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Exhibit 99.1
SUPERGEN, INC.
2 ANNABEL LANE, SUITE 220
SAN RAMON, CALIFORNIA 94583
COMMON STOCK AND OPTION PURCHASE AGREEMENT
DECEMBER 21, 1999
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TABLE OF CONTENTS
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SECTION 1 Authorization and Sale of SECURITIES........................................................................1
1.1 AUTHORIZATION.......................................................................................1
1.2 SALE OF SHARES......................................................................................1
1.3 SALE OF OPTION......................................................................................2
SECTION 2 Closing Date; Delivery......................................................................................2
2.1 CLOSING.............................................................................................2
2.2 DELIVERY............................................................................................3
SECTION 3 Representations and Warranties of the Company...............................................................4
3.1 ORGANIZATION; STANDING AND POWER; QUALIFICATION.....................................................4
3.2 CAPITALIZATION......................................................................................4
3.3 AUTHORIZATION; NO CONFLICTS; APPROVALS..............................................................4
3.4 FINANCIAL STATEMENTS................................................................................5
3.5 ABSENCE OF UNDISCLOSED LIABILITIES..................................................................6
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS................................................................6
3.7 TAXES...............................................................................................7
3.8 INTELLECTUAL PROPERTY...............................................................................7
3.9 ENVIRONMENTAL MATTERS...............................................................................8
3.10 SEC FILINGS.........................................................................................8
3.11 LISTING.............................................................................................8
3.12 EMPLOYEE BENEFIT PLANS..............................................................................8
3.13 EMPLOYEES...........................................................................................9
3.14 BROKERS OR FINDERS..................................................................................9
3.15 COMPLIANCE WITH LAWS................................................................................9
3.16 LITIGATION..........................................................................................9
3.17 NO MISREPRESENTATION................................................................................9
SECTION 4 Representations and Warranties of Purchaser................................................................10
4.1 ORGANIZATION.......................................................................................10
4.2 AUTHORITY..........................................................................................10
4.3 EXEMPT OFFERING; ACQUISITION FOR INVESTMENT........................................................11
4.4 ACCESS TO INFORMATION; INVESTMENT EXPERIENCE; NO RELIANCE..........................................12
4.5 BROKERS OR FINDERS.................................................................................13
SECTION 5 Additional Agreements......................................................................................13
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS.............................................................13
5.2 CONFIDENTIALITY....................................................................................13
5.3 PUBLIC ANNOUNCEMENTS...............................................................................14
5.4 HSR ACT............................................................................................14
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5.5 RESTRICTIONS ON TRANSFER...........................................................................14
5.6 LEGENDS............................................................................................14
5.7 SHARE ADJUSTMENTS..................................................................................15
5.8 FURTHER ASSURANCES.................................................................................17
SECTION 6 Conditions to Closings.....................................................................................18
6.1 CONDITIONS TO PURCHASER'S OBLIGATION TO ACQUIRE THE SHARES.........................................18
6.2 CONDITIONS TO COMPANY'S OBLIGATION TO ISSUE THE SHARES.............................................19
6.3 CONDITIONS TO ISSUANCE OF OPTION SHARES............................................................20
SECTION 7 Miscellaneous..............................................................................................20
7.1 ACCESS TO INFORMATION..............................................................................20
7.2 WAIVERS AND AMENDMENTS.............................................................................20
7.3 GOVERNING LAW......................................................................................20
7.4 SURVIVAL...........................................................................................20
7.5 SUCCESSORS AND ASSIGNS.............................................................................20
7.6 ENTIRE AGREEMENT...................................................................................21
7.7 NOTICES............................................................................................21
7.8 SEVERABILITY.......................................................................................21
7.9 EXPENSES...........................................................................................21
7.10 TITLES AND SUBTITLES...............................................................................21
7.11 CALIFORNIA CORPORATE SECURITIES LAW................................................................21
7.12 COUNTERPARTS.......................................................................................22
7.13 DELAYS OR OMISSIONS................................................................................22
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SUPERGEN, INC.
COMMON STOCK AND OPTION PURCHASE AGREEMENT
THIS COMMON STOCK AND OPTION PURCHASE AGREEMENT (the "AGREEMENT") is
made as of December 21, 1999 by and between SuperGen, Inc., a Delaware
corporation (the "COMPANY"), and Abbott Laboratories, an Illinois corporation
(the "PURCHASER").
SECTION 1
AUTHORIZATION AND SALE OF SECURITIES
1.1 Authorization. The Company will, prior to the first Tranche Closing (as
defined below), authorize the sale and issuance of the number of shares (the
"SHARES") of the Company's Common Stock ("COMMON STOCK"), including the Option
Shares (as defined below), pursuant to the terms of this Agreement.
1.2 SALE OF SHARES; TRANCHES. Subject to the terms and conditions of this
Agreement, Purchaser agrees to purchase and the Company agrees to sell and issue
to Purchaser, in aggregate, up to $81,500,000 worth of the Company's Common
Stock, to be completed in up to nine (9) tranches (each a "TRANCHE," the closing
date for each Tranche is referred to as a "TRANCHE CLOSING DATE"), at a cash
price per share that shall be the average of the closing bid prices of the
Company's Common Stock over the twenty (20) trading days commencing ten (10)
trading days immediately preceding the Relevant Date. For purposes of this
Agreement, Relevant Date means, (i) in the case of the first Tranche, the
business day upon which the Company announces the execution of the Worldwide
Sales, Distribution and Development Agreement between the Company and Purchaser
(the "Worldwide Agreement"); (ii) in the case of the second Tranche, the
business day upon which the condition set forth in Section 5.1(b) of the
Worldwide Agreement is first satisfied; (iii) in the case of the third Tranche,
the business day upon which the condition set forth in Section 5.1(b) of the
Worldwide Agreement is next satisfied; (iv) in the case of the fourth Tranche,
the business day upon which the condition set forth in Section 5.1(c)(i) of the
Worldwide Agreement is satisfied; (v) in the case of the fifth Tranche, the
business day upon which the condition set forth in Section 5.1(c)(ii) of the
Worldwide Agreement is satisfied; (vi) in the case of the sixth Tranche (which
may be bifurcated into two (2) separate Tranches), the business day, or the
respective business days, upon which the condition(s) set forth in Section
5.1(h) of the Worldwide Agreement is/are satisfied; (vii) in the case of the
seventh Tranche (which may be bifurcated into two (2) separate Tranches), the
business day, or the respective business days, upon which the condition(s) set
forth in Section 5.1(j) of the Worldwide Agreement is/are satisfied; (viii) in
the case of the eighth Tranche, the business day upon which the condition set
forth in Section 5.1(n) of the Worldwide Agreement is satisfied; and (ix) in the
case of the ninth Tranche, the business day upon which the condition set forth
in Section 5.1(p) of the Worldwide Agreement is satisfied. The number of Shares
to be purchased in each Tranche
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shall be that number of Shares which, at the purchase price specified above,
are valued as near as possible to the dollar value set forth in the
corresponding section of the Worldwide Agreement (which, for purposes of the
first Tranche, is Section 5.1(a)). No fractions of any Shares shall be
allotted pursuant to this Agreement and the obligations of Purchaser to
purchase Shares hereunder shall be rounded down to the nearest whole number
of Shares.
1.3 SALE OF OPTION. Subject to the terms and conditions of this Agreement,
Purchaser agrees to purchase and the Company agrees to sell an option to
purchase (the "OPTION") up to forty-nine percent (49%) of the outstanding shares
of Common Stock at the time of the exercise of the Option at $85 per share (the
"OPTION EXERCISE PRICE") (such price to be adjusted pursuant to Section 5.7),
which Option shall be exercisable at any time or from time to time prior to
March 31, 2003 (the "OPTION TERMINATION DATE") (shares to be purchased pursuant
to the Option are hereinafter referred to as the "OPTION SHARES," and together
with the Shares, "SECURITIES").
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING. Purchase and sale of the Shares for the first Tranche
hereunder shall take place in accordance with the provisions of Section 5.1(a)
of the Worldwide Agreement at a closing to occur upon the satisfaction of all of
the conditions set forth in Sections 6.1 and 6.2 hereof and Section 16.13 of the
Worldwide Agreement (the "FIRST TRANCHE CLOSING DATE"); the purchase and sale of
the Shares for the second Tranche hereunder shall take place at a closing to
occur on the fifth business day following the first satisfaction of the
condition set forth in Section 5.1(b) of the Worldwide Agreement; the purchase
and sale of the Shares for the third Tranche hereunder shall take place at a
closing to occur on the fifth business day following the next satisfaction of
the condition set forth in Section 5.1(b) of the Worldwide Agreement; the
purchase and sale of the Shares for the fourth Tranche hereunder shall take
place at a closing to occur on the fifth business day following satisfaction of
the condition set forth in Section 5.1(c)(i) of the Worldwide Agreement; the
purchase and sale of the Shares for the fifth Tranche hereunder shall take place
at a closing to occur on the fifth business day following satisfaction of the
condition set forth in Section 5.1(c)(ii) of the Worldwide Agreement; the
purchase and sale of the Shares for the sixth Tranche hereunder shall take place
at a closing to occur on the fifth business day following satisfaction of the
condition set forth in Section 5.1(h) of the Worldwide Agreement (provided that
if the sixth Tranche is bifurcated into two (2) Tranches in accordance with the
terms of Section 5.1(h) of the Worldwide Agreement, each Tranche shall take
place at a closing to occur on the fifth business day following satisfaction of
the relevant alternative condition set forth in Section 5.1(h) of the Worldwide
Agreement); the purchase and sale of the Shares for the seventh Tranche
hereunder shall take place at a closing to occur on the fifth business day
following satisfaction of the condition set forth in Section 5.1(j) of the
Worldwide Agreement (provided that if the seventh Tranche is bifurcated into two
(2) Tranches in accordance with the terms of Section 5.1(j) of the Worldwide
Agreement, each Tranche shall take place at a closing to occur on the fifth
business day following satisfaction of the relevant alternative
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condition set forth in Section 5.1(j) of the Worldwide Agreement); the
purchase and sale of the Shares for the eighth Tranche hereunder shall take
place at a closing to occur on the fifth business day following satisfaction
of the condition set forth in Section 5.1(n) of the Worldwide Agreement; and
the purchase and sale of the Shares for the ninth Tranche hereunder shall
take place at a closing to occur on the fifth business day following
satisfaction of the condition set forth in Section 5.1(p) of the Worldwide
Agreement (each a "TRANCHE CLOSING"). The Tranche Closings shall be held at
the offices of Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo
Alto, California, at 10:00 a.m. local time, on the Tranche Closing Date, or
at such other time and place upon which the Company and Purchaser shall agree.
2.1.1 EXERCISE OF OPTION. The Option may be exercised by Purchaser, in
whole or in part, at any time or from time to time prior to 5:00 p.m.
California time on the Option Termination Date. In the event that Purchaser
wishes to exercise the Option, Purchaser shall deliver to the Company written
notice (an "EXERCISE NOTICE") specifying the total number of shares of Common
Stock, up to the number of such shares provided by Section 2.1.2, that
Purchaser wishes to purchase. Notwithstanding the expiration or termination
of the Option, Purchaser shall be entitled to receive the shares of Common
Stock with respect to which Purchaser had delivered an Exercise Notice prior
to 5:00 p.m. on the Option Termination Date.
2.1.2 OPTION CLOSING. Each closing of a purchase of shares of Common
Stock under the Option (an "OPTION CLOSING") shall occur at the offices of
the Company at 9:00 a.m. California time (or such other time and place as may
be agreed by the parties) on a date designated by Purchaser in an Exercise
Notice delivered not less than five (5) and not more than twenty (20)
business days prior to the date of such Option Closing (the "OPTION CLOSING
DATE"). At each Option Closing: (i) the Company shall deliver to Purchaser or
its designee a single certificate representing the number of shares of Common
Stock designated by Purchaser for purchase in the applicable Exercise Notice
(the "OPTION EXERCISE NUMBER"), such certificate to be registered in the name
of Purchaser or as designated by Purchaser in the Exercise Notice and to bear
the legend set forth in Section 5.6; and (ii) Purchaser shall deliver the
aggregate Option Exercise Price for the shares of Common Stock so designated
for purchase to the Company by wire transfer (in immediately available
funds). Upon request by Purchaser, the Option Closing Date will be deferred
as reasonably necessary until the conditions to consummation of the Option
Closing and the Company's obligation to issue the Option Shares at such
Option Closing pursuant to Section 6.3 are satisfied.
2.2 DELIVERY. At each Tranche Closing and the Option Closing, the
Company shall cause the delivery to Purchaser of certificates registered in
Purchaser's name or as designated by Purchaser in the Exercise Notice
representing the Shares or Option Shares, as the case may be, for payment of
the purchase price therefor as set forth in Section 2.1 above, by check
payable to the Company or wire transfer per the Company's instructions.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the Company SEC Filings (as defined in
Section 3.10) or as set forth in the disclosure schedule previously provided
to Purchaser, the Company represents and warrants to Purchaser as follows:
3.1 ORGANIZATION; STANDING AND POWER; QUALIFICATION. The Company and
each of its subsidiaries is a corporation duly organized and existing under,
and by virtue of, the laws of the State of Delaware and is in good standing
under such laws. The Company and each of its subsidiaries has all requisite
corporate power to own, lease and operate its property and to carry on its
businesses, and is duly qualified to do business and is in good standing as a
foreign corporation in any jurisdiction except where the failure to be so
qualified and in good standing would not have a material adverse effect on
the business, assets (including intangible assets), properties, liabilities
(contingent or otherwise), financial condition, operations, or results of
operation of the Company or its subsidiaries, taken as a whole (a "MATERIAL
ADVERSE EFFECT").
3.2 CAPITALIZATION. The authorized capital stock of the Company consists
of 40,000,000 shares of Common Stock, $0.001 par value, and 2,000,000 shares
of preferred stock, $0.001 par value. As of November 30, 1999, there were
25,142,970 shares of Common Stock issued and outstanding, 3,392,229 shares of
Common Stock issuable under the Company's stock option plans and 7,556,957
shares issuable pursuant to warrants and there were no issued and outstanding
shares of Preferred Stock. All such issued and outstanding shares have been
duly authorized and validly issued, are fully paid and nonassessable. Except
as set forth in Schedule 3.2, no shares of Common Stock are entitled to
preemptive rights or registration rights and there are no outstanding
options, warrants, scrip, rights to subscribe to, call or commitments of any
character whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company. Furthermore, except as set forth
in this Agreement and Schedule 3.2 there are no contracts or commitments by
which the Company is or may become bound to issue additional shares of the
capital stock of the Company or options, securities or rights convertible
into shares of capital stock of the Company. The Company is not a party to,
and it has no knowledge of, any agreement restricting the voting or transfer
of any shares of the capital stock of the Company other than transfer
restrictions imposed to satisfy state and federal securities laws. Except as
set forth in Schedule 3.2, the offer and sale of all capital stock,
convertible securities, rights, warrants, or options of the Company issued
prior to each Tranche Closing complied with all applicable federal and state
securities laws. Each of the Company's subsidiaries is wholly-owned by the
Company.
3.3 AUTHORIZATION; NO CONFLICTS; APPROVALS.
3.3.1 All corporate action on the part of the Company, its
shareholders and its directors necessary for the authorization, execution,
delivery and performance of the Agreement by the Company, the authorization,
sale, issuance and delivery of the Shares, the authorization and
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issuance of the Option, and the authorization, sale, issuance and delivery of
the Option Shares, and the performance of all of the Company's obligations
under the Agreement has been taken or will be taken prior to the First
Tranche Closing Date or the Option Closing Date. The Agreement and the other
documents required to be executed and delivered by the Company hereunder
(collectively, the "TRANSACTION DOCUMENTS"), when executed and delivered by
the Company, shall constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies. The Shares and Option Shares, when issued in compliance
with the provisions of this Agreement, will be validly issued, fully paid and
nonassessable, and free of any liens or encumbrances, other than any
permissible liens or encumbrances created by or imposed upon the Shares and
Option Shares by Purchaser; provided, however, that the Shares and Option
Shares are subject to restrictions on transfer under state and/or federal
securities laws and as set forth in this Agreement.
3.3.2 The execution and delivery by the Company of this Agreement and
the other Transaction Documents do not, and the consummation of the
transactions contemplated hereby and thereby will not, (i) conflict with, or
result in any violation of or breach of any provision of the Certificate of
Incorporation or Bylaws of the Company, (ii) result in any violation or
breach of, or constitute (with or without notice or lapse of time, or both) a
default under, or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit under any license,
assignment, note, mortgage, indenture, lease, contract or other agreement or
obligation to which the Company is a party or by which the Company or any of
its properties or assets may be bound, (iii) conflict with or violate any
judgment, order, decree, statute, law, ordinance, rule or regulation or any
material permit, concession, franchise or license applicable to the Company
or any of its properties or assets, except in the case of (ii) for such
violations, breaches, defaults, rights of termination, cancellation or
acceleration, or losses of benefits which would not be reasonably likely to
have a Material Adverse Effect.
3.3.3 No consent, approval, order or authorization of, or registration,
declaration or filing with, any governmental entity is required by or with
respect to the Company in connection with the execution and delivery of this
Agreement and the other Transaction Documents or the consummation of the
transactions contemplated hereby or thereby, except that the filing of one or
more notification and report forms under the HSR Act may be required with
respect to the acquisition by Purchaser of the Shares and Option Shares, and
except (i) such other consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
federal and state securities laws and the laws of any foreign country, and
(ii) such other consents, authorizations, filings, approvals and
registrations which, if not obtained or made, would not be reasonably likely
to have a Material Adverse Effect.
3.4 FINANCIAL STATEMENTS. The Company has delivered to Purchaser copies
of the Company's audited consolidated financial statements (balance sheet,
statement of operations, statement of shareholders' equity, and statement of
cash flows) for the year ended December 31, 1998 and its unaudited
consolidated financial statements (balance sheet, statement of operations,
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statement of shareholders' equity, and statement of cash flows) for the
quarter ended September 30, 1999 (the "COMPANY FINANCIAL STATEMENTS"). The
Company Financial Statements were prepared in accordance with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto or (ii) in the case of
unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements). The Company Financial Statements
present fairly in all material respects the financial position of the Company
and its subsidiaries as of the respective dates and the consolidated results
of its operations and cash flows for the periods indicated (except, in the
case of unaudited statements, to normal year-end audit adjustment).
3.5 ABSENCE OF UNDISCLOSED LIABILITIES. Neither the Company nor any of
its subsidiaries has any liabilities, either accrued or contingent (whether
or not required to be reflected in financial statements in accordance with
GAAP), and whether due or to become due, other than (i) liabilities reflected
or provided for on the balance sheet as of September 30, 1999 (the "COMPANY
BALANCE SHEET") contained in the Company Financial Statements, (ii)
liabilities specifically described in this Agreement or Schedule 3.5, and
(iii) normal or recurring liabilities incurred since September 30, 1999 in
the ordinary course of business consistent with past practices that would not
reasonably be expected to result in a Material Adverse Effect.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
Schedule 3.6, and except as reflected in the Company Financial Statements,
since September 30, 1999, the Company and its subsidiaries have conducted
their businesses in the ordinary course and in a manner consistent with past
practices, and have not:
3.6.1 suffered any event or occurrence that has had or would
reasonably be expected to have a Material Adverse Effect;
3.6.2 declared, set aside or paid any dividend or made any other
distribution on or in respect of the shares of its capital stock or declared
any direct or indirect redemption, retirement, purchase or other acquisition
of such shares, except for purchases of stock from terminated non-officer
employees in the ordinary course of business and in a manner consistent with
past practices;
3.6.3 issued any shares of their capital stock or any warrants,
rights, or options for, or entered into any commitment relating to such
capital stock, except for issuances made in the ordinary course of business
in arm's length transactions for value and in a manner consistent with past
practices (including issuances made upon exercises and conversions of
employee and director stock options);
3.6.4 made any material change in the accounting methods or
practices they follow, whether for general financial or tax purposes, or any
change in depreciation or amortization policies or rates;
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3.6.5 bought, rented, sold, leased, abandoned or otherwise disposed
of any real property or machinery, equipment or other operating property
except in the ordinary course of business and in a manner consistent with
past practices and in an amount that is not material to the Company and its
subsidiaries taken as a whole;
3.6.6 sold, assigned, transferred, licensed, pledged, or otherwise
disposed of or encumbered any patent, trademark, trade name, brand name, Food
and Drug Administration ("FDA") license or approval application, copyright
(or pending application for any patent, trademark or copyright), invention,
work of authorship, process, know-how, formula or trade secret or interest
thereunder or other material intangible asset, except for non-exclusive
licenses which were granted in the ordinary course of business and in a
manner consistent with past practices and in an amount that is not material
to the Company and its subsidiaries taken as a whole;
3.6.7 entered into any material commitment or transaction (including
without limitation any borrowing or capital expenditure) other than the
transactions contemplated by this Agreement and the other Transaction
Documents; or
3.6.8 paid, loaned or advanced any amount to, or sold, transferred
or leased any properties or assets or rights under license to, or entered
into any agreement or arrangement with any of its officers, directors or
shareholders or any affiliate of any of the foregoing, other than employee
compensation and benefits and reimbursement of employment related business
expenses incurred in the ordinary course of business.
3.7 TAXES. The Company (including its subsidiaries) has timely made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject and has paid
all taxes and other governmental assessments and charges, shown or determined
to be due on such returns, reports and declarations, except those being
contested in good faith and has set aside on its books provision reasonably
adequate for the payment of all taxes for periods subsequent to the periods
to which such returns, reports or declarations apply. There are no material
unpaid taxes claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company know of no basis for any such claim. To the
best knowledge of the Company, there are no pending or proposed audits or
claims from any tax authority for deficiencies, penalties or interest against
the Company or its subsidiaries and the officers of the Company know of no
basis for any such audit or claim
3.8 INTELLECTUAL PROPERTY. To the Company's knowledge after reasonable
inquiry, (i) each of the Company and its subsidiaries has the right to use,
free and clear of all liens, charges, claims and restrictions, all
intellectual property, patents, trademarks, service marks, trade names,
copyrights, licenses and rights which are material to its business as
presently conducted and (ii) neither the Company nor any of its subsidiaries
is infringing upon or otherwise acting adversely to the right or claimed
right of any other person under or with respect to the foregoing.
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3.9 ENVIRONMENTAL MATTERS. To the Company's knowledge after reasonable
inquiry, neither the Company nor any of its subsidiaries is in violation of any
statute, rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS") which, individually or in aggregate, would
have a Material Adverse Effect. Except as set forth on Schedule 3.9, to the
Company's knowledge after reasonable inquiry, neither the Company nor any of
its subsidiaries owns or operates any real property contaminated with any
substance that is subject to any Environmental Laws, is liable for any off-site
disposal or contamination pursuant to any Environmental Laws, or is subject to
any claim relating to any Environmental Laws, which violation, contamination,
liability or claim would individually or in aggregate have a Material Adverse
Effect; and the Company is not aware of any pending investigation that might
lead to such a claim.
3.10 SEC FILINGS. The Company has timely filed all reports, registration
statements, proxy statements and other materials, together with any amendments
thereto, required to be filed by the Company with the Securities and Exchange
Commission (the "SEC") under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT") (the "SEC FILINGS"). The Company has furnished to
Purchaser copies of its Annual Report on Form 10-K for the year ended December
31, 1998, its Quarterly Report on Form 10-Q for the quarter ended September 30,
1999, and all Current Reports on Form 8-K and proxy statements, as filed with
the SEC. As of the date filed, the SEC Filings do not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading. The financial statements contained in the SEC Filings fairly
present the financial position of the Company and its subsidiaries as at the
dates thereof and for the periods covered thereby and have been prepared in
accordance with GAAP and with the published rules and regulations of the SEC
with respect thereto.
3.11 LISTING. The Company's Common Stock is duly listed on the Nasdaq
National Market ("NMS"). The Company is not in violation of the listing
requirements of the NMS and does not reasonably anticipate that the Common
Stock will be delisted by the NMS for the foreseeable future.
3.12 EMPLOYEE BENEFIT PLANS. Except as set forth in Schedule 3.12, all
the Company's employee benefit plans comply with and are and have been operated
in accordance with applicable laws and regulations. There are no funded benefit
obligations for which contributions have not been made or properly accrued and
there are no unfunded benefit obligations which have not been accounted for by
reserves on the Company's Financial Statements, and no event has occurred, and
there exists no condition or set of circumstances, with respect to the employee
benefit plans of the Company, which would reasonably be expected to subject the
Company to any liability, other than liabilities which would not be reasonably
likely, either individually or in the aggregate, to have a Material Adverse
Effect.
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3.13 EMPLOYEES. To the Company's knowledge, no employee or consultant of
the Company is in material violation of any material term of any such
employment or consulting agreement, confidentiality agreement, or any other
contract or agreement relating to the relationship of such employee or
consultant with the Company or any other party because of the nature of the
business conducted or to be conducted by the Company.
3.14 BROKERS OR FINDERS. No agent, broker, investment banker, financial
advisor or other firm or person is or will be entitled to any broker's or
finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by this Agreement or any of the other Transaction
Documents, and the Company agrees to indemnify and hold Purchaser harmless from
and against any and all claims, liabilities or obligations with respect to any
other fees, commissions or expenses asserted by any person on the basis of any
act or statement alleged to have been made by the Company.
3.15 COMPLIANCE WITH LAWS. Each of the Company and its subsidiaries has
complied in all material respects with all applicable federal, state, local and
foreign statutes, laws and regulations, and is not in violation of, and has not
received any notices of violation with respect to, any such statute, law or
regulation, with respect to the conduct, ownership or operation of its
businesses which, individually or in aggregate, would have a Material Adverse
Effect. Each of the Company and its subsidiaries has obtained each governmental
consent, license, permit, grant or other authorization of a governmental entity
that is required for the operation of its business as currently conducted
(collectively, the "COMPANY AUTHORIZATIONS"), and all such Company
Authorizations are in full force and effect, except for such Company
Authorizations which, if not obtained by the Company or any of its
subsidiaries, would not be reasonably likely, either individually or in the
aggregate, to have a Material Adverse Effect.
3.16 LITIGATION. Except as set forth in Schedule 3.16, there is no
action, suit, proceeding, claim, arbitration or investigation, pending before
any agency, court or tribunal, or to the knowledge of the Company, threatened,
against the Company, its subsidiaries or any of their respective properties or
officers or directors (in their capacities as such), and, to the knowledge of
the Company, there is no valid basis for any action, suit, proceeding, claim,
arbitration or investigation, against the Company or any of its subsidiaries
which if determined adversely to the Company or any such subsidiary, would
reasonably be expected to have a Material Adverse Effect. There is no judgment,
decree or order against the Company or any of its subsidiaries or, to the
knowledge of the Company after reasonable inquiry, any of its respective
directors or officers (in their capacities as such) that would prevent, enjoin,
or materially alter or delay any of the transactions contemplated by this
Agreement or that would reasonably be expected to have a Material Adverse
Effect.
3.17 NO MISREPRESENTATION. No representation or warranty by the Company
in this Agreement or any of the other Transaction Documents, and no statement,
certificate or schedule furnished or to be furnished by or on behalf of the
Company pursuant to this Agreement or any of the other Transaction Documents,
when taken together, contains any untrue statement of a material
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fact or omits to state a material fact required to be stated therein or
necessary in order to make such statements, in light of the circumstances under
which they were made, not misleading.
3.18 INVESTMENT COMPANY. The Company is not, and after giving effect to
the issuance of the Shares and the Option Shares will not be, an investment
company under the Investment Company Act of 1940.
3.18 VALID PRIVATE PLACEMENT. Subject to the accuracy of Purchaser's
representations in Section 4.3, the Company is entitled to rely on an exemption
from the provisions of Section 5 of the Securities Act in its sale and issuance
of Shares and Option Shares to Purchaser pursuant to the terms of this
Agreement.
3.19 SECTION 203. The purchase of Shares and Option Shares pursuant to
this Agreement has been approved by the Board of Directors of the Company prior
to the date of this Agreement for the purposes of Section 203 of the Delaware
General Corporation Law such that after the date of this Agreement, neither
Purchaser nor any of its affiliates will be subject to the restrictions on
business combination transactions set forth in said Section 203 with respect to
the Company on account of such purchase.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to and agrees with the Company
as follows:
4.1 ORGANIZATION. Purchaser is duly organized and validly existing under
the laws of the State of Illinois. Purchaser has the requisite power and
authority to enter into this Agreement and to carry out its obligations
hereunder.
4.2 AUTHORITY.
4.2.1 The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been authorized by
all necessary company action on behalf of Purchaser and constitutes the legal,
valid and binding obligation of Purchaser, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
or relating to creditors' rights generally, and general principles of equity.
4.2.2 No consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity is required
by or with respect to Purchaser in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby,
except that the filing of one (1) or more notification and report forms under
the HSR Act may be required with respect to the acquisition by Purchaser of the
Shares and Option Shares, and except for (i) such consents, approvals, orders,
authorizations, registrations, declarations and filings
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as may be required under applicable federal and state securities laws and the
laws of any foreign country, and (ii) such other consents, authorizations,
filings, approvals and registrations which, if not obtained or made, would not
be reasonably likely to have a material adverse effect on the ability of
Purchaser to execute and deliver this Agreement and to perform its obligations
thereunder.
4.3 EXEMPT OFFERING; ACQUISITION FOR INVESTMENT.
4.3.1 Purchaser is acquiring the Shares and Option Shares solely
for Purchaser's or its designated affiliate's own account for investment and
not with a view to, or for resale in connection with, any distribution thereof
within the meaning of the Securities Act of 1933, as amended (the "SECURITIES
ACT"). Purchaser further represents that Purchaser does not have any present
intention of selling, offering to sell or otherwise disposing of or
distributing the Shares or Option Shares or any portion thereof. Purchaser
acknowledges and understands that the entire legal and beneficial interest of
the Shares and Option Shares Purchaser is acquiring is being purchased for, and
will be held for the account of, Purchaser or its designated affiliate only and
neither in whole nor in part for any other person. Purchaser understands that
the Shares and Option Shares have not been registered under the Securities Act
or other securities laws in reliance on specific exemptions therefrom, which
exemptions depend upon, among other things, the bona fide nature of Purchaser's
investment intent as expressed herein.
4.3.2 The Shares and Option Shares were not offered to Purchaser
through, and Purchaser is not aware of, any form of general solicitation or
general advertising, including, without limitation, (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, and (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising.
4.3.3 Purchaser is an "accredited" investor as defined in
Regulation D under the Securities Act, and a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act.
4.3.4 Purchaser further acknowledges and understands that the
Shares and Option Shares must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available, and the transfer complies with the restrictions set forth in Section
5.5 of this Agreement. Purchaser understands that the certificate(s) evidencing
the Shares and Option Shares will be imprinted with a legend that sets forth
the restrictions on transfer.
4.3.5 Purchaser understands that Rule 144 promulgated under the
Securities Act permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things, the existence of a public market for the Shares and Option
Shares, the availability of certain current public information about the
Company, more than one year having elapsed between the resale and the date the
security to be sold was last held by the Company or an affiliate of the
Company, the sale being made through a "broker's transaction" or in
transactions directly with a "market maker," and the number of shares being
sold during any three-
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month period not exceeding specified limitations. Purchaser is further aware
that Rule 144(k) permits persons who have not been affiliates of the Company
for at least three months and whose shares have been beneficially owned by a
person other than the Company or its affiliates for at least two years after
full payment for such shares to sell such shares without regard to the current
public information, manner of sale and volume limitations described above.
4.3.6 Purchaser has reviewed with its own tax advisers the
federal, state, and local tax consequences of this investment and the
transactions contemplated by this Agreement and has relied solely on such
advisers and not on any statements or representations of the Company or any of
its agents other than the representations and warranties set forth herein.
Purchaser understands that it (and not the Company) shall be responsible for
its own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
4.4 ACCESS TO INFORMATION; INVESTMENT EXPERIENCE; NO RELIANCE.
4.4.1 ACCESS TO INFORMATION. Purchaser has, prior to the date of
this Agreement, been furnished with the Company's most recent SEC Filings and
given an opportunity to review material contracts and documents of the Company
which have been filed as exhibits to such SEC Filings. Purchaser has had
opportunity to discuss the Company's business, management and financial affairs
with its management. Purchaser has also had an opportunity to ask questions of
officers of the Company, which questions were answered to its satisfaction.
Purchaser, in making the investment decision, has read, reviewed, and relied
solely on the Company's SEC Filings and other documents furnished by the
Company, including the Company's Financial Statements, pursuant to this
Agreement and the Company's representations and warranties contained herein,
and has made an independent investigation, or obtained any additional
information which Purchaser deems necessary to verify the accuracy and
completeness of the information received. Purchaser is not relying on any oral
representation of the Company or any other person, nor any written
representation or assurance from the Company other than those contained in the
SEC Filings or incorporated herein or therein. The foregoing, however, does not
limit or modify Purchaser's right to rely upon covenants, representations and
warranties of the Company in Section 3 of this Agreement. Purchaser
acknowledges and agrees that the Company has no responsibility for, does not
ratify, and is under no responsibility whatsoever to comment upon or correct
any reports, analyses or other comments made about the Company by any third
parties, including, but not limited to, analysts' research reports or comments,
and Purchaser has not relied upon any such third party reports in making the
decision to invest.
4.4.2 RISK OF INVESTMENT; INVESTMENT EXPERIENCE; CAPABILITY TO
EVALUATE. Purchaser recognizes that an investment in the Company involves
substantial risks, including the potential loss of Purchaser's entire
investment herein. Purchaser has substantial knowledge and experience in
investing in securities and in financial and business matters that it is
capable of evaluating the merits and risks of the investment. Purchaser
acknowledges that it is able to fend for itself in the transactions
contemplated by this Agreement, and that Purchaser has the ability to bear the
economic risk of investment pursuant to this Agreement.
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4.4.3 RELIANCE ON OWN JUDGEMENT OR ADVISORS. Purchaser has relied
completely on its own judgement or the advice of its own tax, investment,
legal or other advisors and has not relied on the Company or any of its
affiliates, officers, directors, attorneys, accountants or any affiliates of
any thereof and each other person, if any, who controls any of the foregoing,
within the meaning of Section 15 of the Securities Act for any tax,
investment or legal advice (other than reliance on information furnished by
the Company, the representations, warranties and covenants contained herein).
4.5 BROKERS OR FINDERS. No agent, broker, investment banker, financial
adviser or other firm or person is or will be entitled to any broker's or
finder's fee, or any other commission or similar fee, in connection with any
of the transactions contemplated by this Agreement or any of the other
Transaction Documents, and Purchaser agrees to indemnify and hold the Company
and its subsidiaries harmless from and against any and all claims,
liabilities or obligations with respect to any such fees or commissions
asserted by any person on the basis of any act or statement determined to
have been made to such person by Purchaser.
SECTION 5
ADDITIONAL AGREEMENTS
The Company and Purchaser further agree with each other as follows:
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS. As long as Purchaser
beneficially owns, either outright or pursuant to rights to acquire, at least
five percent (5%) of the Common Stock of the Company on either a primary or
fully diluted basis, the Company shall deliver to Purchaser, promptly after
transmission thereof, copies of all such financial statements, proxy
statements, notices and reports as the Company shall send to its public
stockholders and copies of all registration statements (without exhibits),
other than registration statements on Form S-8 or any similar successor form,
and all reports which it files with the SEC (or any governmental body or
agency succeeding to the functions of the SEC). Purchaser shall have the
right to discuss such financial statements, proxy statements, notices,
reports, registration statements and filings with such officers of the
Company as Purchaser may reasonably designate upon reasonable notice and at
reasonable times, and to share such information with Purchaser's professional
advisers, subject to the confidentiality provisions set forth in Section 5.2.
5.2 CONFIDENTIALITY. Except as permitted by Section 5.3, Purchaser
agrees (and shall cause its professional advisers to agree) not to disclose
to any person any information or data obtained by them pursuant to Section
5.1 until such information or data otherwise becomes publicly available or
except pursuant to a valid subpoena, judicial process or its equivalent or as
otherwise required by law. At the Company's request, Purchaser shall, and
shall cause its professional advisers to, sign a confidentiality agreement,
in form and substance reasonably satisfactory to Purchaser and the Company,
as a condition to the receipt of confidential nonpublic information of the
Company by such advisers pursuant to Section 5.1.
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5.3 PUBLIC ANNOUNCEMENTS. Each of the parties hereto will cooperate with
each other in the development and distribution of all news releases and other
public information disclosures with respect to this Agreement and the other
Transaction Documents and any of the transactions contemplated hereby and
thereby, and neither party hereto directly or indirectly through its officers
and/or directors shall make any further announcement, news release or
disclosure without first consulting with the other party hereto except (a)
with the prior written consent of the other party or (b) to the extent such
party believes in good faith, after consultation with legal counsel, that
such announcement, release or disclosure is required by law. The Company
shall not, and shall cause its officers and directors not to, make or
contribute to any public statement, news release or other public
communication or filing disclosing personal information concerning Purchaser
or any member of Purchaser without the prior written consent of Purchaser and
such member unless the Company believes in good faith, after consultation
with legal counsel, that such statement, release, communication or filing is
required by law.
5.4 HSR ACT The Company shall be responsible for all applicable filing
fees under the Hart Scott Rodino Antitrust Improvements Act of 1976 (the "HSR
ACT") relating to the acquisition of Option Shares. With respect to the
exercise of the Option, Purchaser agrees not to designate an Option Closing
Date on any date prior to the expiration or early termination of the
applicable waiting periods under the HSR Act.
5.5 RESTRICTIONS ON TRANSFER. Purchaser shall not, directly or
indirectly, sell, transfer, assign, pledge, distribute or otherwise dispose
of, or grant any option with respect to, establish any "short" or
put-equivalent position with respect to, or otherwise enter into any
agreement, arrangement, transaction or series of transactions (through
derivatives or otherwise) which has or is intended to have the effect,
directly or indirectly, of reducing Purchaser's risk of ownership in the
Shares or Option Shares (each of the foregoing, a "Transfer") unless the
Transfer is effected pursuant to (a) a registration statement under the
Securities Act and any applicable state securities laws or (b) an exemption
from the registration requirements under federal and state securities laws,
and the Company receives an opinion of counsel, reasonably satisfactory to
the Company stating that such Transfer will not require registration of the
Shares or the Option Shares, as the case may be, under the Securities Act or
state securities laws, except that such an opinion will not be required for
transactions made pursuant to Rule 144 provided that Purchaser and
Purchaser's broker, if necessary, provide the Company with the necessary
representations for counsel to the Company to issue an opinion with respect
to such transaction.
5.6 LEGENDS. Each certificate representing Shares and Option Shares
shall be endorsed with the following legends, and any other legends required
by law:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE
SALE IS MADE IN
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ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY
RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER SET FORTH IN AN AGREEMENT DATED AS OF DECEMBER
21, 1999, BY AND BETWEEN SUPERGEN, INC. AND ABBOTT LABORATORIES, A COPY
OF WHICH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE
BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF
SUPERGEN, INC. AT SUPERGEN, INC.'S PRINCIPAL EXECUTIVE OFFICES.
The Company need not register a transfer of legended Securities, and may
also instruct its transfer agent not to register the transfer of the
Securities, unless the conditions specified in each of the foregoing legends
are satisfied. The first of the foregoing legends shall be removed from any
security legended pursuant to this Section 5.6, and the Company shall issue a
certificate without such legend to the holder of such Securities, if such
Securities are registered under the Securities Act and a prospectus meeting
the requirements of Section 10 of the Securities Act is available or if such
holder satisfies the requirements of Rule 144(k), or the holder provides the
Company with an opinion of counsel, reasonably satisfactory to the Company,
to the effect that a public sale, transfer or assignment of such Securities
may be made without registration. The second of the foregoing legends shall
be removed from any Security legended in accordance with this Section 5.6,
and the Company shall issue a certificate without such legend to the holder
of such Security at such time as such Security is transferred in accordance
with Section 5.5. The stop transfer instructions with respect to any legended
Security shall be removed if both of the foregoing legends are removed in
accordance with this Section 5.6.
5.7 SHARE ADJUSTMENTS. The following adjustments shall apply to the
then-unexercised portion (if any) of the Option.
5.7.1 In the event that the Company shall (i) pay a dividend in, or
make a distribution of, shares of capital stock or other securities
(including, without limitation, any rights or options to subscribe to or
purchase any additional shares of any class of its capital stock, any
evidence of its indebtedness or assets, or any other rights or options) on
its outstanding Common Stock, (ii) subdivide its outstanding shares of Common
Stock into a greater number of such shares or (iii) combine its outstanding
shares of Common Stock into a smaller number of such shares, the total number
of shares of Common Stock purchasable pursuant to the Option shall be
adjusted so that Purchaser shall be entitled to receive at the same aggregate
Option Exercise Price the number of shares of capital stock and other
securities (of one or more classes) which Purchaser would have owned or would
have been entitled to receive immediately following the happening of any of
the
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events described above had Purchaser acquired all shares of Common Stock
purchasable under the then-unexercised portion of the Option, in full,
immediately prior to the record date with respect to such event. Any
adjustment made pursuant to this Section 5.7.1 shall, in the case of a
dividend or distribution of Common Stock or other securities of the Company,
become effective as of the record date therefor and, in the case of a
subdivision or combination, be made as of the effective date thereof.
5.7.2 In the event of a capital reorganization or a reclassification
of the Common Stock (except as provided in Section 5.7.1 above or Section
5.7.3 below), Purchaser shall be entitled to receive, in substitution for the
Common Stock to which Purchaser would have become entitled upon exercise
immediately prior to such reorganization or reclassification, the shares (of
any class or classes) or other securities or property of the Company (or
cash) that Purchaser would have been entitled to receive at the same Option
Exercise Price upon such reorganization or reclassification if Purchaser had
acquired all shares of Common Stock purchasable under the Option, in full,
immediately prior to the record date with respect to such event; and in any
such case, appropriate provision (as determined by the Board of Directors of
the Company, whose reasonable determination shall be conclusive and, upon
request by Purchaser, shall be evidenced by a certified Board resolution
delivered to Purchaser) shall be made for the application of this Section
5.7.2 with respect to the rights and interests thereafter of Purchaser
(including but not limited to the allocation of the exercise price between or
among shares of classes of capital stock or other securities), to the end
that this Section 5.7.2 (including the adjustments of the number of shares of
Common Stock or other securities purchasable and the exercise price thereof)
shall thereafter be reflected, as nearly as reasonably practicable, in all
subsequent conversions and purchases pursuant to this Agreement for any
shares or securities or other property (or cash) thereafter deliverable upon
the conversion or purchase thereof.
5.7.3 In the event of any consolidation or share exchange
reorganization of the Company with, or merger of the Company into, another
corporation (other than a consolidation, share exchange reorganization or
merger which does not result in any reclassification or change of the
outstanding Common Stock), or in case of any sale or conveyance to another
person of the property of the Company as an entirety or substantially as an
entirety, the entity formed by such consolidation, share exchange
reorganization, or merger or the person which shall have acquired such
property, as the case may be, shall execute and deliver to Purchaser a
supplemental agreement providing that Purchaser shall have the right
thereafter (until the expiration of all purchase rights under the Option) to
receive, pursuant to such supplemental agreement, solely the kind and amount
of shares of stock and other securities and property (or cash) receivable
upon such consolidation, share exchange, reorganization, merger, sale or
transfer by a holder of the number of shares of Common Stock of the Company
which Purchaser might have acquired pursuant to the Option immediately prior
to such consolidation, share exchange reorganization, merger, sale or
transfer. Such supplemental agreement shall provide for adjustments, which
shall be as nearly equivalent as may be practicable to the adjustments
provided in this Section 5.7.3.
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5.7.4 For the purpose of this Section 5.7, the term "COMMON STOCK"
shall mean (i) the class of stock designated as Common Stock in the
Certificate of Incorporation, at the date of this Agreement, or (ii) any
other class of stock resulting from successive changes or reclassifications
of such Common Stock. In the event that at any time as a result of an
adjustment made pursuant to this Section 5.7, Purchaser shall become entitled
to receive any shares of capital stock of the Company other than shares of
Common Stock, thereafter the number of such other shares so receivable
pursuant to this Agreement or any of the other documents required to be
executed and delivered by the Company hereunder shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock contained in
this Section 5.7, and all other provisions of this Agreement and the other
Transaction Documents with respect to the Common Stock shall apply on like
terms to any such other shares.
5.7.5 Whenever the number of shares of Common Stock purchasable
pursuant to the Option is adjusted as provided in this Section 5.7, the
Option Exercise Price for each share of Common Stock payable upon such
exercise shall be adjusted by multiplying such exercise price immediately
prior to such adjustment by a fraction, the numerator of which shall be the
number of shares of Common Stock purchasable pursuant to the then-unexercised
portion of the Option immediately prior to such adjustment, and the
denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
5.7.6 The provisions of this Section 5.7 shall apply similarly to
successive stock dividends, subdivisions and combinations; successive
reorganizations or recapitalizations; and successive consolidations, share
exchange reorganizations, mergers, sales and transfers.
5.8 FURTHER ASSURANCES
At any time or from time to time after each Tranche Closing and each
Option Closing, each party shall execute and deliver to the other party or
parties such other documents and instruments, provide such materials and
information and take such other actions as either party may reasonably
request more effectively to carry out the provisions of this Agreement and
the other Transaction Documents.
5.9 USE OF FUNDS
The Company shall use the proceeds from the sale of the Shares to
Purchaser and the milestone payments contemplated by Section 5.1 of the
Worldwide Agreement for proper corporate purposes, including allocating in a
responsible manner a sufficient portion of such proceeds and milestone
payments calculated to cause the Company to use its reasonable efforts to
fulfill its obligations under the Worldwide Agreement.
5.10 REGISTRATION RIGHTS AGREEMENT
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If requested in writing by Purchaser, the Company agrees to enter
into a registration rights agreement, in the form attached hereto as Exhibit
5.10, prior to Purchaser's sale of any of the Shares acquired hereunder.
SECTION 6
CONDITIONS TO CLOSINGS
6.1 CONDITIONS TO PURCHASER'S OBLIGATION TO ACQUIRE THE SHARES. The
obligation of Purchaser to purchase the Shares hereunder is subject to the
satisfaction, on or prior to each Tranche Closing Date (or, where specified,
the First Tranche Closing Date), of the following conditions, any of which
may be waived by Purchaser, in Purchaser's sole discretion, to the extent
permitted by law:
6.1.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by the Company in this Agreement and the other
Transaction Documents shall be true and correct when made.
6.1.2 PERFORMANCE OF OBLIGATIONS. The Company shall have performed
in all material respects all covenants, agreements and other obligations
required to be performed or observed by the Company pursuant to this
Agreement on or prior to the First Tranche Closing Date, and the Company
shall have delivered to Purchaser a certificate to such effect, executed by
the chief executive officer and chief financial officer of the Company and
dated the First Tranche Closing Date.
6.1.3 COMPLIANCE WITH LAW. At the time of each Tranche Closing, the
issuance by the Company, and the acquisition by Purchaser, of the Shares
hereunder shall be legally permitted by all laws and regulations to which
Purchaser and the Company are subject; all waiting periods, if any, under the
HSR Act applicable to the issuance and sale of the Shares hereunder shall
have expired or been terminated and no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such acquisition shall be in effect.
6.1.4 WORLDWIDE AGREEMENT. The Worldwide Agreement shall be in full
force and effect and shall not have been terminated by either party thereto
nor shall either party have given notice of such termination.
6.1.5 SHARE PURCHASE LIMITATION. Purchaser shall not be obligated to
purchase any Shares on any Tranche Closing Date if and to the extent that
such purchase would result in the aggregate number of Shares purchased by
Purchaser constituting more than nineteen percent (19%) of the total number
of shares of Common Stock issued and outstanding immediately following the
Tranche Closing, provided that Purchaser shall continue to be obligated to
purchase Shares up to and including such number of Shares as would be as
close as possible to nineteen percent (19%) of the total number of shares of
Common Stock issued and outstanding immediately following such Tranche
Closing. If this Section 6.1.5 shall have operated to restrict the number of
Shares to be
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purchased by Purchaser on any Tranche Closing Date, (i) Purchaser's
obligation to make such purchase shall be tolled for a period of one (1)
year, and (ii) Purchaser shall remain bound by any subsequent obligations to
purchase Shares hereunder (unless Purchaser is also then prevented from
making any further purchases pursuant to the further operation of this
Section 6.1.5). In the event that the Company increases its share capital
(other than by purchase of any equity interest in the Company by Purchaser)
during the one-year period following the tolling of any Tranche Closing Date
due to the provisions of this Section 6.1.5 such that Purchaser would then be
able to purchase Shares in such delayed Tranche without exceeding nineteen
percent (19%) of the total number of shares of Common Stock issued and
outstanding immediately following such Tranche Closing, then Purchaser shall
be obligated, on the fifth business day following its receipt of written
notification from the Company of such increase, at the cash price per Share
set forth in Section 1.2 for such Tranche, to purchase such number of
additional Shares in such delayed Tranche which it would have been obligated
to purchase but for the operation of this Section 6.1.5, provided that
Purchaser is only obligated to purchase Shares in any delayed Tranche on one
occasion during the one-year tolling period and that Purchaser shall be under
no obligation to purchase any additional Shares in any delayed Tranche more
than one year following the tolling of the Tranche Closing Date.
6.2 CONDITIONS TO COMPANY'S OBLIGATION TO ISSUE THE SHARES. The
Company's obligation to sell the Shares to Purchaser hereunder is subject to
the satisfaction, on or prior to the First Tranche Closing Date, of the
following conditions, any of which may be waived by the Company, in its sole
discretion, to the extent permitted by law:
6.2.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by Purchaser in this Agreement shall be true and correct
when made, and shall be true and correct on the First Tranche Closing Date
with the same force and effect as if they had been made on and as of the
First Tranche Closing Date, and Purchaser shall have delivered to the Company
a certificate to such effect, executed by a duly authorized officer of
Purchaser and dated the First Tranche Closing Date.
6.2.2 PERFORMANCE OF OBLIGATIONS. Purchaser shall have performed in
all material respects all covenants, agreements and other obligations
required to be performed or observed by Purchaser pursuant to this Agreement
on or prior to the First Tranche Closing Date, and Purchaser shall have
delivered to the Company a certificate to such effect, executed by a duly
authorized officer of Purchaser and dated the First Tranche Closing Date.
6.2.3 COMPLIANCE WITH LAW. At the time of each Tranche Closing, the
issuance by the Company, and the acquisition by Purchaser, of the Shares
hereunder shall be legally permitted by all laws and regulations to which
either Purchaser or the Company is subject; all waiting periods, if any,
under the HSR Act applicable to the acquisition of such Shares hereunder
shall have expired or been terminated and no preliminary or permanent
injunction or other order by any court of competent jurisdiction prohibiting
or otherwise restraining such acquisition shall be in effect.
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6.3 CONDITIONS TO ISSUANCE OF OPTION SHARES. The consummation of each
Option Closing is subject to the conditions that, on or prior to the
applicable Option Closing Date, (i) the representations and warranties made
by the Company and Purchaser in this Agreement shall be true and correct on
the Option Closing Date, (ii) the issuance by the Company and the acquisition
by Purchaser of the Option Shares hereunder shall be legally permitted by all
laws and regulations to which either Purchaser or the Company is subject,
(iii) all waiting periods, if any, under the HSR Act if applicable to the
acquisition of such Option Shares hereunder shall have expired or been
terminated, (iv) no preliminary or permanent injunction or other order by any
court of competent jurisdiction prohibiting or otherwise restraining such
issuance or acquisition shall be in effect, and (v) the Worldwide Agreement
shall be in full force and effect and shall not have been terminated by
either party thereto nor shall either party have given notice of such
termination.
SECTION 7
MISCELLANEOUS
7.1 ACCESS TO INFORMATION. No information or knowledge obtained in any
investigation by Purchaser shall affect or be deemed to modify any
representation or warranty contained in this Agreement or the Transaction
Documents.
7.2 WAIVERS AND AMENDMENTS. This Agreement or any provision hereof may
be amended, waived, discharged or terminated only by a statement in writing
signed by the party against which enforcement of the amendment, waiver,
discharge or termination is sought.
7.3 GOVERNING LAW. This Agreement shall be governed in all respects by
the internal laws of the State of Delaware, without respect to the conflicts
or the laws or rules thereof.
7.4 SURVIVAL. The representations, warranties, covenants and agreements
made in this Agreement shall survive the closings of the transactions
contemplated hereby, notwithstanding any investigation made by Purchaser. All
statements as to factual matters contained in any certificate delivered by or
on behalf of the Company pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties by the Company hereunder as of the date of such certificate or
instrument.
7.5 SUCCESSORS AND ASSIGNS. Except as expressly provided or contemplated
by this Agreement and the other Transaction Documents, neither this Agreement
nor any right, obligation or interest hereunder shall be assigned, either in
whole or in part, by any party hereto (other than by operation of law)
without the prior written consent of the other parties; provided, that
nothing herein shall prevent or limit the ability of Purchaser to assign any
or all of its rights under this Agreement or any of the other Transaction
Documents to an affiliate. Subject to the foregoing limitations, the
provisions hereof shall inure to the benefit of, and be binding upon and
enforceable by, the parties hereto and their respective successors and
assigns.
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<PAGE>
7.6 ENTIRE AGREEMENT. This Agreement, the other Transaction Documents,
and the other certificates and documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with
regard to the subjects hereof and supersede any prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties with respect thereto.
7.7 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be delivered personally or by
overnight courier or mailed by first class mail, or Express Mail, postage
prepaid, or via facsimile, addressed (a) if to Purchaser, at Abbott
Laboratories, Hospital Products Division, 100 Abbott Park Road, Abbott Park,
IL 60064, Attn: President, Hospital Products Division and Senior Vice
President, International Operations, with a copy of any said notice to be
sent to Abbott Laboratories, Dept. 364, Bldg. AP6D, 100 Abbott Park Road,
Abbott Park, IL 60064, Attn: General Counsel or to such other address
(including electronic mail address) as Purchaser shall have furnished to the
Company in writing or by electronic mail, or (b) if to the Company, to
SuperGen, Inc., Two Annabel Lane, Suite 220, San Ramon, CA 94583, Attn: Dr.
Joseph Rubinfeld, with a copy of any said notice to be sent to Wilson Sonsini
Goodrich & Rosati, 650 Page Mill Road, Palo Alto, CA 94304-1050, Attn: Page
Mailliard, Esq., or to such other address (including electronic mail address)
as the Company shall have furnished to Purchaser in writing or by electronic
mail. Notices that are mailed by (i) first class mail shall be deemed
received three (3) business days after deposit in the mail and (ii) Express
Mail or overnight courier shall be deemed received one (1) business day after
deposit in the mail or delivery to such courier. In the event that the notice
is sent by facsimile, notice shall be deemed to have been received when sent
and confirmed as to receipt.
7.8 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Agreement shall not in any way be
affected or impaired thereby.
7.9 EXPENSES. The Company and Purchaser shall each bear their own fees,
costs and expenses incurred on their behalf with respect to the Agreement and
the transactions contemplated hereby and any amendments or waiver thereto.
7.10 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing
or interpreting this Agreement.
7.11 CALIFORNIA CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF
SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION
THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100, 25102, OR 25105
OF THE CALIFORNIA CORPORATIONS CODE. THE
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<PAGE>
RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH
QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
7.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.13 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to the Company or to Purchaser shall impair any such
right, power or remedy of the Company or Purchaser, nor shall it be construed
to be a waiver of any breach or default under this Agreement and the other
Transaction Documents, or an acquiescence therein or in any similar breach or
default thereafter occurring; nor shall any delay or omission to exercise any
right, power or remedy or any waiver of any single breach or default be
deemed a waiver of any other right, power or remedy or breach or default
theretofore or thereafter occurring. All remedies, either under this
Agreement and the other Transaction Documents, or by law otherwise afforded
to the Company or Purchaser, shall be cumulative and not alternative.
7.14 DISPUTE RESOLUTION. The parties hereto agree that any disputes
which may arise during the term of this Agreement which relate to either
party's rights and/or obligations hereunder shall be resolved in accordance
with the ADR provisions contained in Exhibit 20.3 of the Worldwide Agreement,
except that either party may seek judicial relief or enforcement to pursue
equitable or other remedies not addressed by the ADR provisions, including
without limitation specific performance or injunctive relief, to pursue a
claim of fraudulent or otherwise inequitable treatment under the ADR
proceedings or to otherwise enforce a judgment under the ADR proceedings.
[SIGNATURE PAGE FOLLOWS]
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<PAGE>
IN WITNESS WHEREOF, Purchaser and the Company have caused this
Agreement to be duly executed as of the date and year first above written.
SUPERGEN, INC.
a Delaware corporation
By: /s/ DR. JOSEPH RUBENFELD
-------------------------------
Name: Dr. Joseph Rubenfeld
Title: President CEO
ABBOTT LABORATORIES
an Illinois corporation
By: /s/ RICHARD A. GONZALEZ
-------------------------------
Name: Richard A. Gonzalez
Title: President, HPD
[Signature Page to Purchase Agreement]
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EXHIBITS
Compliance Certificate
SCHEDULES
3.2 Capitalization
3.6 Liabilities
3.7 Material Changes
3.9 Environment Law
3.12 Employee Benefit Plan
3.16 Litigation
<PAGE>
FORM OF
COMPLIANCE CERTIFICATE
Pursuant to Section 6.1 of that certain Common Stock and Option
Purchase Agreement dated as of December 21, 1999 among SuperGen, Inc., a
Delaware corporation (the "Company"), and the Purchaser set forth therein
(the "Agreement"), the undersigned, Joseph Rubinfeld, does hereby certify on
behalf of the Company as follows:
1. He is the duly elected Chief Executive Officer of the Company;
2. The Company has fulfilled all of the conditions specified in
Sections 5 and 6 of the Agreement; and
3. Except as set forth in the Agreement and the Schedules
attached hereto, the representations and warranties of the
Company set forth in Section 3 of the Agreement are true and
correct as of the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this certificate on
_________ __, 2000.
___________________________________
Name: Joseph Rubinfeld
Title: Chief Executive Officer
