EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of September 26, 2003, among Spectrum Pharmaceuticals, Inc.,
a Delaware corporation (the "Company"), and each of the purchasers executing
this Agreement and listed on Schedule 1 attached hereto (collectively, the
"Purchasers"), and each of the holders of the Placement Agent Warrants (as
hereinafter defined).
This Agreement is being entered into pursuant to the Preferred
Stock and Warrant Purchase Agreement, dated as of the date hereof, by and among
the Company and the Purchasers (the "Purchase Agreement").
The Company and the other parties hereto hereby agree as
follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein shall
have the meanings given such terms in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Advice" shall have the meaning set forth in Section 3(m).
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly controls or is controlled by or under common
control with such Person. For the purposes of this definition, "control," when
used with respect to any Person, means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
"August 2003 Financing Piggyback Rights" means the rights of
holders of the Common Stock or the Company's Series 2003-1 Common Stock Purchase
Warrants, issued to such holders pursuant to the Common Stock and Warrant
Purchase Agreement, dated as of August 12, 2003, by and among the Company and
each of the persons listed on Schedule 1 thereto, to include such Common Stock
(and Common Stock issuable upon exercise of the Series 2003-1 Common Stock
Purchase Warrants) in a registration statement by the Company, as such rights
are set forth in Section 7(d) of the August 2003 Financing Registration Rights
Agreement.
"August 2003 Financing Registration Rights Agreement" means
the Registration Rights Agreement, dated as of August 12, 2003, by and among the
Company and each of the persons listed on Schedule 1 attached thereto, and
certain other persons set forth therein.
"Blackout Period" shall have the meaning set forth in Section
3(n).
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"Board" shall have the meaning set forth in Section 3(n).
"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 New York generally are authorized or required by law or other
government actions to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value
$0.001 per share.
"Effectiveness Date" means, with respect to the Registration
Statement, the 90th day following the Closing Date.
"Effectiveness Period" shall have the meaning set forth in
Section 2.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Filing Date" means the 45th day following the Closing Date.
"Holder" or "Holders" means the holder or holders, as the case
may be, from time to time of Registrable Securities, including without
limitation the Purchasers and their assignees.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Nasdaq" shall mean the Nasdaq SmallCap Market.
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Placement Agent Warrants" means those certain warrants issued
or issuable to SCO Securities LLC, and/or its designees, pursuant to that
certain financial advisory agreement between the Company and SCO Financial Group
LLC, dated February 1, 2003, on account of the purchase by the Purchasers of the
Preferred Stock and Warrants pursuant to the Purchase Agreement.
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus
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filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by the Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such Prospectus.
"Registrable Securities" means (i) the Conversion Shares and
the Warrant Shares, and any shares issued upon any stock split, stock dividend,
recapitalization or similar event with respect to such Conversion Shares or
Warrant Shares and (ii) any other securities (whether issued by the Company or
any other Person) distributed as a dividend or other distribution with respect
to, conversion or exchange of, or in replacement of, Registrable Securities.
"Registration Statement" means the registration statements and
any additional registration statements contemplated by Section 2, including (in
each case) the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference into such
registration statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 158" means Rule 158 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Series D Piggyback Rights" means the rights of holders of the
Common Stock acquired or acquirable upon the conversion of the Company's Series
D Preferred Stock and upon the exercise of the Company's Series D-1, D-2 and D-3
Common Stock Purchase Warrants to include such Common Stock in a registration
statement by the Company, as such rights are set forth in Section 7(d) of the
Series D Registration Rights Agreement.
"Series D Registration Rights Agreement" means the
Registration Rights Agreement, dated as of May 7, 2003, by and among the Company
and certain holders of the Company's Series D Preferred Stock, and certain other
persons, as amended.
"Special Counsel" means (i) Wiggin & Dana LLP or (ii) any
other one special counsel to the Holders selected by a majority in interest of
the Holders with notice of such selection given to the Company, for which the
Holders will be reimbursed by the Company pursuant to Section 4.
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"Warrant Shares" includes (i) the Warrant Shares as defined in
the Purchase Agreement, and (ii) the shares of Common Stock acquirable upon
exercise of the Placement Agent Warrants.
"Warrants" includes (i) the Warrants as defined in the
Purchase Agreement, and (ii) the Placement Agent Warrants.
2. Registration. As soon as possible, but in any case on or prior
to the Filing Date, the Company shall prepare and file with the Commission a
"shelf" Registration Statement covering all Registrable Securities for a
secondary or resale offering to be made on a continuous basis pursuant to Rule
415. The Registration Statement shall be on Form S-3 (or on another form
appropriate for such registration in accordance herewith). The Company shall (i)
not permit any securities other than the Registrable Securities to be included
in the Registration Statement other than the shares of Common Stock held by or
issuable to the persons specified in Section 7(c) hereof, and (ii) use its best
efforts to cause the Registration Statement to be declared effective under the
Securities Act (including filing with the Commission a request for acceleration
of effectiveness in accordance with Rule 12dl-2 promulgated under the Exchange
Act) by the earlier of (A) five (5) Business Days after the date that the
Company is notified (orally or in writing, whichever is earlier) by the
Commission that a Registration Statement will not be "reviewed," or not be
subject to further review or (B) the Effectiveness Date, and to keep such
Registration Statement continuously effective under the Securities Act until
such date as is the earlier of (x) the date when all Registrable Securities
covered by such Registration Statement have been sold or (y) as to any
particular Holder, the date on which all such Holder's Registrable Securities
may be sold without any restriction pursuant to Rule 144(k), provided that if
any such Holder requests, the Company shall deliver unlegended certificates
evidencing the Registrable Securities to such Holder (the "Effectiveness
Period"); provided, that if notwithstanding the Company's best efforts, a
Registration Statement has not become effective on or before the Effectiveness
Date, the Company shall continue to use its best efforts after the Effectiveness
Date to cause a Registration Statement to become effective.
3. Registration Procedures.
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to
the Filing Date a Registration Statement on Form S-3 (or on another form
appropriate for such registration in accordance herewith) which shall include a
Plan of Distribution substantially in the form of Exhibit A attached hereto, and
cause the Registration Statement to become effective and remain effective as
provided herein; provided, however, that not less than five (5) Business Days
prior to the filing of the Registration Statement or any related Prospectus and
not less than three (3) Business Days prior to the filing of any amendment or
supplement thereto (including any document that would be incorporated therein by
reference), the Company shall (i) furnish to the Special Counsel, copies of all
such documents proposed to be filed, which documents (other than those
incorporated by reference) will be subject to the review of the Special Counsel,
and (ii) at the request of any Holder, cause its
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officers and directors, counsel and independent certified public accountants to
respond to such inquiries as shall be necessary, in the reasonable opinion of
counsel to such Holders, to conduct a reasonable investigation within the
meaning of the Securities Act. The Company shall not file the Registration
Statement or any such Prospectus or any amendments or supplements thereto to
which the Special Counsel shall reasonably object in writing within three (3)
Business Days after its receipt thereof.
(b) (i) If necessary to keep such Registration Statement
accurate and complete, prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement as may be
necessary to keep the Registration Statement continuously (but for the filing of
such post-effective amendment) effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission
such additional Registration Statements in order to register for resale under
the Securities Act all of the Registrable Securities; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act; (iii)
respond as promptly as reasonably practicable to any comments received from the
Commission with respect to the Registration Statement or any amendment thereto
and as promptly as reasonably practicable provide the Holders true and complete
copies of all correspondence from and to the Commission relating to the
Registration Statement; and (iv) comply in all material respects with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by the Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the Holders thereof set forth in the Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) (i) Notify the Special Counsel as promptly as
reasonably practicable (A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement is proposed to be filed;
(B) when the Commission notifies the Company whether there will be a "review" of
such Registration Statement and whenever the Commission comments in writing on
such Registration Statement; and (ii) notify the Holders of the Registrable
Securities to be sold and the Special Counsel as promptly as reasonably
practicable with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, and thereafter: (A) of any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to the Registration Statement or Prospectus or for
additional information; (B) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement covering any or all
of the Registrable Securities or the initiation of any Proceedings for that
purpose; (C) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and (D) of the occurrence of any
event that makes any statement made in the Registration Statement or Prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires any revisions to the
Registration Statement, Prospectus or other documents so that, in the case of
the Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to
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be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) Use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of, (i) any order suspending the effectiveness of
the Registration Statement or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction within the United States, at the earliest practicable moment.
(e) If requested by the Holders of a majority in interest
of the Registrable Securities, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration Statement such
information regarding a Holder or the plan of distribution as such majority of
Holders may request, provided that such information is true and complete in all
material respects, and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(f) Furnish to each Holder and the Special Counsel,
without charge, at least one conformed copy of each Registration Statement and
each amendment thereto, including financial statements and schedules, all
documents incorporated or deemed to be incorporated therein by reference, and
all exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission.
(g) Promptly deliver to each Holder and the Special
Counsel, without charge, as many copies of the Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement thereto as
such Persons may request; and the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto in conformity
with the requirements of the Securities Act.
(h) Prior to any public offering of Registrable
Securities, use its best efforts to register or qualify or cooperate with the
Holders and the Special Counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any Holder requests in
writing, to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a Registration Statement;
provided, however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or to take
any action that would subject the Company to general service of process in any
jurisdiction were it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold pursuant to a Registration Statement, which certificates shall be free of
all restrictive legends, and to enable such Registrable Securities to be in
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such denominations and registered in such names as any Holder may request at
least two (2) Business Days prior to any sale of Registrable Securities.
(j) Upon the occurrence of any event contemplated by
Section 3(c)(iv), as promptly as possible, prepare a supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain an 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, in the light of the circumstances under which they were
made, not misleading.
(k) Use its best efforts to cause all Registrable
Securities relating to such Registration Statement to be listed on Nasdaq and
any other securities exchange, quotation system, market or over-the-counter
bulletin board, if any, on which similar securities issued by the Company are
then listed as and when required pursuant to the Purchase Agreement.
(l) Comply in all material respects with all applicable
rules and regulations of the Commission and make generally available to its
security holders earning statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 not later than 45 days after the end of any
3-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing on the first day of the first fiscal quarter of the
Company after the effective date of the Registration Statement, which statement
shall conform to the requirements of Rule 158.
(m) (i) Require each Holder to furnish to the
Company information regarding such Holder and the distribution of such
Registrable Securities as is required by law to be disclosed in the Registration
Statement, Prospectus, supplemented Prospectus and/or amended Registration
Statement, including any information necessary to allow the Company to fulfill
its undertakings made in accordance with Item 512 of Regulation S-K, and the
Company may exclude from such registration the Registrable Securities of any
such Holder who fails to furnish such information within a reasonable time prior
to the filing of each Registration Statement, Prospectus, supplemented
Prospectus and/or amended Registration Statement.
(ii) If the Registration Statement refers to any
Holder by name or otherwise as the holder of any securities of the Company, then
such Holder shall have the right to require (if such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar federal
statute then in force) the deletion of the reference to such Holder in any
amendment or supplement to the Registration Statement filed at a time when such
reference is not required.
(iii) Each Holder agrees by its acquisition of
such Registrable Securities that, upon receipt of a notice from the Company of
the occurrence of any event of the kind described in Section 3(c)(ii)(B),
3(c)(ii)(C) or 3(c)(ii)(D), such Holder will forthwith discontinue disposition
of such Registrable Securities under the Registration Statement until such
Holder's receipt of copies of the supplemented Prospectus and/or amended
Registration Statement contemplated by Section 3(j),
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or until it is advised in writing (the "Advice") by the Company that the use of
the applicable Prospectus may be resumed, and, in either case, has received
copies of any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration Statement.
The Company may provide stop orders to enforce the provisions of this paragraph,
provided that the Company shall promptly remove any such stop orders as soon as
such stop orders are no longer necessary.
(n) If (i) there is material non-public information
regarding the Company which the Company's Board of Directors (the "Board")
reasonably determines not to be in the Company's best interest to disclose and
which the Company is not otherwise required to disclose, or (ii) there is a
significant business opportunity (including, but not limited to, the acquisition
or disposition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or other similar transaction) available to
the Company which the Board reasonably determines not to be in the Company's
best interest to disclose and which the Company would be required to disclose
under the Registration Statement, then, notwithstanding anything to the contrary
in this Agreement, the Company may postpone or suspend filing or effectiveness
of a Registration Statement for a period not to exceed 20 consecutive days,
provided that the Company may not postpone or suspend its obligation under this
Section 3(n) for more than 40 days in the aggregate during any 12 month period
(each, a "Blackout Period"); provided, however, that no such postponement or
suspension shall be permitted for consecutive 20 day periods, arising out of the
same set of facts, circumstances or transactions.
4. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Registration Statement is filed or becomes effective and
whether or not any Registrable Securities are sold pursuant to the Registration
Statement. The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings required to be
made with Nasdaq or any other securities exchange, quotation system, market or
over-the-counter bulletin board on which Registrable Securities are required
hereunder to be listed, (B) with respect to filings required to be made with the
Commission, and (C) in compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of the Special
Counsel in connection with Blue Sky qualifications of the Registrable Securities
and determination of the eligibility of the Registrable Securities for
investment under the laws of such jurisdictions as the Holders of a majority of
Registrable Securities may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
and of printing prospectuses if the printing of prospectuses is requested by the
Holders of a majority of the Registrable Securities included in the Registration
Statement), (iii) messenger, telephone and delivery expenses, (iv) Securities
Act liability insurance, if the Company so desires such insurance, and (v) fees
and expenses of all other Persons retained by the Company in connection with the
consummation of the transactions contemplated by this Agreement, including,
without limitation, the Company's independent public accountants (including the
expenses of any comfort letters or costs associated with the delivery by
independent public accountants of a comfort letter or comfort letters, if
requested by any underwriter) and legal
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counsel. In addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any audit, the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder and the reasonable fees and expenses of Special Counsel.
5. Indemnification
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents, brokers (including brokers who
offer and sell Registrable Securities as principal as a result of a pledge or
any failure to perform under a margin call of Common Stock), investment advisors
and employees of each of them, each Person who controls any such Holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each such controlling
Person, to the fullest extent permitted by applicable law, from and against any
and all losses, claims, damages, liabilities, costs (including, without
limitation, costs of preparation and attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or relating to any untrue
or alleged untrue statement of a material fact contained or incorporated by
reference in (i) the Registration Statement, (ii) any Prospectus or any form of
prospectus, (iii) any amendment or supplement thereto, or (iv) any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, except to the extent, but only to the extent, that (A)
such untrue statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by such Holder expressly for use
therein, which information was reasonably relied on by the Company for use
therein or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto, or (B) in the case of an occurrence of an event
of the type described in Section 3(c)(ii)(B), 3(c)(ii)(C), 3(c)(ii)(D) or 3(n),
the Loss resulted from the use by a Holder of an outdated or defective
Prospectus after the delivery to the Holder of written notice from the Company
that the Prospectus is outdated or defective and prior to the receipt by such
Holder of the Advice contemplated in Section 3(m). The Company shall notify the
Holders promptly of the institution, threat or assertion of any Proceeding of
which the Company is aware in connection with the transactions contemplated by
this Agreement. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of an Indemnified Party and shall
survive the transfer of the Registrable Securities by the Holders.
(b) Indemnification by Holders. Each Holder shall,
severally and not jointly, indemnify and hold harmless the Company, its
directors, officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such
controlling Persons, to the fullest extent permitted by applicable law, from and
against all Losses, as incurred, arising solely
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out of or based solely upon any untrue statement of a material fact contained in
the Registration Statement, any Prospectus, or any form of prospectus, or
arising solely out of or based solely upon any omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto, in the
light of the circumstances under which they were made) not misleading, to the
extent, but only to the extent, that (i) such untrue statement or omission is
contained in or omitted from any information furnished in writing by such Holder
to the Company specifically for inclusion in the Registration Statement or such
Prospectus and that such information was reasonably relied upon by the Company
for use in the Registration Statement, such Prospectus or such form of
prospectus or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of Prospectus
Supplement, or (ii) in the case of an occurrence of an event of the type
described in Section 3(c)(ii)(B), 3(c)(ii)(C), 3(c)(ii)(D) or 3(n), the Loss
resulted from the use by a Holder of an outdated or defective Prospectus after
the delivery to the Holder of written notice from the Company that the
Prospectus is outdated or defective and prior to the receipt by such Holder of
the Advice contemplated in Section 3(m). Notwithstanding anything to the
contrary contained herein, the Holder shall be liable under this Section 5(b)
for only that amount as does not exceed the net proceeds to such Holder as a
result of the sale of Registrable Securities pursuant to such Registration
Statement.
(c) Conduct of Indemnification Proceedings. If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party promptly shall notify
the Person from whom indemnity is sought (the "Indemnifying Party") in writing,
and the Indemnifying Party shall diligently assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with
defense thereof; provided, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have proximately and materially adversely prejudiced the Indemnifying
Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have
failed promptly, diligently and appropriately to assume the defense of such
Proceeding and to employ counsel reasonably satisfactory to such Indemnified
Party in any such Proceeding; (3) the Indemnified Party shall reasonably
determine that there may be legal defenses available to it which are not
available to the Indemnifying Party; or (4) the Indemnified Party shall
reasonably determine that there is an actual or potential conflict of interest
between it and the Indemnifying Party, including, without limitation, situations
in which there are one or more legal defenses available to the Indemnified Party
that are antithetical or in opposition to those available to the Indemnifying
Party, and in any of such cases, the Indemnifying Party shall not have the right
to assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Party. The Indemnifying Party shall not be liable for any
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settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such Proceeding and does
not impose any monetary or other obligation or restriction on the Indemnified
Party.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten (10) Business Days of written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; provided, that
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(d) Contribution. If a claim for indemnification under
Section 5(a) or 5(b) is unavailable to an Indemnified Party because of a failure
or refusal of a governmental authority to enforce such indemnification in
accordance with its terms (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c), any reasonable attorneys' or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms. Notwithstanding anything to the contrary contained
herein, the Holder shall be liable or required to contribute under this Section
5(c) for only that amount as does not exceed the net proceeds to such Holder as
a result of the sale of Registrable Securities pursuant to such Registration
Statement.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
11
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties. The indemnity and contribution agreements herein are
in addition to and not in diminution or limitation of any indemnification
provisions under the Purchase Agreement.
6. Rule 144.
As long as any Holder owns Preferred Stock, Conversion Shares,
Warrants or Warrant Shares, the Company covenants to timely file all reports
required to be filed by the Company after the date hereof pursuant to Section
13(a) or 15(d) of the Exchange Act. As long as any Holder owns Preferred Stock,
Conversion Shares, Warrants or Warrant Shares, if the Company is not required to
file reports pursuant to Section 13(a) or 15(d) of the Exchange Act, it will
prepare and furnish to the Holders and make publicly available in accordance
with Rule 144(c) promulgated under the Securities Act annual and quarterly
financial statements, together with a discussion and analysis of such financial
statements in form and substance substantially similar to those that would
otherwise be required to be included in reports required by Section 13(a) or
15(d) of the Exchange Act, as well as any other information required thereby, in
the time period that such filings would have been required to have been made
under the Exchange Act. The Company further covenants that it will take such
further action as any Holder may reasonably request, all to the extent required
from time to time to enable such Person to sell Conversion Shares and Warrant
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144 promulgated under the Securities Act,
including compliance with the provisions of the Purchase Agreement relating to
the transfer of the Conversion Shares and Warrant Shares. Upon the request of
any Holder, the Company shall deliver to such Holder a written certification of
a duly authorized officer as to whether it has complied with such requirements.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or
by a Holder of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor
any of its subsidiaries has, as of the date hereof, entered into and currently
in effect, nor shall the Company or any of its subsidiaries, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Without limiting the generality
of the foregoing, without the written consent of the Holders of a majority of
the then outstanding Registrable Securities, the Company shall not grant to any
Person the right to request the Company to register any securities of the
Company under the Securities Act unless the rights so granted are subject in all
respects to the
12
prior rights in full of the Holders set forth herein, and are not otherwise in
conflict with the provisions of this Agreement.
(c) No Piggyback on Registrations. Except for the
registration of up to 200,000 shares of Common Stock held by GPC Biotech AG and
any shares of Common Stock required to be included in the Registration Statement
pursuant to the Series D Piggyback Rights or the August 2003 Financing Piggyback
Rights, neither the Company nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Company
in the Registration Statement, and the Company shall not after the date hereof
enter into any agreement providing such right to any of its security holders,
unless the right so granted is subject in all respects to the prior rights in
full of the Holders set forth herein, and is not otherwise in conflict with the
provisions of this Agreement.
(d) Piggy-Back Registrations. Subject to the limitations
imposed under the Series D Registration Rights Agreement and the August 2003
Financing Registration Rights Agreement, if at any time when there is not an
effective Registration Statement covering all of the Registrable Securities, the
Company shall determine to prepare and file with the Commission a registration
statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities, other than on Form S-4
or Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, the Company shall
send to each holder of Registrable Securities written notice of such
determination and, if within twenty (20) days after receipt of such notice, any
such Holder shall so request in writing (which request shall specify the
Registrable Securities intended to be disposed of by the Holders), the Company
will cause the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the Holder, to
the extent required to permit the disposition of the Registrable Securities so
to be registered, provided that if at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to such Holders and, thereupon, (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay expenses in accordance with Section 4 hereof), and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities being registered pursuant to this Section 7(d) for the
same period as the delay in registering such other securities. The Company shall
include in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered; provided, however, that the
Company shall not be required to register any Registrable Securities pursuant to
this Section 7(d) that are eligible for sale pursuant to Rule 144(k) of the
Securities Act. In the case of an underwritten public offering, if the managing
underwriter(s) should reasonably object to the inclusion of the Registrable
Securities in such registration statement, then if the Company after
consultation with the managing underwriter should reasonably determine that the
inclusion of such Registrable Securities would materially adversely affect the
offering contemplated in such registration statement, and based on such
determination recommends inclusion in such registration statement of fewer or
none of the
13
Registrable Securities of the Holders, then (x) the number of Registrable
Securities of the Holders to be included in such registration statement shall be
reduced pro-rata among such Holders (based upon the number of Registrable
Securities requested to be included in the registration), if the Company after
consultation with the underwriter(s) recommends the inclusion of fewer
Registrable Securities, or (y) none of the Registrable Securities of the Holders
shall be included in such registration statement, if the Company after
consultation with the underwriter(s) recommends the inclusion of none of such
Registrable Securities; provided, however, that if securities are being offered
for the account of other persons or entities as well as the Company, such
reduction shall not represent a greater fraction of the number of Registrable
Securities intended to be offered by the Holders than the fraction of similar
reductions imposed on such other persons or entities (other than the Company).
The right of any Holder to participate in an underwritten public offering
hereunder shall be conditioned upon such Holder's entering into the underwriting
agreement and lock-up agreement with the representative of the underwriter or
underwriters on the same terms as required of other selling securities holders
in such offering.
(e) Specific Enforcement; Consent to Jurisdiction.
(i) The Company and the Holders acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement or the Purchase Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement or
the Purchase Agreement and to enforce specifically the terms and provisions
hereof or thereof, this being in addition to any other remedy to which any of
them may be entitled by law or equity.
(ii) Each of the Company and the Holders (A)
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts located in New York County, New York, for the purposes of any
suit, action or proceeding arising out of or relating to this Agreement or the
Purchase Agreement and (B) hereby waives, and agrees not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Holders consents to process being served
in any such suit, action or proceeding by mailing a copy thereof 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 in this Section 7(e) shall affect or limit any right to serve
process in any other manner permitted by law.
(f) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing and
signed by the Company and each of the Holders. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities to which such waiver or consent
relates;
14
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(g) 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 earlier of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified for notice prior to 5:00 p.m., Eastern
United States time, on a Business Day, (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified for notice later than 5:00 p.m., Eastern
United States time, on any date and earlier than 11:59 p.m., Eastern United
States time, on such date, (iii) the Business Day following the date of mailing,
if sent by nationally recognized overnight courier service or (iv) actual
receipt by the party to whom such notice is required to be given. The addresses
for such communications shall be with respect to each Holder at its address set
forth under its name on Schedule 1 attached hereto, or with respect to the
Company, addressed to:
Spectrum Pharmaceuticals, Inc.
157 Technology Drive
Irvine, California 92618
Attention: CEO
Facsimile No.: 949-788-6706
or to such other address or addresses or facsimile number or numbers as any such
party may most recently have designated in writing to the other parties hereto
by such notice. Copies of notices to the Company shall be sent to Latham &
Watkins LLP, 650 Town Center Drive, 20th Floor, Costa Mesa, California 92626,
Att'n: Alan W. Pettis, Esq., Fax No. 714-755-8290. Notices to the Special
Counsel shall be sent to Wiggin & Dana LLP, 400 Atlantic Street, Stamford,
Connecticut 06901, Attn: Michael Grundei, Esq., Facsimile No.: (203) 363-7676.
(h) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors and
permitted assigns and shall inure to the benefit of each Holder and its
successors and assigns. The Company may not assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of each
Holder. Each Holder may assign its rights hereunder in the manner and to the
Persons as permitted under the Purchase Agreement, which for purposes hereof
shall include Holders of the Placement Agent Warrants, whether or not such
Holders are parties to the Purchase Agreement.
(i) Assignment of Registration Rights. The rights of each
Holder hereunder, including the right to have the Company register for resale
Registrable Securities in accordance with the terms of this Agreement, shall be
automatically assignable by each Holder to any transferee of such Holder of all
or a portion of the Preferred Stock, the Warrants or the Registrable Securities
held by such Holder if: (i) the Holder agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, and (ii) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (a) the name and address of such transferee or assignee, and
(b) the
15
securities with respect to which such registration rights are being transferred
or assigned. In addition, each Holder shall have the right to assign its rights
hereunder to any other Person with the prior written consent of the Company,
which consent shall not be unreasonably withheld. The rights to assignment shall
apply to the Holders (and to subsequent) successors and assigns.
(j) Counterparts; Facsimile. This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and, all of which taken together shall constitute one
and the same Agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid binding obligation
of the party executing (or on whose behalf such signature is executed) the same
with the same force and effect as if such facsimile signature were the original
thereof.
(k) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law thereof. The Company hereby irrevocably
consents to the exclusive jurisdiction of the State and Federal Courts located
in New York County, New York in connection with any action or proceeding arising
out of or relating to this Agreement.
(l) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(m) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable in any respect, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties hereto
shall use their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(n) Headings. The headings herein are for convenience
only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
(o) Shares Held by the Company and its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its Affiliates (other than any Holder or transferees or successors or
assigns thereof if such Holder is deemed to be an Affiliate solely by reason of
its holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(p) Notice of Effectiveness. Within two (2) Business Days
after the Registration Statement which includes the Registrable Securities is
ordered effective by the Commission, the Company shall notify the transfer agent
for such Registrable Securities that the Registration Statement has been
declared effective by the Commission and, if required by the transfer agent, the
16
Company shall deliver, and shall cause legal counsel for the Company to deliver,
to the transfer agent for such Registrable Securities (with copies to the
Holders whose Registrable Securities are included in such Registration
Statement) confirmation that the Registration Statement has been declared
effective by the Commission in substantially the form attached hereto as Exhibit
B.
(q) Securities Act Compliance. Each Purchaser, severally
and not jointly, hereby covenants and agrees that such Purchaser (i) will not
sell or otherwise dispose of such Purchaser's Registrable Securities except in
compliance with the Securities Act, (ii) if selling under a Registration
Statement, will sell such Purchaser's Registrable Securities only in accordance
with the plan of distribution set forth in the Prospectus forming a part of the
Registration Statement, (iii) will comply with the requirements of the
Securities Act when selling or otherwise disposing of the Registrable
Securities, including, but not limited to, the prospectus delivery requirements
of the Securities Act.
[Signature Pages Follow]
17
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed by their respective authorized persons as
of the date first indicated above.
THE COMPANY:
SPECTRUM PHARMACEUTICALS, INC.
By: /s/ Rajesh C. Shrotriya
----------------------------------------
Name: Rajesh C. Shrotriya, M.D.
Title: Chairman, Chief Executive Officer
and President
PURCHASERS:
Print Exact Name:_________________________________
By:_____________________________________________
Name:
Title:
[See Schedule 1 for a list of Purchasers]
[Omnibus Spectrum Pharmaceuticals, Inc. Registration Rights Agreement
Signature Page]
SCHEDULE 1 TO REGISTRATION RIGHTS AGREEMENT
Shares of Shares of
Common Common
Shares of Stock Stock
Series E Acquirable Acquirable Total
Preferred under Series under Series Purchase
Name and Address of Purchaser Stock E-1 Warrants E-2 Warrants Price
- ---------------------------------------------------------------------------------------------------------------------
SDS Merchant Fund, LP
53 Forest Avenue, 2nd Floor
Old Greenwich, CT 06870 317 221,900 221,900 $ 3,170,000
Attn: Scott Derby
- ---------------------------------------------------------------------------------------------------------------------
Robert Apple
39 Lower Morrisville Road 3 2,100 2,100 $ 30,000
Falkington, PA 19054
- ---------------------------------------------------------------------------------------------------------------------
BayStar Capital II, L.P.
80 E. Sir Francis Drake Boulevard
Suite 2B 320 224,000 224,000 $ 3,200,000
Larkspur, CA 94939
Attn: Steven M. LaMar
- ---------------------------------------------------------------------------------------------------------------------
North Sound Legacy Fund LLC
53 Forest Avenue, Suite 202
Old Greenwich, CT 06870 15 10,500 10,500 $ 150,000
Attn: Andrew Wilder
- ---------------------------------------------------------------------------------------------------------------------
North Sound Legacy International Ltd.
53 Forest Avenue, Suite 202
Old Greenwich, CT 06870 160 112,000 112,000 $ 1,600,000
Attn: Andrew Wilder
- ---------------------------------------------------------------------------------------------------------------------
North Sound Legacy Institutional Fund LLC
53 Forest Avenue, Suite 202
Old Greenwich, CT 06870 145 101,500 101,500 $ 1,450,000
Attn: Andrew Wilder
- ---------------------------------------------------------------------------------------------------------------------
Scott Craven
5 East 22nd Street, Apt 10-D 50 35,000 35,000 $ 500,000
New York, NY 10010
- ---------------------------------------------------------------------------------------------------------------------
SCO Capital Partners LLC
1285 Avenue of the Americas, 35th Floor
New York, NY 10019 50 35,000 35,000 $ 500,000
Attn: Steven Rouhandeh
Shares of Shares of
Common Common
Shares of Stock Stock
Series E Acquirable Acquirable Total
Preferred under Series under Series Purchase
Name and Address of Purchaser Stock E-1 Warrants E-2 Warrants Price
- ---------------------------------------------------------------------------------------------------------------------
Xmark Fund, Ltd.
152 West 57th Street, 21st Floor
New York, NY 10019 180 126,000 126,000 $ 1,800,000
Attn: Mitchell Kaye
- ---------------------------------------------------------------------------------------------------------------------
Xmark Fund, L.P.
152 West 57th Street, 21st Floor
New York, NY 10019 120 84,000 84,000 $ 1,200,000
Attn: Mitchell Kaye
- ---------------------------------------------------------------------------------------------------------------------
Cranshire Capital
666 Dundee Road, Suite 1901 150 105,000 105,000 $ 1,500,000
Northbrook, IL 60062
- ---------------------------------------------------------------------------------------------------------------------
Omicron Master Trust
810 7th Avenue, 39th Flr 150 105,000 105,000 $ 1,500,000
New York, NY 10019
- ---------------------------------------------------------------------------------------------------------------------
ProMed Partners, L.P.
237 Park Avenue, 9th Floor
New York, NY 10017 21 14,700 14,700 $ 210,000
Attn: Barry Kurokawa
- ---------------------------------------------------------------------------------------------------------------------
ProMed Offshore Fund, Ltd.
237 Park Avenue, 9th Floor
New York, NY 10017 4 2,800 2,800 $ 40,000
Attn: Barry Kurokawa
- ---------------------------------------------------------------------------------------------------------------------
Paul Scharfer
265 East 66th Street
Apt. 6-C 25 17,500 17,500 $ 250,000
New York, NY 10021
- ---------------------------------------------------------------------------------------------------------------------
Jeffrey B. Davis
c/o SCO Financial Group LLC
1285 Avenue of Americas, 35th Flr. 10 7,000 7,000 $ 100,000
New York, NY 10019
- ---------------------------------------------------------------------------------------------------------------------
Daniel DiPietro
c/o SCO Financial Group LLC
1285 Avenue of Americas, 35th Flr. 2 1,400 1,400 $ 20,000
New York, NY 10019
Shares of Shares of
Common Common
Shares of Stock Stock
Series E Acquirable Acquirable Total
Preferred under Series under Series Purchase
Name and Address of Purchaser Stock E-1 Warrants E-2 Warrants Price
- ---------------------------------------------------------------------------------------------------------------------
Jim Betts
c/o Shipman & Goodwin LLP
One American Row 10 7,000 7,000 $ 100,000
Hartford, CT 06103-2819
- ---------------------------------------------------------------------------------------------------------------------
Quogue Capital LLC
1285 Avenue of the Americas, 35th Flr. 110 77,000 77,000 $ 1,100,000
New York, NY 10019
- ---------------------------------------------------------------------------------------------------------------------
Steven M. Oliveira
18 Fieldstone Court 25 17,500 17,500 $ 250,000
New City, NY 10956
- ---------------------------------------------------------------------------------------------------------------------
Alpha Capital AG
Pradafend 7
Fustentums 9490 20 14,000 14,000 $ 200,000
Vaduz Liechtenstein
- ---------------------------------------------------------------------------------------------------------------------
Bluegrass Growth Fund LP
200 East 72nd St, Apt 10L 15 10,500 10,500 $ 150,000
New York, NY 10021
- ---------------------------------------------------------------------------------------------------------------------
OTAPE Investments LLC
One Manhattanville Road
Purchase, NY 10577 15 10,500 10,500 $ 150,000
Attn: Paul Masters
- ---------------------------------------------------------------------------------------------------------------------
Islandia, LP
485 Madison Avenue 23rd Floor 25 17,500 17,500 $ 250,000
New York, NY 10022
- ---------------------------------------------------------------------------------------------------------------------
Midsummer Investment, Ltd.
485 Madison Avenue, 23rd Floor 38 26,600 26,600 $ 380,000
New York, New York 10022
- ---------------------------------------------------------------------------------------------------------------------
Sands Brother Venture Capital, LLC
c/o Sands Brothers
90 Park Avenue 5 3,500 3,500 $ 50,000
New York, NY 10016
Attn: Martin Sands, Manager
Shares of Shares of
Common Common
Shares of Stock Stock
Series E Acquirable Acquirable Total
Preferred under Series under Series Purchase
Name and Address of Purchaser Stock E-1 Warrants E-2 Warrants Price
- ---------------------------------------------------------------------------------------------------------------------
Sands Brother Venture Capital II, LLC
c/o Sands Brothers
90 Park Avenue 5 3,500 3,500 $ 50,000
New York, NY 10016
Attn: Martin Sands, Manager
- ---------------------------------------------------------------------------------------------------------------------
Sands Brother Venture Capital III, LLC
c/o Sands Brothers
90 Park Avenue 5 3,500 3,500 $ 50,000
New York, NY 10016
Attn: Martin Sands, Manager
- ---------------------------------------------------------------------------------------------------------------------
Sands Brother Venture Capital IV, LLC
c/o Sands Brothers
90 Park Avenue 5 3,500 3,500 $ 50,000
New York, NY 10016
Attn: Martin Sands, Manager
- ---------------------------------------------------------------------------------------------------------------------
Total 2000 1,400,000 1,400,000 $20,000,000
=====================================================================================================================
PLACEMENT AGENT WARRANTS:
Shares of Common Stock
Acquirable under Series Shares of Common Stock Acquirable
Name and Address of Placement Agent or its E-1 Placement Agent under Series E-3 Placement Agent
designees. Warrants Warrants
- -------------------------------------------------------------------------------------------------------------------
SCO Securities LLC
1285 Avenue of the Americas, 35th Floor
New York, NY 10019 168,000 168,000
Attn: Steven Rouhandeh
Tel: 212-554-4235
Fax: 212-554-4058
srouhandeh@scogroup.com
- -------------------------------------------------------------------------------------------------------------------
EXHIBIT A
PLAN OF DISTRIBUTION
We are registering the shares of common stock on behalf of the selling
security holders. Sales of shares may be made by selling security holders,
including their respective donees, transferees, pledgees or other
successors-in-interest directly to purchasers or to or through underwriters,
broker-dealers or through agents. Sales may be made from time to time on the
Nasdaq SmallCap Market or otherwise, at market prices prevailing at the time of
sale, at prices related to market prices, or at negotiated or fixed prices. The
shares may be sold by one or more of, or a combination of, the following:
- - a block trade in which the broker-dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction (including crosses in
which the same broker acts as agent for both sides of the transaction);
- - purchases by a broker-dealer as principal and resale by such
broker-dealer, including resales for its account, pursuant to this
prospectus;
- - ordinary brokerage transactions and transactions in which the broker
solicits purchases;
- - through options, swaps or derivatives;
- - in privately negotiated transactions;
- - in making short sales or in transactions to cover short sales; and
- - put or call option transactions relating to the shares.
The selling security holders may effect these transactions by selling
shares directly to purchasers or to or through broker-dealers, which may act as
agents or principals. These broker-dealers may receive compensation in the form
of discounts, concessions or commissions from the selling security holders
and/or the purchasers of shares for whom such broker-dealers may act as agents
or to whom they sell as principals, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions). The
selling security holders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their securities.
The selling security holders may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with those
transactions, the broker-dealers or other financial institutions may engage in
short sales of the shares or of securities convertible into or exchangeable for
the shares in the course of hedging positions they assume with the selling
security holders. The selling security holders may also enter into options or
other transactions with broker-dealers or other financial institutions which
require the delivery of shares offered by this prospectus to those
broker-dealers or other financial institutions. The broker-dealer or other
financial institution may then resell the shares pursuant to this prospectus (as
amended or supplemented, if required by applicable law, to reflect those
transactions).
The selling security holders and any broker-dealers that act in
connection with the sale of shares may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, and any commissions
received by broker-dealers or any profit on the resale of the shares sold by
them while acting as principals may be deemed to be underwriting discounts or
commissions under the Securities Act. The selling security holders may agree to
indemnify any agent, dealer or broker-dealer that participates in transactions
involving sales of the shares against liabilities, including liabilities arising
under the Securities Act. We have agreed to indemnify each of the selling
security holders and each selling security holder has agreed, severally and not
jointly, to indemnify us against some liabilities in connection with the
offering of the shares, including liabilities arising under the Securities Act.
The selling security holders will be subject to the prospectus delivery
requirements of the Securities Act. We have informed the selling security
holders that the anti-manipulative provisions of Regulation M promulgated under
the Securities Exchange Act of 1934 may apply to their sales in the market.
Selling security holders also may resell all or a portion of the shares
in open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of Rule 144.
Upon being notified by a selling security holder that a material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, we will file a supplement to
this prospectus, if required pursuant to Rule 424(b) under the Securities Act,
disclosing:
- - the name of each such selling security holder and of the participating
broker-dealer(s);
- - the number of shares involved;
- - the initial price at which the shares were sold;
- - the commissions paid or discounts or concessions allowed to the
broker-dealer(s), where applicable;
- - that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
- - other facts material to the transactions.
In addition, if required under applicable law or the rules or
regulations of the Commission, we will file a supplement to this prospectus when
a selling security holder notifies us that a donee or pledgee intends to sell
more than 500 shares of common stock.
We are paying all expenses and fees customarily paid by the issuer in
connection with the registration of the shares. The selling security holders
will bear all brokerage or underwriting discounts or commissions paid to
broker-dealers in connection with the sale of the shares.
EXHIBIT B
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[Name and Address of Transfer Agent]
RE: SPECTRUM PHARMACEUTICALS, INC.
Dear [______]:
We are counsel to Spectrum Pharmaceuticals, Inc. a Delaware corporation
(the "COMPANY"), and have represented the Company in connection with that
certain Preferred Stock and Warrant Purchase Agreement (the "PURCHASE
AGREEMENT") dated as of ____________, 2003 by and among the Company and the
buyers named therein (collectively, the "HOLDERS") pursuant to which the Company
issued to the Holders its Series E Convertible Voting Preferred Stock, par value
$0.001 per share (the "PREFERRED STOCK") convertible into shares of the
Company's common stock, par value $0.001 per share (the "COMMON STOCK"), and
warrants to purchase shares of the Common Stock (the "WARRANTS"). Pursuant to
the Purchase Agreement, the Company has also entered into a Registration Rights
Agreement with the Holders (the "REGISTRATION RIGHTS AGREEMENT") pursuant to
which the Company agreed, among other things, to register the Registrable
Securities (as defined in the Registration Rights Agreement), including the
shares of Common Stock issuable upon conversion of the Preferred Stock and
exercise of the Warrants, under the Securities Act of 1933, as amended (the
"1933 ACT"). In connection with the Company's obligations under the Registration
Rights Agreement, on __________, 2003, the Company filed a Registration
Statement on Form S-3 (File No. 333-_____________) (the "REGISTRATION
STATEMENT") with the Securities and Exchange Commission (the "SEC") relating to
the Registrable Securities which names each of the Holders as a selling
stockholder thereunder.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [ENTER TIME
OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge,
after telephonic inquiry of a member of the SEC's staff, that any stop order
suspending its effectiveness has been issued or that any proceedings for that
purpose are pending before, or threatened by, the SEC and the Registrable
Securities are available for resale under the 1933 Act pursuant to the
Registration Statement.
Very truly yours,
By:_____________________________
cc: [LIST NAMES OF HOLDERS]