Registration Rights Agreement dated as of August 13, 2003, by and among Spectrum and the persons listed on Schedule 1 attached thereto
EX-10.1 5 a92522exv10w1.txt EXHIBIT 10.1 Exhibit 10.1 ================================================================================ COMMON STOCK AND WARRANT PURCHASE AGREEMENT DATED AS OF AUGUST 13, 2003 BY AND AMONG SPECTRUM PHARMACEUTICALS, INC., AS ISSUER AND SELLER AND EACH OF THE PARTIES LISTED ON SCHEDULE 1, AS PURCHASERS WITH RESPECT TO COMMON STOCK AND SERIES 2003-1 WARRANTS TO PURCHASE COMMON STOCK ================================================================================ TABLE OF EXHIBITS AND SCHEDULES Exhibit A Form of Series 2003-1 Common Stock Purchase Warrant Exhibit B Form of Registration Rights Agreement Schedule 1 Purchasers Schedule 3 Schedule of Representations and Warranties of Spectrum Pharmaceuticals, Inc.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT (the "Agreement") dated as of August 13, 2003, by and among Spectrum Pharmaceuticals, Inc., a Delaware corporation (the "Seller"), and each of the persons listed on Schedule 1 hereto (individually, "Purchaser" and collectively, the "Purchasers"). WITNESSETH: WHEREAS, each of the Purchasers is willing to purchase from the Seller, and the Seller desires to sell to the Purchasers, the numbers of shares set forth on Schedule 1 attached hereto, which aggregate 762,040 shares (the "Purchased Shares") of its common stock, $0.001 par value per share (the "Common Stock"), at a price per share of $4.10, and Series 2003-1 Common Stock Purchase Warrants (the "Series 2003-1 Warrants" or the "Warrants") entitling the holders thereof to purchase up to an aggregate of 381,020 shares of the Seller's Common Stock, at an exercise price of $4.75 per share (subject to adjustment as more fully set forth herein and in the Warrants). NOW, THEREFORE, in consideration of the mutual promises and representations, warranties, covenants and agreements set forth herein, the parties hereto, intending to be legally bound, hereby agree as follows: ARTICLE I - PURCHASE AND SALE 1.1 PURCHASE AND SALE. On the terms and subject to the conditions set forth in this Agreement, at the Closing (as defined in Section 2.2), the Seller will sell and each of the Purchasers will purchase (i) the number of Purchased Shares set forth on Schedule 1 hereto, and (ii) the number of Warrants set forth on Schedule 1 hereto. The shares of Common Stock issuable upon exercise of the Warrants are referred to herein as the "Warrant Shares." The Purchased Shares, the Warrants and the Warrant Shares are collectively referred to as the "Securities." 1.2 TERMS OF THE WARRANTS. The terms and provisions of the Warrants are more fully set forth in the Form of Series 2003-1 Common Stock Purchase Warrant, in the form attached hereto as EXHIBIT A. 1.3 TRANSFERS; LEGENDS. (a) Any of the Securities may be transferred, in whole or in part, by any of the Purchasers at any time by delivering written transfer instructions to the Seller, and the Seller shall reflect such transfer on its books and records and reissue certificates evidencing the Securities being transferred. The Seller hereby consents to and agrees to register on the books of the Seller and with any transfer agent for the securities of the Seller any transfer of Securities by a Purchaser to an Affiliate of such Purchaser. Any transferee other than a purchaser of shares of Common Stock which have been registered under the Securities Act shall have the rights of a Purchaser under this Agreement and the Registration Rights Agreement. The Seller shall reissue certificates evidencing the Securities upon surrender of certificates evidencing the Securities being transferred in accordance with this Section 1.3(a). Any such transfer shall be made by a Purchaser in accordance with applicable federal and state securities laws and other applicable laws. An "Affiliate" means any Person (as such term is defined below) that, directly or 1 indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"). With respect to a Purchaser, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Purchaser will be deemed to be an Affiliate of such Purchaser. A "Person" means any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision of any thereof) or other entity of any kind. (b) The certificates representing the Securities shall bear a legend in substantially the following form: "THE SECURITIES REPRESENTED BY, OR ACQUIRABLE UPON EXERCISE OF SECURITIES EVIDENCED BY, THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT UNLESS THE ISSUER OF THIS CERTIFICATE RECEIVES AN OPINION OF LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER AND ITS LEGAL COUNSEL THAT SUCH SALE IS EXEMPT FROM REGISTRATION UNDER SUCH ACT AND IS IN COMPLIANCE WITH APPLICABLE STATE SECURITIES OR BLUE SKY LAWS UNLESS SUCH REGISTRATION IS NOT REQUIRED." ARTICLE II - PURCHASE PRICE AND CLOSING 2.1 PURCHASE PRICE. The aggregate purchase price (the "Purchase Price") to be paid by the Purchasers to the Seller to acquire the Purchased Shares and the Warrants shall be the total amount set forth on Schedule 1 hereto. 2.2 THE CLOSING. The closing of the transactions contemplated under this Agreement (the "Closing") shall take place at the offices of Kane Kessler, P.C., 1350 Avenue of the Americas, 26th Floor, New York, New York, on the date hereof. The date on which the Closing occurs is herein called the "Closing Date." All proceedings to be taken and all documents to be executed at the Closing shall be deemed to have been taken, delivered and executed simultaneously, and no proceeding shall be deemed taken nor documents deemed executed or delivered until all have been taken, delivered and executed. 2.3 DELIVERIES. (A) DELIVERIES BY THE SELLER. At the Closing, the Seller shall deliver or cause to be delivered to each of the Purchasers the following: 1. (i) One or more certificates evidencing the aggregate number of Purchased Shares, duly authorized, issued, fully paid and non-assessable, as is indicated on Schedule 1 for such Purchaser, registered in the name of 2 such Purchaser, in such denominations as is indicated on Schedule 1 for such Purchaser; (ii) One or more Warrants in the form of EXHIBIT A hereto, registered in the name of such Purchaser, in such denominations as is indicated on Schedule 1 for such Purchaser, pursuant to which such Purchaser shall be entitled to purchase an aggregate of that number of shares of Common Stock as is indicated on Schedule 1 for such Purchaser. 2. The Registration Rights Agreement, in the form attached hereto as EXHIBIT B (the "Registration Rights Agreement"), duly executed by the Seller. 3. The legal opinion of Latham & Watkins LLP ("Seller's Counsel"), counsel to the Seller, in form and substance reasonably satisfactory to the Purchasers. 4. A certificate of the Secretary of the Seller (the "Secretary's Certificate"), in form and substance satisfactory to the Purchasers, certifying as follows: (i) that attached to the Secretary's Certificate is true and complete copy of the Certificate of Incorporation of the Seller together with all amendments thereto and all certificates of designation with respect to the preferred stock of the Seller; (ii) that a true copy of the Bylaws of the Seller, as amended to the Closing Date, is attached to the Secretary's Certificate; (iii) that attached to the Secretary's Certificate are true and complete copies of the resolutions of the Board of Directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Related Documents (as defined below), instruments and certificates required to be executed by it in connection herewith and therewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Purchased Shares, (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement. 5. A wire transfer representing the Purchasers' reasonable legal fees and expenses as described in Section 7.2 hereof; such fee may, at the election of the Seller, be paid out of the funds due from the Purchasers at the Closing. 3 (B) DELIVERIES BY THE PURCHASERS. At the Closing, each of the Purchasers shall deliver or cause to be delivered to the Seller the following: 1. Payment of the purchase price set forth opposite such Purchaser's name on Schedule 1, in cash by wire transfer of immediately available funds to an account designated in writing by Seller. 2. The Registration Rights Agreement duly executed by such Purchaser. ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE SELLER For purposes of this Article III, all references to the Seller and its Subsidiaries shall be deemed to include all their respective predecessor entities, if any. The Seller represents, warrants and covenants to the Purchasers, except as set forth on the Schedule of Representations and Warranties attached hereto as Schedule 3 specifically identifying the applicable section of this Article III, it being understood that information disclosed under a particular section of Schedule 3 shall be deemed disclosed only for purposes of such section and not for purposes of or with respect to any other section of this Article III, as of the date hereof, as follows: 3.1 CORPORATE EXISTENCE AND POWER; SUBSIDIARIES. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, a material adverse effect on its or its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), and results of operations. True and complete copies of the Seller's Certificate of Incorporation, as amended (including without limitation the Certificate of Designation and Certificate of Increase with respect to the Series D Preferred Stock (as hereinafter defined)), and Bylaws, as amended (collectively, the "Charter" and Bylaws") have previously been provided to the Purchasers. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than as set forth in Exhibit 21 to the Seller's annual report on Form 10-K for the fiscal year ended December 31, 2002. 3.2 CORPORATE AUTHORIZATION; RIGHTS PLAN. (a) The execution, delivery and performance by the Seller of this Agreement, the Warrants, the Registration Rights Agreement and each of the other documents executed pursuant to and in connection with this Agreement (the "Related Documents"), and the consummation of the transactions contemplated hereby and thereby (including, but not limited to, the sale and delivery of the Purchased Shares and the 4 Warrants, and the subsequent issuance of the Warrant Shares upon exercise of the Warrants) have been duly authorized, and no additional corporate action is required for the approval of this Agreement or the Related Documents. The Warrant Shares have been duly reserved for issuance by the Seller. This Agreement and the Related Documents have been or, to the extent contemplated hereby or by the Related Documents, will be duly executed and delivered and constitute the legal, valid and binding agreement of the Seller, enforceable against the Seller in accordance with their terms, except as may be limited by bankruptcy, reorganization, insolvency, moratorium and similar laws of general application relating to or affecting the enforcement of rights of creditors, and except as enforceability of its obligations hereunder are subject to general principles of equity. (b) The Purchased Shares issued and delivered to the Purchasers at Closing are duly authorized, validly issued, fully paid and non-assessable and free of restrictions on transfer other than applicable state and federal securities laws. The Common Stock issuable upon exercise of the Warrants has been duly and validly reserved for issuance, and upon issuance in accordance with the terms of the Warrants, will be duly authorized, validly issued, fully paid and non-assessable and free of restrictions on transfer other than applicable federal and state securities laws and, assuming the accuracy of the representations and warranties of the Purchasers, will be issued in compliance with all applicable federal and state securities laws. (c) The issuance of the Purchased Shares, the Warrants and the Warrant Shares, as applicable, will not result in or obligate the Seller to (i) issue or offer to issue, with or without consideration, any securities or rights to acquire any securities to any person, whether as a pre-emptive right, or pursuant to any to rights plan, or pursuant to any agreement, undertaking or other obligation of any nature, or (ii) adjust the number or kind of securities held by or issuable (with or without the payment of any consideration) to any person. 3.3 CORPORATE RECORDS. The minute books of the Seller and its Subsidiaries contain complete and accurate records of all meetings and other corporate actions of the board of directors, committees of the board of directors, incorporators and shareholders of the Seller and its Subsidiaries from the date of their incorporation to the date hereof. All material corporate decisions and actions have been validly made or taken. The Seller's share transfer register complies with applicable laws and regulations and has been regularly updated through the date hereof. Such books fully and correctly reflect all the decisions of the shareholders. The Seller maintains complete and correct books and records of the Seller and its Subsidiaries which fairly present, in all material respects, the financial position and the results of operations and cash flows of the Seller and its Subsidiaries as of the dates and for the periods indicated therein, subject to customary and usual audit adjustments consistently applied. 3.4 GOVERNMENTAL AUTHORIZATION; NASD AND NASDAQ. (a) Except as otherwise specifically contemplated in this Agreement and the Related Documents, and except for: (i) the filing of the Registration Statement with the Commission, and (ii) any filings required under SEC Regulation D or any state securities laws that are permitted to be made after the date hereof, including but not limited to filings pursuant to Section 25102(f) of the California Corporate Securities Law of 1968, as amended, and the rules thereunder, the execution, delivery and performance by the Seller of this Agreement and the Related Documents, and the consummation of the transactions contemplated hereby and thereby (including, but not limited to, the sale and 5 delivery of the Purchased Shares and Warrants and the subsequent issuance of the Warrant Shares upon exercise of the Warrants, as applicable) by the Seller require no action by or in respect of, or filing with, any governmental body, agency, official or authority. (b) The Seller will provide a Listing Notice, which shall include true copies of this Agreement, the form of Warrant, and form of Registration Rights Agreement, to the Nasdaq SmallCap Market with respect to the Warrant Shares. 3.5 NON-CONTRAVENTION. The execution, delivery and performance by the Seller and its Subsidiaries, as applicable, of this Agreement and the Related Documents, and the consummation by the Seller of the transactions contemplated hereby and thereby (including, but not limited to, the issuance of the Warrant Shares) do not and will not (a) violate or conflict with the Charter and Bylaws of the Seller and its Subsidiaries or any material agreement (which, for purposes of this Agreement, means any agreement, contract or other document which the Seller would be required to disclose pursuant to SEC Regulation S-K, Item 601, Exhibits 1, 2, 3, 4, 9 or 10) to which the Seller or any of its Subsidiaries is a party or bound; (b) violate or conflict with or constitute a material violation of any provision of any law, regulation, judgment, injunction, order or decree binding upon or applicable to the Seller or any of its Subsidiaries; (c) constitute a default under or give rise to a right of termination, cancellation or acceleration or loss of any benefit under any material agreement, contract or other instrument binding upon the Seller or any of its Subsidiaries or under any material license, franchise, permit or other similar authorization held by the Seller or any of its Subsidiaries; or (d) result in the creation or imposition of any Lien (as defined below) on any material asset of the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest, claim or encumbrance of any kind in respect of such asset. 3.6 SEC DOCUMENTS. The Seller is obligated under the Securities Exchange Act of 1934, as amended (the "Exchange Act") to file reports pursuant to Sections 13 and 15(d) thereof (all such reports filed or required to be filed by the Seller, including all exhibits thereto or incorporated therein by reference, and all documents filed by the Seller under the Securities Act are hereinafter called the "SEC Documents"). The Seller has filed all reports or other documents required to be filed under the Exchange Act. All SEC Documents filed by the Seller (i) were prepared in all material respects in accordance with the requirements of the Exchange Act and the Securities Act and (ii) did not at the time they were filed (or, if amended or superseded by a filing prior to the date hereof, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Seller has previously delivered to the Purchaser a correct and complete copy of each report which the Seller filed with the Securities and Exchange Commission (the "SEC" or the "Commission") under the Exchange Act for any period ending on or after December 31, 2001 (the "Recent Reports," which term includes all exhibits thereto and all exhibits and other information incorporated by reference into the Recent Reports) other than those Recent Reports, if any, which have been filed via the SEC's EDGAR filing system; Schedule 3.6 identifies all Recent Reports which have not been filed via the SEC's EDGAR filing system. All of the information about the Seller or its Subsidiaries which has been disclosed to the Purchasers herein or in the course of discussions and negotiations with respect hereto which is material to the Seller has been disclosed in the Recent Reports. 6 3.7 FINANCIAL STATEMENTS. Each of the Seller's consolidated balance sheet and related consolidated statements of income, cash flows and changes in stockholders' equity (including the related notes), as contained in the Recent Reports (collectively, the "Seller's Financial Statements" or the "Financial Statements") (x) present fairly in all material respects the financial position of the Seller and its consolidated Subsidiaries as of the dates thereof and the results of operations, cash flows and stockholders' equity as of and for each of the periods then ended, except that any unaudited financial statements are subject to normal year-end adjustments, and (y) were prepared in accordance with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved, in each case, except as otherwise indicated in the notes thereto. 3.8 COMPLIANCE WITH LAW. The Seller and its Subsidiaries are in compliance and have conducted their business so as to comply in all respects with all laws, rules and regulations, judgments, decrees or orders of any court, administrative agency, commission, self regulatory organization, regulatory authority or other governmental authority or instrumentality, domestic or foreign, applicable to its operations except as in each case could not in the aggregate have or result in a Material Adverse Effect. There are no judgments or orders, injunctions, decrees, stipulations or awards (whether rendered by a court or administrative agency or by arbitration), including any such actions relating to affirmative action claims or claims of discrimination, against the Seller or its Subsidiaries or against any of their properties or businesses. 3.9 NO DEFAULTS. The Seller and its Subsidiaries are not, nor will they be with the passage of time, giving of notice, or both, (i) in violation of any provision of their Charter and Bylaws (ii) in default or violation of any term, condition or provision of (A) any judgment, decree, order, injunction or stipulation applicable to the Seller or its Subsidiaries or (B) any material agreement, note, mortgage, indenture, contract, lease or instrument, permit, concession, franchise or license to which the Seller or its Subsidiaries are a party or by which the Seller or its Subsidiaries or their properties or assets may be bound, and no circumstances exist which would entitle any party to any material agreement, note, mortgage, indenture, contract, lease or instrument to which such Seller or its Subsidiaries are a party, to terminate such as a result of such Seller or its Subsidiaries, having failed to meet any provision thereof including, but not limited to, meeting any applicable milestone under any material agreement or contract. 3.10 LITIGATION. Except as disclosed in Item 3 of the Seller's Annual Report on Form 10-K for the year ended December 31, 2002, there is no action, suit, proceeding, judgment, claim or investigation pending or, to the best knowledge of the Seller, threatened against the Seller and any of its Subsidiaries which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Seller or its Subsidiaries. There is no action, suit, proceeding, judgment, claim or investigation pending or, to the best knowledge of the Seller, threatened, which in any manner challenges or seeks to prevent, enjoin, alter or materially delay any of the transactions contemplated hereby, and, to the Seller's knowledge, there is no basis for the assertion of any of the foregoing. There are no claims or complaints existing or, to the knowledge of the Seller or its Subsidiaries, threatened for product liability in respect of any product of the Seller or its Subsidiaries, and the Seller and its Subsidiaries are not aware of any basis for the assertion of any such claim. 7 3.11 ABSENCE OF CERTAIN CHANGES. Since December 31, 2002, the Seller has conducted its business only in the ordinary course and there has not occurred, except as set forth in the Recent Reports: (a) Any event that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Seller or any of its Subsidiaries; (b) Any amendments or changes in the Charter or Bylaws of the Seller and its Subsidiaries, other than on account of the filing of the Certificate of Designation and Certificate of Increase with respect to the Series D Preferred Stock; (c) Any damage, destruction or loss, whether or not covered by insurance, that would, individually or in the aggregate, have a Material Adverse Effect on the Seller and its Subsidiaries; (d) Any (i) incurrence, assumption or guarantee by the Seller or its Subsidiaries of any debt for borrowed money (other than for equipment leases or working capital lines of credit); (ii) issuance or sale of any securities convertible into or exchangeable for securities of the Seller other than (A) issuances or sales to directors, employees and consultants pursuant to existing equity compensation or stock purchase plans of the Seller in accordance with past business practices, and (B) the sale of an aggregate of 600 shares of Series D Preferred Stock, Series D-1 Warrants and Series D-2 Warrants, and the issuance of Series D-3 Warrants to certain persons in connection with such sales of Series D Preferred Stock, Series D-1 Warrants and Series D-2 Warrants; (iii) issuance or sale of options or other rights to acquire from the Seller or its Subsidiaries, directly or indirectly, securities of the Seller or any securities convertible into or exchangeable for any such securities, other than (A) options issued to directors, employees and consultants in the ordinary course of business pursuant to existing equity compensation or stock purchase plans of the Seller in accordance with past practices, and (B) the sale of an aggregate of 600 shares of Series D Preferred Stock, Series D-1 Warrants and Series D-2 Warrants, and the issuance of Series D-3 Warrants to certain persons in connection with such sales of Series D Preferred Stock, Series D-1 Warrants and Series D-2 Warrants; (iv) issuance or sale of any stock, bond or other corporate security other than (A) options issued to directors, employees and consultants in the ordinary course of business pursuant to existing equity compensation or stock purchase plans of the Seller in accordance with past practices, and (B) the sale of an aggregate of 8 600 shares of Series D Preferred Stock, Series D-1 Warrants and Series D-2 Warrants, and the issuance of Series D-3 Warrants to certain persons in connection with such sales of Series D Preferred Stock, Series D-1 Warrants and Series D-2 Warrants; (v) declaration or making any dividend, payment or other distribution to shareholders or purchase or redemption of any share of its capital stock or other security other than with respect to the Series D Preferred Stock; (vi) sale, assignment or transfer any of its intangible assets except in the ordinary course of business, or cancellation of any debt or claim except in the ordinary course of business all in accordance with past practices; (vii) waiver of any right of substantial value whether or not in the ordinary course of business; (viii) material change in officer compensation; or (ix) other commitment (contingent or otherwise) to do any of the foregoing. (e) Any creation, sufferance or assumption by the Seller or any of its Subsidiaries of any Lien on any asset or any making of any loan, advance or capital contribution to or investment in any Person in an aggregate amount which exceeds $25,000 outstanding at any time; (f) Any entry into, amendment of, relinquishment, termination or non-renewal by the Seller or its Subsidiaries of any material contract, license, lease, transaction, commitment or other right or obligation, other than in the ordinary course of business; or (g) Any transfer or grant of a right with respect to the patents, patent applications, patent licenses, trademarks, trade names, service marks, trade secrets, copyrights or other intellectual property rights owned or licensed by the Seller or its Subsidiaries, except as among the Seller and its Subsidiaries. 3.12 NO UNDISCLOSED LIABILITIES. The Seller and its Subsidiaries do not have any direct or indirect indebtedness, liabilities, claim, loss, damage, deficiency, obligation or responsibility, known or unknown, fixed or unfixed, choate or inchoate, liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise, whether or not of a kind required by GAAP to be set forth in financial statements, including but not limited to off-balance sheet financings, guarantees and similar transactions ("Liabilities") which are not fully and adequately reflected in the Financial Statements. To the knowledge of the Seller, there are no existing circumstances, conditions, events or arrangements which may hereafter give rise to any Liabilities of the Seller or its Subsidiaries except in the ordinary course of business. 9 3.13 TAXES. All tax returns and tax reports required to be filed with respect to the income, operations, business or assets of the Seller and its Subsidiaries have been timely filed (or appropriate extensions have been obtained) with the appropriate governmental agencies in all jurisdictions in which such returns and reports are required to be filed, and all of the foregoing as filed are correct and complete and, in all material respects, reflect accurately all liability for taxes of the Seller and its Subsidiaries for the periods to which such returns relate, and all amounts shown as owing thereon have been paid. All income, profits, franchise, sales, use, value added, occupancy, property, excise, payroll, withholding, FICA, FUTA and other taxes (including interest and penalties), if any, collectible or payable by the Seller and its Subsidiaries or relating to or chargeable against any of its material assets, revenues or income or relating to any employee, independent contractor, creditor, stockholder or other third party through the Closing Date, were fully collected and paid by such date if due by such date or provided for by adequate reserves in the Financial Statements as of and for the periods ended December 31, 2002 (other than taxes accruing after such date) and all similar items due through the Closing Date will have been fully paid by that date or provided for by adequate reserves, whether or not any such taxes were reported or reflected in any tax returns or filings. No taxation authority has sought to audit the records of the Seller or any of its Subsidiaries for the purpose of verifying or disputing any tax returns, reports or related information and disclosures provided to such taxation authority, or for the Seller's or any of its Subsidiaries' alleged failure to provide any such tax returns, reports or related information and disclosure. To the knowledge of Seller and its Subsidiaries, no material claims or deficiencies have been asserted against or inquiries raised with the Seller or any of its Subsidiaries with respect to any taxes or other governmental charges or levies which have not been paid or otherwise satisfied, including claims that, or inquiries whether, the Seller or any of its Subsidiaries has not filed a tax return that it was required to file, and there exists no reasonable basis for the making of any such claims or inquiries. Neither the Seller nor any of its Subsidiaries has waived any restrictions on assessment or collection of taxes or consented to the extension of any statute of limitations relating to taxation. Neither the Seller nor any of its Subsidiaries is a party to any tax sharing or indemnification agreement, and none of them is liable for the taxes of any other Person (other than Subsidiaries) whether as a transferee, successor, by contract or otherwise. 3.14 INTERESTS OF OFFICERS, DIRECTORS AND OTHER AFFILIATES. The description of any material interest held, directly or indirectly, by any officer, director or other Affiliate of Seller in any property, real or personal, tangible or intangible, used in or pertaining to Seller's business, including any interest in the Seller's Intellectual Property (as defined in Section 3.15 hereof), as set forth in the Recent Reports, is true and complete, and no officer, director or, to the Seller's knowledge, other Affiliate of the Seller has any interest in any property, real or personal, tangible or intangible, used in or pertaining to the Seller's business, including the Seller's Intellectual Property, other than as set forth in the Recent Reports. 3.15 INTELLECTUAL PROPERTY. Other than as set forth in the Recent Reports: (a) the Seller or a Subsidiary thereof has the right to use or is the sole and exclusive owner of all right, title and interest in and to all foreign and domestic patents, patent rights, patent applications, trademarks, service marks, trade names, brands and copyrights (whether or not registered and, if applicable, including pending applications for registration) owned, used or controlled by the Seller and its Subsidiaries (collectively, the "Rights") and in and to each material invention, software, trade secret, technology, product, composition, formula, method of process used by the 10 Seller and any intangible property and assets that are material to the business of the Seller or its Subsidiaries (the Rights and such other items, the "Intellectual Property"), and has the right to use the same, free and clear of any claim or conflict with the rights of others; (b) no royalties or fees (license or otherwise) are payable by the Seller or its Subsidiaries to any Person by reason of the ownership or use of any of the Intellectual Property except as set forth on Schedule 3.15; (c) to the Seller's knowledge, there have been no claims made against the Seller or any Subsidiary asserting the invalidity, abuse, misuse, or unenforceability of any of the Intellectual Property, and, to each of their knowledge, there are no reasonable grounds for any such claims; (d) neither the Seller nor any subsidiary has made any claim of any violation or infringement by others of its rights in the Intellectual Property, and to the best of their knowledge, no reasonable grounds for such claims exist; and (e) neither the Seller nor any Subsidiary has received any notice that it is in conflict with or infringing upon the asserted rights of others in connection with the Intellectual Property, and to the best of their knowledge, no reasonable grounds for such claims exist. Each of the Seller and its Subsidiaries has taken security measures designed to enable it to assert trade secret protection in its non-patented technology. 3.16 RESTRICTIONS ON BUSINESS ACTIVITIES. Other than as set forth in the Recent Reports, there is no agreement, judgment, injunction, order or decree binding upon the Seller or its Subsidiaries which has or could reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Seller or its Subsidiaries, any acquisition of property by the Seller or its Subsidiaries or the conduct of business by the Seller or its Subsidiaries as currently conducted or as currently proposed to be conducted by the Seller. 3.17 PREEMPTIVE RIGHTS. No Person possesses any preemptive rights, registration rights or anti-dilution rights, in respect of the Purchased Shares or the Warrant Shares to be issued to the Purchasers upon exercise of the Warrants. 3.18 INSURANCE. The insurance policies providing insurance coverage to the Seller or its Subsidiaries, including for product liability, provide adequate and customary coverage for the business conducted by the Seller and its Subsidiaries and are sufficient for compliance by the Seller and its Subsidiaries with all requirements of law and all material agreements to which the Seller or its Subsidiaries are a party or by which any of their assets are bound. All of such policies are with financially sound and reputable insurers having an "A" rating or better from Best's Rating Service (or any successor thereto), are in full force and effect and are valid and enforceable in accordance with their terms, and the Seller and its Subsidiaries have complied with all material terms and conditions of such policies, including premium payments. None of the insurance carriers has indicated to the Seller or its Subsidiaries an intention to cancel any such policy. 3.19 SUBSIDIARIES AND INVESTMENTS. Except as set forth in the Recent Reports or on Schedule 3.19, the Seller has no Subsidiaries or Investments. For purposes of this Agreement, the term "Investments" shall mean, with respect to any Person, all advances, loans or extensions of credit to any other Person, all purchases or commitments to purchase any stock, bonds, notes, debentures or other securities of any other Person, and any other investment in any other Person, including partnerships or joint ventures (whether by capital contribution or otherwise) or other similar arrangement (whether written or oral) with any Person, including but not limited to arrangements in which (i) the Person shares profits and losses, (ii) any such other Person has the 11 right to obligate or bind the Person to any third party, or (iii) the Person may be wholly or partially liable for the debts or obligations of such partnership, joint venture or other arrangement. 3.20 CAPITALIZATION. The authorized capital stock of the Seller consists of 50,000,000 shares of common stock, $0.001 par value per share, of which 3,357,436 shares are issued and outstanding as of the date hereof, and 5,000,000 shares of preferred stock, issuable in one or more classes or series, with such relative rights and preferences as the Board of Directors may determine, none of which has been authorized for issuance or designated and provided with terms, other than as follows: 400 shares have been designated 5% Series A Preferred Stock, of which no shares are outstanding and as to which there is no obligation (including any contingent obligation) to issue any such shares; 200,000 shares have been designated Series B Junior participating Preferred Stock, of which no shares are outstanding and as to which there is no obligation (including any contingent obligation) to issue any such shares, other than pursuant to the Rights Agreement by and between the Seller and U.S. Stock Transfer Corporation (the "Rights Plan"); 200 shares have been designated 7% Series C Preferred Stock, of which no shares are outstanding and as to which there is no obligation (including any contingent obligation) to issue any such shares; 600 shares have been designated Series D 8% Cumulative Convertible Voting Preferred Stock, all of which were issued on or about May 7 and May 13, 2003, of which 577 shares remain outstanding immediately prior to the execution of this Agreement. All shares of the Seller's issued and outstanding capital stock have been duly authorized, are validly issued and outstanding, and are fully paid and nonassessable. No securities issued by the Seller from January 1, 2000, to the date hereof were issued in violation of any statutory, contractual or common law preemptive rights. There are no dividends which have accrued or been declared but are unpaid on the capital stock of the Seller. All taxes required to be paid by Seller in connection with the issuance and any transfers of the Seller's capital stock have been paid. All permits or authorizations required to be obtained from or registrations required to be effected with any Person in connection with any and all issuances of securities of the Seller from January 1, 2000, to the date hereof have been obtained or effected, and all securities of the Seller issued on or after January 1, 2000, have been issued in accordance with the provisions of all applicable securities or other laws. 3.21 OPTIONS, WARRANTS, RIGHTS. Except as set forth on Schedule 3.21, there are no outstanding (a) securities, notes or instruments convertible into or exercisable for any of the capital stock or other equity interests of the Seller or its Subsidiaries; (b) options, warrants, subscriptions or other rights to acquire capital stock or other equity interests of the Seller or its Subsidiaries; or (c) commitments, agreements or understandings of any kind, including employee 12 benefit arrangements, relating to the issuance or repurchase by the Seller or its Subsidiaries of any capital stock or other equity interests of the Seller or its Subsidiaries, any such securities or instruments convertible into or exercisable for securities or any such options, warrants or rights. Other than the rights of the Purchasers under the Warrants, and except as set forth on Schedule 3.21, neither the Seller nor any Subsidiary has granted anti-dilution rights to any person or entity in connection with any option, warrant, subscription or any other instrument convertible into or exercisable for the securities of the Seller or any of its Subsidiaries. Other than pursuant to the rights granted to the Purchasers under the Registration Rights Agreement, there are no outstanding rights which permit the holder thereof to cause the Seller or the Subsidiaries to file a registration statement under the Securities Act or which permit the holder thereof to include securities of the Seller or any of its Subsidiaries in a registration statement filed by the Seller or any of its Subsidiaries under the Securities Act, and there are no outstanding agreements or other commitments which otherwise relate to the registration of any securities of the Seller or any of its Subsidiaries for sale or distribution in any jurisdiction, except as set forth on Schedule 3.21. 3.22 EMPLOYEES, EMPLOYMENT AGREEMENTS AND EMPLOYEE BENEFIT PLANS. (a) Except as set forth in the Recent Reports or on Schedule 3.22, there are no employment, consulting, severance or indemnification arrangements, agreements, or understandings between the Seller or its Subsidiaries and any officer, director, consultant or employee of the Seller or its Subsidiaries (the "Employment Agreements"). No Employment Agreement provides for the acceleration or change in the award, grant, vesting or determination of options, warrants, rights, severance payments, or other contingent obligations of any nature whatsoever of the Seller or its Subsidiaries in favor of any such parties in connection with the transactions contemplated by this Agreement. Except as disclosed in the Recent Reports or on Schedule 3.22, the terms of employment or engagement of all directors, officers, employees, agents, consultants and professional advisors of the Seller and its Subsidiaries are such that their employment or engagement may be terminated upon not more than two weeks' notice given at any time without liability for payment of compensation or damages and the Seller and its Subsidiaries have not entered into any agreement or arrangement for the management of their business or any part thereof other than with their directors or employees. (b) Except as set forth on Schedule 3.22, the Seller and its Subsidiaries have no pension, retirement, stock purchase, stock bonus, stock ownership, stock option, profit sharing, savings, medical, disability, hospitalization, insurance, deferred compensation, bonus, incentive, welfare or any other employee benefit plan, policy, agreement, commitment, arrangement or practice currently or previously maintained or contributed to by the Seller or its Subsidiaries for any of its directors, officers, consultants, employees or former employees (the "Seller Plans"). The Seller has previously made available to Purchaser, to the extent applicable, (i) a true and complete copy of all of the Seller Plans (or, if oral, a true and complete written summary thereof); (ii) a current summary plan description (plus summaries of any subsequent modifications thereto) for each Seller Plan; (iii) the latest IRS determination letter obtained with respect to any Seller Plan qualified under Section 401 or 501 of the Code; and (iv) Forms 5500 for the last three (3) plan years for each Seller Plan required to file such form. Except as set forth on Schedule 3.22, none of the Seller Plans is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and, except as set forth on Schedule 3.22, neither the Seller nor any of its Subsidiaries has established, maintained, made or been required to make any contributions to, or terminated, and has no liability with respect to, any "employee benefit 13 plan" within the meaning of ERISA. The Seller and its Subsidiaries have not incurred any liability to the Pension Benefit Guaranty Corporation (the "PBGC"), and, to the Seller's knowledge, no facts or circumstances exist which might give rise to any liability of the Seller or its Subsidiaries to the PBGC or which could reasonably be anticipated to result in any claims being made against the Purchaser, the Seller or their Subsidiaries by the PBGC. To the Seller's knowledge, no facts or circumstances exist which might give rise to any liability of any Seller Plan to any other Person, other than in the ordinary course of the Seller's business. The Seller and its Subsidiaries have paid all amounts required under applicable law and any Seller Plan to be paid as a contribution to any Seller Plan through the date hereof. The Seller has set aside adequate reserves to meet contributions which are not yet due under any Seller Plan. Neither the Seller, nor its Subsidiaries nor, to the Seller's knowledge, any other Person has engaged in any transaction with respect to any Seller Plan which would subject the Seller to any tax, penalty or liability for prohibited transactions. No director, officer or employee of the Seller or its Subsidiaries, to the extent he or she is a fiduciary with respect to any Seller Plan, has breached any of his/her responsibilities or obligations imposed upon fiduciaries or which could result in any claim being made under, by or on behalf of any Seller Plan. No Seller Plan provides post-employment medical, health, or life insurance benefits for present or future retirees or present or future terminated employees, except for continuation coverage provided pursuant to the requirements of Section 4980B of the Code or Sections 601-608 of ERISA or a similar state law. (c) No material labor dispute with employees of the Seller exists or, to the best knowledge of the Seller is imminent. 3.23 ABSENCE OF CERTAIN BUSINESS PRACTICES. Neither the Seller, nor any Affiliate of the Seller (including, but not limited to, its Subsidiaries), nor any agent or employee of the Seller, any other Person acting on behalf of or associated with the Seller, or any individual related to any of the foregoing Persons, acting on behalf of the Seller alone or together, has: (a) received, directly or indirectly, any rebates, payments, commissions, promotional allowances or any other economic benefits, regardless of their nature or type, from any customer, supplier, trading company, shipping company, governmental employee or other Person with whom the Seller or its Subsidiaries has done business directly or indirectly; or (b) directly or indirectly, given or agreed to give any gift or similar benefit to any customer, supplier, trading company, shipping company, governmental employee or other Person who is or may be in a position to help or hinder the business of the Seller or its Subsidiaries (or assist the Seller or its Subsidiaries in connection with any actual or proposed transaction) which (i) may subject the Seller or its Subsidiaries to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, may have had an adverse effect on the Seller or its Subsidiaries or (iii) if not continued in the future, may adversely affect the assets, business, operations or prospects of the Seller or its Subsidiaries or subject the Seller or its Subsidiaries to suit or penalty in any private or governmental litigation or proceeding. 3.24 PRODUCTS AND SERVICES. There exists no set of facts (i) which could furnish a basis for the withdrawal, suspension or cancellation of any registration, license, permit or other governmental approval or consent of any governmental or regulatory agency issued to the Seller with respect to any component of any product being developed by, or that is material to and used by, the Seller or its Subsidiaries, or (ii) which could have a Material Adverse Effect on the continued development of any product candidate of the Seller or its Subsidiaries or which could 14 otherwise cause the Seller or its Subsidiaries to withdraw, suspend or cancel development of any such product, it being understood that the Seller is not presently offering any product or service for sale and has never in the past offered any product or service for sale, and that the Seller's product candidates will require, before they can be offered for commercial sale, certain governmental or regulatory licenses, permits or approvals which have not been issued. 3.25 ENVIRONMENTAL MATTERS. None of the premises or any other property owned, occupied or leased by the Seller or its Subsidiaries (the "Premises") in the past has been used by the Seller or its Subsidiaries, or to the Seller's knowledge, by any other Person, to manufacture, treat, utilize, store, or dispose of any waste, pollutant or toxic or hazardous substance (including, without limitation, asbestos, radioactive material and pesticides) or any other substance that has been designated to be a "hazardous substance" under Environmental Laws ("Hazardous Substances") other than substances customarily used in the Seller's or its Subsidiaries' businesses and in accordance with applications laws and regulations. The Seller and its Subsidiaries have not disposed of, discharged, emitted or released any Hazardous Substances which would require, under applicable Environmental Laws, remediation, investigation or similar response activity. No Hazardous Substances are present as a result of the actions of the Seller or its Subsidiaries or, to the Seller's or its Subsidiaries' knowledge, any other Person, in, on or under the Premises which would give rise to any liability or clean-up obligations of the Seller or its Subsidiaries under applicable Environmental Laws. The Seller and its Subsidiaries and, to the Seller's and its Subsidiaries' knowledge, any other Person for whose conduct it may be responsible, are in material compliance with all laws, regulations and other federal, state or local governmental requirements, and all applicable judgments, orders, writs, notices, decrees, permits, licenses, approvals, consents or injunctions in effect on the applicable Closing Date relating to the generation, management, handling, transportation, treatment, disposal, storage, delivery, discharge, release or emission of any waste, pollutant or toxic or hazardous substance (including, without limitation, asbestos, radioactive material and pesticides) or to any other actions, omissions or conditions affecting the environment (the "Environmental Laws"). Neither the Seller nor its Subsidiaries nor, to the Seller's or its Subsidiaries' knowledge, any other Person for whose conduct it may be responsible has received any complaint, notice, order, or citation of any actual, threatened or alleged noncompliance with any of the Environmental Laws, and there is no proceeding, suit or investigation pending or, to the Seller's or its Subsidiaries knowledge, threatened against the Seller or its Subsidiaries or any such Person with respect to any violation or alleged violation of the Environmental Laws, and there is no basis for the institution of any such proceeding, suit or investigation. 3.26 LICENSES; COMPLIANCE WITH FDA AND OTHER REGULATORY REQUIREMENTS. (A) GENERAL. The Seller and its Subsidiaries hold all authorizations, consents, approvals, franchises, licenses and permits required under applicable law or regulation for the operation of the business of the Seller and its Subsidiaries as presently operated (the "Governmental Authorizations"). All the Governmental Authorizations have been duly issued or obtained and are in full force and effect, and the Seller and its Subsidiaries are in compliance with the terms of all the Governmental Authorizations. The Seller and its Subsidiaries have not engaged in any activity that could cause revocation or suspension of any such Governmental Authorizations. The Seller and its Subsidiaries have no knowledge of any facts which could reasonably be expected to cause them to believe that the Governmental Authorizations will not 15 be renewed by the appropriate governmental authorities in the ordinary course. Neither the execution, delivery nor performance of this Agreement will adversely affect the status of any of the Governmental Authorizations. (B) FDA. Without limiting the generality of the representations and warranties made in paragraph (a) above, the Seller represents and warrants that (i) the Seller and each of its Subsidiaries is in compliance in all material respects with all applicable provisions of the United States Federal Food, Drug, and Cosmetic Act (the "FDC Act"), (ii) the Seller and each of its Subsidiaries is in compliance with the following specific requirements: (A) all of the products used by the Seller and its Subsidiaries comply in all material respects with any conditions of approval and the terms of the applications, if any, submitted by or on behalf of the Seller to the United States Food and Drug Administration (the "FDA"); (B) all adverse events that were required to be reported by Seller or its Subsidiaries to the FDA have been reported to the FDA in a timely manner; (C) neither the Seller nor any of its Subsidiaries is, to their knowledge, employing or utilizing the services of any individual who has been debarred under the FDC Act; (D) all stability studies required to be performed by or on behalf of the Seller for products used by the Seller or any of its Subsidiaries have been completed or are ongoing in accordance with the applicable FDA requirements; and (E) any substances exported by the Seller or any of its Subsidiaries have been exported in compliance in all material respects with the FDC Act. Without limiting the general liability of the representations and warranties made in paragraph (a) above, the Seller and its Subsidiaries are in compliance in all material respects with all applicable provisions of the Controlled Substances Act. 3.27 BROKERS. Except as set forth in Schedule 3.27 hereto, no broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement, based upon any arrangement made by or on behalf of the Seller or any of its Affiliates. 3.28 SECURITIES LAWS. Neither the Seller nor its Subsidiaries nor any agent acting on behalf of the Seller or its Subsidiaries has taken or will take any action which might cause this Agreement or any of the Securities to violate the Securities Act or the Exchange Act or any rules or regulations promulgated thereunder, or any applicable state securities laws, as in effect on the Closing Date. All offers and sales of capital stock, securities and notes of the Seller were conducted and completed in compliance with the Securities Act, the rules and regulations promulgated thereunder and applicable state securities laws. All shares of capital stock and other securities issued by the Seller and its Subsidiaries prior to the date hereof have been issued in transactions that were either registered offerings or were exempt from the registration requirements under the Securities Act and all applicable state securities or state securities laws and in compliance with all applicable corporate laws. 3.29 DISCLOSURE. No representation or warranty made by the Seller in this Agreement, nor in any document, written information, financial statement, certificate, schedule or exhibit prepared and furnished by the Seller pursuant hereto or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of a material fact, or omits to state a material fact necessary to make the statements or facts contained herein or therein not misleading in light of the circumstances under which they were furnished. 16 3.30 CHANGE IN CONTROL. Assuming that there are no contractual agreements (other than this Agreement) among any two or more of the Purchasers with respect to the purchase, sale or other disposition, or voting of the equity securities of the Company, the execution, delivery and performance of this Agreement and the Related Documents, and the consummation of the transactions contemplated hereby and thereby (including the exercise of some or all of the Warrants and the issuance of the Warrant Shares) do not and will not constitute a change in control under or give rise to a right of termination, cancellation, severance or similar payments, or acceleration or loss of any benefit under any material agreement, contract or other instrument binding upon the Seller or any of its Subsidiaries, under any material license, franchise, permit or other similar authorization held by the Seller or any of its Subsidiaries or under any agreement or arrangement between the Seller or any of its Subsidiaries and their directors, officers, employees or consultants. 3.31 APPLICATION OF TAKEOVER PROTECTION. The Seller and its board of directors have taken all necessary action in order to render inapplicable, and have rendered inapplicable, any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti- takeover provision under the Charter, the By-laws, the laws of the state of its incorporation or any rights plan or similar arrangement which is or could become applicable as a result of the transactions contemplated by this Agreement, including, without limitation, the Seller's issuance of the Securities and the Purchasers' ownership of the Purchased Shares, the Warrants or the Warrant Shares. 3.32 NASDAQ COMPLIANCE. (a) The Common Stock is registered pursuant to Section 12(g) of the Exchange Act, and is listed on the Nasdaq SmallCap Market (the "Nasdaq Stock Market"), and the Seller has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Nasdaq Stock Market. The issuance of the Securities does not require stockholder approval, including, without limitation, pursuant to the Nasdaq Marketplace Rules as in effect on the Closing Date, including without limitation all Interpretive Materials issued on or before the Closing Date. No order ceasing or suspending trading in any securities of Seller or prohibiting the issuance and/or sale of the Purchased Shares, Warrants or Warrant Shares is in effect and no proceedings for such purpose are pending or, to the Seller's knowledge, threatened. (b) The staff of the Nasdaq Stock Market has verbally confirmed to the Seller that (i) it has reviewed this Agreement, the form of Series 2003-1 Warrant, and the form of Registration Rights Agreement, and (ii) on the basis of such review, approval by the stockholders of the Seller of the issuance of the Purchased Shares, the Warrants and the Warrant Shares is not required, and the Seller shall not have received from such staff any oral or written information or advice contrary to such verbal confirmation. 3.33 MATERIAL CONTRACTS. Each of the Seller's and its Subsidiaries material contracts (which, for purposes of this Agreement, means any agreement, contract or other document which the Seller would be required to disclose pursuant to SEC Regulation S-K, Item 601, Exhibits 1, 2, 3, 4, 9 or 10) are listed as exhibits to the Recent Reports and are in full force and effect on the date hereof, and none of the Seller, its Subsidiaries nor, to the Seller's or any Subsidiary's knowledge, any other party to such contracts is in breach of or default under any of such 17 contracts. The Seller is not required to file and will not be required to file any agreement, note, lease, mortgage, deed or other instrument entered into by the Seller or any Subsidiary prior to the date hereof which has not been previously filed as an exhibit to its Recent Reports. 3.34 TITLE TO AND CONDITION OF PERSONAL PROPERTY; NO LIENS. The Seller and its Subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their tangible properties and assets, real, personal and mixed, used in their business, free and clear of any Liens, except as set forth on Schedule 3.34. All tangible personal property owned by the Seller and its Subsidiaries is in good operating condition and in a good state of maintenance and repair, and is adequate for the business conducted and proposed to be conducted by the Seller and its Subsidiaries. Except for the Leases specifically identified in Schedule 3.34, there are no assets owned by any third party which are material to the operation of the business of the Seller or its Subsidiaries, as presently conducted or proposed to be conducted. ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS Each Purchaser, for itself, hereby severally, and not jointly, represents and warrants to the Seller as follows: 4.1 EXISTENCE AND POWER. The Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of such Purchaser's organization. The Purchaser has all powers required to carry on such Purchaser's business as now conducted. 4.2 AUTHORIZATION. The execution, delivery and performance by the Purchaser of this Agreement, the Related Documents to which such Purchaser is a party, and the consummation by the Purchaser of the transactions contemplated hereby have been duly authorized, and no additional action is required for the approval of this Agreement. This Agreement and the Related Documents to which the Purchaser is a party have been or, to the extent contemplated hereby, will be duly executed and delivered and constitute valid and binding agreements of the Purchaser, enforceable against such Purchaser in accordance with their terms, except as may be limited by bankruptcy, reorganization, insolvency, moratorium and similar laws of general application relating to or affecting the enforcement of rights of creditors and except that enforceability of their obligations thereunder are subject to general principles of equity. 4.3 INVESTMENT. The Purchaser is acquiring the Securities for its own account for investment and not with a view to, or for sale in connection with, any distribution thereof, nor with the intention of distributing or reselling the same, provided, however, that by making the representation herein, the Purchaser does not agree to hold any of the securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Purchaser is aware that none of the Securities has been registered under the Securities Act or under applicable state securities or blue sky laws. The Purchaser is an "Accredited Investor" as such term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act. 4.4 NONCONTRAVENTION. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate any constitution, 18 statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Purchaser is subject or any provision of its charter or bylaws or other similar governing instruments. 4.5 NO REGISTRATION. The Purchaser understands that the Purchased Shares and Warrants are being offered and sold to such Purchaser in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Seller is relying upon the truth and accuracy of, and such Purchaser's compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire the Securities. 4.6 BUSINESS OR FINANCIAL EXPERTISE. Purchaser has, by reason of Purchaser's business or financial expertise or the business or financial experience of its professional advisors who are unaffiliated with and who are not, to such Purchaser's knowledge, compensated by the Seller or any affiliate or selling agent of the Seller, directly or indirectly, the capacity to protect its own interests in connection with its acquisition of the Securities. Purchaser has had the opportunity to ask questions about the Seller's business affairs and financial condition, and has acquired sufficient information about the Seller to reach an informed and knowledgeable decision to acquire the Securities. 4.7 BROKERS' FEES. Purchaser has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which the Seller could become liable or obligated. ARTICLE V - COVENANTS OF THE SELLER AND PURCHASERS 5.1 INSURANCE. The Seller and its Subsidiaries shall maintain insurance coverage which is adequate and customary coverage for the business in which the Seller and its Subsidiaries shall then be engaged in. The Seller and its Subsidiaries shall, from time to time upon the written request of the Purchasers, promptly furnish or cause to be furnished to the Seller evidence, in form and substance reasonably satisfactory to the Purchasers, of the maintenance of all insurance maintained by it for loss or damage by fire and other hazards, damage or injury to persons and property, including from product liability, and under workmen's compensation laws. 5.2 INVESTIGATION. The representations, warranties, covenants and agreements set forth in this Agreement shall not be affected or diminished in any way by any investigation (or failure to investigate) at any time by or on behalf of the party for whose benefit such representations, warranties, covenants and agreements were made. Without limiting the generality of the foregoing, the inability or failure of the Purchasers to discover any breach, default or misrepresentation by the Seller under this Agreement or the Related Documents (including under any certificate furnished pursuant to this Agreement) shall not in any way diminish any liability hereunder. 5.3 PUBLIC ANNOUNCEMENTS. Neither the Purchasers nor the Seller shall (and each such party shall use its reasonable efforts to cause its Subsidiaries, Affiliates, directors, officers, 19 employees and authorized representatives not to), issue any press release, make any public announcement or furnish any written statement to its employees or stockholders generally concerning the transactions contemplated by this Agreement without the consent of the other party (which consent shall not be unreasonably withheld), except to the extent required by applicable law or the applicable requirements of applicable stock exchange rules (including Nasdaq) or as otherwise contemplated herein (and in either such case such party shall, to the extent consistent with timely compliance with such requirement, consult with the other party prior to making the required release, announcement or statement). Notwithstanding the foregoing, the Seller shall, promptly after the Closing, issue a press release disclosing the transactions contemplated hereby. 5.4 USE OF PROCEEDS. The Seller covenants and agrees that the proceeds of the Purchase Price shall be used by the Seller for working capital and general corporate purposes. 5.5 LISTING OF SHARES. The Seller shall use its best efforts to list the Purchased Shares and Warrant Shares on each securities exchange or quotation system upon which the Common Stock may be listed from time to time during the time period that the Common Stock is listed on such securities exchange or quotation system. 5.6 RESERVATION OF SHARES. The Seller shall hereafter take all action necessary to at all times have authorized, and reserved for the purpose of issuance, no less than 100% of the number of shares of Common Stock needed to provide for the issuance of the shares of Common Stock upon exercise of all outstanding Warrants (without regard to any limitations on conversions or exercise). 5.7 INTERNAL ACCOUNTING CONTROLS. The Seller and each of its Subsidiaries shall maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability and (iii) assets are amortized and depreciated, as applicable, in accordance with generally accepted accounting principles. 5.8 FILING OF FORM D. The Seller will timely file Form D in accordance with the provisions of Regulation D promulgated by the SEC under the Securities Act. 5.9 INDEMNIFICATION FOR CLAIMS. The Seller agrees to indemnify and hold harmless the Purchasers, their Affiliates, each of their officers, directors, employees and agents and their respective successors and assigns (for purposes of this subsection 5.9, the "Indemnified Parties"), from and against any losses, damages, or expenses (net of any related insurance proceeds) incurred by the Indemnified Parties due to any and all third party actions, suits, proceedings, claims, demands, judgments, costs and expenses (including reasonable legal fees and expenses) which are brought by or on behalf of a third party or any of its successors or assigns claiming a right to participate as a placement agent, underwriter, financial advisor, finder or broker with respect to the offering of the Securities pursuant to this Agreement, against any of the Indemnified Parties, with respect to any act or omission occurring on or before the Closing Date. The indemnification herein provided shall be provided in the manner and in accordance with the 20 procedures set forth in Section 6.3 hereof. The indemnification provided for in this Section 5.9 shall be made notwithstanding the reference to any underwriting, placement agent, financial advisory, finder's or broker's agreement in the Schedule to the Representations and Warranties, and notwithstanding any knowledge or information which the Purchasers have with respect to any underwriting, placement agent, financial advisory, finder's or broker's agreement. ARTICLE VI - - INDEMNIFICATION 6.1 SURVIVAL OF REPRESENTATIONS. Except as otherwise provided herein, the representations and warranties of the Seller and the Purchasers contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing Date and shall continue in full force and effect for a period of 24 months after the Closing Date and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of the Seller or the Purchasers. 6.2 INDEMNIFICATION. (a) The Seller agrees to indemnify and hold harmless the Purchasers, their Affiliates, each of their officers, directors, employees and agents and their respective successors and assigns, from and against any losses, damages, or expenses (net of any related insurance proceeds) due to any and all third party actions, suits, proceedings, claims, demands, judgments, costs and expenses (including reasonable legal fees and expenses) (all of the foregoing, "Third Party Claims") which are caused by or arise out of (i) any breach or default in the performance by the Seller of any covenant or agreement made by the Seller in this Agreement or in any of the Related Documents; (ii) any breach of warranty or representation made by the Seller in this Agreement or in any of the Related Document. (b) Each of the Purchasers agrees to indemnify and hold harmless the Seller, its Affiliates, each of their officers, directors, employees and agents and their respective successors and assigns, from and against any Third Party Claims (net of any related insurance proceeds) which are caused by or arise out of (i) any breach or default in the performance by it of any covenant or agreement made by it in this Agreement or in any of the Related Documents; (ii) any breach of warranty or representation made by it in this Agreement or in any of the Related Documents; provided, however, that a Purchaser's liability under this Section 6.2(b) shall not exceed the Purchase Price paid by such Purchaser hereunder. 6.3 INDEMNITY PROCEDURE. A party or parties hereto agreeing to be responsible for or to indemnify against any matter pursuant to this Agreement is referred to herein as the "Indemnifying Party" and the other party or parties claiming indemnity is referred to as the "Indemnified Party". An Indemnified Party under this Agreement shall, with respect to claims asserted against such party by any third party, give written notice to the Indemnifying Party of any liability which might give rise to a claim for indemnity under this Agreement within sixty (60) business days of the receipt of any written claim from any such third party, but not later than twenty (20) days prior to the date any answer or responsive pleading is due, and with respect to other matters for which the Indemnified Party may seek indemnification, give prompt written notice to the Indemnifying Party of any liability which might give rise to a claim for indemnity; 21 provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are materially prejudiced. The Indemnified Party shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any third Person claim, action or suit against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnifying Party hereunder, and in any such case the Indemnifying Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that the Indemnifying Party may participate, through counsel chosen by it and at its own expense, in the defense of any such claim, action or suit as to which the Indemnified Party has so elected to conduct and control the defense thereof; and provided, further, that the Indemnified Party shall not, without the written consent of the Indemnifying Party (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim, action or suit, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnifying Party shall fail, within 14 days after the making of such request, to acknowledge and agree in writing that, if such claim, action or suit shall be adversely determined, such Indemnifying Party has an obligation to provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided, that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld. The parties agree to cooperate in defending such third party claims and the Indemnified Party shall provide such cooperation and such access to its books, records and properties as the Indemnifying Party shall reasonably request with respect to any matter for which indemnification is sought hereunder; and the parties hereto agree to cooperate with each other in order to ensure the proper and adequate defense thereof. With regard to claims of third parties for which indemnification is payable hereunder, such indemnification shall be paid by the Indemnifying Party upon the earlier to occur of: (i) the entry of a judgment against the Indemnified Party and the expiration of any applicable appeal period, or if earlier, five (5) days prior to the date that the judgment creditor has the right to execute the judgment; (ii) the entry of an unappealable judgment or final appellate decision against the Indemnified Party; or (iii) a settlement of the claim. Notwithstanding the foregoing, the reasonable expenses of counsel to the Indemnified Party shall be reimbursed on a current basis by the Indemnifying Party if such expenses are required to be paid pursuant to this Agreement. With regard to other claims for which indemnification is payable hereunder, such indemnification shall be paid promptly by the Indemnifying Party upon demand by the Indemnified Party. ARTICLE VII - MISCELLANEOUS 7.1 FURTHER ASSURANCES. Each party agrees to cooperate fully with the other parties and to execute such further instruments, documents and agreements and to give such further written assurances as may be reasonably requested by any other party to better evidence and 22 reflect the transactions described herein and contemplated hereby and to carry into effect the intents and purposes of this Agreement, and further agrees to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, all things necessary, proper or advisable under applicable law to consummate and make effective the transactions contemplated hereby, to obtain all necessary waivers, consents and approvals, to effect all necessary registrations and filings, and to remove any injunctions or other impediments or delays, legal or otherwise, in order to consummate and make effective the transactions contemplated by this Agreement for the purpose of securing to the parties hereto the benefits contemplated by this Agreement. 7.2 FEES AND EXPENSES. The Seller shall be responsible for the payment of reasonable legal fees and expenses of one counsel to the Purchasers relating to the preparation and negotiation of this Agreement, the Related Documents or the exercise of any Warrants. 7.3 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 earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section prior to 5:00 p.m. (New York City time) on a business day, (b) the next business day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section on a day that is not a business day or later than 5:00 p.m. (New York City time) on any business day, or (c) the business day following the date of mailing, if sent by U.S. nationally recognized overnight courier service such as Federal Express. The address for such notices and communications shall be as follows: If to the Purchasers, to their respective If to the Seller: addresses set forth on Schedule 1. Spectrum Pharmaceuticals, Inc. 157 Technology Dr Irvine, CA 92618 Att'n: CEO Fax No. 949 ###-###-#### With a copy in each case to: With a copy in each case to: Kane Kessler, P.C. Latham & Watkins LLP 1350 Avenue of the Americas - 26th Floor 650 Town Center Drive, Twentieth Floor New York, New York 10019 Costa Mesa, California 92626 Attention: Robert L. Lawrence, Esq. Att'n: Alan W. Pettis, Esq. Fax No.: (212) 245-3009 Fax No. 714 ###-###-####
Unless otherwise stated above, such communications shall be effective when they are received by the addressee thereof in conformity with this Section. Any party may change its address for such communications by giving notice thereof to the other parties in conformity with this Section. 7.4 GOVERNING LAW. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and enforced in accordance with the laws of the State of New York without reference to the choice of law principles thereof. 23 7.5 JURISDICTION AND VENUE. This Agreement shall be subject to the exclusive jurisdiction of the Federal and State Courts located in New York County, New York. The parties to this Agreement agree that any breach of any term or condition of this Agreement shall be deemed to be a breach occurring in the State of New York by virtue of a failure to perform an act required to be performed in the State of New York and irrevocably and expressly agree to submit to the jurisdiction of the Federal District Court, Southern District of New York and if such court does not have proper jurisdiction, the State Courts of New York County, New York for the purpose of resolving any disputes among the parties relating to this Agreement or the transactions contemplated hereby. The parties irrevocably waive, to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof brought in New York County, New York, and further irrevocably waive any claim that any suit, action or proceeding brought in Federal or State Courts located in New York County, New York has been brought in an inconvenient forum. 7.6 SUCCESSORS AND ASSIGNS. This Agreement is personal to each of the parties and may not be assigned without the written consent of the other parties; provided, however, that any of the Purchasers shall be permitted to assign their rights under this Agreement to any transferee of such Purchaser to whom it assigns or transfers Securities, as provided in Section 1.3 hereof. 7.7 SEVERABILITY. If any provision of this Agreement, or the application thereof, shall for any reason or to any extent be invalid or unenforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall continue in full force and effect and in no way be affected, impaired or invalidated. 7.8 ENTIRE AGREEMENT. This Agreement and the other agreements and instruments referenced herein constitute the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings. 7.9 OTHER REMEDIES. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law, or in equity on such party, and the exercise of any one remedy shall not preclude the exercise of any other. 7.10 AMENDMENT AND WAIVERS. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by the Seller, the holders of at least a majority of the outstanding Purchased Shares. The waiver by a party of any breach hereof or default in the performance hereof shall not be deemed to constitute a waiver of any other default or any succeeding breach or default. 7.11 NO WAIVER. The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions. 7.12 CONSTRUCTION OF AGREEMENT; KNOWLEDGE. For purposes of this Agreement, the term "knowledge," when used in reference to a corporation means the knowledge of the directors, officers and managers of such corporation assuming such officers shall have made 24 inquiry that is customary and appropriate under the circumstances to which reference is made, and when used in reference to an individual means the knowledge of such individual assuming the individual shall have made inquiry that is customary and appropriate under the circumstances to which reference is made. 7.13 COUNTERPARTS; FACSIMILE. This Agreement may be executed in any number of counterparts, each of which shall be an original as against any party whose signature appears thereon and all of which together shall constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as signatories. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof. 7.14 NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person other than the parties hereto and their respective heirs, personal representatives, legal representatives, successors and permitted assigns, any rights or remedies under or by reason of this Agreement. [SIGNATURE PAGES FOLLOW:] 25 IN WITNESS WHEREOF, the undersigned Purchasers and the Seller have caused this Common Stock and Warrant Purchase Agreement to be duly executed as of the date first above written. SELLER: SPECTRUM PHARMACEUTICALS, INC. By: /s/ Rajesh C. Shrotriya -------------------------------------- Rajesh C. Shrotriya, M.D. Chief Executive Officer OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: BayStar Capital II, L.P. ------------------------------- By: /s/ Steve Derby ------------------------------- Name: Steve Derby ------------------------------- Title: Managing Member ------------------------------- Address: c/o BayStar Capital Management, LLC ------------------------------- xxxxxxxx ------------------------------- xxxxxxxx ------------------------------- Telephone: (XXX)XXX-XXXX ------------------------------- Facsimile: (XXX)XXX-XXXX ------------------------------- SOC/EIN#: XX-XXXXXXX ------------------------------- Number of Shares of Common Stock to be Purchased 183,540 ------------------------------- Series 2003-1 Warrants to be Purchased 91,770 -------------------------------- Aggregate Purchase Price $ 752,514 --------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: James T. Betts ------------------------------- By: /s/ James T. Betts ------------------------------- Name: James T. Betts ------------------------------- Title: ------------------------------- Address: c/o Shipman & Goodwin LLP ------------------------------- xxxxxxxx ------------------------------- xxxxxxxx ------------------------------- Telephone: (XXX) XXX-XXXX ------------------------------- Facsimile: (XXX) XXX-XXXX ------------------------------- SOC/EIN#: XXX-XX-XXXX ------------------------------- Number of Shares of Common Stock to be Purchased 25,000 ------------------------------- Series 2003-1 Warrants to be Purchased 12,500 ------------------------------- Aggregate Purchase Price $ 102,500 --------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: Shanta Chawla ------------------------------- By: /s/ Shanta Chawla ------------------------------- Name: ------------------------------- Title: ------------------------------- Address: XXXXXXXX ------------------------------- XXXXXXXX ------------------------------- Telephone: (XXX) XXX-XXXX ------------------------------- Facsimile: (XXX) XXX-XXXX ------------------------------- SOC/EIN#: XXX-XX-XXXX ------------------------------- Number of Shares of Common Stock to be Purchased 12,500 ------------------------------- Series 2003-1 Warrants to be Purchased 6,250 -------------------------------- Aggregate Purchase Price $ 51,250 --------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: Cranshire Capital, L.P. --------------------------------- By: /s/ Mitchell D. Kopin --------------------------------- Name: Mitchell D. Kopin --------------------------------- Title: President - Downsview Capital --------------------------------- Address: XXXXXXXX --------------------------------- XXXXXXXX Telephone: (XXX) XXX-XXXX --------------------------------- Facsimile: (XXX) XXX-XXXX --------------------------------- SOC/EIN#: XX-XXXXXXX --------------------------------- Number of Shares of Common Stock to be Purchased 122,000 --------------------------------- Series 2003-1 Warrants to be Purchased 61,000 --------------------------------- Aggregate Purchase Price $ 500,200 ----------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: Creative Investors Group, LLC --------------------------------- By: /s/ Paresh Mital --------------------------------- Name: Paresh Mital --------------------------------- Title: Managing Member --------------------------------- Address: XXXXXXX --------------------------------- XXXXXXX --------------------------------- Telephone: (XXX) XXX-XXXX --------------------------------- Facsimile: (XXX) XXX-XXXX --------------------------------- SOC/EIN#: XX-XXXXXXX --------------------------------- Number of Shares of Common Stock to be Purchased 25,000 --------------------------------- Series 2003-1 Warrants to be Purchased 12,500 --------------------------------- Aggregate Purchase Price $ 102,500 ----------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: Ashok Y. Gore ------------------------------- By: /ss Ashok Y. Gore ------------------------------- Name: ------------------------------- Title: ------------------------------- Address: XXXXXXX ------------------------------- XXXXXXX ------------------------------- Telephone: (XXX) XXX-XXXX ------------------------------- Facsimile: ------------------------------- SOC/EIN#: XXX-XX-XXXX ------------------------------- Number of Shares of Common Stock to be Purchased 12,500 ------------------------------- Series 2003-1 Warrants to be Purchased 6,250 ------------------------------- Aggregate Purchase Price $ 51,250 --------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: North Sound Legacy Fund LLC --------------------------------- By: /s/ Andrew Wilder --------------------------------- Name: Andrew Wilder --------------------------------- Title: Chief Financial Officer --------------------------------- Address: c/o North Sound Capital LLC --------------------------------- XXXXXXX --------------------------------- XXXXXXX --------------------------------- Telephone: (XXX) XXX-XXXX --------------------------------- Facsimile: (XXX) XXX-XXXX --------------------------------- SOC/EIN#: XX-XXXXXXX --------------------------------- Number of Shares of Common Stock to be Purchased 7,800 --------------------------------- Series 2003-1 Warrants to be Purchased 3,900 --------------------------------- Aggregate Purchase Price $ 31,980 ------------------ OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: North Sound Legacy International Ltd. --------------------------------- By: /s/ Andrew Wilder --------------------------------- Name: Andrew Wilder --------------------------------- Title: Chief Financial Officer --------------------------------- Address: c/o North Sound Capital LLC --------------------------------- XXXXXX --------------------------------- XXXXXX --------------------------------- Telephone: (XXX) XXX-XXXX --------------------------------- Facsimile: (XXX) XXX-XXXX --------------------------------- SOC/EIN#: XX-XXXXXXX --------------------------------- Number of Shares of Common Stock to be Purchased 86,400 ------------------------------- Series 2003-1 Warrants to be Purchased 43,200 --------------------------------- Aggregate Purchase Price $ 354,240 ----------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: North Sound Legacy Institutional Fund LLC By: /s/ Andrew Wilder ------------------------------- Name: Andrew Wilder ------------------------------- Title: Chief Financial Officer ------------------------------- Address: c/o North Sound Capital LLC ------------------------------- XXXXXX ------------------------------- XXXXXX ------------------------------- Telephone: (XXX) XXX-XXXX ------------------------------- Facsimile: (XXX) XXX-XXXX ------------------------------- SOC/EIN#: XX-XXXXXXX ------------------------------- Number of Shares of Common Stock to be Purchased 78,800 ------------------------------- Series 2003-1 Warrants to be Purchased 39,400 ------------------------------- Aggregate Purchase Price $ 323,080 ----------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: Omnicron Master Trust ------------------------------- By: /s Bruce Bernstein ------------------------------- Name: Bruce Bernstein ------------------------------- Title: Managing Member ------------------------------- Address: XXXXX ------------------------------- XXXXX ------------------------------- XXXXX ------------------------------- Telephone: (XXX) XXX-XXXX ------------------------------- Facsimile: (XXX) XXX-XXXX ------------------------------- SOC/EIN#: XX-XXXXXXX ------------------------------- Number of Shares of Common Stock to be Purchased 122,000 ------------------------------- Series 2003-1 Warrants to be Purchased 61,000 ------------------------------- Aggregate Purchase Price $ 500,200 --------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: Hetal Patel ------------------------------- By: /s/ Hetal Patel ------------------------------- Name: ------------------------------- Title: ------------------------------- Address: XXXXX ------------------------------- XXXXX ------------------------------- XXXXX ------------------------------- Telephone: (XXX) XXX-XXXX ------------------------------- Facsimile: (XXX) XXX-XXXX ------------------------------- SOC/EIN#: XX-XXXXXXX ------------------------------- Number of Shares of Common Stock to be Purchased 25,000 ------------------------------- Series 2003-1 Warrants to be Purchased 12,500 ------------------------------- Aggregate Purchase Price $ 102,500 ----------------- OMNIBUS SIGNATURE PAGE TO SPECTRUM PHARMACEUTICALS, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT The undersigned hereby executes and delivers the Common Stock and Warrant Purchase Agreement to which this signature page is attached, which, together with all counterparts of the Agreement and signature pages of the other parties named in said Agreement, shall constitute one and the same document in accordance with the terms of the Agreement. Print Name: Paul Scharfer ------------------------------- By: /s/ Paul Scharfer ------------------------------- Name: ------------------------------- Title: ------------------------------- Address: XXXXXXXXXX ------------------------------- XXXXXXXXXX ------------------------------- Telephone: (XXX) XXX-XXXX ------------------------------- Facsimile: ------------------------------- SOC/EIN#: XX-XXXXXXX ------------------------------- Number of Shares of Common Stock to be Purchased 36,500 ------------------------------- Series 2003-1 Warrants to be Purchased 18,250 ------------------------------- Aggregate Purchase Price $ 149,650 --------------- SCHEDULE 1 TO COMMON STOCK AND WARRANT PURCHASE AGREEMENT PURCHASERS AND SHARES OF COMMON STOCK AND WARRANTS PURCHASED Shares of Common Stock Acquirable Shares of under Series Total Name and Address of Purchaser Common Stock 2003-1 Warrants Purchase Price - ----------------------------- ------------ --------------- -------------- BayStar Capital II, L.P. 183,540 91,770 $ 752,514 XXXXX XXXXX Att'n: XXX Facsimile: XXX James Betts 25,000 12,500 $ 102,500 XXXXX XXXXX Att'n: XXX Facsimile: XXX Shanta Chawla, M.D 12,500 6,250 $ 51,250 XXXXX XXXXX Cranshire Capital, LP 122,000 61,000 $ 500,200 XXXXX XXXXX Style XXX Facsimile: XXX Creative Investors Group, LLC 25,000 12,500 $ 102,500 XXXXX XXXXX Att'n: XXX Ashok Gore, Ph.D 12,500 6,250 $ 51,250 XXXXX XXXXX North Sound Legacy Fund LLC 7,800 3,900 $ 31,980 XXXXX XXXXX Att'n: XXX Facsimile: XXX North Sound Legacy Institutional 78,800 39,400 $ 323,080 Fund LLC XXXXX XXXXX Att'n: XXX Facsimile: XXX North Sound Legacy International 86,400 43,200 $ 354,240 Fund Ltd. XXXXX XXXXX Att'n: XXX Facsimile: XXX
SCHEDULE 1 (CONT'D) Shares of Common Stock Acquirable Shares of under Series Total Name and Address of Purchaser Common Stock 2003-1 Warrants Purchase Price - ----------------------------- ------------ --------------- -------------- Omnicron Capital, LP 122,000 61,000 $ 500,200 XXXXXXX XXXXXXX Attn: XXXXXXX Facsimile: XXXXXXX Hetal Patel 25,000 12,500 $ 102,500 XXXXXXX XXXXXXX Facsimile: XXXXXXX Paul Scharfer 36,500 18,250 $ 149,600 XXXXXXX XXXXXXX Facsimile: XXXXXXX ------- ------- ---------- Total 737,040 368,520 $3,021,864 ======= ======= ==========
