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8-K - FORM 8-K - SPECTRUM PHARMACEUTICALS INC | c09557e8vk.htm |
EX-3.2 - EXHIBIT 3.2 - SPECTRUM PHARMACEUTICALS INC | c09557exv3w2.htm |
EX-4.1 - EXHIBIT 4.1 - SPECTRUM PHARMACEUTICALS INC | c09557exv4w1.htm |
EXHIBIT 3.1
Certificate of Designation, Preferences, and Rights
of
Series B Junior Participating Preferred Stock
of
Spectrum Pharmaceuticals, Inc.
of
Series B Junior Participating Preferred Stock
of
Spectrum Pharmaceuticals, Inc.
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
Spectrum Pharmaceuticals, Inc., a Delaware corporation (the Company), does hereby certify
that:
1. The name of the Corporation is Spectrum Pharmaceuticals, Inc.
2. The certificate of incorporation, as amended, of the Corporation authorizes the issuance of
5,000,000 shares of Preferred Shares of a par value of $0.001 each and expressly vests in the Board
of Directors of the Corporation the authority provided therein to issue any or all of said shares
in one or more series and by resolution or resolutions, the designation, number, full or limited
voting powers, or the denial of voting powers, preferences and relative, participating, optional,
and other special rights and the qualifications, limitations, restrictions, and other
distinguishing characteristics of each series to be issued.
3. That pursuant to the authority conferred upon the Board of Directors by the Amended
Certificate of Incorporation of the Corporation, the said Board of Directors on November 29, 2010,
adopted the following resolution creating a series of Preferred Stock designated as Series B Junior
Participating Preferred Stock (as hereinafter defined):
RESOLVED, that pursuant to the authority vested in the Board of Directors of the Corporation
in accordance with the provisions of its Certificate of Incorporation, a series of Preferred Stock
of the Corporation be and it hereby is created, and that the designation and amount thereof and the
voting powers, preferences and relative, participating, optional and other special rights of the
shares of such series, and the qualifications, limitations, and restrictions thereof are as
follows:
Section 1. Designation and Amount. The shares of such series shall be designated as
Series B Junior Participating Preferred Stock and the number of shares constituting such series
shall be 1,500,000.
Section 2. Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of any shares of any series of
Preferred Stock ranking prior and superior to the shares of Series B Junior Participating Preferred
Stock with respect to dividends, the holders of shares of Series B Junior Participating Preferred
Stock, in preference to the holders of shares of Common Stock, par value $0.001 per share, of the
Corporation (the Common Stock), and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the last day of March, June, September, and
December in each year (each such date being referred to herein as a Quarterly Dividend Payment
Date), commencing on the first Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series B Junior Participating Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (i) $1.00 or (ii) subject to the
provision for adjustment hereinafter set forth, 1000 times the aggregate per share amount of all
cash dividends, and 1000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series B Junior Participating Preferred Stock. In the event the Corporation
shall at any time after November 29, 2010 (the Rights Dividend Declaration Date) (A)
declare any dividend on Common Stock payable in shares of Common Stock, (B) subdivide the
outstanding Common Stock, or (C) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which holders of shares of Series B Junior
Participating Preferred Stock were entitled immediately prior to such event under clause (ii) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series B Junior
Participating Preferred Stock as provided in Section 2(a) above immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock); provided, that, in the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series B Junior
Participating Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series B Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series B Junior Participating Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series B Junior Participating Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares
of Series B Junior Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series B Junior Participating Preferred
Stock entitled to receive payment of a dividend or distribution declared thereon, which record date
shall be no more than 30 days prior to the date fixed for the payment thereof.
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Section 3. Voting Rights. The holders of shares of Series B Junior Participating
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share of Series B
Junior Participating Preferred Stock shall entitle the holder thereof to 1000 votes on all matters
submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at
any time after the Rights Dividend Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each such case the number of
votes per share to which holders of shares of Series B Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders of shares of Series B Junior
Participating Preferred Stock and the holders of shares of Common Stock shall vote together as one
class on all matters submitted to a vote of stockholders of the Corporation.
(c) (i) If at any time dividends on any Series B Junior Participating Preferred Stock shall be
in arrears in an amount equal to six quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a default period) that
shall extend until such time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all shares of Series B Junior
Participating Preferred Stock then outstanding shall have been declared and paid or set apart for
payment. During each default period, all holders of Preferred Stock (including holders of the
Series B Junior Participating Preferred Stock) with dividends in arrears in an amount equal to six
quarterly dividends thereon, voting as a class, irrespective of series, shall have the right to
elect two directors.
(ii) During any default period, such voting right of the holders of Series B Junior
Participating Preferred Stock may be exercised initially at a special meeting called pursuant to
Section 3(c)(iii) or at any annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided, that such voting right shall not be exercised unless the holders of
10% in number of shares of Preferred Stock outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not affect the exercise by the holders of
Preferred Stock of such voting right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they shall have the right,
voting as a class, to elect directors to fill such vacancies, if any, in the Board of Directors as
may then exist up to two directors or, if such right is exercised at an annual meeting, to elect
two directors. If the number that may be so elected at any special meeting does not amount to the
required number, the holders of Preferred Stock shall have the right to make such increase in the
number of directors as shall be necessary to permit the election by them of the required number.
After the holders of Preferred Stock shall have exercised their right to elect directors in any
default period and during the continuance of such period, the number of directors shall not be
increased or decreased except by vote of the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to or pari passu
with the Series B Junior Participating Preferred Stock.
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(iii) Unless the holders of Preferred Stock shall, during an existing default period, have
previously exercised their right to elect directors, the Board of Directors may order, or any
stockholder or stockholders owning in the aggregate not less than 10% of the total number of shares
of Preferred Stock outstanding, irrespective of series, may request, the calling of a special
meeting of the holders of Preferred Stock, which meeting shall thereupon be called by the
President, a Vice President, or the Secretary of the Corporation. Notice of such meeting and of
any annual meeting at which holders of Preferred Stock are entitled to vote pursuant to this
Section 3(c)(iii) shall be given to each holder of record of Preferred Stock by mailing a copy of
such notice to such holder at such holders last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 20 days and not later than
60 days after such order or request or in default of the calling of such meeting within 60 days
after such order or request, such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than 10% of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this Section 3(c)(iii), no such special
meeting shall be called during the period within 60 days immediately preceding the date fixed for
the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be entitled to elect the whole number of directors
until the holders of Preferred Stock shall have exercised their right to elect two directors voting
as a class, after the exercise of which right (A) the directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been elected by such
holders or until the expiration of the default period, and (B) any vacancy in the Board of
Directors may (except as provided in Section 3(c)(ii)) be filled by vote of a majority of the
remaining directors theretofore elected by the holders of the class of stock that elected the
director whose office shall have become vacant. References in this Section 3(c) to directors
elected by the holders of a particular class of stock shall include directors elected by such
directors to fill vacancies as provided in clause (B) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (A) the right of the holders of
Preferred Stock as a class to elect directors shall cease, (B) the term of any directors elected by
the holders of Preferred Stock as a class shall terminate, and (C) the number of directors shall be
such number as may be provided for in the Certificate of Incorporation or Bylaws irrespective of
any increase made pursuant to the provisions of Section 3(c)(ii) (such number being subject,
however, to change thereafter in any manner provided by law or in the Certificate of Incorporation
or Bylaws). Any vacancies in the Board of Directors effected by the provisions of clauses (B) and
(C) in the preceding sentence may be filled by a majority of the remaining directors.
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(d) Except as set forth herein, holders of Series B Junior Participating Preferred Stock shall
have no special voting rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions payable on the Series B
Junior Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series B
Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, or make any other distributions on, any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution, or winding up) to the
Series B Junior Participating Preferred Stock;
(ii) declare or pay dividends on, or make any other distributions on, any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution, or winding up) with
the Series B Junior Participating Preferred Stock, except dividends paid ratably on the Series B
Junior Participating Preferred Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution, or winding up) to the Series B
Junior Participating Preferred Stock, provided, that the Corporation may at any time
redeem, purchase, or otherwise acquire shares of any such junior stock in exchange for shares of
any stock of the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation, or winding up) to the Series B Junior Participating Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of Series B Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with the Series B Junior
Participating Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall determine in good faith
will result in fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under Section 4(a), purchase or otherwise acquire such shares at such time and in such
manner.
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Section 5. Reacquired Shares. Any shares of Series B Junior Participating Preferred
Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired
and cancelled promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part
of a new series of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designation creating a series of
Preferred Stock or any similar stock, or as otherwise required by law.
Section 6. Liquidation, Dissolution, or Winding Up.
(a) Upon any liquidation (voluntary or otherwise), dissolution, or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution, or winding up) to the Series B Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of Series B Junior
Participating Preferred Stock shall have received an amount equal to $1000 per share of Series B
Participating Preferred Stock, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment (the Series B
Liquidation Preference). Following the payment of the full amount of the Series B Liquidation
Preference, no additional distributions shall be made to the holders of shares of Series B Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall
have received an amount per share (the Common Adjustment) equal to the quotient obtained
by dividing (i) the Series B Liquidation Preference by (ii) 1000 (as appropriately adjusted as set
forth in Section 4(c) below to reflect such events as stock splits, stock dividends, and
recapitalizations with respect to the Common Stock) (such number in clause (ii), the
Adjustment Number). Following the payment of the full amount of the Series B Liquidation
Preference and the Common Adjustment in respect of all outstanding shares of Series B Junior
Participating Preferred Stock and Common Stock, respectively, holders of Series B Junior
Participating Preferred Stock and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number
to one with respect to such Preferred Stock and Common Stock, on a per share basis, respectively.
(b) In the event, however, that there are not sufficient assets available to permit payment in
full of the Series B Liquidation Preference and the liquidation preferences of all other series of
preferred stock, if any, which rank on a parity with the Series B Junior Participating Preferred
Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares
in proportion to their respective liquidation preferences. In the event, however, that there are
not sufficient assets available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
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(c) In the event the Corporation shall at any time after the Rights Dividend Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment Number by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination, or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash, or any other property, then in
any such case the shares of Series B Junior Participating Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1000 times the aggregate amount of stock, securities,
cash, or any other property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event the Corporation shall at any time
after the Rights Dividend Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares of Series B Junior
Participating Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. No Redemption. The shares of Series B Junior Participating Preferred
Stock shall not be redeemable.
Section 9. Ranking. The Series B Junior Participating Preferred Stock shall rank
junior to all other series of the Corporations Preferred Stock as to the payment of dividends and
the distribution of assets, unless the terms of any such series shall provide otherwise.
Section 10. Amendment. At any time when any shares of Series B Junior Participating
Preferred Stock are outstanding, neither the Certificate of Incorporation of the Corporation nor
this Certificate of Designation shall be amended in any manner that would materially alter or
change the powers, preferences, or special rights of the Series B Junior Participating Preferred
Stock so as to affect them adversely without the affirmative vote of the holders of two-thirds or
more of the outstanding shares of Series B Junior Participating Preferred Stock, voting separately
as a class.
Section 11. Fractional Shares. The Series B Junior Participating Preferred Stock may be issued in fractions of a
share that shall entitle the holder, in proportion to such holders fractional shares, to exercise
voting rights, receive dividends, participate in distributions, and to have the benefit of all
other rights of holders of Series B Junior Participating Preferred Stock.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Spectrum Pharmaceuticals, Inc. has caused this Certificate of Designation
to be signed by the undersigned this 9th day of December, 2010.
SPECTRUM PHARMACEUTICALS, INC. |
||||
By: | /s/ Shyam Kumaria | |||
Name: | Shyam Kumaria | |||
Title: | Senior Vice President, Finance |
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