<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 1, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
SUPERGEN, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------------
California 94-3132190
----------------- ---------------------
(State of incorporation) (I.R.S. Employer Identification No.)
6450 HOLLIS STREET
EMERYVILLE, CALIFORNIA 94608
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------------
SUPERGEN, INC. 1993 STOCK OPTION PLAN, AS AMENDED AND RESTATED
EFFECTIVE JANUARY 17, 1996
SUPERGEN, INC. 1996 DIRECTORS' STOCK OPTION PLAN
SUPERGEN, INC. EMPLOYEES AND CONSULTANTS STOCK OPTION AGREEMENT/PLAN
(FULL TITLES OF THE PLANS)
--------------------
JOSEPH RUBINFELD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SUPERGEN, INC.
6450 HOLLIS STREET
EMERYVILLE, CALIFORNIA 94608
(510) 655-1075
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------------
COPIES TO:
JOHN V. ROOS, ESQ.
PAGE MAILLIARD, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94306
(415) 493-9300
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<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Offering Maximum Aggregate Registration
be Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value 2,550,000 $6.511628 $16,604,653.73 $5,725.73
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 2,000,000 shares to be registered under the 1993 Stock Option Plan
(the "1993 Plan"), 250,000 shares to be registered under the 1996
Directors' Stock Option Plan (the "1996 Plan"), and 300,000 shares to be
registered under the Employees and Consultants Stock Option Agreement/Plan
(the "Employees and Consultants Plan").
(2) The Proposed Maximum Offering Price Per Share was estimated in part
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act"), and, in part, pursuant to Rule 457(c) under the
Securities Act. With respect to (i) 1,410,450 shares which are subject to
outstanding options to purchase Common Stock under the 1993 Plan, (ii)
150,000 shares which are subject to outstanding options to purchase Common
Stock under the 1996 Plan, and (iii) 300,000 shares which are subject to
outstanding options to purchase Common Stock under the Employees and
Consultants Plan, the Proposed Maximum Offering Price Per Share was
estimated pursuant to Rule 457(h), under which Rule the per share price of
options to purchase stock under an employee stock option plan may be
estimated by reference to the exercise price of such options. The weighted
average exercise price of the 1,410,450 shares subject to outstanding
options under the 1993 Plan is $5.84972880. The weighted average exercise
price of the 150,000 shares subject to outstanding options under the 1996
Plan is $5.00. The weighted average exercise price of the 300,000 shares
subject to outstanding options under the Employees and Consultants Plan is
$0.92478333. With respect to 689,550 shares of Common Stock available for
future grant under the 1993 Plan and (ii)100,000 shares of Common Stock
available for future grant under the Director Plan, the estimated Proposed
Maximum Offering Price Per Share was estimated pursuant to Rule 457(c)
whereby the per share price was determined by reference to the average
between the high and low price reported in the Nasdaq National Market on
June 24, 1996, which average was $10.625. The number referenced above in
the table entitled "Proposed Maximum Offering Price per Share" represents a
weighted average of the foregoing estimates calculated in accordance with
Rules 457(h) and 457(c).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(a) The Registrant's Registration Statement on Form SB-2 (File No. 333-
476-LA) and amendments thereto, including the Prospectus dated March 13, 1996,
filed for the purpose of registering certain shares of the Registrant's Common
Stock under the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the Registrant's initial public offering.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1996 filed pursuant to Section 13 of the Securities Exchange Act
of 1934 (the "Exchange Act").
(c) The description of the Registrant's Common Stock to be offered hereby
is contained in the Registrant's Registration Statement on Form 8-A filed with
the Securities and Exchange Commission on January 18, 1996, pursuant to Section
12(g) of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sec-
tions 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation limit the liability of directors
for monetary damages to the maximum extent permitted by California law. Such
limitation of liability has no effect on the availability of equitable remedies,
such as injunctive relief or rescission.
II-2
<PAGE>
The Registrant's Bylaws provide that the Registrant will indemnify its
directors and officers and may indemnify its employees and agents (other than
officers and directors) against certain liabilities to the fullest extent
permitted by California law. The Registrant is also empowered under its Bylaws
to enter into indemnification agreements with its directors and officers and to
purchase insurance on behalf of any person whom it is required or permitted to
indemnify. The Registrant has entered into indemnification agreements with each
of its current directors and officers which provide for indemnification of, and
advancement of expenses to, such persons to the greatest extent permitted by
California law, including by reason of action or inaction occurring in the past
and circumstances in which indemnification and advancement of expenses are
discretionary under California law. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER
------
4.1* 1993 Stock Option Plan, as amended and restated effective
January 17, 1996, and form of Stock Option Agreement
thereunder
4.2* 1996 Directors' Stock Option Plan and form of Stock Option
Agreement thereunder
4.3 Employees and Consultants Stock Option Agreement/Plan
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as to
legality of securities being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-5)
___________
* Incorporated by reference to the exhibit filed with the Registrant's
registration statement on Form SB-2 (File No. 333-476-LA) filed with the
Securities and Exchange Commission on January 18, 1996.
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
SuperGen, Inc., certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Emeryville, State of California, on this 27th
day of June, 1996.
SUPERGEN, INC.
By:/S/ JOSEPH RUBINFELD
------------------------------
Joseph Rubinfeld
President, Chief Executive Officer,
Chief Scientific Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Joseph Rubinfeld
and Henry C. Settle, Jr., his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 (including post-effective amendments), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
II-5
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------- -------------------------------------------- --------------
<S> <C> <C>
/S/ JOSEPH RUBINFELD President, Chief Executive Officer, June 27, 1996
- ---------------------------- Chief Scientific Officer and Director
(Joseph Rubinfeld) (Principal Executive Officer)
/S/ HENRY C. SETTLE, JR. Chief Financial Officer June 27, 1996
- ---------------------------- (Principal Financial and Accounting Officer)
(Henry C. Settle, Jr.)
/S/ DAVID M. FINEMAN Director June 27, 1996
- ----------------------------
(David M. Fineman)
/S/ J. GREGORY SWENDSEN Director June 27, 1996
- ----------------------------
(J. Gregory Swendsen)
/S/ DENIS BURGER Director June 27, 1996
- ----------------------------
(Denis Burger)
/S/ JULIUS A. VIDA Director June 27, 1996
- ----------------------------
(Julius A. Vida)
Director June 27, 1996
- ----------------------------
(Daniel Zurr)
</TABLE>
II-6
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________
EXHIBITS
___________________________________
Registration Statement on Form S-8
SuperGen, Inc.
July 1, 1996
INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ------- -------------------------------------------------------- -------------
4.1* SuperGen, Inc. 1993 Stock Option Plan, as amended and
restated effective January 17, 1996, and form of stock
option agreement thereunder. . . . . . . . . . . . . . . .
4.2* SuperGen, Inc. 1996 Directors' Stock Option Plan and forms
of option agreement thereunder . . . . . . . . . . . . . .
4.3 SuperGen, Inc. Employees and Consultants Stock Option
Agreement/Plan . . . . . . . . . . . . . . . . . . . . . .
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, a Professional
Corporation. . . . . . . . . . . . . . . . . . . . . . . .
23.1 Consent of Ernst & Young LLP, Independent Auditors . . . .
23.2 Consent of Counsel (contained in Exhibit 5.1). . . . . . .
24.1 Power of Attorney (see page II-5). . . . . . . . . . . . .
- -------------
* Incorporated by reference to the exhibit filed with the Registrant's
registration statement on Form SB-2 (File No. 333-476-LA) filed with
the Securities and Exchange Commission on January 18, 1996.
<PAGE>
EXHIBIT 4.3
EMPLOYEES AND CONSULTANTS STOCK OPTION AGREEMENT/PLAN
SUPERGEN, INC., a California corporation (the "Company"), hereby grants to
_________________ ("Optionee") a Nonqualified Stock Option (the "Option") to
purchase a total of _______ shares of Common Stock (the "Shares") of the
Company, at the price determined as provided herein.
1. NATURE OF THE OPTION. This Option is intended by the Company and
Optionee to be a "Nonqualified Stock Option" and does not qualify for any
special tax benefits to the Optionee. (See Section 13 below.)
2. EXERCISE PRICE. Subject to Section 11 below, the exercise price is
$_____ for each share of Common Stock subject to this Option for a total
exercise price of $________.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term
as follows:
(i) RIGHT TO EXERCISE.
(a) Subject to Subsections 3(i)(b), (c) and (d) below, ______ of
the total number of shares subject to this Option shall become exercisable on
_____________ and ______ of the total number of shares subject to this Option
shall become exercisable on each anniversary thereafter until all of such shares
are exercisable.
(b) This Option may not be exercised for a fraction of a Share.
(c) In the event of Optionee's death, disability or other
termination of employment or consulting relationship, the exercisability of the
Option is governed by Sections 7, 8 and 9 below, subject to the limitations
contained in subsection 3(i)(d).
(d) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in Section 12 below.
(ii) METHOD OF EXERCISE. This Option shall be exercisable by written
notice in the form attached hereto as EXHIBIT A, which shall state the election
to exercise the Option, the number of Shares in respect of which the Option is
being exercised, and such other representations and agreements as to the
holder's investment intent with respect to such shares of Common Stock as may be
required by the Company. Such written notice shall be signed by Optionee and
shall be delivered in person or by certified mail to the President of the
Company. The written notice shall be accompanied by payment of the exercise
price. The Option shall be deemed exercised only upon receipt by the Company of
such written notice accompanied by the exercise price.
<PAGE>
No Shares will be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
4. OPTIONEE'S REPRESENTATIONS AND RESTRICTIONS ON TRANSFER. Optionee
hereby agrees that if so requested by the Company or any representative of the
underwriters in connection with any registration of the offering of any
securities of the Company under the Securities Act of 1933, as amended (the
"Securities Act"), Optionee shall not sell or otherwise transfer any Shares or
other securities of the Company during the 180-day period following the
effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that such restriction shall only apply to the
first registration statement of the Company to become effective under the
Securities Act which includes securities to be sold on behalf of the Company to
the public in an underwritten public offering under the Securities Act. The
Company may impose stop-transfer instructions with respect to securities subject
to the foregoing restrictions until the end of such 180-day period.
5. METHOD OF PAYMENT. Payment of the purchase price shall be made by
cash or check.
6. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such Shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations (Regulation G) as
promulgated by the Federal Reserve Board. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law or regulation.
7. TERMINATION OF RELATIONSHIP. Subject to the provisions of Sections 8
and 9 below, in the event Optionee is no longer an employee or consultant of the
Company, Optionee may, but only within twelve (12) months after the date
Optionee ceases to be an employee or consultant (but in no event later than the
date of expiration of the term of this Option as set forth in Section 12 below),
exercise this Option to the extent that Optionee was entitled to exercise it at
the date of such termination. To the extent that Optionee was not entitled to
exercise the entire Option at the date of such termination, or if Optionee does
not exercise such Option to the extent so entitled within the time specified
herein, the Option shall terminate.
8. DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section 7
above, in the event Optionee ceases to be an employee or consultant of the
Company as a result of Optionee's permanent and total disability (as defined in
Section 22(e)(3) of the Code), Optionee may, but only within six (6) months from
the date such termination (but in no event later than the date of expiration of
the term of this Option as set forth in Section 12 below), exercise this Option
to the extent Optionee was entitled to exercise it at the date of such
termination. Following termination of employment due to disability, to the
extent that Optionee was not entitled to exercise the entire Option at the date
of such termination, or if Optionee
-2-
<PAGE>
does not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
9. DEATH OF OPTIONEE. In the event of the death of Optionee, this Option
may be exercised at any time within six (6) months following the date of death
(but in no event later than the date of expiration of the term of this Option as
set forth in Section 12 below) by Optionee's estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only to the
extent the Optionee could exercise the Option at the date of death. If, at the
time of death, the Optionee was not entitled to exercise his or her entire
Option, the unexercisable portion of the Option shall immediately terminate. If
after the death of Optionee, to the extent Optionee's estate or person who
acquired the right to exercise the Option by bequest or inheritance does not
exercise the Option to the extent so entitled within the time specified herein,
the Option shall terminate.
10. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of Optionee.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR
ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, each Optionee shall be notified as
soon as practicable prior to the effective date of such proposed transaction.
The Board in its discretion may provide for an Optionee to have the right to
exercise his or her Option until ten (10) days prior to such transaction as to
all of the Optioned Stock covered thereby, including Shares as to which the
Option would not otherwise be exercisable. In addition, the Board may provide
that any Company repurchase option applicable to any Shares purchased upon
exercise of an Option shall lapse as to all such Shares, provided the proposed
dissolution or liquidation takes place at the time and in the manner
contemplated. To the extent it has not been previously exercised, an Option
will terminate immediately prior to the consummation of such proposed action.
-3-
<PAGE>
(c) MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the assets
of the Company, each outstanding Option shall be assumed or an equivalent option
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. In the event that the successor corporation refuses to
assume or substitute for the Option, the Optionee shall have the right to
exercise the Option as to all of the Optioned Stock, including Shares as to
which it would not otherwise be exercisable. If an Option is exercisable in
lieu of assumption or substitution in the event of a merger or sale of assets,
the Board shall notify the Optionee that the Option shall be fully exercisable
for a period of fifteen (15) days from the date of such notice, and the Option
shall terminate upon the expiration of such period. For the purposes of this
paragraph, the Option shall be considered assumed if, following the merger or
sale of assets, the Option confers the right to purchase or receive, for each
Share of Optioned Stock subject to the Option immediately prior to the merger or
sale of assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of Common Stock
for each Share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided, however, that if
such consideration received in the merger or sale of assets was not solely
common stock of the successor corporation or its Parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Option, for each Share of Optioned Stock
subject to the Option, to be solely common stock of the successor corporation or
its Parent equal in fair market value to the per share consideration received by
holders of Common Stock in the merger or sale of assets.
12. TERM OF OPTION. This Option may not be exercised more than ten (10)
years from the date of grant of this Option, and may be exercised during such
term only in accordance with the terms of this Option.
13. TAX CONSEQUENCES. Set forth below is a brief summary as of the date
of this Option of some of the federal and California tax consequences of
exercise of this Option and disposition of the Shares. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING
OF THE SHARES. OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
(i) EXERCISE OF NONQUALIFIED STOCK OPTION. There may be a regular
federal income tax liability and a California income tax liability upon the
exercise of the Option. The Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the fair market value of the Shares on the date of exercise over the
Exercise Price.
(ii) DISPOSITION OF SHARES. If Shares are held for at least one year,
any gain realized on disposition of the Shares will be treated as long-term
capital gain for federal and California income tax purposes.
-4-
<PAGE>
DATE OF GRANT: SUPERGEN, INC.
------------------
By:
-------------------------------------
Title:
-----------------------------------
-5-
<PAGE>
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
SECTION 3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE OR
CONSULTANT OF THE COMPANY AT THE WILL OF THE COMPANY. OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT SHALL CONFER UPON
OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF SERVICES AS AN EMPLOYEE OR
CONSULTANT OF THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE'S
RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S SERVICES AS AN EMPLOYEE OR
CONSULTANT AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee has reviewed this Option in its entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option
and fully understands all provisions of the Option. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
Dated:
-----------------
--------------------------------------
-----------------------------, Optionee
Residence Address:
--------------------------------------
--------------------------------------
-6-
<PAGE>
EXHIBIT A
EXERCISE NOTICE
SUPERGEN, INC.
6450 Hollis Street
Emeryville, California 94608
Attention: President
1. EXERCISE OF OPTION. Effective as of today, ____________________,the
undersigned ("Optionee") hereby elects to exercise Optionee's option to purchase
_________ shares of the Common Stock (the "Shares") of SUPERGEN, INC. (the
"Company") under and pursuant to the Company's Employees and Consultants Stock
Option Agreement/Plan dated __________________ (the "Option Agreement").
2. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understands the Option Agreement and agrees to abide by and
be bound by its terms and conditions.
3. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions of this
Exercise Notice and the Option Agreement (the "Agreement"), Optionee shall have
all of the rights of a shareholder of the Company with respect to the Shares
from and after the date that Optionee delivers full payment of the exercise
price until such time as Optionee disposes of the Shares. Upon exercise of the
Shares, Optionee shall have no further rights as a holder of the Shares so
purchased except the right to receive payment for the Shares so purchased in
accordance with the provisions of this Agreement, and Optionee shall forthwith
cause the certificate(s) evidencing the Shares so purchased to be surrendered to
the Company for transfer or cancellation.
4. TAX CONSULTATION. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
5. MARKET STANDOFF AGREEMENT. Optionee hereby agrees that if so
requested by the Company or any representative of the underwriters in connection
with any registration of the offering of any securities of the Company under the
1933 Act, Optionee shall not sell or otherwise transfer any Shares or other
securities of the Company during the 180-day period following the effective date
of a registration statement of the Company filed under the 1933 Act; provided,
however, that such restriction shall only apply to the first registration
statement of the Company to become effective under the 1933 Act which includes
securities to be sold on behalf of the Company to the public in an underwritten
public offering under the 1933 Act. The Company may impose stop-transfer
instructions with respect to securities subject to the foregoing restrictions
until the end of such 180-day period.
6. MISCELLANEOUS. The Company may assign any of its rights under this
Agreement, and this Agreement shall inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Agreement shall be binding upon Optionee and his or her heirs,
executors, administrators, successors and assigns. Any dispute regarding the
interpretation of this
<PAGE>
Agreement shall be submitted by Optionee or by the Company forthwith to the
Company's Board of Directors, which shall review such dispute at its next
regular meeting. The resolution of such a dispute by the Board shall be final
and binding on the Company and on Optionee. Should any provision of this
Agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at the address such party may designate in
writing from time to time to the other party. The parties agree to execute such
further instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this Agreement. Optionee
herewith delivers to the Company the full exercise price for the Shares. The
Option Agreement is incorporated herein by reference. This Agreement
constitutes the entire agreement of the parties and supersedess in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof. This Agreement is governed by California
law except for that body of law pertaining to conflict of laws.
Submitted by: Accepted by:
OPTIONEE: SUPERGEN, INC.
-----------------------
- ---------------------------------- By:
(Signature) ----------------------------
Its:
---------------------------
Address: Address:
- --------------------------------- 6450 Hollis Street
- --------------------------------- Emeryville, California 94608
-2-
<PAGE>
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050 JOHN ARNOT WILSON
TELEPHONE 415-493-9300 FACSIMILE 415-493-6811 OF COUNSEL
EXHIBIT 5.1
July 1, 1996
SuperGen, Inc.
6450 Hollis Street
Emeryville, California 94608
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about June 28, 1996 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of (i) 2,000,000 shares of your Common Stock
reserved for issuance under the 1993 Stock Option Plan, as amended and restated
effective January 17, 1996 (the "1993 Plan"), (ii) 250,000 shares of your Common
Stock reserved for issuance under the 1996 Directors' Stock Option Plan (the
"1996 Plan"), and (iii) 300,000 shares of your Common Stock reserved for
issuance under the Employees and Consultants Stock Option Agreement/Plan (the
"Employees and Consultants Plan"). The 2,000,000 shares of Common Stock
reserved under the 1993 Plan, the 250,000 shares of Common Stock reserved under
the 1996 Plan and the 300,000 shares of Common Stock reserved under the
Employees and Consultants Plan are referred to collectively as the "Shares," and
the 1993 Plan, the 1996 Plan and the Employees and Consultants Plan are referred
to collectively as the "Plans." As your legal counsel, we have examined the
proceedings taken and proposed to be taken in connection with the issuance, sale
and payment of consideration for the Shares to be issued under the Plans.
It is our opinion that, when issued and sold in compliance with applicable
prospectus delivery requirements and in the manner referred to in the Plans and
pursuant to the agreements which accompany the Plans, the Shares will be legally
and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Sincerely,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
/s/ WILSON, SONSINI, GOODRICH & ROSATI
<PAGE>
EXHIBIT 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the SuperGen, Inc. 1993 Stock Option Plan, as Amended
and Restated Effective January 17, 1996, the SuperGen, Inc. 1996 Directors'
Stock Option Plan and the SuperGen, Inc. Employees and Consultants Stock Option
Agreement/Plan of SuperGen, Inc. of our report dated January 5, 1996, except
for Note 8, as to which the date is January 17, 1996, with respect to the
financial statements of SuperGen, Inc. for the year ended March 31, 1995, the
nine months ended December 31, 1995, and the period from March 1, 1991
(inception) through December 31, 1995 included in the Registration Statement
(Form SB-2 No. 333-476-LA) and related Prospectus of SuperGen, Inc. for the
registration of 3,000,000 units (each unit consisting of one share of common
stock and one warrant to purchase one share of common stock).
/s/ ERNST & YOUNG LLP
Walnut Creek, California
June 25, 1996
