<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________
Commission file number 0-27628
SUPERGEN, INC.
--------------
(exact name of registrant as specified in its charter)
CALIFORNIA 94-3132190
---------- ----------
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
TWO ANNABEL LANE, SUITE 220, SAN RAMON, CALIFORNIA 94583
- -------------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
(510) 327-0200
--------------
(Registrant's telephone number, including area code)
_____________________________ Not applicable _______________________________
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes __ XX __ No _______
APPLICABLE ONLY TO CORPORATE ISSUERS
The number of shares of the registrant's Common Stock, $.001 par value,
outstanding as of August 6, 1997, was 18,011,156.
<PAGE>
TABLE OF CONTENTS
PART I FINANCIAL INFORMATION PAGE NO.
Item 1 - Financial Statements
Condensed Consolidated Balance Sheets as of
June 30, 1997 and December 31, 1996 3
Condensed Consolidated Statements of Operations for
the three and six month periods ended June 30, 1997 and
1996 and for the period from inception to June 30, 1997 4
Condensed Consolidated Statements of Cash Flows for
the six month periods ended June 30, 1997 and 1996
and for the period from inception to June 30, 1997 5
Notes to Condensed Consolidated Financial Statements 6
Item 2 - Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
PART II OTHER INFORMATION
Item 4 - Submission of Matters to a Vote of Security Holders 13
Item 6 - Exhibits and Reports on Form 8-K 13
2
<PAGE>
SUPERGEN, INC.
(a development stage company)
CONDENSED CONSOLIDATED BALANCE SHEETS
(unaudited)
ASSETS
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
----------- ------------
<S> <C> <C>
Current assets:
Cash and cash equivalents, including $16,300,000
which is restricted $20,859,793 $ 13,914,863
Accounts receivable, net of allowances of
$260,848 and $72,400 at June 30, 1997 and
December 31, 1996, respectively 182,184 120,440
Inventories 1,133,283 1,573,951
Prepaid expenses and other current assets 682,846 540,376
----------- ------------
Total current assets 22,858,106 16,149,630
Property and equipment, at cost:
Land and building 744,000 -
Research and development equipment 83,546 83,546
Office furniture and fixtures 741,847 517,859
Leasehold improvements 85,179 53,578
Construction in process 859,858 -
----------- ------------
2,514,430 654,983
Less accumulated depreciation and amortization 321,495 243,500
----------- ------------
2,192,935 411,483
Developed technology, net of amortization 1,400,664 1,266,683
Equity investment in related party 500,000 -
Other assets 41,878 45,620
----------- ------------
Total assets $26,993,583 $ 17,873,416
----------- ------------
----------- ------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities $ 991,289 $ 836,534
Clinical trials accrual 101,040 205,620
Accrued compensation and related expenses 123,245 290,350
Due to related parties - 334,074
Amount due under asset purchase agreement 500,000 500,000
----------- ------------
Total current liabilities 1,715,574 2,166,578
Common stock subscription 15,300,000 -
Shareholders' equity:
Preferred stock, $.001 par value; 2,000,000 shares
authorized; none outstanding - -
Common stock, $.001 par value; 40,000,000 shares
authorized; 17,009,292 and 16,930,292 shares
issued and outstanding at June 30, 1997 and
December 31, 1996, respectively 40,337,551 40,026,551
Deficit accumulated during the development stage (30,359,542) (24,319,713)
----------- ------------
Total shareholders' equity 9,978,009 15,706,838
----------- ------------
Total liabilities and shareholders' equity $26,993,583 $ 17,873,416
----------- ------------
----------- ------------
</TABLE>
See accompanying notes to condensed consolidated financial statements
3
<PAGE>
SUPERGEN, INC.
(a development stage company)
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
<TABLE>
<CAPTION>
March 1, 1991
(inception)
Three months ended Six months ended through
June 30, June 30, June 30,
1997 1996 1997 1996 1997
----------- ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Net sales $ 555,937 $ - $ 980,898 $ - $ 1,206,860
Grant revenues - 16,473 26,520 37,715
Contract revenues from related party - - - - 181,202
----------- ----------- ----------- ------------ ------------
Total revenues 555,937 16,473 980,898 26,520 1,425,777
Operating expenses:
Cost of sales 450,251 - 776,499 - 1,059,276
Research and development 2,091,986 1,135,330 4,458,742 2,035,923 19,710,374
Sales and marketing 495,588 85,411 791,054 155,945 2,326,893
General and administrative 663,415 449,439 1,261,721 694,776 5,065,006
Non-cash charges for acquisition of in-
process research and development - - - - 4,867,645
----------- ----------- ----------- ------------ ------------
Total operating expenses 3,701,240 1,670,180 7,288,016 2,886,644 33,029,194
----------- ----------- ----------- ------------ ------------
Loss from operations (3,145,303) (1,653,707) (6,307,118) (2,860,124) (31,603,417)
Interest income 127,639 259,055 267,289 306,512 1,243,875
----------- ----------- ----------- ------------ ------------
Net loss $(3,017,664) $(1,394,652) $(6,039,829) $(2,553,612) $(30,359,542)
----------- ----------- ----------- ------------ ------------
----------- ----------- ----------- ------------ ------------
Net loss per share $(0.18) $(0.08) $(0.36) $(0.17)
----------- ----------- ----------- ------------
----------- ----------- ----------- ------------
Weighted average shares used
in net loss per share calculation 16,986,083 16,754,705 16,979,067 15,030,895
----------- ----------- ----------- ------------
----------- ----------- ----------- ------------
</TABLE>
See accompanying notes to condensed consolidated financial statements
4
<PAGE>
SUPERGEN, INC.
(a development stage company)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
<TABLE>
<CAPTION>
March 1, 1991
(inception)
Six months ended through
June 30, June 30,
1997 1996 1997
----------- ------------ ------------
<S> <C> <C> <C>
Operating activities:
Net loss $(6,039,829) $(2,553,612) $(30,359,542)
Adjustments to reconcile net
loss to net cash used in
operating activities:
Depreciation and amortization 144,275 30,158 393,255
Acquisition of in-process
research and development - - 4,867,645
Stock options granted to vendors - - 123,200
Changes in operating assets and
liabilities:
Accounts receivable (61,744) - (182,184)
Inventories 440,668 - (1,133,283)
Prepaid expenses and other
current assets (142,470) (354,924) (682,846)
Other assets 3,742 19,760 (41,878)
Accounts payable, accrued
liabilities and accrued compensation (12,350) 116,311 1,114,534
Clinical trials accrual (104,580) - 101,040
Due to related parties (334,074) - -
----------- ------------ ------------
Net cash used in operating activities (6,106,362) (2,742,307) (25,800,059)
Investing activities:
Purchase of property and
equipment (1,909,708) (158,059) (2,566,854)
Acquisition of developed technology (150,000) - (220,000)
Purchase of equity investment in related party (500,000) - (500,000)
----------- ------------ ------------
Net cash used in investing activities: (2,559,708) (158,059) (3,286,854)
Financing activities:
Issuance of common stock and warrants 311,000 21,844,759 32,559,961
Contract research funding from
affiliated partnerships - - 2,086,745
Common stock subscription 15,300,000 15,300,000
----------- ------------ ------------
Net cash provided by financing activities 15,611,000 21,844,759 49,946,706
----------- ------------ ------------
Net increase in cash and cash equivalents 6,944,930 18,944,393 20,859,793
Cash and cash equivalents at beginning of period 13,914,863 1,815,420 -
----------- ------------ ------------
Cash and cash equivalents at end of period $20,859,793 $ 20,759,813 $ 20,859,793
----------- ------------ ------------
----------- ------------ ------------
</TABLE>
See accompanying notes to condensed consolidated financial statements
5
<PAGE>
SuperGen, Inc.
(a development stage company)
Notes to Condensed Consolidated Financial Statements
June 30, 1997
1. SuperGen, Inc. ("the Company") is a development stage pharmaceutical
company dedicated to the acquisition, development and commercialization of
products that treat life-threatening diseases, particularly cancer and
blood cell (hematological) disorders, and other serious conditions such as
obesity and diabetes. The Company began marketing acquired products in
late 1996 and is developing its portfolio of drugs, many of which are
proprietary. The Company is also developing a group of proprietary blood
cell disorder products for the treatment of anemia associated with renal
failure, chemotherapy, radiotherapy and aplastic anemia. The Company's
proprietary obesity pill, which is being developed for chronic genetic
obesity and general obesity, is in Phase II clinical studies.
2. The accompanying unaudited condensed consolidated financial statements
at June 30, 1997 and 1996 and for the three and six month periods then
ended, including the period from inception to date, have been prepared
in accordance with generally accepted accounting principles for interim
financial information on a basis consistent with the audited financial
statements for the year ended December 31, 1996. The condensed
consolidated financial statements for the three and six month periods
ended June 30, 1997 include the accounts of the Company's wholly-owned
Israeli subsidiary, Rubicon Pharmaceuticals, Ltd., formed in June, 1996.
All intercompany transactions and balances have been eliminated. The
statements include all adjustments (consisting of normal recurring
accruals) which in the opinion of the Company's management are necessary
for a fair presentation of the results for the interim and inception to
date periods presented. The interim results are not necessarily
indicative of results that may be expected for the full year. The
accompanying condensed consolidated financial statements should be read
in conjunction with the Company's audited financial statements for the
year ended December 31, 1996 which are included in the Company's Annual
Report on Form 10-K.
3. Net loss per share information is computed using the weighted average
number of shares of common stock outstanding during each period. Common
equivalent shares issuable upon the exercise of outstanding options and
warrants to purchase shares of the Company's common stock (using the
treasury stock method) are not included in the calculation of the net
loss per share because the effect of their inclusion is anti-dilutive.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, Earnings per Share ("FAS 128") which is required to
be adopted for the year ending December 31, 1997. Under the new
requirements for calculating primary (or basic) earnings per share, the
dilutive effect of stock options will be excluded. Options and warrants
are currently excluded from the computation of loss per share as their
effect is anti-dilutive. Therefore, the Company does not anticipate any
impact on its calculated loss per share as a result of the
implementation of FAS 128.
6
<PAGE>
4. On June 17, 1997, the Company announced that it had finalized an agreement
with an investment entity owned by Lawrence J. Ellison, Founder and
Chairman of Oracle Corporation, for a private placement in the Company's
common stock. Under this agreement, the investment entity paid the Company
$15.3 million, which was placed in a restricted account until the Company
issued 1,700,000 shares of common stock on July 25, 1997, at which time the
restriction was removed. The investment entity also has an option to
purchase up to 850,000 shares of common stock at $9.00 per share until
January 1998 and warrants to acquire up to 1,275,000 shares of common stock
at $13.50 per share until June 2007. Related costs are estimated
to be approximately $300,000.
5. On May 7, 1997 the Company entered into a supply agreement for a source
of bulk paclitaxel, an anti-cancer drug currently sold by Bristol-Myers
Squibb under the tradename Taxol-Registered Trademark-. Pursuant to the
terms of the supply agreement, the Company provided funding of $400,000
to the supplier during the second quarter of 1997, which has been
charged to research and development expense. Also, the Company
has entered into a $1,000,000 letter of credit with a commercial bank
for the purchase of bulk paclitaxel following regulatory approval of the
supplier's manufacturing facility. Additional research payments of
$600,000 and letters of credit of $2.0 million for the purchase of bulk
paclitaxel are due upon the attainment of specified milestones.
6. On June 20, 1997 the Company made an equity investment of $500,000 in
preferred stock of a privately held development stage biotechnology company
which is a related party. The investment represents approximately 1% of the
outstanding shares of this company and is carried at cost.
7. On August 6, 1997, the Company executed a definitive agreement with Israel
Chemicals Ltd. (ICL), its largest shareholder, and repurchased 740,000 of
the 2,571,000 shares of common stock held by ICL for $10.63 per share, or
a total of $7,866,200.
Under the terms of the agreement, ICL relinquished all of its international
marketing rights to SuperGen products and released SuperGen from all
residual obligations remaining from ICL's strategic investment in the
Company. The companies also agreed to an option for SuperGen to
repurchase 915,500 of the remaining ICL shares at $13.50 per share
following a call of SuperGen's warrants. This warrant call could raise
approximately $36 million for SuperGen if the warrants are fully exercised.
The option is exercisable by SuperGen or ICL for a period of ninety (90)
days following the warrant call.
In addition, ICL agreed to a six-month lock-up on its remaining shares
of SuperGen common stock. Following such six month period, ICL's
remaining shares will be freely tradable.
7
<PAGE>
Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Preliminary Note Regarding Forward-looking Statements
This Quarterly Report on Form 10-Q contains forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended and
Section 21E of the Securities Exchange Act of 1934, as amended. These
forward-looking statements represent the Company's expectations or beliefs
concerning future events and include statements, among others, regarding
incurring operating losses, requiring additional capital, consummating a
proposed financing and incurring capital expenditures. The Company's actual
results may differ materially from the results projected in the
forward-looking statements as a result of, among other things, lack of market
acceptance of and demand for the Company's products, intense price or product
competition, failure to sell existing inventories at prices sufficient to
cover related costs, unanticipated cash needs, failure to obtain additional
financing and other factors set forth below under "Factors Affecting Future
Operating Results."
Results of Operations
INCEPTION TO DATE.
From the inception of the Company in 1991 through June 30, 1997 the Company
has incurred a cumulative net loss of approximately $30.4 million, including
a non-cash charge of $4.9 million for the acquisition of in-process research
and development from two affiliated limited partnerships through 1994. The
Company expects its operating expenses to increase over the next several
years as it expands its research and development and commercialization
activities and operations. The Company expects to continue to incur
significant additional operating losses. The Company does not anticipate any
impact on its calculated loss per share as a result of the implementation of
FAS 128.
THREE MONTHS ENDED JUNE 30, 1997 COMPARED TO THREE MONTHS ENDED JUNE 30, 1996.
Total revenues were $555,937 in the second quarter of 1997 compared to
$16,473 in the same period in 1996. Product sales, which were initiated in
the fourth quarter of 1996, consisted primarily of sales of Nipent-Registered
Trademark-, which was acquired from a third party. However, until manufacturing
approval is obtained from the FDA, sales of Nipent-Registered Trademark- are
limited to supplies on hand. See "--Factors Affecting Future Operating
Results." Revenue in the second quarter of 1996 consisted of income from
grants.
Research and development expenses for the second quarter of 1997 were
$2,091,986, compared to $1,135,330 in the same period in 1996. As discussed
in Note 5 to the Condensed Consolidated Financial Statements, $400,000 was
charged to Research and Development expense in 1997 related to a supply
agreement for paclitaxel. The remainder of the increase in 1997 resulted
principally from costs for bulk drugs to be used for product research and
increased legal and facilities costs directly attributable to research and
development activities.
8
<PAGE>
Sales and marketing expenses were $495,588 in the second quarter of 1997
compared to $85,411 in the same period in 1996. Sales and marketing expenses
in the second quarter of 1996 were minimal, as the Company did not commence
product sales until the fourth quarter of 1996. The increase in the second
quarter of 1997 was primarily due to costs of promotional materials,
sales-related services and sales and marketing facilities costs. The number
of sales personnel increased from one to five subsequent to the second
quarter of 1996, therefore, payroll costs for sales personnel also
contributed to the increased expense in the second quarter of 1997.
General and Administrative expenses were $663,415 in the second quarter of
1997 compared to $449,439 in the same period in 1996. The increase was
largely due to the greater administrative support needed for the increased
activities in both research and development and sales and marketing. Payroll
costs were higher in 1997 due to increased headcount, from four to ten
employees, in the areas of administration, finance and investor relations.
Costs for service providers increased in 1997 primarily due to increased
investor relations activity following the Company's initial public offering
in March 1996.
SIX MONTHS ENDED JUNE 30, 1997 COMPARED TO SIX MONTHS ENDED JUNE 30, 1996.
Total revenues were $980,898 in the first six months of 1997 compared to
$26,520 in the first six months of 1996. Product sales, which were initiated
in the fourth quarter of 1996, consisted primarily of sales of
Nipent-Registered Trademark-, which was acquired from a third party. However,
until manufacturing approval is obtained from the FDA, sales of
Nipent-Registered Trademark- are limited to supplies on hand. See "--Factors
Affecting Future Operating Results."
Research and development expenses for the first six months of 1997 were
$4,458,742 compared to $2,035,923 in the same period in 1996. Principal
reasons for the increased expense in 1997 were a non-recurring research and
development expense of $831,000 incurred in the first quarter related to the
acquisition of etoposide and a $400,000 expense incurred in the second
quarter related to a supply agreement for paclitaxel. The number of research
and development personnel and projects undertaken was higher in the first six
months of 1997 compared to the same period in 1996. Costs associated with
this higher headcount and activity level contributed to the higher expense
in 1997 as did costs of bulk drugs to be used for product research and
increased legal and facilities costs.
Sales and marketing expenses were $791,054 in the first six months of 1997
compared to $155,945 in the same period in 1996. This increase was primarily
due to costs incurred in the second quarter of 1997 for promotional
materials, sales-related services and sales and marketing facilities.
Payroll costs for sales personnel hired in the second half of 1996 also
contributed to the increased expense in the first six months of 1997. Sales
and marketing expenses incurred in the first six months of 1996 were minimal as
the Company did not commence product sales until the fourth quarter of 1996.
9
<PAGE>
General and Administrative expenses were $1,261,721 in the first six months
of 1997 compared to $694,776 in the same period in 1996. The increase was
largely due the greater administrative support needed for the increased
activities in both research and development and sales and marketing. Payroll
costs were higher in 1997 due to increased headcount in the areas of
administration, finance and investor relations. Costs for service providers
were higher in 1997 primarily due to increased investor relations activity.
Legal and other costs were also higher in 1997 due primarily to expenses
associated with the Company's initial annual report and proxy statement.
Liquidity and Capital Resources
The Company has financed its operations since inception primarily through
private equity sales totaling $10.4 million, contract research funding of
$2.1 million from research and development agreements, net proceeds of $21.5
million from the sale and Common Stock and Warrants in its initial public
offering in March 1996 and a private placement of $15.3 million in common
stock in July 1997. Through June 30, 1997, the Company has incurred a
cumulative net loss of $30.4 million, of which $4.9 million relates to
non-cash charges to operations for the acquisition of in-process research and
development.
The Company's cash and cash equivalents were $13.9 million at December 31,
1996 and $20.9 million at June 30, 1997. The net cash increase of $7.0
million in the first six months of 1997 was principally due to the proceeds
from the common stock subscription of $15.3 million received in June 1997
offset by the net loss for the first six months of 1997 of $6.0 million,
expenditures on new production facilities, acquisitions of developed
technology and an equity investment.
The Company believes that its current cash and cash equivalents, together
with the net proceeds of approximately $7.1 million realized from the net
issuance of common stock subsequent to June 30, 1997, and other planned
financings, will satisfy its budgeted cash requirements for approximately the
next eighteen months, based on the Company's current operating plan. The
Company anticipates that capital expenditures for the remainder of 1997 will
be at least $500,000, principally for construction costs for the new
laboratory located in Pleasanton, California. Also, the Company is
continuing to actively consider the acquisition of products and product
candidates which would require significant financial commitments-See Note 5
to Condensed Consolidated Financial Statements. The Company may seek
additional funding through public or private financings or collaborative or
other arrangements with third parties. The Company has no credit facility or
other committed sources of capital. There can be no assurance that
additional funds will be available on acceptable terms, if at all. See
"-Factors Affecting Future Operating Results".
10
<PAGE>
FACTORS AFFECTING FUTURE OPERATING RESULTS
The future operating results of the Company are highly uncertain, and the
following factors should be carefully reviewed in addition to the other
information contained in this quarterly report on Form 10-Q.
The Company has incurred losses in every fiscal period and expects to
continue to incur significant operating losses. The Company acquired the
right to distribute four anti-cancer products in the third quarter of 1996
and product sales commenced in October 1996. The Company acquired inventory
and manufacturing and distribution rights to a fifth anti-cancer product in
the first quarter of 1997 and sales of that product commenced in the first
quarter of 1997. However, there can be no assurance that product sales will
exceed the related product and selling expenses due to intense competition
and significant selling price and gross margin decline of drugs such as
etoposide. In addition, the Company currently has a limited supply of the
products it is marketing, including Nipent-Registered Trademark-. While the
Company is seeking to enter into manufacturing agreements to provide adequate
supplies to meet market demand, there is no assurance that the Company will
be able to replenish its supplies on a timely basis. Failure to do so would
materially adversely affect the Company's results of operations and cash
flows. Also, there is no assurance that any of the Company's pending
proprietary products will ever be successfully developed, receive and
maintain required governmental regulatory approvals, become commercially
viable or achieve market acceptance.
The Company has no experience in manufacturing, and only limited experience
in procuring products in commercial quantities, selling pharmaceutical
products and negotiating, setting up or maintaining strategic relationships
and conducting clinical trials and other late stage phases of the regulatory
approval process. There can be no assurance that the Company will
successfully engage in any of these activities.
The Company's need for additional funding is expected to be substantial and
will be determined by the progress and cost of the development and
commercialization of its products and other activities. The Company is
continuing to actively consider future contractual arrangements which would
require significant financial commitments. Based on the Company's current
operating plan, additional funds will be needed by early 1999. Moreover, if
the Company experiences unanticipated cash requirements during the interim
period, the Company could require additional funds much sooner. The source,
availability, and terms of such funding have not been determined. Although
funds may be received from the sale of equity securities or the exercise of
outstanding warrants and options to acquire common stock of the Company,
there is no assurance any such funding will occur.
11
<PAGE>
The Company faces numerous other risks in the operation of its business,
including, but not limited to, protecting its proprietary technology and
trade secrets and not infringing those of others; attaining market acceptance
and a competitive advantage; entering into agreements with others to source,
manufacture, market and sell its products; obtaining required governmental
approval for manufacturing and marketing its products; attracting and
retaining key personnel in research and development, manufacturing,
marketing, sales and other operational areas; managing growth; and avoiding
potential claims by others in such areas as product liability and
environmental matters. In addition, increased competition in a particular
generic market would likely lead to significant price erosion which would
have a negative effect on the Company's potential gross profit margins. For
example, the Company believes that the total estimated U.S. sales for
Mitomycin and Etoposide, as well as other of the Company's proposed generic
products, have decreased significantly in recent months due to increased
competition and that sales for these generics may continue to decrease in the
future as a result of competitive factors, including the introduction of
additional generics as well as other cancer drugs, new formulations for these
drugs and the use of different therapies.
The above factors are not intended to be inclusive and there may be numerous
other areas subjecting the Company's operating results to risk. Failure to
satisfactorily achieve any of the Company's objectives or avoid any of the
above or other risks would likely have a material adverse effect on the
Company's business and results of operations.
12
<PAGE>
SUPERGEN, INC.
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
The Company's Annual Meeting of Shareholders was held on May 27,
1997. The results of the voting were as follows:
Proposal 1: Election of the Board of Directors of the Company.
Nominee Votes For Votes Withheld
------- --------- --------------
Joseph Rubinfeld 12,545,452 10,575
Denis Burger 12,545,652 10,375
David M. Fineman 12,545,552 10,475
J. Gregory Swendsen 12,545,852 10,175
Julius A. Vida 12,542,552 13,475
Daniel Zurr 12,545,752 10,275
Proposal 2: Change in the state of incorporation of the Company
from the State of California to the State of Delaware.
Votes For: 9,216,274
Votes Against: 24,449
Votes Abstaining: 20,210
Broker Non-Votes: 3,295,094
Proposal 3: Amendment of the Company's Amended and Restated 1993
Stock Option Plan to increase the number of shares
reserved for issuance by 500,000 shares to 2,500,000
shares.
Votes For: 12,329,030
Votes Against: 111,363
Votes Abstaining: 38,639
Broker Non-Votes: 76,995
Proposal 4: Ratification of Ernst & Young LLP as the independent
auditors of the Company for the fiscal year ending
December 31, 1997.
Votes For: 12,532,737
Votes Against: 5,100
Votes Abstaining: 18,190
Broker Non-Votes: 0
13
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit No.
10.2 1993 Stock Option Plan, as amended and restated effective
February 3, 1997, and forms of stock option agreements
thereunder.
10.3 1996 Directors' Stock Option Plan, as amended effective
February 3, 1997, and form of stock option agreement
thereunder.
10.14 Common Stock Sale/Repurchase Agreement dated August 6, 1997
between Israel Chemicals, Ltd. and the Registrant.
*10.26 Convertible Secured Note, Option and Warrant Purchase
Agreement dated June 17, 1997 among the Registrant, Tako
Ventures, LLC and, solely as to Sections 5.3 and 5.5 thereof,
Lawrence J. Ellison.
27 Financial Data Schedule - electronic filing only
(b) On July 2, 1997 the Company filed a report on Form 8K dated
June 17, 1997 pertaining to the Convertible Secured Note,
Option and Warrant Purchase Agreement dated June 17, 1997
among the Registrant, Tako Ventures, LLC and solely as to
sections 5.3 and 5.5 thereof, Lawrence J. Ellison.
* Incorporated by reference to the Company's report on Form 8-K filed with
the Securities and Exchange Commission on July 2, 1997. The exhibit listed
is incorporated by reference to Exhibit 99.1 of Registrant's report on
Form 8-K.
14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SuperGen, Inc.
Date August 12, 1997 By /s/ Joseph Rubinfeld
------------------------ ------------------------------
Joseph Rubinfeld, Ph.D.
Chief Executive Officer, President,
Chief Scientific Officer and Director
(Principal Executive Officer)
Date August 12, 1997 By /s/ Henry C. Settle, Jr.
------------------------ ------------------------------
Henry C. Settle, Jr.
Chief Financial Officer
(Principal Financial Officer)
15
<PAGE>
INDEX OF EXHIBITS
The following exhibits are included herein:
10.2 1993 Stock Option Plan, as amended and restated effective
February 3, 1997, and forms of stock option agreements
thereunder.
10.3 1996 Directors' Stock Option Plan, as amended effective
February 3, 1997, and form of stock option agreement
thereunder.
10.14 Common Stock Sale/Repurchase Agreement dated August 6, 1997
between Israel Chemicals, Ltd. and the Registrant.
*10.26 Convertible Secured Note, Option and Warrant Purchase
Agreement dated June 17, 1997 among the Registrant, Tako
Ventures, LLC and, solely as to Sections 5.3 and 5.5 thereof,
Lawrence J. Ellison.
27 Financial Data Schedule - electronic filing only
No reports were filed on Form 8-K during the quarter for which this report is
filed.
* Incorporated by reference to the Company's report on Form 8-K filed with
the Securities and Exchange Commission on July 2, 1997. The exhibit listed
is incorporated by reference to Exhibit 99.1 of Registrant's report on
Form 8-K.
16
<PAGE>
SUPERGEN, INC.
1993 STOCK OPTION PLAN
(AMENDED AND RESTATED EFFECTIVE FEBRUARY 3, 1997)
1. PURPOSES OF THE PLAN. The purposes of this Stock Plan are:
- to attract and retain the best available personnel for positions
of substantial responsibility,
- to provide additional incentive to Employees, Directors and
Consultants, and
- to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at the time of
grant. Stock Purchase Rights may also be granted under the Plan.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ADMINISTRATOR" means the Board or any of its Committees as shall
be administering the Plan, in accordance with Section 4 of the Plan.
(b) "APPLICABLE LAWS" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options or Stock Purchase Rights are,
or will be, granted under the Plan.
(c) "BOARD" means the Board of Directors of the Company.
(d) "CODE" means the Internal Revenue Code of 1986, as amended.
(e) "COMMITTEE" means a Committee appointed by the Board in
accordance with Section 4 of the Plan.
(f) "COMMON STOCK" means the Common Stock of the Company.
(g) "COMPANY" means SuperGen, Inc., a California corporation.
(h) "CONSULTANT" means any person, including an advisor, engaged by
the Company or a Parent or Subsidiary to render services and who is compensated
for such services.
<PAGE>
(i) "CONTINUOUS STATUS AS A DIRECTOR OR CONSULTANT" means that the
employment relationship, directorship or consulting relationship with the
Company, any Parent, or Subsidiary, is not interrupted or terminated.
Continuous Status as a Director or Consultant shall not be considered
interrupted in the case of (i) any leave of absence approved by the Company
or (ii) transfers between locations of the Company or between the Company,
its Parent, any Subsidiary, or any successor. A leave of absence approved by
the Company shall include sick leave, military leave, or any other personal
leave approved by an authorized representative of the Company. For purposes
of Incentive Stock Options, no such leave may exceed ninety days, unless
reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by
the Company is not so guaranteed, on the 181st day of such leave any
Incentive Stock Option held by the Optionee shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option.
(j) "DIRECTOR" means a member of the Board.
(k) "DISABILITY" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(l) "EMPLOYEE" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. Neither
service as a Director nor payment of a director's fee by the Company shall be
sufficient to constitute "employment" by the Company.
(m) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(n) "FAIR MARKET VALUE" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
THE WALL STREET JOURNAL or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the last market trading day prior to the day of
determination, as reported in THE WALL STREET JOURNAL or such other source as
the Administrator deems reliable;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
-2-
<PAGE>
(o) "INCENTIVE STOCK OPTION" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(p) "NONSTATUTORY STOCK OPTION" means an Option not intended to
qualify as an Incentive Stock Option.
(q) "NOTICE OF GRANT" means a written notice evidencing certain terms
and conditions of an individual Option or Stock Purchase Right grant. The
Notice of Grant is part of the Option Agreement.
(r) "OFFICER" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(s) "OPTION" means a stock option granted pursuant to the Plan.
(t) "OPTION AGREEMENT" means a written agreement between the Company
and an Optionee evidencing the terms and conditions of an individual Option
grant. The Option Agreement is subject to the terms and conditions of the Plan.
(u) "OPTION EXCHANGE PROGRAM" means a program whereby outstanding
options are surrendered in exchange for options with a lower exercise price.
(v) "OPTIONED STOCK" means the Common Stock subject to an Option or
Stock Purchase Right.
(w) "OPTIONEE" means an Employee, Director or Consultant who holds an
outstanding Option or Stock Purchase Right.
(x) "PARENT" means a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(y) "PLAN" means this SuperGen, Inc. 1993 Stock Plan.
(z) "RESTRICTED STOCK" means shares of Common Stock acquired pursuant
to a grant of Stock Purchase Rights under Section 11 below.
(aa) "RESTRICTED STOCK PURCHASE AGREEMENT" means a written agreement
between the Company and the Optionee evidencing the terms and restrictions
applying to stock purchased under a Stock Purchase Right. The Restricted Stock
Purchase Agreement is subject to the terms and conditions of the Plan and the
Notice of Grant.
(bb) "RULE 16B-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
-3-
<PAGE>
(cc) "SECTION 16(b)" means Section 16(b) of the Securities Exchange
Act of 1934, as amended.
(dd) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 13 of the Plan.
(ee) "STOCK PURCHASE RIGHT" means the right to purchase Common Stock
pursuant to Section 11 of the Plan, as evidenced by a Notice of Grant.
(ff) "SUBSIDIARY" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 13 of
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 2,500,000 Shares. The Shares may be authorized, but unissued,
or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant to an Option
Exchange Program, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated); PROVIDED, however, that Shares that have actually been issued under
the Plan, whether upon exercise of an Option or Right, shall not be returned to
the Plan and shall not become available for future distribution under the Plan,
except that if Shares of Restricted Stock are repurchased by the Company at
their original purchase price, such Shares shall become available for future
grant under the Plan. For purposes of the preceding sentence, voting rights
shall not be considered a benefit of Share ownership.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE.
(i) MULTIPLE ADMINISTRATIVE BODIES. The Plan may be
administered by different Committees with respect to different groups of
Service Providers.
(ii) SECTION 162(M). To the extent that the Administrator
determines it to be desirable to qualify Options granted hereunder as
"performance-based compensation" within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a Committee of two or more "outside
directors" within the meaning of Section 162(m) of the Code.
(iii) RULE 16B-3. To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3, the transactions
contemplated hereunder shall be structured to satisfy the requirements for
exemption under Rule 16b-3.
-4-
<PAGE>
(iv) OTHER ADMINISTRATION. Other than as provided above, the
Plan shall be administered by (A) the Board or (B) a Committee, which
committee shall be constituted to satisfy Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Plan, and in the case of a Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator shall have the authority, in
its discretion:
(i) to determine the Fair Market Value of the Common Stock,
in accordance with Section 2(n) of the Plan;
(ii) to select the Employees, Directors and Consultants to
whom Options and Stock Purchase Rights may be granted hereunder;
(iii) to determine whether and to what extent Options and Stock
Purchase Rights or any combination thereof, are granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each Option and Stock Purchase Right granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or
times when Options or Stock Purchase Rights may be exercised (which may be
based on performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation regarding any
Option or Stock Purchase Right or the shares of Common Stock relating
thereto, based in each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vii) to reduce the exercise price of any Option or Stock
Purchase Right to the then current Fair Market Value if the Fair Market Value
of the Common Stock covered by such Option or Stock Purchase Right shall have
declined since the date the Option or Stock Purchase Right was granted;
(viii) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan;
(ix) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
-5-
<PAGE>
(x) to modify or amend each Option or Stock Purchase Right
(subject to Section 15(c) of the Plan), including the discretionary authority
to extend the post-termination exercisability period of Options longer than
is otherwise provided for in the Plan;
(xi) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Option or Stock
Purchase Right previously granted by the Administrator;
(xii) to institute an Option Exchange Program;
(xiii) to allow Optionees to satisfy withholding tax
obligations by electing to have the Company withhold from the Shares to be
issued upon exercise of an Option or Stock Purchase Right that number of
Shares having a Fair Market Value equal to the amount required to be
withheld. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be
determined. All elections by an Optionee to have Shares withheld for this
purpose shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable;
(xiv) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. The Administrator's
decisions, determinations and interpretations shall be final and binding on all
Optionees and any other holders of Options or Stock Purchase Rights.
5. ELIGIBILITY. Nonstatutory Stock Options and Stock Purchase Rights may
be granted to Employees, Directors and Consultants. Incentive Stock Options may
be granted only to Employees.
6. LIMITATIONS.
(a) Each Option shall be designated in the written option agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken into account in the order
in which they were granted. The Fair Market Value of the Shares shall be
determined as of the time the Option with respect to such Shares is granted.
(b) Neither the Plan nor any Option or Stock Purchase Right shall
confer upon an Optionee any right with respect to continuing the Optionee's
employment relationship, directorship or consulting relationship with the
Company, nor shall they interfere in any way with the Optionee's right or the
Company's right to terminate such employment relationship, directorship or
consulting relationship at any time, with or without cause.
-6-
<PAGE>
(c) The following limitations shall apply to grants of Options and
Stock Purchase Rights to Employees, Directors and Consultants:
(i) No Employee, Director or Consultant shall be granted, in
any fiscal year of the Company, Options and Stock Purchase Rights to purchase
more than 500,000 Shares.
(ii) In connection with his or her initial service with the
Company, an Employee, Director or Consultant may be granted Options and Stock
Purchase Rights to purchase up to an additional 200,000 Shares which shall
not count against the limit set forth in subsection (i) above.
(iii) The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's capitalization
as described in Section 13.
(iv) If an Option or Stock Purchase Right is cancelled in the
same fiscal year of the Company in which it was granted (other than in
connection with a transaction described in Section 13), the cancelled Option
or Stock Purchase Right will be counted against the limits set forth in
subsections (i) and (ii) above. For this purpose, if the exercise price of
an Option or Stock Purchase Right is reduced, the transaction will be treated
as a cancellation of the Option or Stock Purchase Right and the grant of a
new Option or Stock Purchase Right.
7. TERM OF PLAN. Subject to Section 19 of the Plan, the Plan shall
become effective upon the earlier to occur of its adoption by the Board or its
approval by the shareholders of the Company as described in Section 19 of the
Plan. It shall continue in effect for a term of ten (10) years unless
terminated earlier under Section 15 of the Plan.
8. TERM OF OPTION. The term of each Option shall be stated in the Notice
of Grant; provided, however, that in the case of an Incentive Stock Option, the
term shall be ten (10) years from the date of grant or such shorter term as may
be provided in the Notice of Grant. Moreover, in the case of an Incentive Stock
Option granted to an Optionee who, at the time the Incentive Stock Option is
granted, owns stock representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary, the term of
the Incentive Stock Option shall be five (5) years from the date of grant or
such shorter term as may be provided in the Notice of Grant.
9. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per share exercise price for the Shares to
be issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time the Incentive
Stock Option is granted, owns stock representing more than ten percent (10%) of
the voting power of all classes of
-7-
<PAGE>
stock of the Company or any Parent or Subsidiary, the per Share exercise
price shall be no less than 110% of the Fair Market Value per Share on the
date of grant.
(B) granted to any Employee other than an Employee
described in paragraph (A) immediately above, the per Share exercise price shall
be no less than 100% of the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator. In the case of a
Nonstatutory Stock Option intended to qualify as "performance-based
compensation" within the meaning of Section 162(m) of the Code, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.
(iii) Notwithstanding the foregoing, Options may be granted
with a per Share exercise price of less than 100% of the Fair Market Value
per Share on the date of grant pursuant to a merger or other corporate
transaction.
(b) WAITING PERIOD AND EXERCISE DATES. At the time an Option is
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised. In so doing, the Administrator may specify that an
Option may not be exercised until the completion of a service period.
(c) FORM OF CONSIDERATION. The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the method
of payment. In the case of an Incentive Stock Option, the Administrator shall
determine the acceptable form of consideration at the time of grant. Such
consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which (A) in the case of Shares acquired
upon exercise of an option, have been owned by the Optionee for more than six
months on the date of surrender, and (B) have a Fair Market Value on the date
of surrender equal to the aggregate exercise price of the Shares as to which
said Option shall be exercised;
(v) delivery of a properly executed exercise notice together
with such other documentation as the Administrator and the broker, if
applicable, shall require to effect an exercise of the Option and delivery to
the Company of the sale or loan proceeds required to pay the exercise price;
-8-
<PAGE>
(vi) a reduction in the amount of any Company liability to
the Optionee, including any liability attributable to the Optionee's
participation in any Company-sponsored deferred compensation program or
arrangement;
(vii) any combination of the foregoing methods of payment; or
(viii) such other consideration and method of payment for the
issuance of Shares to the extent permitted by Applicable Laws.
10. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder shall be exercisable according to the terms of the Plan and at
such times and under such conditions as determined by the Administrator and set
forth in the Option Agreement.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives:
(i) written notice of exercise (in accordance with the Option Agreement) from
the person entitled to exercise the Option, and (ii) full payment for the Shares
with respect to which the Option is exercised. Full payment may consist of any
consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of
an Option shall be issued in the name of the Optionee or, if requested by the
Optionee, in the name of the Optionee and his or her spouse. Until the stock
certificate evidencing such Shares is issued (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued) such
stock certificate promptly after the Option is exercised. No adjustment will be
made for a dividend or other right for which the record date is prior to the
date the stock certificate is issued, except as provided in Section 13 of the
Plan.
Exercising an Option in any manner shall decrease the number of
Shares thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised.
(b) TERMINATION OF EMPLOYMENT, CONSULTING RELATIONSHIP OR
DIRECTORSHIP. Upon termination of an Optionee's Continuous Status as an
Employee, Director or Consultant, other than upon the Optionee's death or
Disability, the Optionee may exercise his or her Option, but only within such
period of time as is specified in the Notice of Grant, and only to the extent
that the Optionee was entitled to exercise it at the date of termination (but in
no event later than the expiration of the term of such Option as set forth in
the Notice of Grant). In the absence of a specified time in the Notice of
Grant, the Option shall remain exercisable for three (3) months following the
Optionee's termination. In the case of an Incentive Stock Option, such period
of time for exercise shall not exceed three (3) months from the date of
termination. If, on the date of termination, the Optionee is not entitled to
-9-
<PAGE>
exercise the Optionee's entire Option, the Shares covered by the unexercisable
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified by the
Administrator, the Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.
Notwithstanding the above, in the event of an Optionee's change in
status from Consultant or Director to Employee or Employee or Director to
Consultant, an Optionee's Continuous Status as a Director or Consultant shall
not automatically terminate solely as a result of such change in status.
However, in such event, an Incentive Stock Option held by the Optionee shall
cease to be treated as an Incentive Stock Option and shall be treated for tax
purposes as a Nonstatutory Stock Option three months and one day following such
change of status from an Employee to a Consultant.
(c) DISABILITY OF OPTIONEE. In the event that an Optionee's
Continuous Status as an Employee, Director or Consultant terminates as a result
of the Optionee's Disability, the Optionee may exercise his or her Option at any
time within twelve (12) months from the date of such termination, but only to
the extent that the Optionee was entitled to exercise it at the date of such
termination (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant). If, at the date of termination,
the Optionee is not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
(d) DEATH OF OPTIONEE. In the event of the death of an Optionee, the
Option may be exercised at any time within twelve (12) months following the date
of death (but in no event later than the expiration of the term of such Option
as set forth in the Notice of Grant), by the Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or inheritance, but
only to the extent that the Optionee was entitled to 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 Shares covered by the unexercisable
portion of the Option shall immediately revert to the Plan. If, after death,
the Optionee's estate or a person who acquired the right to exercise the Option
by bequest or inheritance does not exercise the Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) BUYOUT PROVISIONS. The Administrator may at any time offer to
buy out for a payment in cash or Shares, an Option previously granted based on
such terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time that such offer is made.
11. STOCK PURCHASE RIGHTS.
(a) RIGHTS TO PURCHASE. Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall advise the
offeree in writing, by means of a Notice of Grant, of the terms, conditions and
-10-
<PAGE>
restrictions related to the offer, including the number of Shares that the
offeree shall be entitled to purchase, the price to be paid, and the time within
which the offeree must accept such offer, which shall in no event exceed six (6)
months from the date upon which the Administrator made the determination to
grant the Stock Purchase Right. The offer shall be accepted by execution of a
Restricted Stock Purchase Agreement in the form determined by the Administrator.
(b) REPURCHASE OPTION. Unless the Administrator determines
otherwise, the Restricted Stock Purchase Agreement shall grant the Company a
repurchase option exercisable upon the voluntary or involuntary termination of
the purchaser's employment with the Company for any reason (including death or
Disability). The purchase price for Shares repurchased pursuant to the
Restricted Stock purchase agreement shall be the original price paid by the
purchaser and may be paid by cancellation of any indebtedness of the purchaser
to the Company. The repurchase option shall lapse at a rate determined by the
Administrator.
(c) OTHER PROVISIONS. The Restricted Stock Purchase Agreement shall
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion. In
addition, the provisions of Restricted Stock Purchase Agreements need not be the
same with respect to each purchaser.
(d) RIGHTS AS A SHAREHOLDER. Once the Stock Purchase Right is
exercised, the purchaser shall have the rights equivalent to those of a
shareholder, and shall be a shareholder when his or her purchase is entered upon
the records of the duly authorized transfer agent of the Company. No adjustment
will be made for a dividend or other right for which the record date is prior to
the date the Stock Purchase Right is exercised, except as provided in Section 13
of the Plan.
12. NON-TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS. Unless
determined otherwise by the Administrator, an Option or Stock Purchase Right may
not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any
manner other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Optionee, only by the Optionee. If the
Administrator makes an Option or Stock Purchase Right transferable, such Option
or Stock Purchase Right shall contain such additional terms and conditions as
the Administrator deems appropriate.
13. 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 and Stock Purchase Right, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options or Stock Purchase Rights have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an Option or Stock
Purchase Right, as well as the price per share of Common Stock covered by each
such outstanding Option or Stock Purchase Right, 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,
-11-
<PAGE>
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 or Stock Purchase Right.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator 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
Administrator 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.
(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 and Stock Purchase Right shall be
assumed or an equivalent option or right 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 or Stock Purchase Right, the Optionee shall have the right to exercise
the Option or Stock Purchase Right as to all of the Optioned Stock, including
Shares as to which it would not otherwise be exercisable. If an Option or Stock
Purchase Right is exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Administrator shall notify the Optionee that
the Option or Stock Purchase Right shall be fully exercisable for a period of
fifteen (15) days from the date of such notice, and the Option or Stock Purchase
Right shall terminate upon the expiration of such period. For the purposes of
this paragraph, the Option or Stock Purchase Right shall be considered assumed
if, following the merger or sale of assets, the option or right confers the
right to purchase or receive, for each Share of Optioned Stock subject to the
Option or Stock Purchase Right 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 Administrator may, with
the consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Option or Stock Purchase Right, for each Share
of Optioned Stock subject to the Option or Stock Purchase Right, 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-
<PAGE>
14. DATE OF GRANT. The date of grant of an Option or Stock Purchase Right
shall be, for all purposes, the date on which the Administrator makes the
determination granting such Option or Stock Purchase Right, or such other later
date as is determined by the Administrator. Notice of the determination shall
be provided to each Optionee within a reasonable time after the date of such
grant.
15. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time amend,
alter, suspend or terminate the Plan.
(b) SHAREHOLDER APPROVAL. The Company shall obtain shareholder
approval of any Plan amendment to the extent necessary and desirable to comply
with Sections 162(m) or 422 of the Code (or any successor rule or statute or
other applicable law, rule or regulation, including the requirements of any
exchange or quotation system on which the Common Stock is listed or quoted).
Such shareholder approval, if required, shall be obtained in such a manner and
to such a degree as is required by the applicable law, rule or regulation.
(c) EFFECT OF AMENDMENT OR TERMINATION. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
16. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. Shares shall not be issued pursuant to the
exercise of an Option or Stock Purchase Right unless the exercise of such Option
or Stock Purchase Right and the issuance and delivery of such Shares shall
comply with all relevant provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, Applicable Laws, and the requirements of any stock
exchange or quotation system upon which the Shares may then be listed or quoted,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
(b) INVESTMENT REPRESENTATIONS. As a condition to the exercise of an
Option or Stock Purchase Right, the Company may require the person exercising
such Option or Stock Purchase Right to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required.
17. LIABILITY OF COMPANY.
(a) INABILITY TO OBTAIN AUTHORITY. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of
-13-
<PAGE>
any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
(b) GRANTS EXCEEDING ALLOTTED SHARES. If the Optioned Stock covered
by an Option or Stock Purchase Right exceeds, as of the date of grant, the
number of Shares which may be issued under the Plan without additional
shareholder approval, such Option or Stock Purchase Right shall be void with
respect to such excess Optioned Stock, unless shareholder approval of an
amendment sufficiently increasing the number of Shares subject to the Plan is
timely obtained in accordance with Section 15(b) of the Plan.
18. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
19. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the shareholders of the Company within twelve (12) months before
or after the date the Plan is adopted. Such shareholder approval shall be
obtained in the manner and to the degree required under applicable federal
and state law.
-14-
<PAGE>
1993 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
You have been granted an option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as
follows:
Grant Number
Date of Grant
Vesting Commencement Date
Exercise Price per Share
Total Number of Shares Granted
Total Exercise Price
Type of Option: __ Incentive Stock Option
__ Nonstatutory Stock Option
Term/Expiration Date:
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in accordance with the
following schedule:
<PAGE>
TERMINATION PERIOD:
This Option may be exercised for six months after termination of the
Optionee's employment relationship, directorship or consulting relationship with
the Company. Upon the death or Disability of the Optionee, this Option may be
exercised for such longer period as provided in the Plan. In the event of the
Optionee's change in status from Employee or Director to Consultant or
Consultant or Director to Employee, this Option Agreement shall remain in
effect. In no event shall this Option be exercised later than the
Term/Expiration Date as provided above.
II. AGREEMENT
1. GRANT OF OPTION. The Plan Administrator of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee") an option (the "Option") to purchase the number of
Shares, as set forth in the Notice of Grant, at the exercise price per share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the Plan, which is incorporated herein by reference. Subject to
Section 15(c) of the Plan, in the event of a conflict between the terms and
conditions of the Plan and the terms and conditions of this Option Agreement,
the terms and conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended to be an Incentive
Stock Option, to the extent that it exceeds the $100,000 rule of Code Section
422(d) it shall be treated as a Nonstatutory Stock Option ("NSO").
2. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, Disability or other termination of Optionee's employment or
consulting relationship, the exercisability of the Option is governed by the
applicable provisions of the Plan and this Option Agreement.
(b) METHOD OF EXERCISE. This Option is exercisable by delivery of an
exercise notice, in the form attached as Exhibit A (the "Exercise Notice"),
which shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised (the "Exercised Shares"), and
such other representations and agreements as may be required by the Company
pursuant to the provisions of the Plan. The Exercise Notice shall be signed by
the Optionee and shall be delivered in person or by certified mail to the
Secretary of the Company. The Exercise Notice shall be accompanied by payment
of the aggregate Exercise Price as to all Exercised Shares. This Option shall
be deemed to be exercised upon receipt by the Company of such fully executed
Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with all relevant provisions of law
and the requirements of any stock exchange
-2-
<PAGE>
or quotation service upon which the Shares are then listed. Assuming such
compliance, for income tax purposes the Exercised Shares shall be considered
transferred to the Optionee on the date the Option is exercised with respect
to such Exercised Shares.
3. METHOD OF PAYMENT. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash;
(b) check;
(c) delivery of a properly executed exercise notice together with
such other documentation as the Administrator and the broker, if applicable,
shall require to effect an exercise of the Option and delivery to the Company of
the sale or loan proceeds required to pay the exercise price;
(d) surrender of other Shares which (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six (6) months on the date of surrender, AND (ii) have a Fair Market Value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares; or
(e) delivery of Optionee's promissory note (the "Note") in the form
attached hereto as Exhibit C, in the amount of the aggregate Exercise Price of
the Exercised Shares together with the execution and delivery by the Optionee of
the Security Agreement attached hereto as Exhibit B. The Note shall bear
interest at a rate no less than the "applicable federal rate" prescribed under
the Code and its regulations at time of purchase, and shall be secured by a
pledge of the Shares purchased by the Note pursuant to the Security Agreement.
4. 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 the Optionee. The
terms of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. TERM OF OPTION. This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option Agreement.
6. TAX CONSEQUENCES. Some of the federal and California tax consequences
relating to this Option, as of the date of this Option, are set forth below.
THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING
THIS OPTION OR DISPOSING OF THE SHARES.
-3-
<PAGE>
(a) EXERCISING THE OPTION.
(i) NONSTATUTORY STOCK OPTION. The Optionee may incur regular
federal income tax and California income tax liability upon exercise of a NSO.
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 Exercised Shares on the date of exercise over their aggregate Exercise
Price. If the Optionee is an Employee or a former Employee, the Company will be
required to withhold from his or her compensation or collect from Optionee and
pay to the applicable taxing authorities an amount in cash equal to a percentage
of this compensation income at the time of exercise, and may refuse to honor the
exercise and refuse to deliver Shares if such withholding amounts are not
delivered at the time of exercise.
(ii) INCENTIVE STOCK OPTION. If this Option qualifies as an ISO,
the Optionee will have no regular federal income tax or California income tax
liability upon its exercise, although the excess, if any, of the Fair Market
Value of the Exercised Shares on the date of exercise over their aggregate
Exercise Price will be treated as an adjustment to alternative minimum taxable
income for federal tax purposes and may subject the Optionee to alternative
minimum tax in the year of exercise. In the event that the Optionee undergoes a
change of status from Employee to Consultant, any Incentive Stock Option of the
Optionee that remains unexercised shall cease to qualify as an Incentive Stock
Option and will be treated for tax purposes as a Nonstatutory Stock Option on
the ninety-first (91st) day following such change of status.
(b) DISPOSITION OF SHARES.
(i) NSO. If the Optionee holds NSO Shares for at least one
year, any gain realized on disposition of the Shares will be treated as
long-term capital gain for federal income tax purposes.
(ii) ISO. If the Optionee holds ISO Shares for at least one
year after exercise and two years after the grant date, any gain realized on
disposition of the Shares will be treated as long-term capital gain for
federal income tax purposes. If the Optionee disposes of ISO Shares within
one year after exercise or two years after the grant date, any gain realized
on such disposition will be treated as compensation income (taxable at
ordinary income rates) to the extent of the excess, if any, of the lesser of
(A) the difference between the Fair Market Value of the Shares acquired on
the date of exercise and the aggregate Exercise Price, or (B) the difference
between the sale price of such Shares and the aggregate Exercise Price.
(c) NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If the
Optionee sells or otherwise disposes of any of the Shares acquired pursuant
to an ISO on or before the later of (i) two years after the grant date, or
(ii) one year after the exercise date, the Optionee shall immediately notify
the Company in writing of such disposition. The Optionee agrees that he or
she may be subject to income tax withholding by the Company on the
compensation income recognized from such early disposition of ISO Shares by
payment in cash or out of the current earnings paid to the Optionee.
-4-
<PAGE>
7. ENTIRE AGREEMENT; GOVERNING LAW. The Plan is incorporated herein by
reference. The Plan and this Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and may not
be modified adversely to the Optionee's interest except by means of a writing
signed by the Company and Optionee. This agreement is governed by California
law except for that body of law pertaining to conflict of laws.
By your signature and the signature of the Company's representative
below, you and the Company agree that this Option is granted under and
governed by the terms and conditions of the Plan and this Option Agreement.
Optionee has reviewed the Plan and this Option Agreement in their entirety,
has had an opportunity to obtain the advice of counsel prior to executing
this Option Agreement and fully understands all provisions of the Plan and
Option Agreement. Optionee hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement. Optionee further agrees
to notify the Company upon any change in the residence address indicated
below.
OPTIONEE: SUPERGEN, INC.
____________________________________ By:____________________________________
Signature
____________________________________ Title:_________________________________
Print Name
____________________________________
Residence Address
____________________________________
-5-
<PAGE>
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby approves the terms
and conditions of the Plan and this Option Agreement. In consideration of the
Company's granting his or her spouse the right to purchase Shares as set forth
in the Plan and this Option Agreement, the undersigned hereby agrees to be
irrevocably bound by the terms and conditions of the Plan and this Option
Agreement and further agrees that any community property interest shall be
similarly bound. The undersigned hereby appoints the undersigned's spouse as
attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Option Agreement.
_______________________________________
Spouse of Optionee
-6-
<PAGE>
EXHIBIT A
1993 STOCK OPTION PLAN
EXERCISE NOTICE
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, CA 94583
Attention: Secretary
1. EXERCISE OF OPTION. Effective as of today, ________________, 199__,
the undersigned ("Purchaser") hereby elects to purchase ______________ shares
(the "Shares") of the Common Stock of SuperGen, Inc. (the "Company") under
and pursuant to the 1993 Stock Option Plan (the "Plan") and the Stock Option
Agreement dated ____________, 19___ (the "Option Agreement"). The purchase
price for the Shares shall be $___________, as required by the Option
Agreement.
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the Company the
full purchase price for the Shares.
3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that Purchaser
has received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. RIGHTS AS SHAREHOLDER. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such
Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. A share certificate for the number of Shares so
acquired shall be issued to the Optionee as soon as practicable after
exercise of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued, except as provided in Section 13 of the Plan.
5. TAX CONSULTATION. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition
of the Shares. Purchaser represents that Purchaser has consulted with any
tax consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company
for any tax advice.
<PAGE>
6. ENTIRE AGREEMENT; GOVERNING LAW. The Plan and Option Agreement are
incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser's interest except by
means of a writing signed by the Company and Purchaser. This agreement is
governed by California law except for that body of law pertaining to conflict of
laws.
Submitted by: Accepted by:
PURCHASER: SUPERGEN, INC.
__________________________________ By: _________________________________
Signature
__________________________________ Its: ________________________________
Print Name
ADDRESS: ADDRESS:
___________________________ Two Annabel Lane, Suite 220
___________________________ San Ramon, California 94583
-2-
<PAGE>
EXHIBIT B
SECURITY AGREEMENT
This Security Agreement is made as of __________, 19___ between SuperGen,
Inc., a California corporation ("Pledgee"), and _________________________
("Pledgor").
RECITALS
Pursuant to Pledgor's election to purchase Shares under the Option
Agreement dated ________ (the "Option"), between Pledgor and Pledgee under
Pledgee's 1993 Stock Option Plan, and Pledgor's election under the terms of
the Option to pay for such shares with his promissory note (the "Note"),
Pledgor has purchased _________ shares of Pledgee's Common Stock (the
"Shares") at a price of $________ per share, for a total purchase price of
$__________. The Note and the obligations thereunder are as set forth in
Exhibit C to the Option.
NOW, THEREFORE, it is agreed as follows:
1. CREATION AND DESCRIPTION OF SECURITY INTEREST. In consideration of
the transfer of the Shares to Pledgor under the Option Agreement, Pledgor,
pursuant to the California Commercial Code, hereby pledges all of such Shares
(herein sometimes referred to as the "Collateral") represented by certificate
number ______, duly endorsed in blank or with executed stock powers, and
herewith delivers said certificate to the Secretary of Pledgee
("Pledgeholder"), who shall hold said certificate subject to the terms and
conditions of this Security Agreement.
The pledged stock (together with an executed blank stock assignment for
use in transferring all or a portion of the Shares to Pledgee if, as and when
required pursuant to this Security Agreement) shall be held by the
Pledgeholder as security for the repayment of the Note, and any extensions or
renewals thereof, to be executed by Pledgor pursuant to the terms of the
Option, and the Pledgeholder shall not encumber or dispose of such Shares
except in accordance with the provisions of this Security Agreement.
2. PLEDGOR'S REPRESENTATIONS AND COVENANTS. To induce Pledgee to enter
into this Security Agreement, Pledgor represents and covenants to Pledgee,
its successors and assigns, as follows:
a. PAYMENT OF INDEBTEDNESS. Pledgor will pay the principal sum of
the Note secured hereby, together with interest thereon, at the time and in
the manner provided in the Note.
b. ENCUMBRANCES. The Shares are free of all other encumbrances,
defenses and liens, and Pledgor will not further encumber the Shares without
the prior written consent of Pledgee.
<PAGE>
c. MARGIN REGULATIONS. In the event that Pledgee's Common Stock
is now or later becomes margin-listed by the Federal Reserve Board and
Pledgee is classified as a "lender" within the meaning of the regulations
under Part 207 of Title 12 of the Code of Federal Regulations ("Regulation
G"), Pledgor agrees to cooperate with Pledgee in making any amendments to the
Note or providing any additional collateral as may be necessary to comply
with such regulations.
3. VOTING RIGHTS. During the term of this pledge and so long as all
payments of principal and interest are made as they become due under the
terms of the Note, Pledgor shall have the right to vote all of the Shares
pledged hereunder.
4. STOCK ADJUSTMENTS. In the event that during the term of the pledge
any stock dividend, reclassification, readjustment or other changes are
declared or made in the capital structure of Pledgee, all new, substituted
and additional shares or other securities issued by reason of any such change
shall be delivered to and held by the Pledgee under the terms of this
Security Agreement in the same manner as the Shares originally pledged
hereunder. In the event of substitution of such securities, Pledgor, Pledgee
and Pledgeholder shall cooperate and execute such documents as are reasonable
so as to provide for the substitution of such Collateral and, upon such
substitution, references to "Shares" in this Security Agreement shall include
the substituted shares of capital stock of Pledgor as a result thereof.
5. OPTIONS AND RIGHTS. In the event that, during the term of this
pledge, subscription Options or other rights or options shall be issued in
connection with the pledged Shares, such rights, Options and options shall be
the property of Pledgor and, if exercised by Pledgor, all new stock or other
securities so acquired by Pledgor as it relates to the pledged Shares then
held by Pledgeholder shall be immediately delivered to Pledgeholder, to be
held under the terms of this Security Agreement in the same manner as the
Shares pledged.
6. DEFAULT. Pledgor shall be deemed to be in default of the Note and
of this Security Agreement in the event:
a. Payment of principal or interest on the Note shall be
delinquent for a period of 10 days or more; or
b. Pledgor fails to perform any of the covenants set forth in the
Option or contained in this Security Agreement for a period of 10 days after
written notice thereof from Pledgee.
In the case of an event of Default, as set forth above, Pledgee shall
have the right to accelerate payment of the Note upon notice to Pledgor, and
Pledgee shall thereafter be entitled to pursue its remedies under the
California Commercial Code.
7. RELEASE OF COLLATERAL. Subject to any applicable contrary rules
under Regulation G, there shall be released from this pledge a portion of the
pledged Shares held by Pledgeholder hereunder upon payments of the principal
of the Note. The number of the pledged Shares which shall be released shall
be that number of full Shares which bears the same proportion to the initial
number of
-2-
<PAGE>
Shares pledged hereunder as the payment of principal bears to the initial full
principal amount of the Note.
8. WITHDRAWAL OR SUBSTITUTION OF COLLATERAL. Pledgor shall not sell,
withdraw, pledge, substitute or otherwise dispose of all or any part of the
Collateral without the prior written consent of Pledgee.
9. TERM. The within pledge of Shares shall continue until the payment of
all indebtedness secured hereby, at which time the remaining pledged stock shall
be promptly delivered to Pledgor, subject to the provisions for prior release of
a portion of the Collateral as provided in paragraph 7 above.
10. INSOLVENCY. Pledgor agrees that if a bankruptcy or insolvency
proceeding is instituted by or against it, or if a receiver is appointed for the
property of Pledgor, or if Pledgor makes an assignment for the benefit of
creditors, the entire amount unpaid on the Note shall become immediately due and
payable, and Pledgee may proceed as provided in the case of default.
11. PLEDGEHOLDER LIABILITY. In the absence of willful or gross
negligence, Pledgeholder shall not be liable to any party for any of his acts,
or omissions to act, as Pledgeholder.
12. INVALIDITY OF PARTICULAR PROVISIONS. Pledgor and Pledgee agree that
the enforceability or invalidity of any provision or provisions of this Security
Agreement shall not render any other provision or provisions herein contained
unenforceable or invalid.
13. SUCCESSORS OR ASSIGNS. Pledgor and Pledgee agree that all of the
terms of this Security Agreement shall be binding on their respective successors
and assigns, and that the term "Pledgor" and the term "Pledgee" as used herein
shall be deemed to include, for all purposes, the respective designees,
successors, assigns, heirs, executors and administrators.
14. GOVERNING LAW. This Security Agreement shall be interpreted and
governed under the laws of the State of California.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"PLEDGOR" By: _________________________________
_____________________________________
Print Name
Address: _____________________________________
_____________________________________
"PLEDGEE" SUPERGEN, INC.,
a California corporation
By: _____________________________________
Title: _____________________________________
"PLEDGEHOLDER" _____________________________________________
Secretary of
SuperGen, Inc.
-4-
<PAGE>
EXHIBIT C
NOTE
$_______________ [City, State]
______________, 19___
FOR VALUE RECEIVED, _______________ promises to pay to SuperGen, Inc., a
California corporation (the "Company"), or order, the principal sum of
_______________________ ($_____________), together with interest on the
unpaid principal hereof from the date hereof at the rate of _______________
percent (____%) per annum, compounded semiannually.
Principal and interest shall be due and payable on __________, 19___.
Should the undersigned fail to make full payment of principal or interest for
a period of 10 days or more after the due date thereof, the whole unpaid
balance on this Note of principal and interest shall become immediately due
at the option of the holder of this Note. Payments of principal and interest
shall be made in lawful money of the United States of America.
The undersigned may at any time prepay all or any portion of the
principal or interest owing hereunder.
This Note is subject to the terms of the Option, dated as of
________________. This Note is secured in part by a pledge of the Company's
Common Stock under the terms of a Security Agreement of even date herewith
and is subject to all the provisions thereof.
The holder of this Note shall have full recourse against the undersigned,
and shall not be required to proceed against the collateral securing this
Note in the event of default.
In the event the undersigned shall cease to be a Director or Consultant
of the Company for any reason, this Note shall, at the option of the Company,
be accelerated, and the whole unpaid balance on this Note of principal and
accrued interest shall be immediately due and payable.
Should any action be instituted for the collection of this Note, the
reasonable costs and attorneys' fees therein of the holder shall be paid by
the undersigned.
____________________________________
____________________________________
<PAGE>
1993 STOCK OPTION PLAN
NOTICE OF GRANT OF STOCK PURCHASE RIGHT
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Notice of Grant.
[Grantee's Name and Address]
You have been granted the right to purchase Common Stock of the Company,
subject to the Company's Repurchase Option and your ongoing Continuous Status as
a Director or Consultant (as described in the Plan and the attached Restricted
Stock Purchase Agreement), as follows:
Grant Number _________________________
Date of Grant _________________________
Price Per Share $________________________
Total Number of Shares Subject _________________________
to This Stock Purchase Right
Expiration Date: _________________________
YOU MUST EXERCISE THIS STOCK PURCHASE RIGHT BEFORE THE EXPIRATION DATE OR
IT WILL TERMINATE AND YOU WILL HAVE NO FURTHER RIGHT TO PURCHASE THE SHARES.
By your signature and the signature of the Company's representative below,
you and the Company agree that this Stock Purchase Right is granted under and
governed by the terms and conditions of the 1993 Stock Option Plan and the
Restricted Stock Purchase Agreement, attached hereto as Exhibit A-1, both of
which are made a part of this document. You further agree to execute the
attached Restricted Stock Purchase Agreement as a condition to purchasing any
shares under this Stock Purchase Right.
GRANTEE: SUPERGEN, INC.
___________________________ By: ______________________________
Signature
___________________________ Title: ______________________________
Print Name
<PAGE>
EXHIBIT A-1
1993 STOCK OPTION PLAN
RESTRICTED STOCK PURCHASE AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Restricted Stock Purchase Agreement.
WHEREAS the Purchaser named in the Notice of Grant, (the "Purchaser") is
a Director or Consultant of the Company, and the Purchaser's continued
participation is considered by the Company to be important for the Company's
continued growth; and
WHEREAS in order to give the Purchaser an opportunity to acquire an
equity interest in the Company as an incentive for the Purchaser to
participate in the affairs of the Company, the Administrator has granted to
the Purchaser a Stock Purchase Right subject to the terms and conditions of
the Plan and the Notice of Grant, which are incorporated herein by reference,
and pursuant to this Restricted Stock Purchase Agreement (the "Agreement").
NOW THEREFORE, the parties agree as follows:
1. SALE OF STOCK. The Company hereby agrees to sell to the Purchaser
and the Purchaser hereby agrees to purchase shares of the Company's Common
Stock (the "Shares"), at the per Share purchase price and as otherwise
described in the Notice of Grant.
2. PAYMENT OF PURCHASE PRICE. The purchase price for the Shares may be
paid by delivery to the Company at the time of execution of this Agreement of
cash, a check, or some combination thereof.
3. REPURCHASE OPTION.
(a) In the event the Purchaser's Continuous Status as a Director or
Consultant terminates for any or no reason (including death or disability)
before all of the Shares are released from the Company's Repurchase Option (see
Section 4), the Company shall, upon the date of such termination (as reasonably
fixed and determined by the Company) have an irrevocable, exclusive option (the
"Repurchase Option") for a period of sixty (60) days from such date to
repurchase up to that number of shares which constitute the Unreleased Shares
(as defined in Section 4) at the original purchase price per share (the
"Repurchase Price"). The Repurchase Option shall be exercised by the Company by
delivering written notice to the Purchaser or the Purchaser's executor (with a
copy to the Escrow Holder) AND, at the Company's option, (i) by delivering to
the Purchaser or the Purchaser's executor a check in the amount of the aggregate
Repurchase Price, or (ii) by canceling an amount of the Purchaser's indebtedness
to the Company equal to the aggregate Repurchase Price, or (iii) by a
combination of (i) and (ii) so that the combined payment and cancellation of
indebtedness equals the aggregate Repurchase Price. Upon delivery of such
notice and the payment of the aggregate Repurchase Price, the Company shall
become the legal and beneficial owner of the Shares being
<PAGE>
repurchased and all rights and interests therein or relating thereto, and the
Company shall have the right to retain and transfer to its own name the
number of Shares being repurchased by the Company.
(b) Whenever the Company shall have the right to repurchase Shares
hereunder, the Company may designate and assign one or more employees,
officers, directors or shareholders of the Company or other persons or
organizations to exercise all or a part of the Company's purchase rights
under this Agreement and purchase all or a part of such Shares. If the Fair
Market Value of the Shares to be repurchased on the date of such designation
or assignment (the "Repurchase FMV") exceeds the aggregate Repurchase Price
of such Shares, then each such designee or assignee shall pay the Company
cash equal to the difference between the Repurchase FMV and the aggregate
Repurchase Price of such Shares.
4. RELEASE OF SHARES FROM REPURCHASE OPTION.
(a) _______________________ percent (______%) of the Shares shall
be released from the Company's Repurchase Option [ONE YEAR] after the
Date of Grant and __________________ percent (______%) of the Shares
[AT THE END OF EACH MONTH THEREAFTER], provided that the Purchaser's
Continuous Status as a Director or Consultant has not terminated prior to the
date of any such release.
(b) Any of the Shares that have not yet been released from the
Repurchase Option are referred to herein as "Unreleased Shares."
(c) The Shares that have been released from the Repurchase Option
shall be delivered to the Purchaser at the Purchaser's request (see Section
6).
5. RESTRICTION ON TRANSFER. Except for the escrow described in Section
6 or the transfer of the Shares to the Company or its assignees contemplated
by this Agreement, none of the Shares or any beneficial interest therein
shall be transferred, encumbered or otherwise disposed of in any way until
such Shares are released from the Company's Repurchase Option in accordance
with the provisions of this Agreement, other than by will or the laws of
descent and distribution.
6. ESCROW OF SHARES.
(a) To ensure the availability for delivery of the Purchaser's
Unreleased Shares upon repurchase by the Company pursuant to the Repurchase
Option, the Purchaser shall, upon execution of this Agreement, deliver and
deposit with an escrow holder designated by the Company (the "Escrow Holder")
the share certificates representing the Unreleased Shares, together with the
stock assignment duly endorsed in blank, attached hereto as Exhibit A-2. The
Unreleased Shares and stock assignment shall be held by the Escrow Holder,
pursuant to the Joint Escrow Instructions of the Company and Purchaser
attached hereto as Exhibit A-3, until such time as the Company's Repurchase
Option expires. As a further condition to the Company's obligations under
this Agreement, the Company may require the spouse of Purchaser, if any, to
execute and deliver to the Company the Consent of Spouse attached hereto as
Exhibit A-4.
-2-
<PAGE>
(b) The Escrow Holder shall not be liable for any act it may do or
omit to do with respect to holding the Unreleased Shares in escrow while
acting in good faith and in the exercise of its judgment.
(c) If the Company or any assignee exercises the Repurchase Option
hereunder, the Escrow Holder, upon receipt of written notice of such exercise
from the proposed transferee, shall take all steps necessary to accomplish
such transfer.
(d) When the Repurchase Option has been exercised or expires
unexercised or a portion of the Shares has been released from the Repurchase
Option, upon request the Escrow Holder shall promptly cause a new certificate
to be issued for the released Shares and shall deliver the certificate to the
Company or the Purchaser, as the case may be.
(e) Subject to the terms hereof, the Purchaser shall have all the
rights of a shareholder with respect to the Shares while they are held in
escrow, including without limitation, the right to vote the Shares and to
receive any cash dividends declared thereon. If, from time to time during
the term of the Repurchase Option, there is (i) any stock dividend, stock
split or other change in the Shares, or (ii) any merger or sale of all or
substantially all of the assets or other acquisition of the Company, any and
all new, substituted or additional securities to which the Purchaser is
entitled by reason of the Purchaser's ownership of the Shares shall be
immediately subject to this escrow, deposited with the Escrow Holder and
included thereafter as "Shares" for purposes of this Agreement and the
Repurchase Option.
7. LEGENDS. The share certificate evidencing the Shares issued
hereunder shall be endorsed with the following legend (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY.
8. ADJUSTMENT FOR STOCK SPLIT. All references to the number of Shares
and the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
9. TAX CONSEQUENCES. The Purchaser has reviewed with the Purchaser's
own tax advisors the federal, state, local and foreign tax consequences of
this investment and the transactions contemplated by this Agreement. The
Purchaser is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Purchaser
understands that the Purchaser (and not the Company) shall be responsible for
the Purchaser's own tax liability that may arise as a result of the
transactions contemplated by this Agreement. The Purchaser understands that
Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"),
taxes as ordinary income the difference between the purchase price for the
Shares and the Fair Market Value of the
-3-
<PAGE>
Shares as of the date any restrictions on the Shares lapse. In this context,
"restriction" includes the right of the Company to buy back the Shares
pursuant to the Repurchase Option. The Purchaser understands that the
Purchaser may elect to be taxed at the time the Shares are purchased rather
than when and as the Repurchase Option expires by filing an election under
Section 83(b) of the Code with the IRS within 30 days from the date of
purchase. The form for making this election is attached as Exhibit A-5
hereto.
THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER
SECTION 83(b), EVEN IF THE PURCHASER REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON THE PURCHASER'S BEHALF.
10. GENERAL PROVISIONS.
(a) This Agreement shall be governed by the laws of the State of
California. This Agreement, subject to the terms and conditions of the Plan
and the Notice of Grant, represents the entire agreement between the parties
with respect to the purchase of the Shares by the Purchaser. Subject to
Section 15(c) of the Plan, in the event of a conflict between the terms and
conditions of the Plan and the terms and conditions of this Agreement, the
terms and conditions of the Plan shall prevail. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in
this Agreement.
(b) Any notice, demand or request required or permitted to be given
by either the Company or the Purchaser pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when delivered
personally or deposited in the U.S. mail, First Class with postage prepaid,
and addressed to the parties at the addresses of the parties set forth at the
end of this Agreement or such other address as a party may request by
notifying the other in writing.
Any notice to the Escrow Holder shall be sent to the Company's
address with a copy to the other party hereto.
(c) The rights of the Company under this Agreement shall be
transferable to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of, and be enforceable by the
Company's successors and assigns. The rights and obligations of the
Purchaser under this Agreement may only be assigned with the prior written
consent of the Company.
(d) Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such
provision, nor prevent that party from thereafter enforcing any other
provision of this Agreement. The rights granted both parties hereunder are
cumulative and shall not constitute a waiver of either party's right to
assert any other legal remedy available to it.
(e) The Purchaser agrees upon request to execute any further
documents or instruments necessary or desirable to carry out the purposes or
intent of this Agreement.
-4-
<PAGE>
(f) PURCHASER ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES
PURSUANT TO SECTION 4 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS A
DIRECTOR OR CONSULTANT AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF
BEING HIRED OR PURCHASING SHARES HEREUNDER). PURCHASER FURTHER ACKNOWLEDGES
AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND
THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED
PROMISE OF CONTINUED ENGAGEMENT AS A DIRECTOR OR CONSULTANT FOR THE VESTING
PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH PURCHASER'S
RIGHT OR THE COMPANY'S RIGHT TO TERMINATE PURCHASER'S EMPLOYMENT OR
CONSULTING RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE.
By Purchaser's signature below, Purchaser represents that he or she is
familiar with the terms and provisions of the Plan, and hereby accepts this
Agreement subject to all of the terms and provisions thereof. Purchaser has
reviewed the Plan and this Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Agreement
and fully understands all provisions of this Agreement. Purchaser agrees to
accept as binding, conclusive and final all decisions or interpretations of
the Administrator upon any questions arising under the Plan or this
Agreement. Purchaser further agrees to notify the Company upon any change in
the residence indicated in the Notice of Grant.
DATED: _____________________
PURCHASER: SUPERGEN, INC.
______________________________ By:____________________________
Signature
______________________________ Title:_________________________
Print Name
-5-
<PAGE>
EXHIBIT A-2
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, __________________________, hereby sell, assign and
transfer unto ____________________________________________________________
__________________________ (__________) shares of the Common Stock of
SuperGen, Inc. standing in my name of the books of said corporation
represented by Certificate No. _____ herewith and do hereby irrevocably
constitute and appoint ________________________________________ to transfer
the said stock on the books of the within named corporation with full power
of substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted
Stock Purchase Agreement (the "Agreement") between________________________
and the undersigned dated ______________, 19__.
Dated: _______________, 19__
Signature:______________________________
INSTRUCTIONS: Please do not fill in any blanks other than the signature
line. The purpose of this assignment is to enable the Company to exercise the
Repurchase Option, as set forth in the Agreement, without requiring
additional signatures on the part of the Purchaser.
<PAGE>
EXHIBIT A-3
JOINT ESCROW INSTRUCTIONS
_______________, 19__
Corporate Secretary
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, California 94583
Dear _________________:
As Escrow Agent for both SuperGen, Inc., a California corporation (the
"Company"), and the undersigned purchaser of stock of the Company (the
"Purchaser"), you are hereby authorized and directed to hold the documents
delivered to you pursuant to the terms of that certain Restricted Stock
Purchase Agreement ("Agreement") between the Company and the undersigned, in
accordance with the following instructions:
1. In the event the Company and/or any assignee of the Company
(referred to collectively as the "Company") exercises the Company's
Repurchase Option set forth in the Agreement, the Company shall give to
Purchaser and you a written notice specifying the number of shares of stock
to be purchased, the purchase price, and the time for a closing hereunder at
the principal office of the Company. Purchaser and the Company hereby
irrevocably authorize and direct you to close the transaction contemplated by
such notice in accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Company or its
assignee, against the simultaneous delivery to you of the purchase price (by
cash, a check, or some combination thereof) for the number of shares of stock
being purchased pursuant to the exercise of the Company's Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as defined in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as Purchaser's
attorney-in-fact and agent for the term of this escrow to execute with
respect to such securities all documents necessary or appropriate to make
such securities negotiable and to complete any transaction herein
contemplated, including but not limited to the filing with any applicable
state blue sky authority of any required applications for consent to, or
notice of transfer of, the securities. Subject to the provisions of this
paragraph 3, Purchaser shall exercise all rights and privileges of a
shareholder of the Company while the stock is held by you.
<PAGE>
4. Upon written request of the Purchaser, but no more than once per
calendar year, unless the Company's Repurchase Option has been exercised, you
shall deliver to Purchaser a certificate or certificates representing so many
shares of stock as are not then subject to the Company's Repurchase Option.
Within 90 days after cessation of Purchaser's continuous employment by or
services to the Company, or any parent or subsidiary of the Company, you
shall deliver to Purchaser a certificate or certificates representing the
aggregate number of shares held or issued pursuant to the Agreement and not
purchased by the Company or its assignees pursuant to exercise of the
Company's Repurchase Option.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to
Purchaser, you shall deliver all of the same to Purchaser and shall be
discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in
relying or refraining from acting on any instrument reasonably believed by
you to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to
do hereunder as Escrow Agent or as attorney-in-fact for Purchaser while
acting in good faith, and any act done or omitted by you pursuant to the
advice of your own attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law, and are
hereby expressly authorized to comply with and obey orders, judgments or
decrees of any court. In case you obey or comply with any such order,
judgment or decree, you shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such compliance,
notwithstanding any such order, judgment or decree being subsequently
reversed, modified, annulled, set aside, vacated or found to have been
entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or
called for hereunder.
10. You shall not be liable for the outlawing of any rights under the
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel and other experts
as you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor.
-2-
<PAGE>
12. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be an officer or agent of the Company or if you shall
resign by written notice to each party. In the event of any such
termination, the Company shall appoint a successor Escrow Agent.
13. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain
in your possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by mutual
written agreement of the parties concerned or by a final order, decree or
judgment of a court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but you shall be under no duty
whatsoever to institute or defend any such proceedings.
15. 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 Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties thereunto
entitled at the following addresses or at such other addresses as a party may
designate by ten days' advance written notice to each of the other parties
hereto.
COMPANY: SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, California 94583
PURCHASER: ____________________________
____________________________
____________________________
ESCROW AGENT: Corporate Secretary
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, California 94583
16. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
-3-
<PAGE>
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
18. These Joint Escrow Instructions shall be governed by, and construed
and enforced in accordance with, the laws of the State of California.
Very truly yours,
SUPERGEN, INC.
By: _____________________________________
Title: ___________________________________
PURCHASER:
_____________________________________
(Signature)
_____________________________________
(Typed or Printed Name)
ESCROW AGENT:
_____________________________________
Corporate Secretary
-4-
<PAGE>
EXHIBIT A-4
CONSENT OF SPOUSE
I, ____________________, spouse of ___________________, have read and
approve the foregoing Restricted Stock Purchase Agreement (the "Agreement").
In consideration of the Company's grant to my spouse of the right to purchase
shares of SuperGen, Inc., as set forth in the Agreement, I hereby appoint my
spouse as my attorney-in-fact in respect to the exercise of any rights under
the Agreement and agree to be bound by the provisions of the Agreement
insofar as I may have any rights in said Agreement or any shares issued
pursuant thereto under the community property laws or similar laws relating
to marital property in effect in the state of our residence as of the date of
the signing of the foregoing Agreement.
Dated: _______________, 19__
__________________________________________
Signature of Spouse
<PAGE>
EXHIBIT A-5
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income
for the current taxable year the amount of any compensation taxable to taxpayer
in connection with his or her receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER: SPOUSE:
ADDRESS:
IDENTIFICATION NO.: TAXPAYER: SPOUSE:
TAXABLE YEAR:
2. The property with respect to which the election is made is described as
follows: __________ shares (the "Shares") of the Common Stock of SuperGen,
Inc. (the "Company").
3. The date on which the property was transferred is: _____________, 19__.
4. The property is subject to the following restrictions:
The Shares may be repurchased by the Company, or its assignee, upon certain
events. This right lapses with regard to a portion of the Shares based on
the continued performance of services by the taxpayer over time.
5. The fair market value at the time of transfer, determined without regard to
any restriction other than a restriction which by its terms will never
lapse, of such property is:
$_______________.
6. The amount (if any) paid for such property is:
$_______________.
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of
the above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
THE UNDERSIGNED UNDERSTANDS THAT THE FOREGOING ELECTION MAY NOT BE REVOKED
EXCEPT WITH THE CONSENT OF THE COMMISSIONER.
Dated: ______________, 19____ _______________________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: ______________, 19____ _______________________________________
Spouse of Taxpayer
<PAGE>
SUPERGEN, INC.
1996 DIRECTORS' STOCK OPTION PLAN
(AS AMENDED EFFECTIVE FEBRUARY 3, 1997)
1. PURPOSES OF THE PLAN. The purposes of this 1996 Directors' Stock
Option Plan are to attract and retain the best available personnel for service
as Outside Directors (as defined herein) of the Company, to provide additional
incentive to the Outside Directors of the Company to serve as Directors, and to
encourage their continued service on the Board.
All options granted hereunder shall be nonstatutory stock options.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986, as amended.
(c) "COMMON STOCK" means the Common Stock of the Company.
(d) "COMPANY" means SuperGen, Inc., a California corporation.
(e) "DIRECTOR" means a member of the Board.
(f) "EMPLOYEE" means any person, including officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. The payment
of a Director's fee by the Company shall not be sufficient in and of itself to
constitute "employment" by the Company.
(g) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(h) "FAIR MARKET VALUE" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
THE WALL STREET JOURNAL or such other source as the Administrator deems
reliable;
<PAGE>
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the date of determination, as reported in THE
WALL STREET JOURNAL or such other source as the Board deems reliable, or;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Board.
(i) "INSIDE DIRECTOR" means a Director who is an Employee.
(j) "OPTION" means a nonstatutory stock option granted pursuant to
the Plan.
(k) "OPTIONED STOCK" means the Common Stock subject to an Option.
(l) "OPTIONEE" means a Director who holds an Option.
(m) "OUTSIDE DIRECTOR" means a Director who is not an Employee;
provided, however, that no Director who is a representative of or affiliated
with Israel Chemicals, Ltd. shall be eligible to participate and receive options
under the Plan; provided, further, that neither J. Gregory Swendsen nor David M.
Fineman shall be eligible to participate and receive options under the Plan.
(n) "PARENT" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(o) "PLAN" means this 1996 Directors' Stock Option Plan.
(p) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 10 of the Plan.
(q) "SUBSIDIARY" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Internal Revenue Code of
1986.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 10 of
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 250,000 Shares of Common Stock (the "Pool"). The Shares may
be authorized, but unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan has
terminated). Shares that have actually been issued under the Plan shall not be
returned to the Plan and shall not become available for future distribution
under the Plan.
-2-
<PAGE>
4. ADMINISTRATION AND GRANTS OF OPTIONS UNDER THE PLAN.
(a) PROCEDURE FOR GRANTS. All grants of Options to Outside Directors
under this Plan shall be automatic and nondiscretionary and shall be made
strictly in accordance with the following provisions:
(i) No person shall have any discretion to select which Outside
Directors shall be granted Options or to determine the number of Shares to be
covered by Options granted to Outside Directors.
(ii) Each Outside Director shall be automatically granted an
Option to purchase 50,000 Shares on the date on which the later of the following
events occurs: (A) the effective date of this Plan, as determined in accordance
with Section 6 hereof, or (B) the date on which such person first becomes an
Outside Director, whether through election by the shareholders of the Company or
appointment by the Board to fill a vacancy; provided, however, that an Inside
Director who ceases to be an Inside Director but who remains a Director shall
not receive a Option.
(iii) Notwithstanding the provisions of subsection (ii) hereof,
any exercise of an Option granted before the Company has obtained shareholder
approval of the Plan in accordance with Section 16 hereof shall be
conditioned upon obtaining such shareholder approval of the Plan in
accordance with Section 16 hereof.
(iv) The terms of each Option granted hereunder shall be as
follows:
(A) the term of the Option shall be ten (10) years.
(B) the Option shall be exercisable only while the Outside
Director remains a Director of the Company, except as set forth in Sections 8
and 10 hereof.
(C) the exercise price per Share shall be 100% of the Fair
Market Value per Share on the date of grant of the Option. In the event that
the date of grant of the Option is not a trading day, the exercise price per
Share shall be the Fair Market Value on the next trading day immediately
following the date of grant of the Option.
(D) subject to Section 10 hereof, the Option shall become
exercisable as to 20% of the Shares subject to the Option on the date of its
grant and 20% of the Shares subject to the Option on each anniversary of its
date of grant, provided that the Optionee continues to serve as a Director on
such dates.
(v) In the event that any Option granted under the Plan would
cause the number of Shares subject to outstanding Options plus the number of
Shares previously purchased under Options to exceed the Pool, then the remaining
Shares available for Option grant shall be granted under Options to the Outside
Directors on a pro rata basis. No further grants shall be made
-3-
<PAGE>
until such time, if any, as additional Shares become available for grant
under the Plan through action of the Board or the shareholders to increase
the number of Shares which may be issued under the Plan or through
cancellation or expiration of Options previously granted hereunder.
5. ELIGIBILITY. Options may be granted only to Outside Directors. All
Options shall be automatically granted in accordance with the terms set forth in
Section 4 hereof.
The Plan shall not confer upon any Optionee any right with respect to
continuation of service as a Director or nomination to serve as a Director, nor
shall it interfere in any way with any rights which the Director or the Company
may have to terminate the Director's relationship with the Company at any time.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board or its approval by the shareholders of the
Company as described in Section 16 of the Plan. It shall continue in effect for
a term of ten (10) years unless sooner terminated under Section 11 of the Plan.
7. FORM OF CONSIDERATION. The consideration to be paid for the Shares to
be issued upon exercise of an Option, including the method of payment, shall
consist of (i) cash, (ii) check, (iii) other shares which (x) in the case of
Shares acquired upon exercise of an Option, have been owned by the Optionee for
more than six (6) months on the date of surrender, and (y) have a Fair Market
Value on the date of surrender equal to the aggregate exercise price of the
Shares as to which said Option shall be exercised, (iv) delivery of a properly
executed exercise notice together with such other documentation as the Company
and the broker, if applicable, shall require to effect an exercise of the Option
and delivery to the Company of the sale or loan proceeds required to pay the
exercise price, or (v) any combination of the foregoing methods of payment.
8. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder shall be exercisable at such times as are set forth in
Section 4 hereof; provided, however, that no Options shall be exercisable until
shareholder approval of the Plan in accordance with Section 16 hereof has been
obtained.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may consist of any consideration and method of payment
allowable under Section 7 of the Plan. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a
-4-
<PAGE>
shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. A share certificate for the number of Shares so
acquired shall be issued to the Optionee as soon as practicable after
exercise of the Option. No adjustment shall be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued, except as provided in Section 10 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) TERMINATION OF CONTINUOUS STATUS AS A DIRECTOR. Subject to
Section 10 hereof, in the event an Optionee's status as a Director terminates
(other than upon the Optionee's death or total and permanent disability (as
defined in Section 22(e)(3) of the Code)), the Optionee may exercise his or her
Option, but only within three (3) months following the date of such termination,
and only to the extent that the Optionee was entitled to exercise it on the date
of such termination (but in no event later than the expiration of its ten (10)
year term). To the extent that the Optionee was not entitled to exercise an
Option on the date of such termination, and to the extent that the Optionee does
not exercise such Option (to the extent otherwise so entitled) within the time
specified herein, the Option shall terminate.
(c) DISABILITY OF OPTIONEE. In the event Optionee's status as a
Director terminates as a result of total and permanent disability (as defined in
Section 22(e)(3) of the Code), the Optionee may exercise his or her Option, but
only within twelve (12) months following the date of such termination, and only
to the extent that the Optionee was entitled to exercise it on the date of such
termination (but in no event later than the expiration of its ten (10) year
term). To the extent that the Optionee was not entitled to exercise an Option
on the date of termination, or if he or she does not exercise such Option (to
the extent otherwise so entitled) within the time specified herein, the Option
shall terminate.
(d) DEATH OF OPTIONEE. In the event of an Optionee's death, the
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance may exercise the Option, but only within twelve (12)
months following the date of death, and only to the extent that the Optionee was
entitled to exercise it on the date of death (but in no event later than the
expiration of its ten (10) year term). To the extent that the Optionee was not
entitled to exercise an Option on the date of death, and to the extent that the
Optionee's estate or a person who acquired the right to exercise such Option
does not exercise such Option (to the extent otherwise so entitled) within the
time specified herein, the Option shall terminate.
9. NON-TRANSFERABILITY OF OPTIONS. Unless determined otherwise by the
Board, an Option may not be sold, pledged, assigned, hypothecated, transferred,
or disposed of in any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the Optionee, only by
the Optionee. If the Administrator makes an Option transferable, such Option
shall contain such additional terms and conditions as the Administrator deems
appropriate.
-5-
<PAGE>
10. 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 covered by each outstanding
Option, the number of Shares which have been authorized for issuance under the
Plan but as to which no Options have yet been granted or which have been
returned to the Plan upon cancellation or expiration of an Option, as well as
the price per Share covered by each such outstanding Option, and the number of
Shares issuable pursuant to the automatic grant provisions of Section 4 hereof
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares 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 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." 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
subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised, it shall terminate immediately prior to the
consummation of such proposed action.
(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, outstanding Options may be assumed or equivalent options may be
substituted by the successor corporation or a Parent or Subsidiary thereof (the
"Successor Corporation"). If an Option is assumed or substituted for, the
Option or equivalent option shall continue to be exercisable as provided in
Section 4 hereof for so long as the Optionee serves as a Director or a director
of the Successor Corporation. Following such assumption or substitution, if the
Optionee's status as a Director or director of the Successor Corporation, as
applicable, is terminated other than upon a voluntary resignation by the
Optionee, the Option or option shall become fully vested and exercisable,
including as to Shares for which it would not otherwise be vested or
exercisable. Thereafter, the Option or option shall remain exercisable in
accordance with Sections 8(c) through (e) above.
If the Successor Corporation does not assume an outstanding Option or
substitute for it an equivalent option, the Option shall become fully vested and
exercisable, including as to Shares for which it would not otherwise be vested
or exercisable. In such event the Board shall notify the Optionee that the
Option shall be fully vested and exercisable for a period of thirty (30) days
from the date of such notice, and upon the expiration of such period the Option
shall terminate.
For the purposes of this Section 10(c), an 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
-6-
<PAGE>
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).
11. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. Except as set forth in Section 4, the
Board may at any time amend, alter, suspend, or discontinue the Plan, but no
amendment, alteration, suspension, or discontinuation shall be made which would
impair the rights of any Optionee under any grant theretofore made, without his
or her consent. In addition, to the extent necessary and desirable to comply
with any applicable law or regulation, the Company shall obtain shareholder
approval of any Plan amendment in such a manner and to such a degree as
required.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated.
12. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for
all purposes, be the date determined in accordance with Section 4 hereof.
13. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, state securities laws, and the requirements of any stock exchange
upon which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares, if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
14. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
-7-
<PAGE>
15. OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
16. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the shareholders of the Company at or prior to the first annual
meeting of shareholders held subsequent to the granting of an Option hereunder.
Such shareholder approval shall be obtained in the degree and manner required
under applicable state and federal law.
-8-
<PAGE>
SUPERGEN, INC.
DIRECTOR OPTION AGREEMENT
SuperGen, Inc., a California corporation (the "Company"), has granted to
______________________________________ (the "Optionee"), an option to purchase a
total of [ __________________ (_________)] shares of the Company's Common Stock
(the "Optioned Stock"), at the price determined as provided herein, and in all
respects subject to the terms, definitions and provisions of the Company's 1996
Directors' Stock Option Plan (the "Plan") adopted by the Company which is
incorporated herein by reference. The terms defined in the Plan shall have the
same defined meanings herein.
1. NATURE OF THE OPTION. This Option is a nonstatutory option and is not
intended to qualify for any special tax benefits to the Optionee.
2. EXERCISE PRICE. The exercise price is $_______ for each share of
Common Stock.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term
in accordance with the provisions of Section 8 of the Plan as follows:
(i) RIGHT TO EXERCISE.
(a) This Option shall become exercisable in installments
cumulatively with respect to twenty percent (20%) of the Optioned Stock on the
date of grant, and as to an additional twenty percent (20%) of the Optioned
Stock on each anniversary of the date of grant, so that one hundred percent
(100%) of the Optioned Stock shall be exercisable four years after the date of
grant; provided, however, that in no event shall any Option be exercisable prior
to the date the stockholders of the Company approve the Plan.
(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 service as a Director, the exercisability of the Option is
governed by Section 8 of the Plan.
(ii) METHOD OF EXERCISE. This Option shall be exercisable by written
notice which shall state the election to exercise the Option and the number of
Shares in respect of which the Option is being exercised. Such written notice,
in the form attached hereto as Exhibit A, shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Secretary of the
Company. The written notice shall be accompanied by payment of the exercise
price.
<PAGE>
4. METHOD OF PAYMENT. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee:
(i) cash;
(ii) check; or
(iii) surrender of other shares which (x) in the case of Shares
acquired upon exercise of an Option, have been owned by the Optionee for more
than six (6) months on the date of surrender, and (y) have a Fair Market Value
on the date of surrender equal to the aggregate exercise price of the Shares as
to which said Option shall be exercised; or
(iv) delivery of a properly executed exercise notice together with
such other documentation as the Company and the broker, if applicable, shall
require to effect an exercise of the Option and delivery to the Company of the
sale or loan proceeds required to pay the exercise price.
5. 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 regulations, or if such issuance
would not comply with the requirements of any stock exchange upon which the
Shares may then be listed. 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.
6. 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 the Optionee. The
terms of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
7. 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
period only in accordance with the Plan and the terms of this Option.
8. TAXATION UPON EXERCISE OF OPTION. Optionee understands that, upon
exercise of this Option, he or she will recognize income for tax purposes in an
amount equal to the excess of the then Fair Market Value of the Shares purchased
over the exercise price paid for such Shares. Since the Optionee is subject to
Section 16(b) of the Securities Exchange Act of 1934, as amended, under certain
limited circumstances the measurement and timing of such income (and the
commencement of any capital gain holding period) may be deferred, and the
Optionee is advised to contact a tax advisor concerning the application of
Section 83 in general and the availability a Section 83(b) election in
particular in connection with the exercise of the Option. Upon a resale of such
Shares by the Optionee, any difference between the sale price and the Fair
Market Value of the Shares on the date
-2-
<PAGE>
of exercise of the Option, to the extent not included in income as described
above, will be treated as capital gain or loss.
DATE OF GRANT: ___________________
SUPERGEN, INC.,
a California corporation
By: __________________________________
Optionee acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto, and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts this Option subject to all of the terms
and provisions thereof. Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Board upon any questions
arising under the Plan.
Dated: _________________
_______________________________________
Optionee
-3-
<PAGE>
EXHIBIT A
DIRECTOR OPTION EXERCISE NOTICE
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, CA 94583
Attention: Corporate Secretary
1. EXERCISE OF OPTION. 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
1996 Directors' Stock Option Plan and the Director Option Agreement dated
_______________ (the "Agreement").
2. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understood the Agreement.
3. FEDERAL RESTRICTIONS ON TRANSFER. Optionee understands that the
Shares must be held indefinitely unless they are registered under the Securities
Act of 1933, as amended (the "1933 Act"), or unless an exemption from such
registration is available, and that the certificate(s) representing the Shares
may bear a legend to that effect. Optionee understands that the Company is
under no obligation to register the Shares and that an exemption may not be
available or may not permit Optionee to transfer Shares in the amounts or at the
times proposed by Optionee.
4. TAX CONSEQUENCES. 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
consultant(s) 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. DELIVERY OF PAYMENT. Optionee herewith delivers to the Company the
aggregate purchase price for the Shares that Optionee has elected to purchase
and has made provision for the payment of any federal or state withholding taxes
required to be paid or withheld by the Company.
6. ENTIRE AGREEMENT. The Agreement is incorporated herein by reference.
This Exercise Notice and the Agreement constitute the entire agreement of the
parties and supersede in their entirety all prior undertakings and agreements of
the Company and Optionee with respect to the
<PAGE>
subject matter hereof. This Exercise Notice and the Agreement are governed
by California law except for that body of law pertaining to conflict of laws.
Submitted by: Accepted by:
OPTIONEE: SUPERGEN, INC.
________________________ By: __________________________
Its:__________________________
Address:
Dated: _________________ Dated: ________________
-2-
<PAGE>
EXECUTION COPY
COMMON STOCK SALE/REPURCHASE AGREEMENT
AGREEMENT made as of August 6, 1997 by and between ISRAEL CHEMICALS,
LTD., an Israeli limited liability company ("ICL"), and SUPERGEN, INC., a
California company ("Company").
WHEREAS, ICL owns 2,571,000 Shares of the common stock of the Company
(the "ICL Shares); and
WHEREAS, ICL wishes to sell and the Company wishes to repurchase 740,000
of the ICL Shares on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. SALE AND REPURCHASE OF STOCK. Subject to the conditions set forth
in Section 10, at the Closing (as defined below), ICL shall sell to the
Company and the Company shall repurchase from ICL 740,000 of its shares of
the common stock of the Company (the "Repurchased Shares") at a price per
share equal to $10.63, for an aggregate amount of $7,866,200 (the "Purchase
Price").
2. CLOSING. The closing of the sale and repurchase of the Repurchased
Shares shall take place no later than 1:00 p.m. New York City time on August
6, 1997 (the "Closing Date") at the offices of Robinson Silverman Pearce
Aronsohn & Berman LLP, 1290 Avenue of the Americas, New York, New York 10104,
or such other place and time as shall be mutually agreed upon by the parties.
3. DELIVERIES BY THE COMPANY AND ICL AT THE CLOSING. At the Closing,
the Company shall deliver to ICL (i) the Purchase Price, without deduction
for any taxes, withholdings or other amounts, in United States dollars in
immediately available funds by wire transfer to the account designated by ICL
on the signature page hereof, and (ii) evidence that the Transfer Agent (as
defined below) has received the Required Documents (as defined in Section
10(a) below) and has been instructed to release to the Escrow Agent (as
defined below) the New Certificates (as defined in Section 10(a) below). ICL
shall deliver to the Company the stock certificate(s) representing the
Repurchased Shares, duly endorsed for transfer, and shall deliver to an
escrow agent mutually agreed upon by all the parties (the "Escrow Agent") the
stock certificates representing the Remaining ICL Shares (as defined in
Section 7 below), to be held on terms and conditions set forth in an escrow
agreement substantially in the form attached hereto as EXHIBIT A ("Escrow
Agreement").
-1-
<PAGE>
EXECUTION COPY
4. REPLACEMENT CERTIFICATES. On or prior to Closing, ICL shall deliver
to the Transfer Agent the three (3) stock certificates representing, in the
aggregate, the total amount of the ICL Shares and the Company shall cause the
Transfer Agent to deliver, in lieu of and in full substitution for such
certificates, three (3) stock certificates issued by the Company to ICL, one
representing the total amount of the Repurchased Shares, the second
representing the total amount of the Option Shares ("Option Share
Certificate") and the third representing the total amount of the Remaining
ICL Shares less the Option Shares ("Remaining Share Certificate"). The
Option Share Certificate and the Remaining Share Certificate shall be
delivered by the Transfer Agent to the Escrow Agent without any legends or
restrictions on such certificates, subject to the restrictions set forth in
this Agreement and the Escrow Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
makes the following representations and warranties to ICL as of the Closing
Date:
a. ORGANIZATION. The Company is a corporation, duly incorporated,
validly existing and in good standing under the laws of the jurisdiction
of its incorporation.
b. AUTHORIZATION; ENFORCEABILITY. The Company has the requisite
corporate power and authority to enter into and consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of the
Company. This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation or similar laws relating to or affecting
generally the enforcement of creditors' rights and remedies or by other
equitable principles of general application.
c. NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby do not and will not (i) violate any provision of its
certificate of incorporation or bylaws, or (ii) conflict with, or
constitute a default (or an event which, with notice or lapse of time or
both, would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material
agreement, indenture or instrument to which the Company is party or result
in a violation of any order, judgement, injunction, decree to other
restriction of any court of competent jurisdiction or governmental
authority to which the Company is subject or by which any property or asset
of the Company is bound or affected.
d. LITIGATION; PROCEEDINGS. There is no action, suit, notice of
violation, proceeding or investigation pending, or to the knowledge of the
Company, threatened against or affecting
-2-
<PAGE>
EXECUTION COPY
the Company or any of its affiliates or any of their respective
properties before or by any court, governmental or administrative
agency or regulatory authority (federal, state, county, local or
foreign) that relates to or challenges the legality, validity or
enforceability of this Agreement.
e. BROKERS' FEES. There are no brokerage fees, commissions or
compensation due to any party engaged or retained by, through or on behalf
of, the Company in connection with the transactions contemplated hereby.
f. USE OF FUNDS. The Company is permitted, under applicable laws and
under (i) its articles of incorporation, by-laws and (ii) any material
agreement, indenture or instrument to which the Company or any of its
affiliates is bound, to use the funds being allocated by the Company as the
Purchase Price hereunder for a repurchase or redemption of its common stock
as contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF ICL. ICL hereby makes the
following representations and warranties to the Company as of the Closing Date:
a. AUTHORIZATION: ENFORCEABILITY. ICL has the requisite corporate power
and authority to enter into and consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by ICL and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of ICL. This Agreement has
been duly executed and delivered by ICL and constitutes the legal, valid
and binding obligation of ICL enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation or similar laws
relating to or affecting generally the enforcement of creditors' rights and
remedies or by other equitable principles of general application.
b. NO CONFLICTS. The execution, delivery and performance of this
Agreement by ICL and the consummation by it of the transactions
contemplated hereby do not and will not (i) violate any provision of its
Memorandum or Articles of Association, or (ii) conflict with, or constitute
a default (or an event which, with notice or lapse of time or both, would
become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement,
indenture or instrument to which ICL is party or result in a violation of
any order, judgement, injunction, decree to other restriction of any court
of competent jurisdiction or governmental authority to which ICL is subject
or by which any property or asset of ICL is bound or affected.
c. LITIGATION: PROCEEDINGS. There is no action, suit, notice of
violation, proceeding or investigation pending, or to the knowledge of ICL,
threatened against or affecting ICL or any
-3-
<PAGE>
EXECUTION COPY
of its affiliates or any of their respective properties before or by
any court, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign) that relates to or
challenges the legality, validity or enforceability of this Agreement.
d. GOVERNMENT CONSENTS. To the best of its knowledge, no consent or
other approval of any governmental authority, including but not limited to
the Israeli government, is required in connection with the execution,
delivery and performance by ICL of this Agreement.
e. OWNERSHIP; TITLE. ICL has, and upon Closing will deliver to the
Company, good and marketable title to the Repurchased Shares. ICL is the
record and beneficial owner of the Repurchased Shares and Option Shares,
free and clear of any liens, claims, charges or other encumbrances
whatsoever. Other than the ICL Shares, ICL does not own, of record or
beneficially, directly or indirectly, shares of, or any subscription,
warrant, option (other than the Put Option hereunder) or, to its knowledge,
other rights (such as preemptive rights or rights of first refusal) to
purchase or acquire shares of, any class of capital stock of the Company or
securities convertible into or exchangeable for such capital stock and has
no intent to acquire any such shares or any such rights.
f. BROKERS' FEES. Other than a fee payable to Lehman Brothers, Inc.,
there are no brokerage fees, commissions or compensation due to any party
engaged or retained by, through or on behalf of, ICL in connection with the
transactions contemplated hereby.
g. NON-AFFILIATE OF THE COMPANY. ICL (i) is not a member of a "group" as
defined in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended,
and (ii) does not have and will not seek, directly or indirectly, the power to
direct or cause the direction of the management or policies of the Company or
otherwise control the Company. None of ICL's current officers, directors,
employees or affiliates is or has a right to become or shall, with ICL's
consent, seek to become in the future officers or directors of the Company.
7. OTHER AGREEMENTS BY ICL. Upon the Closing, ICL agrees that (i) the
Amended and Restated Stock Purchase Agreement among ICL, the Company and
certain founders of the Company, dated May 30, 1995, shall be terminated and
shall be null and void and of no further force and effect, inclusive of the
rights and obligations set forth in Section 6.2 and 8.1(a) thereof; (ii) the
Letter Agreement dated March 6, 1996 between the Company and ICL shall be
terminated and shall be void and of no further force and effect, and (iii)
that, except as set forth in Section 9, ICL will not, without the prior
consent of the Company, sell, make short sale of, loan, grant any options for
the purchase of or otherwise dispose of any of the ICL Shares remaining after
the sale to the Company of the Repurchased Stock (the "Remaining ICL Shares")
for a period of 180 days from the Closing Date (the "Lock-Up Period"). After
the date hereof, ICL shall not acquire any shares or any subscription,
-4-
<PAGE>
EXECUTION COPY
warrant, option or other rights (including, without limitation, preemptive
rights or rights of first refusal) to purchase or acquire shares of any class
of the capital stock of the Company.
8. COVENANTS OF THE COMPANY. The Company covenants and agrees that,
from and after the Closing Date: (i) it will not intentionally take any
action or other steps which shall cause ICL to become or be deemed to be an
"affiliate" as defined in Rule 144(a) of the Securities Act of 1933, as
amended ("Act") or Rule 405 of the Act (an "Affiliate"), and (ii) as long as
ICL does not take any action or other steps which cause (x) its
representations and warranties hereunder to become false, inaccurate or
invalid; (y) it to become or to be deemed to be an Affiliate; or (z) it to be
in breach of Section 7 or in material breach of Section 9, the Company will
not issue any stop transfer instructions with respect to the New Certificates
or any of the Remaining ICL Shares, or otherwise seek to place restrictions
on the transfer of any of the Remaining ICL Shares.
9. PUT/CALL OPTIONS. (a) PUT OPTION. In consideration of ICL's
agreements as set forth in Section 7, ICL shall have the right to sell to the
Company and require the Company to purchase any number or all of 915,500 of
the Remaining ICL Shares (the "Option Shares"), at a price per share of
$13.50, at any time during the Option Period, as defined below (the "Put
Option"). ICL may exercise such right at any time or from time to time
during the Option Period upon written notice of not less than ten (10)
business days to the Company ("Put Notice"). The Put Notice shall set forth
the number of Option Shares being tendered and the aggregate price to be paid
therefor.
(b) CALL OPTION. At any time or from time to time during the
Option Period, the Company shall have the right to require ICL to sell to the
Company, and to purchase, any number or all of the Option Shares, at a price
per share of $13.50 (the "Call Option"). The Company may exercise such right
at any time or from time to time during the Option Period upon written notice
of not less than ten (10) business days to ICL ("Call Notice"). The Call
Notice shall set forth the number of Option Shares to be purchased and the
aggregate price to be paid therefor.
(c) OPTION PERIOD. The Put Option and the Call Option are
respectively exercisable during the period commencing on the date which is 40
days after the 20th consecutive trading day on which the closing bid price of
the Company's common stock (as reported by the NASDAQ or such other exchange
on which the Company's shares of common stock shall then be listed for
trading) exceeds $18.00 per share (the "Effective Date") and terminating on
the later to occur of (i) 90 days following the Effective Date and (ii) the
last day of the Lock-Up Period (the "Option Period").
(d) CLOSINGS. Closing of a purchase and sale pursuant to a Put
Option or Call Option hereunder shall take place not more than 30 business
days from the date the Put Notice or Call Notice (as the case may be) was
delivered to the relevant party at a time and place mutually agreeable to the
parties. Notwithstanding the 10-day notice period which each party has
pursuant to
-5-
<PAGE>
EXECUTION COPY
paragraphs (a) and (b) above to deliver the Put Notice or Call Notice (as the
case may be), such Notice shall be delivered on the earlier to occur of (x)
the expiration of such 10 business day period and (y) the last day of the
Option Period. At the closing, (A) ICL shall (i) deliver or cause the Escrow
Agent (as described below in this paragraph (d)) to deliver the
certificate(s) representing the Option Shares being purchased and sold to the
Company, duly endorsed for transfer, and (ii) deliver a certificate executed
by an officer of ICL, dated the date of such closing, containing the
representations and warranties set forth in Section 6(c) and (e), as such
representations and warranties relate to the Option Shares to be purchased
and sold; and (B) the Company shall deliver (i) the purchase price to ICL or
to its order for the Option Shares in immediately available funds by wire
transfer, and (ii) a certificate executed by an officer of the Company, dated
the date of such closing, containing the representations and warranties set
forth in Section 5(d) and (f), as such representations and warranties relate
to the Option Shares to be purchased and sold. Either the Company or ICL
shall deliver a letter executed by both parties to the Escrow Agent
instructing such Escrow Agent to release the Option Shares subject to a
closing hereunder in accordance with the procedure set forth therefor in the
Escrow Agreement. A closing of the exercise of a Put Option or Call Option
in accordance with the terms hereof may occur subsequent to the expiration of
the Option Period, provided that the Put Option or Call Option (as the case
may be) was exercised, and the Put Notice or Call Notice (as the case may be)
was delivered, prior to the expiration of the Option Period.
(e) CANCELLATION OF PUT/CALL. Upon the exercise of a Put Option by
ICL, the Call Option held by the Company as to the same number of Option
Shares shall be automatically cancelled, and conversely, upon the exercise of
a Call Option by the Company, the Put Option held by ICL as to the same
number of Option Shares shall be automatically cancelled.
(f) EXPIRATION OF OPTIONS. Notwithstanding the foregoing, in the
event that the Effective Date does not occur during the Lock-Up Period, all
Put Options and Call Options granted hereunder shall expire and terminate as
of the last day of such Lock-Up Period.
10. CONDITIONS PRECEDENT TO CLOSING. The Closing shall be subject to the
following:
(a) DELIVERY OF REQUIRED DOCUMENTS. The Company shall have delivered to
ICL or its counsel, prior to the Closing Date, a copy of the executed and
issued legal opinion of the Company's counsel, together with written
instructions or such other documents or instruments, all in form and
substance satisfactory to, and as shall be required by, the Company's
transfer agent and registrar, ChaseMellon Shareholder Services, L.L.C. (the
"Transfer Agent") (the "Required Documents"), enabling the Transfer Agent
to issue in the name of ICL and deliver to the Escrow Agent, upon delivery
by ICL to such Transfer Agent of the stock certificates representing the
Remaining ICL Shares, the Option Share Certificate and the Remaining Share
Certificate without any stamps or any other restrictive legends
-6-
<PAGE>
EXECUTION COPY
(collectively, the "New Certificates"), thereby enabling ICL and otherwise
confirming its right to sell any or all of the Remaining ICL Shares
(subject to the terms of this Agreement) pursuant to Rule 144(k)
promulgated under the Act ("Rule 144(k)").
(b) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained herein shall be true and correct as if made on and as of the
Closing Date and each party shall have performed and observed its
agreements as set forth herein.
(c) PURCHASE PRICE; INSTRUCTIONS. ICL shall have received (i) the Purchase
Price in immediately available funds, and (ii) evidence that the Transfer
Agent has received instructions to release to ICL the New Certificates, in
accordance with Section 3.
(d) STOCK CERTIFICATES. The Company shall have received from ICL the
stock certificate representing the Repurchased Shares, duly endorsed for
transfer.
(e) LEGAL OPINION OF ICL COUNSEL. The Company shall have received a copy
of the legal opinion of Robinson Silverman Pearce Aronsohn & Berman LLP,
counsel to ICL the Company, issued to ICL, covering substantially the legal
matters set forth in the opinion of the Company's counsel issued to the
Company pursuant to paragraph (a) hereof.
(f) ESCROW AGREEMENT. The parties and the Escrow Agent shall have entered
into the Escrow Agreement and the Transfer Agent shall have delivered the
New Certificates representing the Remaining ICL Shares to the Escrow Agent.
11. EXPENSES. Each party shall pay the fees and expenses of its advisers,
brokers, counsel or other experts, if any, and all other expenses incurred by
such party incident to the negotiation, preparation, delivery and performance
of this Agreement.
12. NOTICES. All notices and other communications under this Agreement
must be in writing and shall be telecopied, hand delivered or transmitted by
courier as follows:
IF ICL TO:
Israel Chemicals, Ltd.
Beit Noam, 21 Shazar Av.
P.O. B. 725
Beer Sheva, 84106, Israel
Attention: Motti Levin, SVP
Telecopier. 972-7-628-6563
-7-
<PAGE>
EXECUTION COPY
IF TO THE COMPANY TO:
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, CA 94593
Attention: Dr. Joseph Rubinfeld
Telecopier: 510-904-1918
All such notices and communications shall be effective when sent if by
telecopier, and if hand-delivered or transmitted by courier, when received.
Either party may change the address and/or telecopier number to which notices
are sent by giving the other written notice thereof.
13. BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of each party and its respective successors and assigns. This
Agreement may not be assigned by either party and any attempted assignment
shall be void.
14. CONFIDENTIALITY. Except as provided below, each party shall keep
confidential and not publicly disclose the terms of this Agreement and the
transactions contemplated hereby. Each party further agrees that it shall
not disclose to any third party nor utilize any material confidential
information or trade secret received from or disclosed by the other party
prior to the date of this Agreement, whether or not such confidential
information or trade secret was received or disclosed pursuant to an
agreement or arrangement between the parties. the term "confidential
information" or "trade secret" shall not include any information which has,
is or shall become generally available to the public other than by breach of
this provision. Nothing in this Section 14 shall prevent either party from
making disclosures reasonably necessary to effectuate the transactions
contemplared hereby or as required by law including, without limitation, any
reporting obligations or other requirements imposed on either party under
applicable laws, rules and regulations.
15. FURTHER ASSURANCES. Each party shall cooperate, take such further
action and execute such further documents, including, without limitation, any
documents or certificates as may be reasonably requested by the other party
in order to carry out the terms of this Agreement and the transactions
contemplated hereby.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and
may not be modified, amended or terminated, nor may any provision hereof be
waived, except by a writing signed by both parties. This Agreement supersedes
any and all agreements or arrangements between ICL and the Company, written
or oral including, without limitation, that certain Letter Agreement dated
July 18, 1997 between Lehman Brothers, acting as agent for ICL, and the
Company.
-8-
<PAGE>
EXECUTION COPY
17. COUNTERPART SIGNATURES. This Agreement may be executed in several
counterparts, all of which shall constitute but one agreement, binding on
both parties, it being understood that both parties need not sign the same
counterpart.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to conflict
of law principles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first
written above.
ISRAEL CHEMICALS, LTD. SUPERGEN, INC.
By: /s/ MOTTI LEVIN By:/s/ DR. JOSEPH RUBINFELD
---------------------------- --------------------------------
Name: Name:
Title: Senior Vice President Title: Chairman, Chief Executive
Officer and President
WIRE TRANSFER INSTRUCTIONS:
Bank Hapoalim, Main Branch
Tel Aviv, Israel
Acct. #600-655062
-9-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
SUPERGEN, INC. JUNE 30, 1997 CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 20,859,793
<SECURITIES> 0
<RECEIVABLES> 182,184
<ALLOWANCES> 0
<INVENTORY> 1,133,283
<CURRENT-ASSETS> 22,858,106
<PP&E> 2,514,430
<DEPRECIATION> 321,495
<TOTAL-ASSETS> 26,993,583
<CURRENT-LIABILITIES> 1,715,574
<BONDS> 0
0
0
<COMMON> 40,337,551
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 26,993,583
<SALES> 980,898
<TOTAL-REVENUES> 980,898
<CGS> 776,499
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 6,511,517
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (6,039,829)
<INCOME-TAX> 0
<INCOME-CONTINUING> (6,039,829)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,039,829)
<EPS-PRIMARY> (.36)
<EPS-DILUTED> 0
</TABLE>
