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EXHIBIT 4.1
THIS WARRANT AND THE SECURITIES REPRESENTED
HEREBY 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.
Warrant No. -__
COMMON STOCK PURCHASE WARRANT
To Purchase ____________ Shares of Common Stock of
SPECTRUM PHARMACEUTICALS, INC.
THIS IS TO
CERTIFY THAT _______________, or registered assigns (the
"Holder"), is entitled, during the Exercise
Period (as hereinafter defined), to
purchase from Spectrum Pharmaceuticals,
Inc., a Delaware corporation (the
"Company"), the Warrant Stock (as
hereinafter defined and subject to adjustment
as provided herein), in whole or in part,
at a purchase price of $10.00 per
share, all on and subject to the terms and
conditions hereinafter set forth.
1.
Definitions. As used in this Warrant, the following terms have
the
respective meanings set forth below:
"Affiliate" means any person or entity that, directly or
indirectly
through one or more intermediaries,
controls or is controlled by or is under
common control with a person or entity, as
such terms are used in and construed
under Rule 144 under the Securities Act.
With respect to a Holder of Warrants,
any investment fund or managed account that
is managed on a discretionary basis
by the same investment manager as such
Holder will be deemed to be an Affiliate
of such Holder.
"Appraised
Value" means, in respect of any share of Common Stock on any
date herein specified, the fair saleable
value of such share of Common Stock
(determined without giving effect to the
discount for (i) a minority interest or
(ii) any lack of liquidity of the Common
Stock or to the fact that the Company
may have no class of equity registered
under the Exchange Act) as of the last
day of the most recent fiscal month ending
prior to such date specified, based
on the value of the Company on a
fully-diluted basis, as determined by a
nationally recognized investment banking
firm selected by the Company's Board of
Directors and having no prior relationship
with the Company.
"Business
Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which
banking institutions in the State of
California generally are authorized or
required by law or other government
actions to close.
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"Change of
Control" means the (i) acquisition by an individual or legal
entity or group (as set forth in Section
13(d) of the Exchange Act) of more than
one-half of the voting rights or equity
interests in the Company; or (ii) sale,
conveyance, or other disposition of all or
substantially all of the assets,
property or business of the Company or the
merger into or consolidation with any
other corporation (other than a wholly
owned subsidiary corporation) or
effectuation of any transaction or series
of related transactions where holders
of the Company's voting securities prior to
such transaction or series of
transactions fail to continue to hold at
least 50% of the voting power of the
Company (or, if other than the Company, the
successor or acquiring entity)
immediately following such transaction.
"Closing
Date" means April 21, 2004.
"Commission" means the Securities and Exchange Commission or any
other
federal agency then administering the
Securities Act and other federal
securities laws.
"Common
Stock" means (except where the context otherwise indicates) the
Common Stock, $0.001 par value per share,
of the Company as constituted on the
Closing Date, and any capital stock into
which such Common Stock may thereafter
be changed or converted, and shall also
include (i) capital stock of the Company
of any other class (regardless of how
denominated) issued to the holders of
shares of Common Stock upon any
reclassification thereof which is also not
preferred as to dividends or assets on
liquidation over any other class of stock
of the Company and which is not subject to
redemption and (ii) shares of common
stock of any successor or acquiring
corporation received by or distributed to
the holders of Common Stock of the Company
in the circumstances contemplated by
Section 4.3.
"Current
Market Price" means, in respect of any share of Common Stock on
any date herein specified,
(1) if
there shall not then be a public market for the Common Stock,
the
higher of
(a) the book value per share of Common Stock at such date, and
(b)
the Appraised Value per share of Common Stock at such date,
or
(2) if
there shall then be a public market for the Common Stock, the
average of the daily market prices for the
five (5) consecutive trading days
immediately preceding such date. The daily
market price for each such trading
day shall be (i) the closing bid price on
such day on the principal stock
exchange (including the NASDAQ Stock
Market) on which such Common Stock is then
listed or admitted to trading, or quoted,
as applicable, (ii) if no sale takes
place on such day on any such exchange, the
last reported closing bid price on
such day as officially quoted on any such
exchange (including the NASDAQ Stock
Market), (iii) if the Common Stock is not
then listed or admitted to trading on
any stock exchange, the last reported
closing bid price on such day in the
over-the-counter market, as furnished by
the National Association of Securities
Dealers Automatic Quotation System or the
National Quotation Bureau, Inc., (iv)
if neither such corporation at the time is
engaged in the business of reporting
such prices, as furnished by any similar
firm then engaged in such business, or
(v) if there is no such firm, as
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furnished by any member of the NASD
selected mutually by the holder of this
Warrant and the Company or, if they cannot
agree upon such selection, as
selected by two such members of the NASD,
one of which shall be selected by
holder of this Warrant and one of which
shall be selected by the Company.
"Current
Warrant Price" means, in respect of a share of Common Stock at
any date herein specified, the price at
which a share of Common Stock may be
purchased pursuant to this Warrant on such
date. Unless and until the Current
Warrant Price is adjusted pursuant to the
terms herein, the initial Current
Warrant Price shall be $10.00 per share of
Common Stock.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules
and regulations of the Commission
thereunder, all as the same shall be in
effect from time to time.
"Exercise
Period" means the period during which this Warrant is
exercisable pursuant to Section 2.1.
"Expiration Date" means April 20, 2009.
"GAAP"
means generally accepted accounting principles in the United
States
of America as from time to time in
effect.
"NASD"
means the National Association of Securities Dealers, Inc., or
any
successor corporation thereto.
"Other
Property" has the meaning set forth in Section 4.3.
"Person"
means any individual, sole proprietorship, partnership, joint
venture, trust, incorporated organization,
association, corporation, limited
liability company, institution, public
benefit corporation, entity or government
(whether federal, state, county, city,
municipal or otherwise, including,
without limitation, any instrumentality,
division, agency, body or department
thereof).
"Purchase
Agreement" means that certain Common Stock and Warrant Purchase
Agreement dated as of April 20, 2004 among
the Company and the other parties
named therein, pursuant to which this
Warrant was originally issued.
"Restricted Common Stock" means shares of Common Stock which are,
or which
upon their issuance upon the exercise of
any Warrant would be required to be,
evidenced by a certificate bearing the
restrictive legend set forth in Section
3.2.
"Securities Act" means the Securities Act of 1933, as amended, or
any
similar federal statute, and the rules and
regulations of the Commission
thereunder, all as the same shall be in
effect at the time.
"Trading
Day" means any day on which the primary market on which shares
of
Common Stock are listed is open for
trading.
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"Transfer"
means any disposition of any Warrant or Warrant Stock or of any
interest in either thereof, which would
constitute a sale thereof within the
meaning of the Securities Act.
"Warrants"
means this Warrant and all warrants issued upon transfer,
division or combination of, or in
substitution for, any thereof. All Warrants
shall at all times be identical as to terms
and conditions and date, except as
to the number of shares of Common Stock for
which they may be exercised.
"Warrant
Price" means an amount equal to (i) the number of shares of
Common Stock being purchased upon exercise
of this Warrant pursuant to Section
2.1, multiplied by (ii) the Current Warrant
Price.
"Warrant
Stock" means the ____________ shares of Common Stock to be
purchased upon the exercise hereof, subject
to adjustment as provided herein.
2.
Exercise of Warrant.
2.1.
Manner of Exercise. From and after the first anniversary of the
Closing Date, and until 5:00 P.M., New York
time, on the Expiration Date (the
"Exercise Period"), the Holder may exercise
this Warrant, on any Business Day,
for all or any part of the number of shares
of Warrant Stock purchasable
hereunder.
In order
to exercise this Warrant, in whole or in part, the Holder shall
deliver to the Company at its principal
office or at the office or agency
designated by the Company as described in
Section 10, (i) a written notice of
Holder's election to exercise this Warrant,
which notice shall specify the
number of shares of Warrant Stock to be
purchased, and which notice shall be
substantially in the form of the
subscription form appearing at the end of this
Warrant as Exhibit A, duly executed by the
Holder or its agent or attorney, (ii)
an investment representation letter in form
and substance acceptable to the
Company and substantially in the form
attached as Exhibit C executed by the
Holder, (iii) payment of the Warrant Price
as provided herein and (iv) this
Warrant. Upon receipt thereof, the Company
shall, as promptly as practicable,
and in any event within three Business Days
thereafter, execute or cause to be
executed and deliver or cause to be
delivered to the Holder a certificate or
certificates representing the aggregate
number of full shares of Warrant Stock
issuable upon such exercise, together with
cash in lieu of any fraction of a
share, as hereinafter provided. The stock
certificate or certificates so
delivered shall be, to the extent possible,
in such denomination or
denominations as the Holder shall request
in the notice and shall be registered
in the name of the Holder or if permitted
pursuant to the terms of this Warrant
such other name as shall be designated in
the notice. This Warrant shall be
deemed to have been exercised and such
certificate or certificates shall be
deemed to have been issued, and the Holder
or any other Person so designated to
be named therein shall be deemed to have
become a Holder of record of such
shares for all purposes, as of the date
when the notice, together with the
payment of the Warrant Price and this
Warrant, is received by the Company as
described above. If this Warrant shall have
been exercised in part, the Company
shall, at the time of delivery of the
certificate or certificates representing
Warrant Stock, deliver to the Holder a new
Warrant evidencing the rights of the
Holder to purchase the unpurchased shares
of Common Stock called for by this
Warrant, which new Warrant shall in all
other respects be identical with this
Warrant, or at the request of the Holder,
appropriate notation may be made on
this Warrant
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and the same returned to the Holder.
Payment of
the Warrant Price may be made at the option of the Holder by:
(i) certified or official bank check
payable to the order of the Company or (ii)
wire transfer of immediately available
funds to the account of the Company. All
shares of Common Stock issuable upon the
exercise of this Warrant pursuant to
the terms hereof shall be validly issued
and, upon payment of the Warrant Price,
shall be fully paid and nonassessable and
not subject to any preemptive rights.
2.2.
Fractional Shares. The Company shall not be required to issue a
fractional share of Common Stock upon
exercise of any Warrant. As to any
fraction of a share which the Holder of one
or more Warrants, the rights under
which are exercised in the same
transaction, would otherwise be entitled to
purchase upon such exercise, the Company
shall pay an amount in cash equal to
the Current Market Price per share of
Common Stock on the date of exercise
multiplied by such fraction.
2.3.
Restrictions on Exercise Amount.
Unless a
Holder delivers to the Company irrevocable written notice prior
to the date of issuance hereof or sixty-one
days prior to the effective date of
such notice that this Section 2.3 shall not
apply to such Holder, the Holder may
not acquire a number of shares of Warrant
Stock to the extent that, upon such
exercise, the number of shares of Common
Stock then beneficially owned by such
holder and its Affiliates and any other
persons or entities whose beneficial
ownership of Common Stock would be
aggregated with the Holder's for purposes of
Section 13(d) of the Exchange Act
(including shares held by any "group" of which
the holder is a member, but excluding
shares beneficially owned by virtue of the
ownership of securities or rights to
acquire securities that have limitations on
the right to convert, exercise or purchase
similar to the limitation set forth
herein) exceeds 4.99% of the total number
of shares of Common Stock of the
Company then issued and outstanding. For
purposes hereof, "group" has the
meaning set forth in Section 13(d) of the
Exchange Act and applicable
regulations of the Commission, and the
percentage held by the holder shall be
determined in a manner consistent with the
provisions of Section 13(d) of the
Exchange Act. The Company shall have no
obligation to verify compliance with
this Section 2.3, other than to issue
shares of Warrant Stock in accordance with
the exercise notice of each Holder. It
shall be the responsibility of each
Holder to determine such Holder's
compliance with this Section 2.3, and each
delivery of a notice of exercise by a
Holder will constitute a representation by
such Holder that it has evaluated the
limitation set forth in this paragraph and
determined, based on the most recent public
filings by the Company with the
Commission, that the issuance of the full
number of shares of Warrant Stock
requested in such notice of exercise is
permitted under this paragraph.
3.
Transfer, Division and Combination.
3.1.
Transfer. This Warrant and the Warrant Stock issuable upon
exercise
of this Warrant shall be freely
transferable, subject to compliance with this
Section 3.1 and all applicable laws,
including, but not limited to the
Securities Act. If, at the time of the
surrender of this Warrant in connection
with any transfer of this Warrant or the
resale of the Warrant Stock, this
Warrant or the Warrant Stock, as
applicable, shall not be registered under the
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Securities Act, the Company may require, as
a condition of allowing such
transfer (i) that the Holder or transferee
of this Warrant or the Warrant Stock
as the case may be, furnish to the Company
a written opinion of counsel that is
reasonably acceptable to the Company to the
effect that such transfer may be
made without registration under the
Securities Act, (ii) that the Holder or
transferee execute and deliver to the
Company an investment representation
letter in form and substance acceptable to
the Company and substantially in the
form attached as Exhibit C hereto and (iii)
that the transferee be an
"accredited investor" as defined in Rule
501(a) promulgated under the Securities
Act. Transfer of this Warrant and all
rights hereunder, in whole or in part, in
accordance with the foregoing provisions,
shall be registered on the books of
the Company to be maintained for such
purpose, upon surrender of this Warrant at
the principal office of the Company
referred to in Section 2.1 or the office or
agency designated by the Company pursuant
to Section 10, together with a written
assignment of this Warrant substantially in
the form of Exhibit B hereto duly
executed by the Holder or its agent or
attorney and funds sufficient to pay any
transfer taxes payable upon the making of
such transfer. Upon such surrender
and, if required, such payment, the Company
shall execute and deliver a new
Warrant or Warrants in the name of the
assignee or assignees and in the
denomination specified in such instrument
of assignment, and shall issue to the
assignor a new Warrant evidencing the
portion of this Warrant not so assigned,
and this Warrant shall promptly be
cancelled. Following a transfer that complies
with the requirements of this Section 3.1,
the Warrant may be exercised by a new
Holder for the purchase of shares of Common
Stock regardless of whether the
Company issued or registered a new Warrant
on the books of the Company.
3.2.
Restrictive Legends. Each certificate for Warrant Stock
initially
issued upon the exercise of this Warrant,
and each certificate for Warrant Stock
issued to any subsequent transferee of any
such certificate, unless, in each
case, such Warrant Stock is eligible for
resale without registration pursuant to
Rule 144(k) under the Exchange Act, or has
been sold pursuant to and in
compliance with Rule 144 or an effective
registration statement under the
Securities Act, shall bear the following
legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AS AMENDED, AND MAY
NOT BE OFFERED OR SOLD IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT UNLESS, IN THE OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY, SUCH REGISTRATION IS NOT
REQUIRED."
In addition, the legend set forth above shall be removed and
the
Company shall issue a certificate without
such legend to the holder of any
Warrant Stock upon which it is stamped, if,
unless otherwise required by
applicable state securities laws, such
Warrant Stock is eligible for resale
without registration pursuant to Rule
144(k) under the Exchange Act, or has been
sold pursuant to and in compliance with
Rule 144 or an effective registration
statement filed under the Securities
Act.
3.3.
Division and Combination; Expenses; Books. This Warrant may be
divided or combined with other Warrants
upon presentation hereof at the
aforesaid office or agency of the Company,
together with a written notice
specifying the names and denominations in
which new Warrants are to be issued,
signed by the Holder or its agent or
attorney. Subject to compliance with
Section 3.1 as to any transfer which may be
involved in such division or
combination, the
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Company shall execute and deliver a new
Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or
combined in accordance with such notice.
The Company shall prepare, issue and
deliver at its own expense the new Warrant
or Warrants under this Section 3. The
Company agrees to maintain, at its
aforesaid office or agency, books for the
registration and the registration of
transfer of the Warrants.
4.
Adjustments. The number of shares of Common Stock for which
this
Warrant is exercisable, and the price at
which such shares may be purchased upon
exercise of this Warrant, shall be subject
to adjustment from time to time as
set forth in this Section 4. The Company
shall give the Holder notice of any
event described below which requires an
adjustment pursuant to this Section 4 in
accordance with Sections 5.1 and 5.2.
4.1. Stock
Dividends, Subdivisions and Combinations. If at any time while
this Wa
