Name of Participant: |
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Grant Date: |
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Number of Shares of Common Stock covered by Option: |
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Exercise Price Per Share: |
$ | |||
Vesting Schedule: |
| SPECTRUM PHARMACEUTIALS, INC. | ||
| Name | ||
| Title |
| PARTICIPANT | ||
| Signature |
| Signature of Spouse |
| PARTICIPANT | ||
| Signature |
| 1. | TERMS OF OPTION |
|
SPECTRUM PHARMACEUTICALS, INC. (the “Company”), has granted to the Participant named in the
Term Sheet provided to said Participant herewith (the “Term Sheet”) a stock option (the
“Option”) to purchase up to the number of shares of the Company’s common stock (the “Common
Stock”), set forth in the Term Sheet, at the purchase price per share and upon the other
terms and subject to the conditions set forth in the Term Sheet, these Standard Terms and
Conditions (as amended from time to time), and the Plan. For purposes of these Standard
Terms and Conditions and the Term Sheet, any reference to the Company shall include a
reference to any Subsidiary. |
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| 2. | EXERCISE OF OPTION |
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The Option shall continue to vest, in accordance with the Vesting Schedule set forth on the
Term Sheet, so long as Participant remains in Continuous Service with the Company.
Participant may exercise any vested portion of the Option at any time prior to the
Expiration Date of the Option. |
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To exercise the Option (or any part thereof), Participant shall provide notice to the
Company specifying the number of whole shares of Common Stock Participant wishes to purchase
and how Participant’s shares of Common Stock should be registered (in Participant’s name
only or in Participant’s and Participant’s spouse’s names as community property or as joint
tenants with right of survivorship). |
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The exercise price (the “Exercise Price”) of the Option is set forth in the Term Sheet. The
Company shall not be obligated to issue any shares of Common Stock until Participant shall
have paid the total Exercise Price for that number of shares of Common Stock. The Exercise
Price may be paid as permitted in the Plan. |
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Fractional shares will not be issued. Shares of Common Stock will be issued as soon as
practical after exercise. Notwithstanding the above, the Company shall not be obligated to
deliver any shares of Common Stock during any period when the Company determines that the
exercisability of the Option or the delivery of shares hereunder would violate any federal,
state or other applicable laws. |
| 3. | EXPIRATION OF OPTION |
|
The Option shall expire and cease to be exercisable ten (10)
years after the Grant Date of the Option (the Expiration Date), except as provided in this Section 3. |
| A. | In the event that the Participant’s Continuous Service is terminated as a
result of the death of the Participant or Participant dies during the three month
period set forth in Section 3.C below, (i) any part of the Option that is unexercisable
as of such termination date shall remain unexercisable and shall terminate as of such
date, and (ii) any part of the Option that is exercisable as of such termination date
shall expire upon the earlier of one year following the date of termination of the
Participant’s Continuous Service or the Expiration Date of the Option. |
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| B. | In the event that the Participant’s Continuous Service is terminated as a
result of the Disability of the Participant, (i) any part of the Option that is
unexercisable as of such termination date shall remain unexercisable and shall
terminate as of such date, and (ii) any part of the Option that is exercisable as of
such termination date shall expire upon the earlier of one year following the date of
termination of the Participant’s Continuous Service or the Expiration Date of the
Option. |
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| C. | In the event that the Participant’s Continuous Service with the Company is
terminated for any reason other than the death or Disability of the Participant, (i)
any part of the Option that is unexercisable as of such termination date shall remain
unexercisable and shall terminate as of such date, and (ii) any part of the Option that
is exercisable as of such termination date shall expire upon the earlier of three
months following such termination date or the Expiration Date of the Option. |
| 4. | RESTRICTIONS ON RESALES OF OPTION SHARES |
|
The Company may impose such restrictions, conditions or limitations as it determines
appropriate as to the timing and manner of any resales by the Participant or other
subsequent transfers by the Participant of any shares of Common Stock issued as a result of
the exercise of the Option, including without limitation (a) restrictions under an insider
trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner
of sales by Participant and other optionholders, (c) restrictions as to the use of a
specified brokerage firm for such resales or other transfers or (d) restrictions under
federal or state securities laws. |
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| 5. | INCOME TAXES |
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To the extent required by applicable federal, state, local or foreign law, the Participant
shall make arrangements satisfactory to the Company for the satisfaction of any withholding
tax obligations that arise by reason of an Option exercise or disposition of shares issued
as a result of an Option exercise. The Company shall not be required to issue shares or to
recognize the disposition of such shares until such obligations are satisfied. |
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| 6. | TRANSFERABILITY OF OPTION |
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The Participant may not assign or transfer the Option (if intended to qualify as an
incentive stock option under Section 422 of the Code) to anyone other than except by will,
the laws of descent and distribution or pursuant to a DRO entered by a court in settlement
of marital property rights, and during the life of the Participant, Options shall be
exercisable only by the Participant. |
If this Option does not qualify as an incentive stock option under Section 422 of the Code,
then the Participant may transfer some or all of his or her Nonqualified Options to one or
more “family members,” which is not a “prohibited transfer for value,” provided that (i) the
Participant (or such
Participant’s estate or representative) shall remain obligated to satisfy all income or
other tax withholding obligations associated with the exercise of such Nonqualified Option;
(ii) the Participant shall notify the Company in writing that such transfer has occurred and
disclose to the Company the name and address of the “family member” or “family members” and
their relationship to the Participant, and (iii) such transfer shall be effected pursuant to
transfer documents in a form approved by the Committee. For purposes of the foregoing, the
terms “family members” and “prohibited transfer for value” have the meaning ascribed to them
in the General Instructions to form S-8 (or any successor form) promulgated under the
Securities Act of 1933, as amended. |
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Any attempt to sell, pledge, assign, hypothecate, transfer or dispose of an Option in
contravention of the Plan or these Standard Terms and Conditions shall be void and shall
have no effect. |
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| 7. | REPRESENTATIONS AND WARRANTIES |
|
Participant acknowledges that the Company may issue the shares of Common Stock upon the
exercise of the Option without registering such shares under the Securities Act, on the
basis of certain exemptions from such registration requirement. Accordingly, Participant
agrees that his or her exercise of the Option may be expressly conditioned upon his or her
delivery to the Company of an investment certificate including such representations and
undertakings as the Company may reasonably require in order to assure the availability of
such exemptions, including a representation that Participant is acquiring the shares of
Common Stock for investment and not with a present intention of selling or otherwise
disposing thereof and an agreement by Participant that the certificates evidencing the
shares of Common Stock may bear a legend indicating such non-registration under the
Securities Act and the resulting restrictions on transfer. Participant acknowledges that,
because shares of Common Stock received upon exercise of an Option may be unregistered,
Participant may be required to hold the shares of Common Stock indefinitely unless they are
subsequently registered for resale under the Securities Act or an exemption from such
registration is available. |
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Participant hereby acknowledges that federal securities laws and the securities laws of the
state in which he or she resides may require the placement of certain restrictive legends
upon the shares of Common Stock issued upon exercise of this Option, and Participant hereby
consents to the placing of any such legends upon certificates evidencing the shares of
Common Stock as the Company may deem necessary or advisable. |
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| 8. | THE PLAN AND OTHER AGREEMENTS |
|
In addition to these Standard Terms and Conditions, the Option shall be subject to the terms
of the Plan, which are incorporated into these Standard Terms and Conditions by this
reference. A copy of the Plan, and the accompanying prospectus, is available at the
Company’s intranet site. |
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The Term Sheet, these Standard Terms and Conditions and the Plan constitute the entire
understanding between the Participant and the Company regarding the Option. Any prior
agreements, commitments or negotiations concerning the Option are superseded. |
| 9. | LIMITATION OF INTEREST IN SHARES SUBJECT TO OPTION |
|
Neither the Participant (individually or as a member of a group) nor any beneficiary or
other person claiming under or through the Participant shall have any right, title,
interest, or privilege in
or to any shares of Common Stock allocated or reserved for the purpose of the Plan or
subject to the Term Sheet or these Standard Terms and Conditions except as to such shares of
Common Stock, if any, as shall have been issued to such person upon exercise of the Option
or any part of it. Nothing in the Plan, in the Term Sheet, these Standard Terms and
Conditions or any other instrument executed pursuant to the Plan shall confer upon the
Participant any right to continue in the Company’s employ or service nor limit in any way
the Company’s right to terminate the Participant’s Continuous Service at any time for any
reason. |
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| 10. | DEFINITIONS |
|
For purposes of these Standard Terms and Conditions, the following defined terms shall have
the meaning ascribed below: |
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“Continuous Service” means (i) employment by either the Company or any Subsidiary, or by a
corporation or a parent or subsidiary of a corporation issuing or assuming a stock option in
a transaction to which Section 424(a) of the Code applies, which is uninterrupted except for
vacations, illness (except for Disability), or leaves of absence which are approved in
writing by the Company or such other employer corporation (and in the case of an incentive
stock option, the leave of absence cannot exceed 90 days unless reemployment following the
leave is guaranteed by contract or statute), (ii) service as a member of the Board until
Participant dies, resigns, is removed from office, or Participant’s term of office expires
and he or she is not reelected, or (iii) so long as Participant is engaged as Service
Provider to the Company or other corporation referred to in clause (i) above. |
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| 11. | GENERAL |
|
In the event that any provision of these Standard Terms and Conditions is declared to be
illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, such
provision shall be reformed, if possible, to the extent necessary to render it legal, valid
and enforceable, or otherwise deleted, and the remainder of these Standard Terms and
Conditions shall not be affected except to the extent necessary to reform or delete such
illegal, invalid or unenforceable provision. |
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The headings preceding the text of the sections hereof are inserted solely for convenience
of reference, and shall not constitute a part of these Standard Terms and Conditions, nor
shall they affect its meaning, construction or effect. |
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These Standard Terms and Conditions shall inure to the benefit of and be binding upon the
parties hereto and their respective permitted heirs, beneficiaries, successors and assigns. |
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All questions arising under the Plan or under these Standard Terms and Conditions shall be
decided by the Administrator in its sole and absolute discretion. |
| 12. | SPECIAL TAX CONSEQUENCES |
|
The Participant acknowledges that, to the extent that the aggregate fair market value of
stock with respect to which “incentive stock options” (within the meaning of Section 422 of
the Code, but without regard to Section 422(d) of the Code) granted hereby and all other
incentive stock options granted by the Company or any Subsidiary to Participant that are
exercisable for the first time by the Participant during any calendar year exceeds $100,000,
such options shall be treated for all purposes as not qualifying under Section 422
of the Code and therefore shall be subject to taxation as non-qualified options. The
Participant further acknowledges that the rules set forth in the preceding sentence shall be
applied by taking options into account in the order in which they were granted. For
purposes of these rules, the fair market value of stock shall be determined as of the time
the option with respect to such option is granted. These rules may be changed by the IRS at
any time. |
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| 13. | “MARKET STAND-OFF” CONDITIONS |
|
Participant agrees that, if requested by the Company, Participant will not sell or otherwise
transfer or dispose of any shares held by Participant without the prior written consent of
the Company during such period of time. |
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| 14. | INTERPRETATION |
|
This Option is granted pursuant to the terms of the Plan, and shall in all respects be
interpreted in accordance therewith. The Committee shall have the power to interpret the
Plan, the Term Sheet and these Standard Terms and Conditions and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent therewith and
to interpret or revoke any such rules. Any action, decision, interpretation or
determination by the Committee shall be final, binding and conclusive on the Company and the
Participant. No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or the Option.
Notwithstanding the provision of Sections 10.1(a) — 10.1(d) of the Plan, the Committee
shall have the discretion to provide terms and conditions regarding (i) the vesting of this
Option in the event of a Change in Control, and/or (ii) the assumption of this Option or
issuance of comparable securities or new incentives in the event of a Change in Control. |
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| 15. | NOTICES |
|
Any notice, demand or request required or permitted to be given under the Term Sheet and
these Standard Terms and Conditions shall be in writing and shall be deemed given when
delivered personally or three (3) days after being deposited in the United States mail, as
certified or registered mail, with postage prepaid, and addressed, if to the Company, at its
principal place of business, Attention: Legal Department, and if to the Participant, at his
or her most recent address as shown in the employment or stock records of the Company. |
| 16. | GOVERNING LAW |
|
The validity, construction, interpretation, and effect of this Option shall be governed by
and determined in accordance with the laws of the State of California. |
| 17. | SEVERABILITY |
|
Should any provision or portions of this Agreement be held to be unenforceable or invalid
for any reason, the remaining provisions and portions of this Agreement shall be unaffected
by such holding. |
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| 18. | COUNTERSIGNATURE |
|
The Term Sheet may be executed in two or more counterparts, each of which shall be deemed an
original and all of which together shall be deemed one instrument, and is incorporated
herein. |