þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware
(State or other jurisdiction of incorporation or organization) |
93-0979187
(I.R.S. Employer Identification No.) |
|
157 Technology Drive
Irvine, California (Address of Principal Executive Offices) |
92618 (Zip Code) |
Large Accelerated filer
o
|
Accelerated filer o | Non-accelerated filer o | Smaller reporting company þ | |||
|
(Do not check if a smaller reporting company) |
Class | Outstanding at August 7, 2009 | |
Common Stock, $.001 par value | 41,921,207 |
Page No. | ||||||||
|
||||||||
|
||||||||
3 | ||||||||
|
||||||||
3 | ||||||||
|
||||||||
4 | ||||||||
|
||||||||
5 | ||||||||
|
||||||||
6 | ||||||||
|
||||||||
7 | ||||||||
|
||||||||
20 | ||||||||
|
||||||||
28 | ||||||||
|
||||||||
28 | ||||||||
|
||||||||
|
||||||||
29 | ||||||||
|
||||||||
29 | ||||||||
|
||||||||
29 | ||||||||
|
||||||||
30 | ||||||||
|
||||||||
32 | ||||||||
|
||||||||
Exhibit 10.8 | ||||||||
Exhibit 10.9 | ||||||||
Exhibit 10.10 | ||||||||
Exhibit 10.11 | ||||||||
Exhibit 31.1 | ||||||||
Exhibit 31.2 | ||||||||
Exhibit 32.1 | ||||||||
Exhibit 32.2 |
2
ITEM 1. |
Financial Statements
|
3
June 30, | December 31, | |||||||
2009 | 2008 | |||||||
(In Thousands, Except Share and Per Share Data) | ||||||||
Assets
|
||||||||
Current Assets:
|
||||||||
Cash and cash equivalents
|
$ | 7,993 | $ | 9,860 | ||||
Marketable securities
|
77,062 | 68,226 | ||||||
Financing proceeds receivable
|
21,000 | | ||||||
|
||||||||
Cash, cash equivalents, marketable securities and financing proceeds receivable
|
106,055 | 78,086 | ||||||
Accounts receivable-trade, net
|
1,531 | 5,002 | ||||||
Inventory
|
2,355 | 1,841 | ||||||
Prepaid expenses and other current assets
|
661 | 693 | ||||||
|
||||||||
Total current assets
|
110,602 | 85,622 | ||||||
Property and equipment, net
|
1,845 | 1,782 | ||||||
ZEVALIN related intangible assets, net
|
35,143 | 37,042 | ||||||
Other assets
|
99 | 289 | ||||||
|
||||||||
Total assets
|
$ | 147,689 | $ | 124,735 | ||||
|
||||||||
Liabilities and Stockholders Equity
|
||||||||
Current Liabilities:
|
||||||||
Accounts payable and accrued obligations
|
$ | 13,985 | $ | 5,627 | ||||
Accrued compensation
|
2,278 | 2,956 | ||||||
Note payable in connection with ZEVALIN AcquisitIon
|
| 7,500 | ||||||
Current portion of deferred revenue and other credits
|
8,500 | 8,500 | ||||||
Accrued drug development costs
|
3,929 | 3,449 | ||||||
|
||||||||
Total current liabilities
|
28,692 | 28,032 | ||||||
Capital lease obligations, net of current portion
|
102 | 95 | ||||||
Deferred revenue and other credits, net of current portion
|
29,622 | 33,929 | ||||||
ZEVALIN related contingent obligations
|
6,755 | 8,798 | ||||||
|
||||||||
Total liabilities
|
65,171 | 70,854 | ||||||
|
||||||||
Commitments and contingencies (Note 5)
|
||||||||
Minority interest in consolidated entity
|
| 14,262 | ||||||
|
||||||||
Stockholders Equity:
|
||||||||
Preferred Stock, par value $0.001 per share, 5,000,000 shares authorized:
|
||||||||
Series B Junior participating preferred stock, 1,000,000 shares authorized, no shares issued and outstanding
|
| | ||||||
Series E Convertible voting preferred stock, 2,000 shares authorized, stated value $10,000 per share, $0.8
million aggregate liquidation value, issued and outstanding, 68 shares at June 30, 2009 and December 31,
2008
|
419 | 419 | ||||||
Common stock, par value $0.001 per share, 100,000,000 shares authorized;
|
||||||||
Issued and outstanding, 41,707,484 and 32,166,316 shares at June 30, 2009 and December 31, 2008
|
42 | 32 | ||||||
Additional paid-in capital
|
348,521 | 296,531 | ||||||
Accumulated other comprehensive loss
|
(166 | ) | (146 | ) | ||||
Accumulated deficit
|
(266,298 | ) | (257,217 | ) | ||||
|
||||||||
Total stockholders equity
|
82,518 | 39,619 | ||||||
|
||||||||
Total liabilities and stockholders equity
|
$ | 147,689 | $ | 124,735 | ||||
|
||||||||
4
5
Six Months | Six Months | |||||||
Ended | Ended | |||||||
June 31, 2009 | June 31, 2008 | |||||||
(In Thousands, Except Share and Per Share Data) | ||||||||
Cash Flows From Operating Activities
:
|
||||||||
Net income (loss)
|
$ | (9,081 | ) | $ | 2,012 | |||
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
|
||||||||
Amortization of deferred revenue
|
(4,250 | ) | | |||||
Depreciation and amortization
|
2,178 | 185 | ||||||
Share-based compensation expense
|
4,793 | 3,117 | ||||||
Fair value of common stock issued in connection with drug license
|
185 | 305 | ||||||
Minority
interest in consolidated entity
|
(1,146 | ) | | |||||
Changes in operating assets and liabilities:
|
||||||||
Accounts Receivable
|
3,471 | (188 | ) | |||||
Inventory
|
(514 | ) | (1,197 | ) | ||||
Prepaid expenses and other assets
|
228 | 190 | ||||||
Accounts payable and accrued obligations
|
9,154 | 4 | ||||||
Accrued compensation and related taxes
|
(678 | ) | (49 | ) | ||||
Deferred revenue and other credits
|
(49 | ) | (43 | ) | ||||
|
||||||||
Net cash provided by operating activities
|
4,291 | 4,336 | ||||||
|
||||||||
Cash Flows From Investing Activities
:
|
||||||||
Net purchases of marketable securities
|
(8,862 | ) | (3,065 | ) | ||||
Investment in ZEVALIN Acquisition
|
(22,687 | ) | | |||||
Purchases of property and equipment
|
(344 | ) | (687 | ) | ||||
|
||||||||
Net cash used in investing activities
|
(31,893 | ) | (3,752 | ) | ||||
|
||||||||
Cash Flows From Financing Activities
:
|
||||||||
Proceeds from issuance of common stock and warrants, net of
related offering costs and expenses
|
27,070 | | ||||||
Proceeds from sale of common stock to employees
|
1,167 | | ||||||
Repurchase of warrants
|
(71 | ) | | |||||
Proceeds from exercise of stock options
|
89 | | ||||||
Repurchase of stock options pursuant to tender offer
|
(2,520 | ) | | |||||
|
||||||||
Net cash provided by financing activities
|
25,735 | | ||||||
|
||||||||
Net increase in cash and cash equivalents
|
(1,867 | ) | 584 | |||||
Cash and cash equivalents, beginning of period
|
9,860 | 1,141 | ||||||
|
||||||||
Cash and cash equivalents, end of period
|
$ | 7,993 | $ | 1,724 | ||||
|
||||||||
Supplemental Cash Flow Information
:
|
||||||||
Interest paid
|
$ | 10 | $ | | ||||
|
||||||||
Income taxes paid
|
$ | 45 | $ | | ||||
|
||||||||
Schedule of Non-Cash Investing and Financing Activities
:
|
||||||||
Fair value of common stock issued in connection with drug license
|
$ | 185 | $ | 305 | ||||
|
||||||||
Fair value of restricted stock granted employees and directors
|
$ | 226 | $ | 223 | ||||
|
||||||||
Fair value of stock issued to match employee 401k contributions
|
$ | 219 | $ | 129 | ||||
|
||||||||
Fair value of equity awarded to consultants
|
$ | 111 | $ | 69 | ||||
|
6
7
Level 1: |
Quoted prices (unadjusted) in active markets that are accessible at the measurement
date for assets or liabilities. The fair value hierarchy gives the highest priority to
Level 1 inputs.
|
Level 2: |
Observable prices that are based on inputs not quoted on active markets, but
corroborated by market data.
|
Level 3: |
Unobservable inputs are used when little or no market data is available. The fair
value hierarchy gives the lowest priority to Level 3 inputs.
|
8
Fair Value Measurements at June 30, 2009 | ||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
|
||||||||||||||||
Cash & equivalents
|
$ | 7,993 | $ | | $ | | $ | 7,993 | ||||||||
U.S. Treasury T-Bills
|
1,993 | | | 1,993 | ||||||||||||
Money Market Currency Funds
|
5,998 | | | 5,998 | ||||||||||||
FDIC insured Bank CDs
|
15,653 | | | 15,653 | ||||||||||||
Medium Term Corporate Notes
|
4,311 | | | 4,311 | ||||||||||||
U.S. Treasury Backed Securities
|
49,107 | | | 49,107 | ||||||||||||
Financing proceeds receivables
|
21,000 | | | 21,000 | ||||||||||||
|
||||||||||||||||
Cash, cash equivalents,
marketable securities and
financing proceeds receivable
|
$ | 106,055 | $ | | $ | | $ | 106,055 | ||||||||
|
9
June 30, 2009 | ||||||||||||
Accumulated | ||||||||||||
Gross Carrying Amount | Amortization | Net Carrying Amount | ||||||||||
Developed technology
|
$ | 23,100 | $ | (1,227 | ) | $ | 21,873 | |||||
Core technology
|
14,100 | (830 | ) | 13,270 | ||||||||
|
||||||||||||
Acquired in-process research and development
|
4,700 | (4,700 | ) | | ||||||||
|
||||||||||||
Total intangible assets
|
$ | 41,900 | $ | (6,757 | ) | $ | 35,143 | |||||
|
10
Three-Months | Three-Months | Six Months | Six Months | |||||||||||||
Ended | Ended | Ended | Ended | |||||||||||||
June 30, 2009 | June 30, 2008 | June 30, 2009 | June 30, 2008 | |||||||||||||
|
||||||||||||||||
Net income (loss)
|
$ | (9,706 | ) | $ | 10,678 | $ | (9,081 | ) | $ | 2,012 | ||||||
Less:
|
||||||||||||||||
Preferred dividends paid in cash or stock
|
| |||||||||||||||
|
||||||||||||||||
Income (loss) attributable to common stockholders
|
$ | (9,706 | ) | $ | 10,678 | $ | (9,081 | ) | $ | 2,012 | ||||||
|
||||||||||||||||
|
||||||||||||||||
Net income (loss) per share:
|
||||||||||||||||
Basic
|
$ | (0.28 | ) | $ | 0.34 | $ | (0.27 | ) | $ | 0.06 | ||||||
|
||||||||||||||||
Diluted
|
$ | (0.28 | ) | $ | 0.34 | $ | 0.27 | $ | 0.06 | |||||||
|
||||||||||||||||
|
||||||||||||||||
Weighted average shares:
|
||||||||||||||||
Basic
|
34,582,640 | 31,462,522 | 33,517,002 | 31,366,902 | ||||||||||||
Dilutive preferred shares
|
| 340,000 | | 340,000 | ||||||||||||
Dilutive options
|
| 66,557 | | 115,230 | ||||||||||||
|
||||||||||||||||
Diluted
|
34,582,640 | 31,869,079 | 33,517,002 | 31,822,132 | ||||||||||||
|
||||||||||||||||
|
11
Three-Months | Three-Months | Six-Months | Six-Months | |||||||||||||
Ended | Ended | Ended | Ended | |||||||||||||
June 30, 2009 | June 30, 2008 | June 30, 2009 | June 30, 2008 | |||||||||||||
|
||||||||||||||||
Research and development
|
$ | 2,261 | $ | 892 | $ | 2,741 | $ | 2,000 | ||||||||
General and administrative
|
$ | 1,564 | $ | 494 | $ | 2,052 | $ | 1,116 | ||||||||
|
||||||||||||||||
Total share based charges
|
$ | 3,825 | $ | 1,385 | $ | 4,793 | $ | 3,116 | ||||||||
|
12
13
June 30, | December 31, | |||||||
2009 | 2008 | |||||||
($ in 000s) | ||||||||
|
||||||||
Accounts receivable gross
|
$ | 3,777 | $ | 9,926 | ||||
|
||||||||
Allowances for discounts, chargebacks and returns
|
(2,096 | ) | (4,774 | ) | ||||
Allowances for doubtful accounts
|
(150 | ) | (150 | ) | ||||
|
||||||||
|
||||||||
Accounts receivable, net of allowances
|
$ | 1,531 | $ | 5,002 | ||||
|
June 30, | December 31, | |||||||
2009 | 2008 | |||||||
($ in 000s) | ($ in 000s) | |||||||
|
||||||||
Finished Goods
|
$ | 2,031 | $ | 1,492 | ||||
Work In Process
|
0 | 312 | ||||||
Raw Materials
|
372 | 68 | ||||||
Less: reserve for inventory allowances
|
(48 | ) | (31 | ) | ||||
|
||||||||
|
||||||||
|
$ | 2,355 | $ | 1,841 | ||||
|
Capital Lease | ||||||||
June 30, 2009 | Lease Commitments | Commitments | ||||||
Amounts In Thousands | ||||||||
|
||||||||
2009 (Remainder of year)
|
$ | 207 | $ | 25 | ||||
|
||||||||
2010
|
428 | 50 | ||||||
|
||||||||
2011
|
455 | 50 | ||||||
|
||||||||
2012
|
484 | 47 | ||||||
|
||||||||
2013
|
513 | | ||||||
|
||||||||
2014
|
542 | |||||||
|
||||||||
Thereafter
|
863 | | ||||||
|
||||||||
|
||||||||
|
$ | 3,492 | $ | 172 | ||||
|
14
15
Conversion of Series E preferred shares
|
136,000 | |||
Exercise of stock options
|
8,090,000 | |||
Exercise of warrants
|
8,379,912 | |||
|
||||
|
||||
Total shares of common stock reserved for future issuances
|
16,605,912 | |||
|
16
Weighted | ||||||||||||||||
Common | Average | Weighted | Aggregate | |||||||||||||
Stock | Exercise | Average | Intrinsic | |||||||||||||
Options | Price | Remaining Term | Value | |||||||||||||
(In Years) | (In Thousands) | |||||||||||||||
|
||||||||||||||||
Outstanding at beginning of year
|
7,115,772 | $ | 4.80 | |||||||||||||
Granted
|
3,432,350 | 4.68 | ||||||||||||||
Expired
|
(64,750 | ) | 4.47 | |||||||||||||
Forfeited
|
(51,750 | ) | 3.50 | |||||||||||||
Repurchased
|
(2,165,372 | ) | 7.75 | |||||||||||||
Exercised
|
(176,250 | ) | 1.81 | |||||||||||||
|
||||||||||||||||
Outstanding, at the end of period
|
8,090,000 | $ | 4.03 | 8.31 | $ | 29,288 | ||||||||||
|
||||||||||||||||
|
||||||||||||||||
Vested and expected to vest, at end of period
|
7,425,944 | $ | 4.03 | 5.31 | $ | 26,886 | ||||||||||
|
||||||||||||||||
|
||||||||||||||||
Exercisable, at the end of period
|
4,176,463 | $ | 4.02 | 7.13 | $ | 15,145 | ||||||||||
|
17
Weighted | ||||||||
Restricted | Average | |||||||
Stock | Grant date | |||||||
Awards | Fair Value | |||||||
Nonvested at beginning of period
|
377,500 | $ | 3.04 | |||||
Granted
|
230,000 | 1.46 | ||||||
Vested
|
(221,250 | ) | 3.14 | |||||
Forfeited
|
(2,500 | ) | 5.45 | |||||
|
||||||||
Nonvested at the end of period
|
383,750 | $ | 2.02 | |||||
|
18
Common Stock
Warrants |
Weighted Average
Exercise Price |
|||||||
Outstanding at beginning of period
|
5,444,555 | $ | 7.28 | |||||
Issued
|
4,282,600 | 5.94 | ||||||
Repurchased
|
(95,238 | ) | 6.62 | |||||
Expired
|
(1,252,005 | ) | 10.03 | |||||
|
||||||||
|
||||||||
Outstanding, at the end of period
|
8,379,912 | $ | 6.19 | |||||
|
||||||||
|
||||||||
Exercisable, at the end of period
|
4,097,312 | $ | 6.45 | |||||
|
19
20
21
22
23
24
25
26
27
28
ITEM 2.
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Less than
After
Total
1 Year
1-3 Years
3-5 Years
5 Years
$
172
$
25
$
147
3,491
207
883
$
997
$
1,404
17,419
11,540
5,507
372
0
86,662
14,105
4,856
7,515
60,186
$
107,744
$
25,877
$
11,393
$
8,884
$
61,590
(1)
(2)
(3)
(4)
(5)
Table of Contents
Table of Contents
ITEM 3.
ITEM 4.
Table of Contents
29
30
31
ITEM 1A.
ITEM 2.
ITEM 4.
VOTES CAST
Authority
For
Withheld
22,524,481
4,415,263
24,648,068
2,291,676
22,538,861
4,400,883
24,702,895
2,236,849
24,469,188
2,470,556
22,445,757
4,493,987
Votes Cast
Broker
Non-
For
Against
Abstain
Votes
9,349,430
5,380,411
72,932
17,744,066
Votes Cast
Broker
Non-
For
Against
Abstain
Votes
8,590,831
6,136,531
75,411
17,744,066
Table of Contents
ITEM 6.
Exhibit No.
Description
1.1
1.2
1.3
4.1
4.2
4.3
10.1
10.2
10.3
10.4
*
10.5
*
10.6
10.7
*
10.8
* +
10.9
* +
10.10
* +
10.11
* +
Table of Contents
Exhibit No.
Description
31.1+
31.2+
32.1+
32.2+
*
+
Table of Contents
32
SPECTRUM PHARMACEUTICALS, INC.
Date: August 13, 2009
By:
/s/ Shyam K. Kumaria
Shyam K. Kumaria,
Vice President, Finance
(Authorized Signatory and Principal
Financial and Accounting Officer)
Table of Contents
33
Exhibit No.
Description
1.1
1.2
1.3
4.1
4.2
4.3
10.1
10.2
10.3
10.4
*
10.5
*
10.6
10.7
*
10.8
* +
10.9
* +
10.10
* +
10.11
* +
31.1
+
31.2
+
32.1
+
32.2
+
*
+
Name of Participant:
|
||||
Grant Date:
|
||||
Number of Shares of Common Stock covered by Option:
|
||||
Exercise Price Per Share:
|
$ | |||
Vesting Schedule:
|
|
SPECTRUM PHARMACEUTIALS, INC. | |
|
||
|
||
|
Name | |
|
Title |
|
PARTICIPANT | |
|
||
|
||
|
Signature |
|
||
|
Signature of Spouse |
|
PARTICIPANT | |
|
||
|
||
|
Signature |
1. |
TERMS OF OPTION
|
|
SPECTRUM PHARMACEUTICALS, INC. (the Company), has granted to the Participant named in the
Term Sheet provided to said Participant herewith (the Term Sheet) a stock option (the
Option) to purchase up to the number of shares of the Companys common stock (the Common
Stock), set forth in the Term Sheet, at the purchase price per share and upon the other
terms and subject to the conditions set forth in the Term Sheet, these Standard Terms and
Conditions (as amended from time to time), and the Plan. For purposes of these Standard
Terms and Conditions and the Term Sheet, any reference to the Company shall include a
reference to any Subsidiary.
|
||
2. |
EXERCISE OF OPTION
|
|
The Option shall continue to vest, in accordance with the Vesting Schedule set forth on the
Term Sheet, so long as Participant remains in Continuous Service with the Company.
Participant may exercise any vested portion of the Option at any time prior to the
Expiration Date of the Option.
|
||
To exercise the Option (or any part thereof), Participant shall provide notice to the
Company specifying the number of whole shares of Common Stock Participant wishes to purchase
and how Participants shares of Common Stock should be registered (in Participants name
only or in Participants and Participants spouses names as community property or as joint
tenants with right of survivorship).
|
||
The exercise price (the Exercise Price) of the Option is set forth in the Term Sheet. The
Company shall not be obligated to issue any shares of Common Stock until Participant shall
have paid the total Exercise Price for that number of shares of Common Stock. The Exercise
Price may be paid as permitted in the Plan.
|
||
Fractional shares will not be issued. Shares of Common Stock will be issued as soon as
practical after exercise. Notwithstanding the above, the Company shall not be obligated to
deliver any shares of Common Stock during any period when the Company determines that the
exercisability of the Option or the delivery of shares hereunder would violate any federal,
state or other applicable laws.
|
3. |
EXPIRATION OF OPTION
|
|
The Option shall expire and cease to be exercisable ten (10)
years after the Grant Date of the Option (the Expiration Date), except as provided in this Section 3.
|
A. |
In the event that the Participants Continuous Service is terminated as a
result of the death of the Participant or Participant dies during the three month
period set forth in Section 3.C below, (i) any part of the Option that is unexercisable
as of such termination date shall remain unexercisable and shall terminate as of such
date, and (ii) any part of the Option that is exercisable as of such termination date
shall expire upon the earlier of one year following the date of termination of the
Participants Continuous Service or the Expiration Date of the Option.
|
||
B. |
In the event that the Participants Continuous Service is terminated as a
result of the Disability of the Participant, (i) any part of the Option that is
unexercisable as of such termination date shall remain unexercisable and shall
terminate as of such date, and (ii) any part of the Option that is exercisable as of
such termination date shall expire upon the earlier of one year following the date of
termination of the Participants Continuous Service or the Expiration Date of the
Option.
|
||
C. |
In the event that the Participants Continuous Service with the Company is
terminated for any reason other than the death or Disability of the Participant, (i)
any part of the Option that is unexercisable as of such termination date shall remain
unexercisable and shall terminate as of such date, and (ii) any part of the Option that
is exercisable as of such termination date shall expire upon the earlier of three
months following such termination date or the Expiration Date of the Option.
|
4. |
RESTRICTIONS ON RESALES OF OPTION SHARES
|
|
The Company may impose such restrictions, conditions or limitations as it determines
appropriate as to the timing and manner of any resales by the Participant or other
subsequent transfers by the Participant of any shares of Common Stock issued as a result of
the exercise of the Option, including without limitation (a) restrictions under an insider
trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner
of sales by Participant and other optionholders, (c) restrictions as to the use of a
specified brokerage firm for such resales or other transfers or (d) restrictions under
federal or state securities laws.
|
||
5. |
INCOME TAXES
|
|
To the extent required by applicable federal, state, local or foreign law, the Participant
shall make arrangements satisfactory to the Company for the satisfaction of any withholding
tax obligations that arise by reason of an Option exercise or disposition of shares issued
as a result of an Option exercise. The Company shall not be required to issue shares or to
recognize the disposition of such shares until such obligations are satisfied.
|
||
6. |
TRANSFERABILITY OF OPTION
|
|
The Participant may not assign or transfer the Option (if intended to qualify as an
incentive stock option under Section 422 of the Code) to anyone other than except by will,
the laws of descent and distribution or pursuant to a DRO entered by a court in settlement
of marital property rights, and during the life of the Participant, Options shall be
exercisable only by the Participant.
|
If this Option does not qualify as an incentive stock option under Section 422 of the Code,
then the Participant may transfer some or all of his or her Nonqualified Options to one or
more family members, which is not a prohibited transfer for value, provided that (i) the
Participant (or such
Participants estate or representative) shall remain obligated to satisfy all income or
other tax withholding obligations associated with the exercise of such Nonqualified Option;
(ii) the Participant shall notify the Company in writing that such transfer has occurred and
disclose to the Company the name and address of the family member or family members and
their relationship to the Participant, and (iii) such transfer shall be effected pursuant to
transfer documents in a form approved by the Committee. For purposes of the foregoing, the
terms family members and prohibited transfer for value have the meaning ascribed to them
in the General Instructions to form S-8 (or any successor form) promulgated under the
Securities Act of 1933, as amended.
|
||
Any attempt to sell, pledge, assign, hypothecate, transfer or dispose of an Option in
contravention of the Plan or these Standard Terms and Conditions shall be void and shall
have no effect.
|
||
7. |
REPRESENTATIONS AND WARRANTIES
|
|
Participant acknowledges that the Company may issue the shares of Common Stock upon the
exercise of the Option without registering such shares under the Securities Act, on the
basis of certain exemptions from such registration requirement. Accordingly, Participant
agrees that his or her exercise of the Option may be expressly conditioned upon his or her
delivery to the Company of an investment certificate including such representations and
undertakings as the Company may reasonably require in order to assure the availability of
such exemptions, including a representation that Participant is acquiring the shares of
Common Stock for investment and not with a present intention of selling or otherwise
disposing thereof and an agreement by Participant that the certificates evidencing the
shares of Common Stock may bear a legend indicating such non-registration under the
Securities Act and the resulting restrictions on transfer. Participant acknowledges that,
because shares of Common Stock received upon exercise of an Option may be unregistered,
Participant may be required to hold the shares of Common Stock indefinitely unless they are
subsequently registered for resale under the Securities Act or an exemption from such
registration is available.
|
||
Participant hereby acknowledges that federal securities laws and the securities laws of the
state in which he or she resides may require the placement of certain restrictive legends
upon the shares of Common Stock issued upon exercise of this Option, and Participant hereby
consents to the placing of any such legends upon certificates evidencing the shares of
Common Stock as the Company may deem necessary or advisable.
|
||
8. |
THE PLAN AND OTHER AGREEMENTS
|
|
In addition to these Standard Terms and Conditions, the Option shall be subject to the terms
of the Plan, which are incorporated into these Standard Terms and Conditions by this
reference. A copy of the Plan, and the accompanying prospectus, is available at the
Companys intranet site.
|
||
The Term Sheet, these Standard Terms and Conditions and the Plan constitute the entire
understanding between the Participant and the Company regarding the Option. Any prior
agreements, commitments or negotiations concerning the Option are superseded.
|
9. |
LIMITATION OF INTEREST IN SHARES SUBJECT TO OPTION
|
|
Neither the Participant (individually or as a member of a group) nor any beneficiary or
other person claiming under or through the Participant shall have any right, title,
interest, or privilege in
or to any shares of Common Stock allocated or reserved for the purpose of the Plan or
subject to the Term Sheet or these Standard Terms and Conditions except as to such shares of
Common Stock, if any, as shall have been issued to such person upon exercise of the Option
or any part of it. Nothing in the Plan, in the Term Sheet, these Standard Terms and
Conditions or any other instrument executed pursuant to the Plan shall confer upon the
Participant any right to continue in the Companys employ or service nor limit in any way
the Companys right to terminate the Participants Continuous Service at any time for any
reason.
|
||
10. |
DEFINITIONS
|
|
For purposes of these Standard Terms and Conditions, the following defined terms shall have
the meaning ascribed below:
|
||
Continuous Service means (i) employment by either the Company or any Subsidiary, or by a
corporation or a parent or subsidiary of a corporation issuing or assuming a stock option in
a transaction to which Section 424(a) of the Code applies, which is uninterrupted except for
vacations, illness (except for Disability), or leaves of absence which are approved in
writing by the Company or such other employer corporation (and in the case of an incentive
stock option, the leave of absence cannot exceed 90 days unless reemployment following the
leave is guaranteed by contract or statute), (ii) service as a member of the Board until
Participant dies, resigns, is removed from office, or Participants term of office expires
and he or she is not reelected, or (iii) so long as Participant is engaged as Service
Provider to the Company or other corporation referred to in clause (i) above.
|
||
11. |
GENERAL
|
|
In the event that any provision of these Standard Terms and Conditions is declared to be
illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, such
provision shall be reformed, if possible, to the extent necessary to render it legal, valid
and enforceable, or otherwise deleted, and the remainder of these Standard Terms and
Conditions shall not be affected except to the extent necessary to reform or delete such
illegal, invalid or unenforceable provision.
|
||
The headings preceding the text of the sections hereof are inserted solely for convenience
of reference, and shall not constitute a part of these Standard Terms and Conditions, nor
shall they affect its meaning, construction or effect.
|
||
These Standard Terms and Conditions shall inure to the benefit of and be binding upon the
parties hereto and their respective permitted heirs, beneficiaries, successors and assigns.
|
||
All questions arising under the Plan or under these Standard Terms and Conditions shall be
decided by the Administrator in its sole and absolute discretion.
|
12. |
SPECIAL TAX CONSEQUENCES
|
|
The Participant acknowledges that, to the extent that the aggregate fair market value of
stock with respect to which incentive stock options (within the meaning of Section 422 of
the Code, but without regard to Section 422(d) of the Code) granted hereby and all other
incentive stock options granted by the Company or any Subsidiary to Participant that are
exercisable for the first time by the Participant during any calendar year exceeds $100,000,
such options shall be treated for all purposes as
not
qualifying under Section 422
of the Code and therefore shall be subject to taxation as non-qualified options. The
Participant further acknowledges that the rules set forth in the preceding sentence shall be
applied by taking options into account in the order in which they were granted. For
purposes of these rules, the fair market value of stock shall be determined as of the time
the option with respect to such option is granted. These rules may be changed by the IRS at
any time.
|
||
13. |
MARKET STAND-OFF CONDITIONS
|
|
Participant agrees that, if requested by the Company, Participant will not sell or otherwise
transfer or dispose of any shares held by Participant without the prior written consent of
the Company during such period of time.
|
||
14. |
INTERPRETATION
|
|
This Option is granted pursuant to the terms of the Plan, and shall in all respects be
interpreted in accordance therewith. The Committee shall have the power to interpret the
Plan, the Term Sheet and these Standard Terms and Conditions and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent therewith and
to interpret or revoke any such rules. Any action, decision, interpretation or
determination by the Committee shall be final, binding and conclusive on the Company and the
Participant. No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or the Option.
Notwithstanding the provision of Sections 10.1(a) 10.1(d) of the Plan, the Committee
shall have the discretion to provide terms and conditions regarding (i) the vesting of this
Option in the event of a Change in Control, and/or (ii) the assumption of this Option or
issuance of comparable securities or new incentives in the event of a Change in Control.
|
||
15. |
NOTICES
|
|
Any notice, demand or request required or permitted to be given under the Term Sheet and
these Standard Terms and Conditions shall be in writing and shall be deemed given when
delivered personally or three (3) days after being deposited in the United States mail, as
certified or registered mail, with postage prepaid, and addressed, if to the Company, at its
principal place of business, Attention: Legal Department, and if to the Participant, at his
or her most recent address as shown in the employment or stock records of the Company.
|
16. |
GOVERNING LAW
|
|
The validity, construction, interpretation, and effect of this Option shall be governed by
and determined in accordance with the laws of the State of California.
|
17. |
SEVERABILITY
|
|
Should any provision or portions of this Agreement be held to be unenforceable or invalid
for any reason, the remaining provisions and portions of this Agreement shall be unaffected
by such holding.
|
||
18. |
COUNTERSIGNATURE
|
|
The Term Sheet may be executed in two or more counterparts, each of which shall be deemed an
original and all of which together shall be deemed one instrument, and is incorporated
herein.
|
Name of Participant:
|
||||
Grant Date:
|
||||
Number of Shares of Common Stock covered by Option:
|
||||
Exercise Price Per Share:
|
$ | |||
Vesting Schedule:
|
|
SPECTRUM PHARMACEUTIALS, INC. | |||
|
||||
|
||||
|
Name | |||
|
Title |
|
PARTICIPANT | |||
|
||||
|
||||
|
Signature |
|
|
|
PARTICIPANT | |||
|
||||
|
|
1. |
TERMS OF OPTION
|
|
SPECTRUM PHARMACEUTICALS, INC. (the Company), has granted to the Participant named in the
Term Sheet provided to said Participant herewith (the Term Sheet) a nonqualified stock
option (the Option) to purchase up to the number of shares of the Companys common stock
(the Common Stock), set forth in the Term Sheet, at the purchase price per share and upon
the other terms and subject to the conditions set forth in the Term Sheet, these Standard
Terms and Conditions (as amended from time to time), and the Plan. For purposes of these
Standard Terms and Conditions and the Term Sheet, any reference to the Company shall include
a reference to any Subsidiary.
|
||
2. |
NON-QUALIFIED STOCK OPTION
|
|
The Option is not intended to be an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the Code) and will be interpreted accordingly.
|
||
3. |
EXERCISE OF OPTION
|
|
The Option shall continue to vest, in accordance with the Vesting Schedule set forth on the
Term Sheet, so long as Participant remains a member of the Board. Participant may exercise
any vested portion of the Option at any time prior to the Expiration Date of the Option.
|
||
To exercise the Option (or any part thereof), Participant shall provide notice to the
Company specifying the number of whole shares of Common Stock Participant wishes to purchase
and how Participants shares of Common Stock should be registered (in Participants name
only or in Participants and Participants spouses names as community property or as joint
tenants with right of survivorship).
|
||
The exercise price (the Exercise Price) of the Option is set forth in the Term Sheet. The
Company shall not be obligated to issue any shares of Common Stock until Participant shall
have paid the total Exercise Price for that number of shares of Common Stock. The Exercise
Price may be paid as permitted in the Plan.
|
||
Fractional shares will not be issued. Shares of Common Stock will be issued as soon as
practical after exercise. Notwithstanding the above, the Company shall not be obligated to
deliver any shares of Common Stock during any period when the Company determines that the
exercisability of the Option or the delivery of shares hereunder would violate any federal,
state or other applicable laws.
|
4. |
EXPIRATION OF OPTION
|
|
The Option shall expire and cease to be exercisable ten (10)
years after the Grant Date of the Option (the Expiration Date), except as provided in this Section 4.
|
A. |
This Option shall expire and cease to be exercisable upon the earlier of the
Expiration Date of the Option or the expiration of five (5) years from the date of
termination of Participants Continuous Service if such termination occurs for any
reason other than (i) removal from office by action of the Board or the stockholders of
the Company, or (ii) a failure to be elected as a director by the stockholders at any
meeting of the stockholders at which Participant was a candidate for election to the
Board, or (iii) Participant resigning from the Board prior to the expiration of his or
her term of office.
|
||
B. |
This Option shall expire and cease to be exercisable upon the earlier of the
Expiration Date of the Option or the expiration of three (3) months from the date of
termination of Participants Continuous Service if such termination is due to (i)
removal from office by action of the Board or the stockholders of the Company, or (ii)
a failure to be elected as a director by the stockholders at any meeting of the
stockholders at which Participant was a candidate for election to the Board, or (iii)
Participant resigning from the Board prior to the expiration of his or her term of
office.
|
5. |
RESTRICTIONS ON RESALES OF OPTION SHARES
|
|
The Company may impose such restrictions, conditions or limitations as it determines
appropriate as to the timing and manner of any resales by the Participant or other
subsequent transfers by the Participant of any shares of Common Stock issued as a result of
the exercise of the Option, including without limitation (a) restrictions under an insider
trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner
of sales by Participant and other optionholders, (c) restrictions as to the use of a
specified brokerage firm for such resales or other transfers or (d) restrictions under
federal or state securities laws.
|
||
6. |
INCOME TAXES
|
|
To the extent required by applicable federal, state, local or foreign law, the Participant
shall make arrangements satisfactory to the Company for the satisfaction of any withholding
tax obligations that arise by reason of an Option exercise or disposition of shares issued
as a result of an Option exercise. The Company shall not be required to issue shares or to
recognize the disposition of such shares until such obligations are satisfied.
|
||
7. |
NON-TRANSFERABILITY OF OPTION
|
|
The Participant may transfer some or all of his or her Options to one or more family
members, which is not a prohibited transfer for value, provided that (i) the Participant
(or such Participants estate or representative) shall remain obligated to satisfy all
income or other tax withholding obligations associated with the exercise of such Option;
(ii) the Participant shall notify the Company in writing that such transfer has occurred and
disclose to the Company the name and address of the family member or family members and
their relationship to the Participant, and (iii) such transfer shall be effected pursuant to
transfer documents in a form approved by the Committee. For purposes of the foregoing, the
terms family members and prohibited transfer for value have the meaning ascribed to them in the General
Instructions to form S-8 (or any successor form) promulgated under the Securities Act of
1933, as amended.
|
8. |
THE PLAN AND OTHER AGREEMENTS
|
|
In addition to these Standard Terms and Conditions, the Option shall be subject to the terms
of the Plan, which are incorporated into these Standard Terms and Conditions by this
reference. A copy of the Plan, and the accompanying prospectus, is available at the
Companys intranet site.
|
||
The Term Sheet, these Standard Terms and Conditions and the Plan constitute the entire
understanding between the Participant and the Company regarding the Option. Any prior
agreements, commitments or negotiations concerning the Option are superseded.
|
||
9. |
LIMITATION OF INTEREST IN SHARES SUBJECT TO OPTION
|
|
Neither the Participant (individually or as a member of a group) nor any beneficiary or
other person claiming under or through the Participant shall have any right, title,
interest, or privilege in or to any shares of Common Stock allocated or reserved for the
purpose of the Plan or subject to the Term Sheet or these Standard Terms and Conditions
except as to such shares of Common Stock, if any, as shall have been issued to such person
upon exercise of the Option or any part of it. Nothing in the Plan, in the Term Sheet,
these Standard Terms and Conditions or any other instrument executed pursuant to the Plan
shall confer upon the Participant any employment rights or any rights to continue as a
director with the Board or in service to the Company.
|
||
10. |
GENERAL
|
|
In the event that any provision of these Standard Terms and Conditions is declared to be
illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, such
provision shall be reformed, if possible, to the extent necessary to render it legal, valid
and enforceable, or otherwise deleted, and the remainder of these Standard Terms and
Conditions shall not be affected except to the extent necessary to reform or delete such
illegal, invalid or unenforceable provision.
|
||
The headings preceding the text of the sections hereof are inserted solely for convenience
of reference, and shall not constitute a part of these Standard Terms and Conditions, nor
shall they affect its meaning, construction or effect.
|
||
These Standard Terms and Conditions shall inure to the benefit of and be binding upon the
parties hereto and their respective permitted heirs, beneficiaries, successors and assigns.
|
||
All questions arising under the Plan or under these Standard Terms and Conditions shall be
decided by the Administrator in its sole and absolute discretion.
|
||
12. |
MARKET STAND-OFF CONDITIONS
|
|
Participant agrees that, if requested by the Company, Participant will not sell or otherwise
transfer or dispose of any shares held by Participant without the prior written consent of
the Company during such period of time.
|
13. |
INTERPRETATION
|
|
This Option is granted pursuant to the terms of the Plan, and shall in all respects be
interpreted in accordance therewith. The Committee shall have the power to interpret the
Plan, the Term Sheet and these Standard Terms and Conditions and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent therewith and
to interpret or revoke any such rules. Any action, decision, interpretation or
determination by the Committee shall be final, binding and conclusive on the Company and the
Participant. No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or the Option.
Notwithstanding the provision of Sections 10.1(a) 10.1(d) of the Plan, the Committee
shall have the discretion to provide terms and conditions regarding (i) the vesting of this
Option in the event of a Change in Control, and/or (ii) the assumption of this Option or
issuance of comparable securities or new incentives in the event of a Change in Control.
|
||
14. |
NOTICES
|
|
Any notice, demand or request required or permitted to be given under the Term Sheet and
these Standard Terms and Conditions shall be in writing and shall be deemed given when
delivered personally or three (3) days after being deposited in the United States mail, as
certified or registered mail, with postage prepaid, and addressed, if to the Company, at its
principal place of business, Attention: Legal Department, and if to the Participant, at his
or her most recent address as shown in the employment or stock records of the Company.
|
||
15. |
GOVERNING LAW
|
|
The validity, construction, interpretation, and effect of this Option shall be governed by
and determined in accordance with the laws of the State of California.
|
||
16. |
SEVERABILITY
|
|
Should any provision or portions of this Agreement be held to be unenforceable or invalid
for any reason, the remaining provisions and portions of this Agreement shall be unaffected
by such holding.
|
||
17. |
COUNTERSIGNATURE
|
|
The Term Sheet may be executed in two or more counterparts, each of which shall be deemed an
original and all of which together shall be deemed one instrument, and is incorporated
herein.
|
Name of the Purchaser:
|
||
Award Date:
|
||
Number of Shares of Restricted Stock:
|
||
Vesting Schedule:
|
|
SPECTRUM PHARMACEUTIALS, INC. | |
|
||
|
||
|
||
|
Name | |
|
Title |
|
PARTICIPANT | |
|
||
|
||
|
||
|
Signature |
|
||
|
||
|
Signature of Spouse |
|
PARTICIPANT | |
|
||
|
||
|
||
|
Signature |
1. |
TERMS OF RESTRICTED STOCK AWARD
|
|
In consideration for past services provided to Spectrum Pharmaceuticals, Inc. (the
Company), the Company has granted (the Award) to the Purchaser named in the Term Sheet
provided to said Purchaser herewith (the Term Sheet) the number of shares of its common
stock (the Restricted Stock) that are covered by this Award, set forth in the Term Sheet,
upon the other terms and subject to the conditions set forth in the Term Sheet, these
Standard Terms and Conditions (as amended from time to time), and the Plan (the Term Sheet
and the Standard Terms and Conditions, as in effect at the time of the execution of the Term
Sheet, together constituting the Award Agreement between the Purchaser and the Company).
For purposes of the Award Agreement, any reference to the Company shall include a reference
to any Subsidiary.
|
||
2. |
VESTING OF RESTRICTED STOCK
|
A. |
Subject to Section 2.B below, the shares of Restricted Stock shall become
vested as specified in the box labeled Vesting Schedule on the Term Sheet. Each date
upon which shares of Restricted Stock vest pursuant to the Vesting Schedule may
constitute a taxable event (see Section 7, below).
|
||
B. |
In the event that the Purchasers Continuous Service is terminated for any
reason, any part of the Award that is unvested as of such termination date shall remain
unvested (the Unvested Shares) and shall be subject to forfeiture as set forth in
Section 3 below.
|
3. |
RECONVEYANCE UPON TERMINATION OF SERVICE
|
|
In the event that the Purchasers Continuous Service terminates for any reason, all of the
Unvested Shares shall be immediately forfeited without any further action by the Company or
the Purchaser. Upon the occurrence of such a forfeiture, the Company shall become the legal
and beneficial owner of the Unvested Shares being forfeited and all rights and interests
therein or relating thereto, and the Company shall have the right to retain and transfer to
its own name the number of Shares being forfeited by Purchaser. In the event any of the
Unvested Shares are forfeited under this Section 3, all shares of stock, capital stock or
other securities or property received by or distributed to the Purchaser with respect to the
Unvested Shares being forfeited shall also be forfeited.
|
||
4. |
RIGHTS AS A STOCKHOLDER
|
|
Except as otherwise provided herein, upon and execution of the Term Sheet by the Purchaser,
the Purchaser shall have all the rights of a stockholder with respect to said shares of
Restricted Stock, subject to the restrictions herein, including the right to vote the shares
of Restricted Stock and to
|
receive all dividends or other distributions paid or made with respect to the shares of
Restricted Stock;
provided, however
, that any and all cash dividends paid on such shares of
Restricted Stock and any and all shares of stock, capital stock or other securities or
property received by or distributed to the Purchaser with respect to the shares of
Restricted Stock as a result of any stock dividend, stock split, reverse stock split,
recapitalization, combination, merger, sale, reclassification, or similar change in the
capital structure of the Company shall also be subject to forfeiture in accordance with
Section 3 and the restrictions on transfer in Section 8 until shares are no longer Unvested
Shares.
|
Certificates or equivalent electronic form evidencing shares of Restricted Stock shall
remain in the possession of the Company until such shares have vested in accordance with the
terms of the Term Sheet, and shall be released to the Purchaser in book-entry or equivalent
electronic form upon vesting.
|
||
5. |
RESTRICTIONS ON RESALES OF AWARD SHARES
|
|
The Company may impose such restrictions, conditions or limitations as it determines
appropriate as to the timing and manner of any resales by the Purchaser or other subsequent
transfers by the Purchaser of any shares of Restricted Stock awarded pursuant to the Award
Agreement, including without limitation (a) restrictions under an insider trading policy,
(b) restrictions designed to delay and/or coordinate the timing and manner of sales by the
Purchaser and other stockholders, (c) restrictions as to the use of a specified brokerage
firm for such resales or other transfers or (d) restrictions under federal or state
securities laws.
|
||
6. |
ADJUSTMENTS TO RESTRICTED STOCK
|
|
Upon or in contemplation of any reclassification, recapitalization, stock split, reverse
stock split or stock dividend; any merger, combination, consolidation or other
reorganization; any split-up, spin-off, or similar extraordinary dividend distribution in
respect of the Common Stock (whether in the form of securities or property); any exchange of
Common Stock or other securities of the Company, or any similar, unusual or extraordinary
corporate transaction in respect of the Common Stock; or a sale of substantially all the
assets of the Company as an entirety; then the Company shall, in its sole discretion and in
such manner, to such extent (if any) and at such time as it deems appropriate and equitable
in the circumstances, make adjustments if appropriate in the number of shares of Restricted
Stock awarded.
|
||
7. |
INCOME TAXES
|
A. |
The Purchaser (and not the Company) shall be responsible for the Purchasers
own tax liability that may arise as a result of the acquisition of the shares of
Restricted Stock. The Purchaser shall consider the advisability of all tax elections
in connection with the purchase of the shares of Restricted Stock, including the making
of an election under Section 83(b) under the Internal Revenue Code of 1986, as amended
(Code); the Company has no responsibility for the making of such Section 83(b)
election. In the event the Purchaser determines to make a Section 83(b) election, the
Purchaser agrees to timely provide a copy of the election to the Company as required
under the Code.
|
||
B. |
Withholding.
|
1. |
The Company shall be entitled to require payment of any sums
required by federal, state or local tax law to be withheld with respect to the
transfer of the Restricted Stock or the lapse of the Repurchase Right with
respect to the Restricted Stock, or any other taxable event related thereto.
The Company may permit the Purchaser to make such payment in one or more of the forms
specified below:
|
(a) |
by cash or check made payable to the Company;
|
||
(b) |
by the deduction of such amount from other
compensation payable to the Purchaser;
|
||
(c) |
by tendering Shares which are not subject to
the Repurchase Right and which have a then current Fair Market Value
not greater than the amount necessary to satisfy the Companys
withholding obligation based on the minimum statutory withholding rates
for federal, state and local income tax and payroll tax purposes; or
|
||
(d) |
in any combination of the foregoing.
|
2. |
In the event the Purchaser fails to provide timely payment of
all sums required by the Company pursuant to Section 7.B., the Company shall
have the right and option, but not obligation, to treat such failure as an
election by the Purchaser to provide all or any portion of such required
payment by means of tendering Shares in accordance with Section 7.B(1)(c).
|
8. |
TRANSFERABILITY OF RESTRICTED STOCK
|
|
Until vested, shares of Restricted Stock may not be sold, pledged or otherwise encumbered or
disposed of and shall not be assignable or transferable except by will, the laws of descent
and distribution or pursuant to a DRO entered by a court in settlement of marital property
rights, except as specifically provided in the Award Agreement.
|
||
Any share certificate(s) evidencing any Unvested Shares shall be endorsed with the following
legend and any other legend(s) that may be required by any applicable federal or state
securities laws:
|
9. |
THE PLAN AND OTHER AGREEMENTS
|
|
In addition to these Standard Terms and Conditions, the Award shall be subject to the terms
of the Plan, which are incorporated into these Standard Terms and Conditions by this
reference. A copy of the Plan, and the accompanying prospectus, is available at the
Companys intranet site.
|
||
The Standard Terms and Conditions and the Plan constitute the entire understanding between
the Purchaser and the Company regarding the Award. Any prior agreements, commitments or
negotiations concerning the Award are superseded.
|
||
Notwithstanding any other provision of the Plan or the Award Agreement, if Purchaser is
subject to Section 16 of the Securities Exchange Act of 1934, as amended (the Exchange
Act), the Plan, the shares of Restricted Stock and the Award Agreement shall be subject to
any additional limitations set forth in any applicable exemptive rule under Section 16 of
the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are
requirements for the application of such exemptive rule. To the extent permitted by
applicable law, the Award Agreement shall be deemed amended to the extent necessary to
conform to such applicable exemptive rule.
|
||
10. |
NO EMPLOYMENT RIGHT
|
|
Nothing in the Plan, in the Award Agreement or any other instrument executed pursuant to the
Plan shall confer upon the Purchaser any right to continue in the Companys employ or
service nor limit in any way the Companys right to terminate the Purchasers Continuous
Service at any time for any reason.
|
||
Notwithstanding anything in the Award Agreement or the Plan to the contrary, the Award
Agreement shall be governed by and are subject to the terms and conditions of the
Purchasers employment agreement, if applicable, with the Company.
|
||
11. |
DEFINITIONS
|
|
For purposes of these Standard Terms and Conditions, the following defined terms shall have
the meaning ascribed below:
|
||
Continuous Service means (i) employment by either the Company or any Subsidiary, or by a
corporation or a parent or subsidiary of a corporation that provides for the continuance or
assumption of the Award Agreement or the substitution for the Award Agreement of a new
agreement of comparable value covering shares of a successor corporation (with appropriate
adjustments as to the number and kind of shares and the purchase price), which is
uninterrupted except for vacations, illness (except for Disability), or leaves of absence
which are approved in writing by the Company or such other employer corporation, (ii)
service as a member of the Board until the Purchaser dies, resigns, is removed from office,
or the Purchasers term of office expires and he or she is not reelected, or (iii) so long
as the Purchaser is engaged as Service Provider to the Company or other corporation referred
to in clause (i) above.
|
||
12. |
GENERAL
|
|
In the event that any provision of these Standard Terms and Conditions is declared to be
illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, such
provision shall be reformed, if possible, to the extent necessary to render it legal, valid
and enforceable, or otherwise deleted, and the remainder of these Standard Terms and
Conditions shall not be affected except to the extent necessary to reform or delete such
illegal, invalid or unenforceable provision.
|
Annual Retainers:
|
||||
Director
|
$ | 25,000 | ||
In lieu of per meeting fees of the Board and Committees of the Board
|
$ | 25,000 | ||
Lead Director
|
$ | 10,000 | ||
Audit Committee Chair
|
$ | 10,000 | ||
Compensation Committee Chair
|
$ | 10,000 |
1. |
I have reviewed this quarterly report on Form 10-Q of Spectrum Pharmaceuticals, Inc.;
|
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
|
3. |
Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report;
|
4. |
The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is
being prepared;
|
(b) |
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles;
|
(c) |
Evaluated the effectiveness of the registrants disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
|
(d) |
Disclosed in this report any change in the registrants internal control over
financial reporting that occurred during the registrants most recent fiscal quarter that
has materially affected, or is reasonably likely to materially affect, the registrants
internal control over financial reporting; and
|
5. |
The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of the registrants board of directors (or persons performing the equivalent
functions):
|
(a) |
All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information;
and
|
(b) |
Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrants internal control over financial reporting.
|
Date: August 13, 2009 | /s/ RAJESH C. SHROTRIYA | |||
Rajesh C. Shrotriya | ||||
Chairman, Chief Executive Officer and President |
1. |
I have reviewed this quarterly report on Form 10-Q of Spectrum Pharmaceuticals, Inc.;
|
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
|
3. |
Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report;
|
4. |
The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is
being prepared;
|
(b) |
Designed such internal controls over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles;
|
(c) |
Evaluated the effectiveness of the registrants disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
|
(d) |
Disclosed in this report any change in the registrants internal control over
financial reporting that occurred during the registrants most recent fiscal quarter that
has materially affected, or is reasonably likely to materially affect, the registrants
internal control over financial reporting; and
|
5. |
The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of the registrants board of directors (or persons performing the equivalent
functions):
|
(a) |
All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information;
and
|
(b) |
Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrants internal control over financial reporting.
|
Date: August 13, 2009 | /s/ SHYAM K. KUMARIA | |||
Shyam K. Kumaria | ||||
Vice President, Finance |
Dated: August 13, 2009 | /s/ RAJESH C. SHROTRIYA | |||
Rajesh C. Shrotriya | ||||
Chairman, Chief Executive Officer and President |
Dated: August 13, 2009 | /s/ SHYAM K. KUMARIA | |||
Shyam K. Kumaria | ||||
Vice President, Finance | ||||