<PAGE>
As filed with the Securities and Exchange Commission on November 4, 1997
Registration No. 333-07295
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
SUPERGEN, INC.
Exact name of Registrant as specified in its charter)
DELAWARE 97-1841574
------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
TWO ANNABEL LANE, SUITE 220, SAN RAMON, CALIFORNIA 94583
(Address of Registrants's Principal Executive Offices) (Zip Code)
----------------------
EMPLOYEES AND CONSULTANTS STOCK OPTION AGREEMENT/PLAN
1993 STOCK OPTION PLAN, AS AMENDED AND RESTATED
1996 DIRECTORS OPTION PLAN
(Full title of the Plans)
----------------------
JOSEPH RUBINFELD
PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHIEF SCIENTIFIC OFFICER
SUPERGEN, INC.
TWO ANNABEL LANE, SUITE 220
SAN RAMON, CALIFORNIA 94583
(510) 327-0200
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
COPY TO:
JOHN V. ROOS, ESQ.
PAGE MAILLIARD, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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- -------------------------------------------------------------------------------------------------
TITLE OF AMOUNT PROPOSED PROPOSED AMOUNT OF
SECURITIES TO TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) FEE(3)
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<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 3,050,000 $ 17.474325 $ 8,737,162.50 $ 2,647.63
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 2,000,000 shares previously registered under the 1993 Stock Option
Plan (the "1993 Plan"), 250,000 shares previously registered under the
1996 Directors' Stock Option Plan (the "1996 Plan"), 300,000 shares
previously registered under the Employees and Consultants Stock Option
Agreement/Plan (the "Employees and Consultants Plan"), and 500,000 shares
to be registered under the Amended and Restated 1993 Stock Option Plan (the
"1993 Plan").
(2) The Proposed Maximum Offering Price Per Share for the 500,000 shares to be
registered was estimated in part pursuant to Rule 457(h) under the
Securities Act of 1933, as amended (the "Securities Act"), and, in part,
pursuant to Rule 457(c) under the Securities Act. With respect to (i)
468,400 shares which are subject to outstanding options to purchase Common
Stock under the 1993 Plan, the Proposed Maximum Offering Price Per Share
was estimated pursuant to Rule 457(h), under which Rule the per share price
of options to purchase stock under an employee stock option plan may be
estimated by reference to the exercise price of such options. The weighted
average exercise price of the 468,400 shares subject to outstanding options
under the 1993 Plan is $17.50 per share. With respect to 31,600 shares of
Common Stock available for future grant under the 1993 Plan, the estimated
Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(c) whereby the per share price was determined by reference to the
average between the high and low price reported in the Nasdaq National
Market on October 27, 1997, which average was $17.0625 per share. The
number referenced above in the table entitled "Proposed Maximum Offering
Price per Share" represents a weighted average of the foregoing estimates
calculated in accordance with Rules 457(h) and 457(c).
(3) The fee paid pursuant to this Post-Effective Amendment No. 1 is $2,647.63.
A total of $5,725.73 was previously paid on July 1, 1996 for registration
of the 2,550,000 shares.
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the "Amendment") to the
Registration Statement on Form S-8 (the "Registration Statement") is being filed
pursuant to Rule 414 under the Securities Act of 1933, as amended (the "1933
Act") by SuperGen, Inc., a Delaware corporation ("SuperGen Delaware" or the
"Registrant"), which is the successor to SuperGen, Inc., a California
corporation ("SuperGen California"), following a statutory merger effective on
November 3, 1997 (the "Merger") for the purpose of changing SuperGen
California's state of incorporation. Prior to the Merger, SuperGen Delaware had
no assets or liabilities other than nominal assets or liabilities. In
connection with the Merger, SuperGen Delaware succeeded by operation of law to
all of the assets and liabilities of SuperGen California. The Merger was
approved by the shareholders of SuperGen California at a meeting for which
proxies were solicited pursuant to Section 14(a) of the Securities Exchange Act
of 1934, as amended (the "1934 Act").
Except as modified by this Amendment, SuperGen Delaware, by virtue of
this Amendment, expressly adopts the Registration Statement as its own
registration statement for all purposes of the 1993 Act and the 1934 Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996, filed pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
2. The Registrant's Report on Form 10-Q for the quarterly period ended
March 31, 1997, filed pursuant to Section 13 of the Exchange Act.
3. The Registrant's Report on Form 10-Q for the quarterly period ended
June 30, 1997, filed pursuant to Section 13 of the Exchange Act.
4. The Registrant's Report on Form 8-K filed on July 2, 1997.
5. The Registrant's Report on Form 8-K, filed on October 31, 1997.
6. The Registrant's Report on Form 8-K, filed November 3, 1997.
All documents subsequently filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder have been sold
or which deregisters all securities then remaining unsold under this
registration statement, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has adopted provisions in its current Certificate of
Incorporation which (i) eliminate the personal liability of its directors to the
Company for monetary damages to the fullest extent permissible under Delaware
law; and (ii) authorize the Company to indemnify its directors and officers to
the fullest extent permitted by law. Such limitation of liability does not
affect the
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<PAGE>
availability of equitable remedies, such as injunctive relief or rescission.
The Company's Certificate of Incorporation also includes a provision eliminating
to the fullest extent permitted by Delaware law, the personal liability of its
directors for monetary damages for breach of fiduciary duty as a director. In
addition, the Bylaws of the Company provide that it will be required to
indemnify its officers and directors to the maximum extent and in the manner
permitted by the Delaware General Corporation Law.
The Company has entered into separate indemnification agreements with each
of its officers, directors and key employees that contain provisions which are
in some respects broader than the specific indemnification provisions contained
in the Delaware General Corporation Law. The indemnification agreements may
require the Company, among other things, to indemnify such officers and
directors against certain liabilities that may arise by reason of their status
or service as directors or officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance their expenses incurred as a result
of any proceeding against them, as to which they could be indemnified, and to
obtain director's and officer's insurance, if available on reasonable terms.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
At present, the Company is not aware of any pending litigation involving a
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding which may result in a claim for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE>
ITEM 8. INDEX TO EXHIBITS.
Exhibit
Number Description of Document
----------- --------------------------------------------------------
4.1(1) 1993 Stock Option Plan, as amended and restated effective
February 3, 1997 and forms of Stock Option Agreements
thereunder
4.2(1) 1996 Directors' Stock Option Plan, as amended effective
February 3, 1997 and form of Stock Option Agreement
thereunder
4.3(2) Employees and Consultants Stock Option Agreement/Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to
legality of securities being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1(2) Power of Attorney
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the
- --------------------------
(1)Incorporated by reference to the exhibit filed with the Registrant's
Report on Form 10-Q filed with the Securities and Exchange Commission on
August 13, 1997. Exhibits 4.1 and 4.2 listed are incorporated by reference to
Exhibits 10.2 and 10.3, respectively, of Registrant's Report on Form 10-Q.
(2)Previously filed.
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<PAGE>
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) If the registrant is a foreign private issuer, to file
a post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of this chapter at the start of any
delayed offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by
Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Form F-3.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the
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<PAGE>
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San Ramon,
State of California, on this 4th day of November, 1997.
SUPERGEN, INC.
By: /s/ Joseph Rubinfeld
--------------------------
Joseph Rubinfeld
CHIEF EXECUTIVE OFFICER, PRESIDENT
AND DIRECTOR
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<PAGE>
Pursuant to the requirements of the Securities Act, this Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8 has been signed by the
following persons on November 4, 1997, in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------- -----------------------------------
<S> <C>
/s/ JOSEPH RUBINFELD Chief Executive Officer, President
- ----------------------------------- and Director
JOSEPH RUBINFELD
/s/ HENRY C. SETTLE, JR. Chief Financial Officer (Principal
- ----------------------------------- Financial and Accounting Officer)
HENRY C. SETTLE, JR.
- ----------------------------------- Director
LAWRENCE J. ELLISON
*/s/ DAVID M. FINEMAN Director
- -----------------------------------
DAVID M. FINEMAN
*/s/ J. GREGORY SWENDSEN Director
- -----------------------------------
J. GREGORY SWENDSEN
*/s/ DENIS BURGER Director
- -----------------------------------
DENIS BURGER
*/s/ JULIUS A. VIDA Director
- -----------------------------------
JULIUS A. VIDA
*/s/ DANIEL ZURR Director
- -----------------------------------
DANIEL ZURR
*By: /s/ JOSEPH RUBINFELD
----------------------------------------
Joseph Rubinfeld, Attorney-in-Fact
*By: /s/ HENRY C. SETTLE, JR.
----------------------------------------
Henry C. Settle, Jr., Attorney-in-Fact
</TABLE>
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
EXHIBITS
-------------------------------
Post-Effective Amendment No. 1
to Form S-8 Registration Statement
SuperGen, Inc.
November 4, 1997
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------------ -----------------------------------------------------------------
4.1(1) 1993 Stock Option Plan, as amended and restated effective
February 3, 1997 and forms of Stock Option Agreements thereunder
4.2(1) 1996 Directors' Stock Option Plan, as amended effective
February 3, 1997 and form of Stock Option Agreement thereunder
4.3(2) Employees and Consultants Stock Option Agreement/Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to legality
of securities being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1(2) Power of Attorney
- ------------------
(1)Incorporated by reference to the exhibit filed with the Registrant's
Report on Form 10-Q filed with the Securities and Exchange Commission on
August 13, 1997. Exhibits 4.1 and 4.2 listed are incorporated by reference to
Exhibits 10.2 and 10.3, respectively, of Registrant's Report on Form 10-Q.
(2)Previously filed.
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<PAGE>
[LETTER HEAD]
EXHIBIT 5.1
November 4, 1997
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, CA 94583
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 filed by you with
the Securities and Exchange Commission on July 1, 1996 and Post-Effective
Amendment No. 1 thereto to be filed by you on or about November 4, 1997 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of (i) 2,500,000 shares of your Common Stock
reserved for issuance under the 1993 Stock Option Plan, as amended and restated
effective February 3, 1996 (the "1993 Plan"), (ii) 250,000 shares of your Common
Stock reserved for issuance under the 1996 Directors' Stock Option Plan (the
"1996 Plan"), as amended effective February 3, 1997, and (iii) 300,000 shares of
your Common Stock reserved for issuance under the Employees and Consultants
Stock Option Agreement/Plan (the "Employees and Consultants Plan"). The
2,500,000 shares of Common Stock reserved under the 1993 Plan, the 250,000
shares of Common Stock reserved under the 1996 Plan and the 300,000 shares of
Common Stock reserved under the Employees and Consultants Plan are referred to
collectively as the "Shares," and the 1993 Plan, the 1996 Plan and the Employees
and Consultants Plan are referred to collectively as the "Plans." As your legal
counsel, we have examined the proceedings taken and proposed to be taken in
connection with the issuance, sale and payment of consideration for the Shares
to be issued under the Plans.
It is our opinion that, when issued and sold in compliance with applicable
prospectus delivery requirements and in the manner referred to in the Plans and
pursuant to the agreements which accompany the Plans, the Shares will be legally
and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Sincerely,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
/S/ WILSON, SONSINI, GOODRICH & ROSATI
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to the Registration Statement on Form S-8 dated November 3, 1997,
pertaining to the Employees and Consultants Stock Option Agreement/Plan, the
1993 Stock Option Plan, As Amended and Restated, and the 1996 Directors
Option Plan of SuperGen, Inc., of our report dated January 15, 1997, except
as to the third paragraph of note 2 as to which the date is January 24, 1997,
with respect to the consolidated financial statements and schedule of
SuperGen, Inc. included in its Annual Report on Form 10-K for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
November 4, 1997
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