as set forth in
the Prospectus Supplement, no brokerage or finder’s fees or commissions are or will be payable by
the Company to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by the Transaction
Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any
claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by the Transaction Documents.
(S) Trading Market Rules. The issuance and sale of the Securities hereunder does not
contravene the rules and regulations of the Company’s Trading Market.
(T) Investment Company. The Company is not, and is not an Affiliate of, and
immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
Page 9
(U) Registration Rights. No Person has any right to cause the Company to effect the
registration under the Securities Act of any securities of the Company.
(V) Listing and Maintenance Requirements. The Company’s Common Stock is registered
pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action
designed to, or which to its actual knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act nor has the Company received any
notification that the Commission is contemplating terminating such registration. The Company has
not, in the 12 months preceding the date hereof, received notice from any Trading Market on which
the Common Stock is or has been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such Trading Market. The Company is, and
has no reason to believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements.
(W) Application of Takeover Protections. The Company and its Board of Directors have
taken all necessary action, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights agreement) or other
similar anti-takeover provision under the Company’s Certificate of Incorporation (or similar
charter documents) or the laws of its state of incorporation that is or could become applicable to
the Purchasers solely as a result of the Company’s issuance of the Securities and the Purchasers’
ownership of the Securities.
(X) Solvency. Based on the financial condition of the Company as of the Closing Date
after giving effect to the receipt by the Company of the proceeds from the sale of the Securities
hereunder, (i) the Company’s fair saleable value of its assets exceeds the amount that will be
required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature; (ii) the Company’s assets do not
constitute unreasonably small capital to carry on its business for the current fiscal year as now
conducted and as proposed to be conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the Company; and (iii) the current
cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be
sufficient to pay all amounts on or in respect of its debt when such amounts are required to be
paid. The Company does not intend to incur debts beyond its ability to pay such debts as they
mature (taking into account the timing and amounts of cash to be payable on or in respect of its
debt). The Company has no actual knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of
any jurisdiction within one year from the Closing Date. The SEC Reports set forth as of the dates
thereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for
which the Company or any Subsidiary has commitments. For the purposes of this Agreement,
“Indebtedness” shall mean (a) any liabilities for borrowed money or amounts owed in excess
of $500,000 (other than trade accounts payable incurred in the ordinary course of business), (b)
all guaranties, endorsements and other contingent obligations in respect of Indebtedness of others,
whether or not the same are or should be reflected in the Company’s balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business; and (c) the present value of any lease
payments in excess of $500,000 due under leases required to be capitalized in accordance with GAAP.
Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(Y) Tax Status. Except for matters that would not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect, the Company and each
Subsidiary has filed all necessary federal, state and foreign income and franchise tax returns and
has paid or accrued all taxes shown as due thereon, and the Company has no actual knowledge of a
tax deficiency which has been asserted or threatened against the Company or any Subsidiary.
Page 10
(Z) Foreign Corrupt Practices. Neither the Company, nor to the actual knowledge of
the Company, any agent or other person acting on behalf of the Company, has (i) directly or
indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by
the Company (or made by any person acting on its behalf of which the Company is aware) which is in
violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(AA) Accountants. The Company’s accountants are Xxxxx & Company. To the actual
knowledge of the Company, such accountants, who the Company expects will express their opinion with
respect to the financial statements to be included in the Company’s next Annual Report on Form
10-K, are a registered public accounting firm as required by the Securities Act.
(BB) Regulation M Compliance. The Company has not, and to its actual knowledge no one
acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to
result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any
compensation for soliciting purchases of, any of the Securities or (iii) paid or agreed to pay to
any person any compensation for soliciting another to purchase any other securities of the Company
other than, in the case of clauses (ii) and (iii), services under this Agreement.
(CC) Approvals. The issuance and listing on the Company’s Trading Market of the
Shares requires no further approvals, including, but not limited to, the approval of stockholders.
(DD) FINRA Affiliations. There are no affiliations with any FINRA member firm among
the Company’s officers, directors or, to the actual knowledge of the Company, any five percent (5%)
or greater stockholder of the Company, except as set forth in the Base Prospectus.
SECTION 4. INDEMNIFICATION. The Company agrees to the indemnification and other
agreements set forth in the Indemnification Provisions (the “Indemnification”) attached
hereto as Addendum A, the provisions of which are incorporated herein by reference and shall
survive the termination or expiration of this Agreement.
SECTION 5. ENGAGEMENT TERM. Xxxxxx’x engagement hereunder will be for the period
of 5 business days. Notwithstanding anything to the contrary contained herein, the provisions
concerning confidentiality, indemnification, contribution and the Company’s obligations to pay fees
and reimburse expenses contained herein and the Company’s obligations contained in the
Indemnification Provisions will survive any expiration or termination of this Agreement. Xxxxxx
agrees not to use any confidential information concerning the Company provided to them by the
Company for any purposes other than those contemplated under this Agreement.
SECTION 6. XXXXXX INFORMATION. The Company agrees that any information or advice
rendered by Xxxxxx in connection with this engagement is for the confidential use of the Company
only in their evaluation of the Placement and, except as otherwise required by law, the Company
will not disclose or otherwise refer to the advice or information in any manner without Xxxxxx’x
prior written consent.
SECTION 7. NO FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall
not be construed as creating rights enforceable by any person or entity not a party hereto, except
those entitled hereto by virtue of the Indemnification Provisions hereof. The Company acknowledges
and agrees that Xxxxxx is not and shall not be construed as a fiduciary of the Company and shall
have no duties or liabilities to the equity holders or the creditors of the Company or any other
person by virtue of this Agreement or the retention of Xxxxxx hereunder, all of which are hereby
expressly waived.
Page 11
SECTION 8. CLOSING. The obligations of the Placement Agent and the Purchasers,
and the closing of the sale of the Securities hereunder are subject to the accuracy, when made and
on the Closing Date, of the representations and warranties on the part of the Company and its
Subsidiaries contained herein, to the accuracy of the statements of the Company and its
Subsidiaries made in any certificates pursuant to the provisions hereof, to the performance by the
Company and its Subsidiaries of their obligations hereunder, and to each of the following
additional terms and conditions:
(A) No stop order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been initiated or threatened by the
Commission, and any request for additional information on the part of the Commission (to be
included in the Registration Statement, the Base Prospectus or the Prospectus Supplement or
otherwise) shall have been complied with to the reasonable satisfaction of the Placement Agent.
(B) The Placement Agent shall not have discovered and disclosed to the Company on or prior to
the Closing Date that the Registration Statement, the Base Prospectus or the Prospectus Supplement
or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion
of counsel for the Placement Agent, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(C) All corporate proceedings and other legal matters incident to the authorization, form,
execution, delivery and validity of each of this Agreement, the Securities, the Registration
Statement, the Base Prospectus and the Prospectus Supplement and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable them to pass upon
such matters.
(D) The Placement Agent shall have received from outside counsel to the Company such counsel’s
written opinion, addressed to the Placement Agent and the Purchasers dated as of the Closing Date,
in form and substance reasonably satisfactory to the Placement Agent.
(E) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference in the Base Prospectus,
(i) any material loss or interference with its business from fire, explosion, flood, terrorist act
or other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in or contemplated by the Base
Prospectus, and (ii) since such date there shall not have been any material change in the capital
stock or material increase in the long-term debt of the Company or any of its Subsidiaries or any
material change, or any development involving a prospective material change, in or affecting the
business, general affairs, management, financial position, stockholders’ equity, results of
operations or prospects of the Company and its Subsidiaries, otherwise than as set forth in or
contemplated by the Base Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is, in the judgment of the Placement Agent, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms
and in the manner contemplated by the Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement.
(F) The Common Stock is registered under the Exchange Act and, as of the Closing Date, the
Shares shall be listed and admitted and authorized for trading on the Company’s Trading Market, and
satisfactory evidence of such actions shall have been provided to the Placement Agent. The Company
shall have taken no action designed to, or likely to have the effect of terminating the
registration of the Common Stock under the Exchange Act or delisting or suspending from trading the
Common Stock from the Company’s Trading Market, nor has the Company received any information
suggesting that the Commission or the Company’s Trading Market is contemplating terminating such
registration or listing.
(G) Subsequent to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on any Trading Market or in the
over-the-counter
Page 12
market, or trading in any securities of the Company on any Trading Market or in the
over-the-counter market, shall have been suspended or minimum or maximum prices or maximum ranges
for prices shall have been established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by federal or state authorities or a material
disruption has occurred in commercial banking or securities settlement or clearance services in the
United States, (iii) the United States shall have become engaged in hostilities in which it is not
currently engaged, the subject of an act of terrorism, there shall have been an escalation in
hostilities involving the United States, or there shall have been a declaration of a national
emergency or war by the United States, or (iv) there shall have occurred any other calamity or
crisis or any change in general economic, political or financial conditions in the United States or
elsewhere, if the effect of any such event in clause (iii) or (iv) makes it, in the sole judgment
of the Placement Agent, impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by the Base Prospectus and the Prospectus
Supplement.
(H) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities or result in a Material Adverse Effect; and no
injunction, restraining order or order of any other nature by any federal or state court of
competent jurisdiction shall have been issued as of the Closing Date which would prevent the
issuance or sale of the Securities or result in Material Adverse Effect.
(I) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K
with respect to the Placement, including as an exhibit thereto this Agreement.
(J) The Company shall have entered into subscription agreements with each of the Purchasers
and such agreements shall be in full force and effect and shall contain representations and
warranties of the Company as agreed between the Company and the Purchasers.
(K) Prior to the Closing Date, the Company shall have furnished to the Placement Agent such
further information, certificates and documents as the Placement Agent may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Placement Agent.
SECTION 9. GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made and to be
performed entirely in such State. This Agreement may not be assigned by either party without the
prior written consent of the other party. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and permitted assigns. Any right to
trial by jury with respect to any dispute arising under this Agreement or any transaction or
conduct in connection herewith is waived. Any dispute arising under this Agreement may be brought
into the courts of the State of New York or into the Federal Court located in New York, New York
and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of aforesaid courts. Each
party hereto hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement 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. If either party shall commence an action or proceeding to
enforce any provisions of a Transaction Document, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its attorneys fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
Page 13
SECTION 10. ENTIRE AGREEMENT/MISC. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding between the parties
hereto, and supersedes all prior agreements and understandings, relating to the subject matter
hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any other respect or any other
provision of this Agreement, which will remain in full force and effect. This Agreement may not be
amended or otherwise modified or waived except by an instrument in writing signed by both Xxxxxx
and the Company. The representations, warranties, agreements and covenants contained herein shall
survive the closing of the Placement and delivery and/or exercise of the Securities, as applicable.
This Agreement may be executed in two or more counterparts, all of which when taken together shall
be considered one and the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being understood that both parties need
not sign the same counterpart. In the event that any signature is delivered by facsimile
transmission or a .pdf format file, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed) with the same force and effect
as if such facsimile or .pdf signature page were an original thereof.
SECTION 11. NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified on the signature pages attached hereto
prior to 6:30 p.m. (New York City time) on a business day, (b) the next business day after the date
of transmission, if such notice or communication is delivered via facsimile at the facsimile number
on the signature pages attached hereto on a day that is not a business day or later than 6:30 p.m.
(New York City time) on any business day, (c) the business day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service, or (d) upon actual receipt by the
party to whom such notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages hereto.
Please confirm that the foregoing correctly sets forth our agreement by signing and returning
to Xxxxxx the enclosed copy of this Agreement.
| Very truly yours, XXXXXX & XXXXXXX, LLC |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Chief Financial Officer | |||
|
Address for notice: 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX, 00000 Fax (000) 000-0000 Attention: General Counsel |
||||
| Accepted and Agreed to as of the date first written above: SPECTRUM PHARMACEUTICALS, INC. |
||||
Page 14
| By: | /s/ Xxxxxx X. Xxxxxxxxx M.D. | |||
| Xx. Xxxxxx X. Xxxxxxxxx M.D. | ||||
| Chief Executive Officer |
||||
|
Address for notice: Spectrum Pharmaceuticals, Inc. 000 Xxxxxxxxxx Xxxxx Xxxxxx, XX 00000 Attn: Chief Executive Officer With a copy, which shall not constitute notice, to: Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx Xxxxx, XX 00000 Attn: Xxxxxxx X. Xxxxx, Esq. |
||||
ADDENDUM A
INDEMNIFICATION PROVISIONS
In connection with the engagement of Xxxxxx & Xxxxxxx, LLC (“Xxxxxx”) by Spectrum
Pharmaceuticals, Inc. (the “Company”) pursuant to a
letter agreement dated May 26, 2009,
between the Company and Xxxxxx, as it may be amended from time to time in writing (the
“Agreement”), the Company hereby agrees as follows:
| 1. | To the extent permitted by law, the Company will indemnify Xxxxxx and its affiliates, stockholders, directors, officers, employees and controlling persons (within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of its activities hereunder or pursuant to the Agreement, except to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment (not subject to appeal) by a court of law to have resulted primarily from Xxxxxx’x willful misconduct or gross negligence in performing the services described herein, or from information supplied in writing by Xxxxxx expressly for inclusion in the Registration Statement. Notwithstanding the foregoing, Xxxxxx shall repay to the Company any reimbursements or other amounts paid hereunder to the extent they are attributable to losses, claims, damages, expenses or liabilities finally judicially determined to have resulted primarily from Xxxxxx’x willful misconduct or gross negligence. | |
| 2. | Promptly after receipt by Xxxxxx of notice of any claim or the commencement of any action or proceeding with respect to which Xxxxxx is entitled to indemnity hereunder, Xxxxxx will notify the Company in writing of such claim or of the commencement of such action or proceeding, and the Company will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory to Xxxxxx and will pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, Xxxxxx will be entitled to employ counsel separate from counsel for the Company and from any other party in such action if counsel for Xxxxxx reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent both the Company and Xxxxxx. In such event, the reasonable fees and disbursements of no more than one such separate counsel will be paid by the Company. The Company will have the exclusive right to settle the claim or proceeding provided that the Company will not settle any such claim, action or proceeding without the prior written consent of Xxxxxx, which will not be unreasonably withheld; provided, however, that such consent shall not be required if the settlement includes a full and unconditional release satisfactory to Xxxxxx of Xxxxxx from all liability arising or that may arise out of such claim or proceeding. | |
| 3. | The Company agrees to notify Xxxxxx promptly of the assertion against it or any other person of any claim or the commencement of any action or proceeding relating to a transaction contemplated by the Agreement. | |
| 4. | If for any reason the foregoing indemnity is unavailable to Xxxxxx or insufficient to hold Xxxxxx harmless, then the Company shall contribute to the amount paid or payable by Xxxxxx as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and Xxxxxx on the other, but also the relative fault of the Company on the one hand and Xxxxxx on the other that resulted in such losses, |
1.
Page 2
| claims, damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect of losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, Xxxxxx’x share of the liability hereunder shall not be in excess of the amount of fees actually received, or to be received, by Xxxxxx under the Agreement (excluding any amounts received as reimbursement of expenses incurred by Xxxxxx). | ||
| 5. | These Indemnification Provisions shall remain in full force and effect whether or not the transaction contemplated by the Agreement is completed and shall survive the termination of the Agreement, and shall be in addition to any liability that the Company might otherwise have to any indemnified party under the Agreement or otherwise. |
| XXXXXX & XXXXXXX, LLC |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Chief Financial Officer | |||
| Accepted and Agreed to as of the date first written above: SPECTRUM PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx M.D. | |||
| Xx. Xxxxxx X. Xxxxxxxxx M.D. | ||||
| Chief Executive Officer | ||||
2.
