COMMON STOCK PURCHASE
WARRANT
SPECTRUM PHARMACEUTICALS,
INC.
THIS COMMON STOCK PURCHASE WARRANT (the “
Warrant ”) certifies that, for value received,
(the “ Holder ”) is entitled, upon the terms and
subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after December 15,
2009 (the “ Initial Exercise Date ”) and on or
prior to the close of business on March 15, 2010 (the “
Termination Date ”) but not thereafter, to subscribe
for and purchase from Spectrum Pharmaceuticals, Inc., a Delaware
corporation (the “ Company ”), up to
shares (the “ Warrant Shares ”) of Common Stock.
The purchase price of one share of Common Stock under this Warrant
shall be equal to the Exercise Price, as defined in
Section 2(b).
Section 1 . Definitions . Capitalized terms used
and not otherwise defined herein shall have the meanings set forth
in that certain Securities Purchase Agreement (the “
Purchase Agreement ”), dated June 15, 2009, among
the Company and the purchasers signatory thereto.
a) Exercise of Warrant . Exercise of the
purchase rights represented by this Warrant may be made, in whole
or in part, at any time or times on or after the Initial Exercise
Date and on or before the Termination Date by delivery to the
Company (or such other office or agency of the Company as it may
designate by notice in writing to the registered Holder at the
address of the Holder appearing on the books of the Company) of a
duly executed facsimile copy of the Notice of Exercise Form annexed
hereto; and, within three (3) Trading Days of the date said
Notice of Exercise is delivered to the Company, the Company shall
have received payment of the aggregate Exercise Price of the shares
thereby purchased by wire transfer or cashier’s check drawn
on a United States bank or, if available, pursuant to the cashless
exercise procedure specified in Section 2(c) below. Notwithstanding
anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company until the
Holder has purchased all of the Warrant Shares available hereunder
and the Warrant has been exercised in full, in which case, the
Holder shall surrender this Warrant to the Company for cancellation
within three (3) Trading Days of the date the final Notice of
Exercise is delivered to the Company. Partial exercises of this
Warrant resulting in purchases of a portion of the total number of
Warrant Shares available hereunder shall have the effect of
lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant
Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and
1
the date of
such purchases. The Company shall deliver any objection to any
Notice of Exercise Form within 3 Business Days of receipt of such
notice. In the event of any dispute or discrepancy, the
Company’s records shall govern. The Holder and any
assignee, by acceptance of this Warrant, acknowledge and agree
that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant Shares hereunder, the number
of Warrant Shares available for purchase hereunder at any given
time may be less than the amount stated on the face
hereof.
b) Exercise Price . The exercise price
per share of the Common Stock under this Warrant shall be
$5.83 , subject to adjustment hereunder (the “
Exercise Price ”).
c) Cashless Exercise . If at the time of
exercise hereof both (i) there is no effective registration
statement registering, or the prospectus contained therein is not
available for the issuance of the Warrant Shares to the Holder and
(ii) all of the Warrant Shares are not then registered for
resale by Holder into the market at market prices from time to time
on an effective registration statement for use on a continuous
basis (or the prospectus contained therein is not available for
use), then this Warrant may also be exercised, in whole or in part,
at such time by means of a “cashless exercise” in which
the Holder shall be entitled to receive a certificate for the
number of Warrant Shares equal to the quotient obtained by dividing
[(A-B) (X)] by (A), where:
|
|
(A)
|
=
|
the VWAP on the Trading Day
immediately preceding the date on which Holder elects to exercise
this Warrant by means of a “cashless exercise,” as set
forth in the applicable Notice of Exercise;
|
|
|
|
|
|
|
|
(B)
|
=
|
the Exercise Price of this Warrant,
as adjusted hereunder; and
|
|
|
|
|
|
|
|
(X)
|
=
|
the number of Warrant Shares that
would be issuable upon exercise of this Warrant in accordance with
the terms of this Warrant if such exercise were by means of a cash
exercise rather than a cashless exercise.
|
“ VWAP ” means, for any date,
the price determined by the first of the following clauses that
applies: (a) if the Common Stock is then listed or quoted on a
Trading Market, the daily volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the
Trading Market on which the Common Stock is then listed or quoted
as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time),
(b) if the Common Stock is then quoted on the OTC Bulletin
Board, the volume weighted average price of the Common Stock for
such date (or the nearest preceding date) on the OTC Bulletin
Board, (c) if the Common Stock is not then listed or quoted on
a Trading Market or the OTC Bulletin Board and if prices for the
Common Stock are then reported in the “Pink Sheets”
published by Pink OTC Markets, Inc. (or a similar organization or
agency succeeding to its functions of reporting prices), the most
recent bid price per share of the Common Stock so reported, or
(d) in all other cases, the fair market value of a share of
Common Stock as determined by an independent appraiser selected in
good faith by the Company and reasonably acceptable to the Holders
of a majority in interest of the Securities then outstanding, the
fees and expenses of which shall be paid by the Company.
2
d) Mechanics
of Exercise .
i. Delivery of Certificates Upon Exercise
. Certificates for shares purchased hereunder shall be transmitted
by the Transfer Agent to the Holder by crediting the account of the
Holder’s prime broker with the Depository Trust Company
through its Deposit Withdrawal Agent Commission (“
DWAC ”) system if the Company is then a participant in
such system and either (A) there is an effective Registration
Statement permitting the issuance of the Warrant Shares to or
resale of the Warrant Shares by Holder or (B) this Warrant is
being exercised via cashless exercise, and otherwise by physical
delivery to the address specified by the Holder in the Notice of
Exercise by the date that is three (3) Trading Days after the
latest of (A) the delivery to the Company of the Notice of Exercise
Form and receipt of the DWAC request from the Holder’s prime
broker (if applicable), (B) surrender of this Warrant (if required)
and (C) payment of the aggregate Exercise Price as set forth
above (including by cashless exercise, if permitted) (such date,
the “ Warrant Share Delivery Date ”). This
Warrant shall be deemed to have been exercised on the first date on
which all of the foregoing have been delivered to the Company. The
Warrant Shares shall be deemed to have been issued, and 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 the Warrant has been properly exercised, with
payment to the Company of the Exercise Price (or by cashless
exercise, if permitted) and all taxes required to be paid by the
Holder, if any, pursuant to Section 2(d)(vi) prior to the
issuance of such shares, having been paid.
ii. Delivery of New Warrants Upon
Exercise . If this Warrant shall have been exercised in part,
the Company shall, at the request of a Holder and upon surrender of
this Warrant certificate, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver to
Holder a new Warrant evidencing the rights of Holder to purchase
the unpurchased Warrant Shares called for by this Warrant, which
new Warrant shall in all other respects be identical with this
Warrant.
iii. Rescission Rights . If the Company
fails to cause the Transfer Agent to transmit to the Holder a
certificate or the certificates representing the Warrant Shares
pursuant to Section 2(d)(i) by the Warrant Share Delivery
Date, then, the Holder will have the right to rescind such
exercise.
iv. Compensation for Buy-In on Failure to
Timely Deliver Certificates Upon Exercise . In addition to any
other rights available to the Holder, if the Company fails to cause
the Transfer Agent to transmit to the Holder a certificate or the
certificates representing the Warrant Shares pursuant to an
exercise on or before the Warrant Share Delivery Date,
and
3
if after such
date the Holder is required by its broker to purchase (in an open
market transaction or otherwise) or the Holder’s brokerage
firm otherwise purchases, shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a “
Buy-In ”), then the Company shall (A) pay in cash
to the Holder the amount, if any, by which (x) the
Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased
exceeds (y) the amount obtained by multiplying (1) the
number of Warrant Shares that the Company was required to deliver
to the Holder in connection with the exercise at issue times (2)
the price at which the sell order giving rise to such purchase
obligation was executed, and (B) at the option of the Holder,
either reinstate the portion of the Warrant and equivalent number
of Warrant Shares for which such exercise was not honored (in which
case such exercise shall be deemed rescinded) or deliver to the
Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and
delivery obligations hereunder. For example, if the Holder
purchases Common Stock having a total purchase price of $11,000 to
cover a Buy-In with respect to an attempted exercise of shares of
Common Stock with an aggregate sale price giving rise to such
purchase obligation of $10,000, under clause (A) of the
immediately preceding sentence the Company shall be required to pay
the Holder $1,000. Notwithstanding the foregoing, the Company shall
not be required to make the payments set forth herein in the case
of uncertificated Warrant Shares if the Holder fails to timely file
a request with the Depository Trust Company to receive such
uncertificated Warrant Shares. The Holder shall provide the Company
written notice indicating the amounts payable to the Holder in
respect of the Buy-In and, upon request of the Company, evidence of
the amount of such loss. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with
respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of
the Warrant as required pursuant to the terms hereof.
v. No Fractional Shares or Scrip . No
fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. As to any fraction of a
share which the Holder would otherwise be entitled to purchase upon
such exercise, the Company shall, at its election, either pay a
cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the Exercise Price or round up
to the next whole share.
vi. Charges, Taxes and Expenses .
Issuance of certificates for Warrant Shares shall be made without
charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of
4
such
certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the
Holder or in such name or names as may be directed by the Holder;
provided , however , that in the event certificates
for Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by
the Holder and the Company may require, as a condition thereto, the
payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
vii. Closing of Books . The Company will
not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant, pursuant to the terms
hereof.
e) Holder’s Exercise Limitations .
The Company shall not effect any exercise of this Warrant, and a
Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2 or otherwise, to the extent
that after giving effect to such issuance after exercise as set
forth on the applicable Notice of Exercise, the Holder (together
with the Holder’s Affiliates, and any other Persons acting as
a group together with the Holder or any of the Holder’s
Affiliates), would beneficially own in excess of the Beneficial
Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock
beneficially owned by the Holder and its Affiliates shall include
the number of shares of Common Stock issuable upon exercise of this
Warrant with respect to which such determination is being made, but
shall exclude the number of shares of Common Stock which would be
issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of
its Affiliates and (ii) exercise or conversion of the
unexercised or nonconverted portion of any other securities of the
Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by
the Holder or any of its Affiliates. Except as set forth in the
preceding sentence, for purposes of this Section 2(e),
beneficial ownership shall be calculated in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is
not representing to the Holder that such calculation is in
compliance with Section 13(d) of the Exchange Act and the Holder is
solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained
in this Section 2(e) applies, the determination of whether this
Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates) and of which portion of
this Warrant is exercisable shall be in the sole discretion of the
Holder, and the submission of a Notice of Exercise shall be deemed
to be the Holder’s determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant
is exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Company shall have no obligation to verify or
confirm the accuracy of such determination and shall have no
liability for exercises of the Warrant that are in noncompliance
with the Beneficial Ownership Limitation. In addition, a
determination as to any group status as contemplated above shall be
determined in
5
accordance with
Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in
determining the number of outstanding shares of Common Stock, a
Holder may rely on the number of outstanding shares of Common Stock
as reflected in (A) the Company’s most recent periodic
or annual report filed with the Commission, as the case may be,
(B) a more recent public announcement by the Company or
(C) a more recent written notice by the Company or the
Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of a Holder, the
Company shall within two Trading Days confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding
as established by (A), (B) or (C) above, as applicable.
In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder or
its Affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. The “
Beneficial Ownership Limitation ” shall be 4.99% of
the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock
issuable upon exercise of this Warrant. The Holder, upon not less
than 61 days’ prior notice to the Company, may increase
or decrease the Be
|