SPECTRUM PHARMACEUTICALS,
INC.,
CERTAIN STOCKHOLDERS OF TARGENT
INC.
Dated as of March 17,
2006
This
VOTING AGREEMENT (this “ Agreement ”) is entered
into as of March 17, 2006, by and among Spectrum
Pharmaceuticals, Inc., a Delaware corporation (“
Acquiror ”), and the stockholders of Targent Inc., a
Delaware corporation (the “ Company ”) listed on
Schedule A hereto (the “ Stockholders
”).
WHEREAS,
as of the date hereof, the Stockholders collectively
“beneficially own” (as such term is defined in
Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended) and are entitled to dispose of (or to direct the
disposition of) and to vote (or to direct the voting of) 932,000
shares of common stock, par value $0.001 per share (the “
Common Stock ”), of the Company, 20 shares of the
Company’s Class A Preferred Stock, par value $0.001 per
share (the “ Series A Preferred Stock ”),
260 shares of the Company’s Class B Preferred Stock, par
value $0.001 per share (the “ Series B Preferred
Stock ”), 3,177,300 shares of the Company’s Class C
Preferred Stock, par value $0.001 per share (the “
Series C Preferred Stock, ” and, together with
the Series A Preferred Stock and Series B Preferred
Stock, the “ Preferred Stock ”), warrants to
purchase up to 449,246 shares of Common Stock (the “
Common Stock Warrants ”), warrants to purchase up to
139 shares of Series B Preferred stock (the “ Series
B Preferred Stock Warrants ,” and, together with the
Common Stock Warrants, the “ Warrants ”) and
options to purchase up to 515,000 shares of Common Stock (the
“ Options ”) (such shares of Common Stock and
Preferred Stock, together with any securities of the Company held
by the Stockholders that are entitled to vote on a sale of assets
by the Company, and any other shares of Common Stock, Preferred
Stock or other securities of the Company the voting power over
which is acquired by any Stockholder during the Voting Period
(defined below), including, without limitation, any shares of
Common Stock issuable upon conversion of Preferred Stock, or upon
exercise of the Common Stock Warrants or Options, or any
Series B Preferred Stock issuable upon exercise of the
Series B Preferred Stock Warrants, are collectively referred
to herein as the “ Subject Shares ”);
WHEREAS,
Acquiror and the Company propose to enter into an Asset Purchase
Agreement, dated as of the date hereof (the “ Asset
Purchase Agreement ”), pursuant to which Acquiror will
acquire certain assets and liabilities of the Company (the “
Asset Purchase ”); and
WHEREAS,
as a condition to the willingness of Acquiror to enter into the
Asset Purchase Agreement, and as an inducement and in consideration
therefor, Stockholders are executing this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements
contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
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Section 1.1 Capitalized Terms . For purposes of this
Agreement, capitalized terms used and not defined herein shall have
the respective meanings ascribed to them in the Asset Purchase
Agreement.
Section 1.2 Other Definitions . For purposes of this
Agreement:
(a)
“Affiliate” means, with respect to any specified
Person, any Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Person specified. For purposes of this Agreement,
with respect to the Stockholders, the term “Affiliate”
shall not include the Company and the Persons that directly, or
indirectly through one or more intermediaries, are controlled by
the Company.
(b)
“Person” means any individual, partnership,
corporation, limited liability company, association, business,
trust, government or political subdivision thereof, governmental
agency or other entity.
(c)
“Proposed Acquisition Transactions” means any sale of
all or any portion of the Conveyed Assets or the Company’s
business (except in the ordinary course of business), or of any
shares of capital stock of the Company, or any merger,
consolidation, liquidation, dissolution or similar transaction
involving the Company, to or with any Person or group, other than
Acquiror and its Representatives.
(d)
“Representative” means, with respect to any particular
Person, any director, officer, employee, accountant, consultant,
legal counsel, investment banker, advisor, agent or other
representatives of such Person.
ARTICLE II.
VOTING AGREEMENT AND IRREVOCABLE PROXY
Section 2.1 Agreement to Vote the Subject Shares . Each
Stockholder, in its capacity as such, hereby agrees that, during
the period commencing on the date hereof and continuing until the
termination of this Agreement (such period, the “ Voting
Period ”), at any meeting (or any adjournment or
postponement thereof) of the Company’s stockholders, however
called, or in connection with any written consent of the
Company’s stockholders, such Stockholder shall vote (or cause
to be voted) its Subject Shares (x) in favor of the approval
of the terms of the Asset Purchase Agreement, the Asset Purchase
and the other transactions contemplated by the Asset Purchase
Agreement (and any actions required in furtherance thereof),
(y) against any action, proposal, transaction or agreement
that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of
the Company contained in the Asset Purchase Agreement or of the
Stockholders contained in this Agreement, and (z) except with
the written consent of Acquiror, against the following actions or
proposals (other than the transactions contemplated by the Asset
Purchase Agreement): (i) any Proposed Acquisition Transaction;
and (ii) (A) any change
3
in the persons
who constitute the board of directors of the Company that is not
approved in advance by at least a majority of the persons who were
directors of the Company as of the date of this Agreement (or their
successors who were so approved); (B) any material change in
the present capitalization of the Company or any amendment of the
Company’s certificate of incorporation or bylaws;
(C) any other material change in the Company’s corporate
structure or business; or (D) any other action or proposal
involving the Company that is intended, or could reasonably be
expected, to prevent, impede, interfere with, delay, postpone or
adversely affect the transactions contemplated by the Asset
Purchase Agreement; provided, however, that (i) nothing in
this Agreement shall be interpreted as obligating the Stockholders
to exercise any warrants or other rights to acquire shares of
Common Stock or Preferred Stock and (ii) nothing in this
Agreement shall restrict the Stockholders from voting to approve a
plan of liquidation for the Company (provided such liquidation
becomes effective after the Closing and such approval will not
prevent, impede, interfere with, delay, postpone or adversely
affect the transactions contemplated by the Asset Purchase
Agreement). Any such vote shall be cast or consent shall be given
in accordance with such procedures relating thereto so as to ensure
that it is duly counted for purposes of determining that a quorum
is present and for purposes of recording the results of such vote
or consent. Each Stockholder agrees not to enter into any agreement
or commitment with any Person the effect of which would be
inconsistent with or violative of the provisions and agreements
contained in this Article II.
Section 2.2 Grant of Irrevocable Proxy . The
Stockholders hereby appoint Acquiror and any designee of Acquiror,
and each of them individually, as the Stockholders’ proxy and
attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the Voting
Period with respect the Subject Shares in accordance with
Section 2.1. This proxy is given to secure the performance of
the duties of the Stockholders under this Agreement. The
Stockholders shall promptly cause a copy of this Agreement to be
deposited with the Company at its principal place of business. The
Stockholders shall take such further action or execute such other
instruments as may be necessary to effectuate the intent of this
proxy.
Section 2.3 Revocation of Prior Proxies . The
Stockholders represent and warrant that all proxies (if any) given
in respect of the Subject Shares on or before the date hereof
(other than the proxy granted hereunder) are not irrevocable and
that all such proxies are hereby revoked.
Section 2.4 Nature of Irrevocable Proxy . The proxy and
power of attorney granted pursuant to Section 2.2 by each
Stockholder shall be irrevocable during the Voting Period, shall be
deemed to be coupled with an interest sufficient in law to support
an irrevocable proxy in accordance with the provisions of
Section 212 of the Delaware General Corporation Law, as
amended. The power of attorney granted by each Stockholder herein
is a durable power of attorney and shall survive the dissolution,
bankruptcy, death or incapacity of such Stockholder. The proxy and
power of attorney granted hereunder shall terminate upon the
termination of this Agreement.
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Section 2.5 Agreement to Vote Spectrum Common Stock.
For a period of one year after the Closing, each Stockholder agrees
to vote each share of common stock of the Acquiror, par value
$.001, that were issued by Acquiror pursuant to Section 2.3 of
the Asset Purchase Agreement (“ Spectrum Common Stock
”), that such Stockholder then owns, as recommended by the
Acquiror’s board of directors in all matters submitted to the
vote of the Acquiror’s stockholders on which the holder of
such Spectrum Common Stock is entitled to vote; provided,
however, that such recommendation shall have been approved by a
majority of the independent members of the board of directors, as
defined by the rules of the NASDAQ Stock Market; and provided
further that such recommendation would not affect any Stockholder
disproportionally as compared to other holders of Spectrum Common
Stock. This covenant shall survive the termination of this
Agreement for the one year period set forth above.
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