<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 22, 1999
REGISTRATION NO. 333-476-LA
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
POST-EFFECTIVE
AMENDMENT NO. 5
ON FORM S-3
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
SUPERGEN, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------------
<TABLE>
<S> <C> <C>
DELAWARE 2834 91-1841574
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
TWO ANNABEL LANE, SUITE 220
SAN RAMON, CALIFORNIA 94583
(925) 327-0200
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES)
--------------------
JOSEPH RUBINFELD, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SUPERGEN, INC.
TWO ANNABEL LANE, SUITE 220
SAN RAMON, CALIFORNIA 94583
(925) 327-0200
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------
COPIES TO:
JOHN V. ROOS, ESQ.
Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road
Palo Alto, California 94304-1050
DATE OF COMMENCEMENT OF SALE TO THE PUBLIC:
March 13, 1996
--------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
AMOUNT PRICE PER OFFERING REGISTRATION
REGISTERED SECURITY (1) PRICE FEE
---------- ------------ -------- ------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value (2)(3)............. 4,025,000 $7.50 $30,187,500 --
Common Stock Purchase Warrants
("Warrants") (2)(4)............................. 4,025,000 0.00 0.00 --
Common Stock issuable upon exercise of
Warrants (5)(6)................................ 4,025,000 11.25 45,281,250 --
Representative's Warrant (7)(8).................. 1 5.00 5.00 --
Common Stock issuable upon exercise of
Representative's Warrant (8)(9).................. 350,000 9.00 3,150,000 --
Warrants issuable upon exercise of
Representative's Warrant (8)(9)................ 350,000 0.00 0.00 --
Common Stock underlying Warrants
issuable upon exercise of
Representative's Warrant (6)(9)................ 350,000 11.25 3,937,500 --
Totals........................................... -- -- 82,556,255 $28,468(10)
</TABLE>
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(1) Estimated solely for the purpose of computing the amount of the
registration fee as provided by Rule 457.
(2) The Common Stock and Warrants were registered as component parts of a
Unit. On March 13, 1996, a total of 4,025,000 Units were registered,
each Unit consisting of one share of Common Stock and one Warrant.
For the purposes of calculation of the registration fee, each share
of Common Stock sold as a component part of the Units had been
assumed to have a proposed maximum offering price per share of $7.50,
and each Warrant was assumed to have a proposed maximum offering
price per Warrant of $0.00.
(3) Includes 525,000 shares included in the 525,000 Units that the
underwriters for our initial public offering (the "Underwriters")
were to purchase to cover over-allotments in connection with our sale
of the Units.
(4) Includes 525,000 Warrants included in the 525,000 Units that the
Underwriters were to purchase to cover over-allotments in connection
with our sale of the Units.
(5) Includes 525,000 shares issuable upon exercise of Warrants included
in the 525,000 Units that the Underwriters were to purchase to cover
over-allotments in connection with our sale of the Units. These
shares were registered for resale by the Purchasers thereof and their
assigns and transferees on a delayed or continuous basis under Rule
415 of the Securities Act of 1933.
(6) An indeterminate number of additional shares of Common Stock were
registered, as provided in the Warrants and the Representative's
Warrant, in the event provisions against dilution become operative.
(7) In connection with our sale of the Units, we granted to the
Representative of the several Underwriters (the "Representative") a
warrant to purchase 350,000 Units (the "Representative's Warrant").
The price paid by the Representative for the Representative's Warrant
was $5.
(8) The exercise price of the Representative's Warrant was expected to be
$9.00 per Unit, based upon an assumed maximum initial public offering
price of $7.50. For purposes of calculation of the registration fee,
each share of Common Stock included in a Unit issuable upon exercise
of the Representative's Warrant had been assumed to have a proposed
maximum offering price of $9.00, and each Warrant included in a Unit
issuable upon exercise of the Representative's Warrant had been
assumed to have a proposed maximum offering price of $0.00.
(9) These shares and Warrants were registered for resale by the
Representative and its assigns and transferees on a delayed or
continuous basis under Rule 415 of the Securities Act of 1933.
(10) The fee paid with this Post-Effective Amendment No. 5 is $0: A total
of $28,468 was previously paid.
<PAGE>
4,487,702 SHARES
328,500 WARRANTS
SUPERGEN, INC.
COMMON STOCK &
WARRANTS FOR THE PURCHASE
OF COMMON STOCK
We ("SuperGen" or the "Company") are offering 4,487,702 shares of our
common stock issuable upon the exercise of warrants issued in connection with
our initial public offering. We are also offering 3288,500 Warrants that are
exercisable for shares of common stock.
Our common stock and the Warrants commenced trading on the Nasdaq
National Market on March 13, 1996 and are listed on the Nasdaq National
Market under the symbols "SUPG" and "SUPGW," respectively. On September 20,
1999 we gave notice that we will redeem all outstanding Warrants on April 16,
2000.
THE SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANTS INVOLVE A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING AT PAGE 3.
--------------------
<TABLE>
<CAPTION>
UNDERWRITING
GROSS DISCOUNTS NET PROCEEDS
PROCEEDS AND COMMISSIONS TO COMPANY
------------ --------------- -------------
<S> <C> <C> <C>
Per share of common stock (1)............... $ 37,432,818 $ 1,039,801(3) $36,393,017(4)
Per Representative's Warrant (2)............ $ 2,365,200 --- $ 2,365,200
Total....................................... $ 39,798,018 $ 1,039,801 $38,758,217
</TABLE>
- -------------------
(1) The exercise price of the Warrants is $9.00 per share.
(2) We will receive $7.20 for each unit issued upon the exercise of the
Representative's Warrant. A unit consists of one share of common
stock and one Warrant, and we will receive an additional $9.00 per
share upon exercise of these Warrants. There are 328,500 units
remaining to be issued under the Representative's Warrant.
(3) We may pay brokers and agents a solicitation fee equal to $.25 per
share of common stock issued upon exercise of Warrants by holders
solicited by those brokers and agents. See "Plan of Distribution."
(4) Before deducting approximately $10,000 of expenses.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED ON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
--------------------
Prospectus dated September 22, 1999.
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<PAGE>
THE COMPANY
We are an emerging pharmaceutical company dedicated to the acquisition,
rapid development and commercialization of products for the treatment of
life-threatening diseases, particularly cancer. We seek to minimize the
time, expense and technical risk associated with drug commercialization by
identifying, acquiring and developing pharmaceutical compounds in the later
stages of development, rather than committing significant resources to the
research phase of drug discovery.
We are focusing our existing and proposed commercialization efforts on
two drugs, Nipent-Registered Trademark- and rubitecan (RFS 2000).
We are currently marketing Nipent-Registered Trademark- in the United
States for the treatment of hairy cell leukemia. We are also conducting
clinical trials of Nipent-Registered Trademark- to seek FDA approval to
expand its use for the treatment of additional forms of leukemia. Rubitecan
is a drug compound in the late stage of clinical development. Clinical
studies indicate it has the potential to treat a variety of solid tumors,
including pancreatic, breast, lung, colorectal, ovarian and prostate cancers,
and hematological disorders.
We are also developing our product line of enhanced generic anticancer
drugs using our Extra proprietary drug delivery technology. This technology,
consisting of a delivery system incorporating the active drug cyclodextrin,
has the following properties:
- - The form of a ready to inject, stable solution that increases the ease
and safety of administration.
- - Increased shelf life, facilitating multiple doses from a single vial.
- - Less susceptibility to ulceration at the injection site due to
shielding properties of the Extra formulation. The drug is released
only upon circulation within the bloodstream.
- - Our Extra technology is protected by a combination of exclusive and
non-exclusive licenses and related patents. These patents were issued
between 1991 and 1998. The licenses pertaining to the Extra platform
generally are effective for the terms of the related patents.
We seek to expand our portfolio of anticancer drugs through the
acquisition of products and product candidates, or companies owning such
products or candidates, which complement our portfolio and provide us with
market opportunities. In August 1999, we acquired Sparta Pharmaceuticals,
Inc. ("Sparta"), a company with anti-cancer compounds in late-stage clinical
development. Sparta also has, in late stage clinical development, a novel
drug delivery system that allows compounds which are insoluble or poorly
soluble in water to be delivered intravenously (or by other routes) without
the need for organic solvents that may in themselves be toxic.
We also have non-oncology programs in the large market areas of anemias
and other blood cell disorders, obesity/diabetes and autoimmune diseases. We
intend to seek partnerships with larger drug companies for the development
and marketing of these non-oncology drug candidates.
Throughout this prospectus, we use the term "proprietary" to refer to
some of our products and technology. By use of this term, we mean to refer to
those products and technology that are protected from competition by patents,
licenses, manufacturing know-how or a combination of these competitive
barriers.
We incorporated in March 1991 as a California corporation and changed
our state of incorporation to Delaware on November 1997. Our executive
offices are located at Two Annabel Lane, Suite 220, San Ramon, California,
and our telephone number at that address is (925) 327-0200.
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<PAGE>
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW BEFORE MAKING AN
INVESTMENT DECISION. THE RISKS AND UNCERTAINTIES BELOW ARE NOT THE ONLY ONES
FACING SUPERGEN. ADDITIONAL RISKS AND UNCERTAINTIES NOT PRESENTLY KNOWN TO US
OR THAT WE CURRENTLY DEEM IMMATERIAL MAY ALSO IMPAIR OUR BUSINESS OPERATIONS.
IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR, OUR BUSINESS, RESULTS OF
OPERATIONS OR CASH FLOWS COULD BE ADVERSELY AFFECTED. IN THOSE CASES, THE
TRADING PRICE OF OUR COMMON STOCK COULD DECLINE, AND YOU MAY LOSE ALL OR PART
OF YOUR INVESTMENT.
WE HAVE INCURRED LOSSES AND OUR BUSINESS WILL SUFFER IF WE FAIL TO ACHIEVE
SIGNIFICANT REVENUES OR PROFITABLE OPERATIONS.
We have incurred cumulative losses of $66.1 million for the period from
inception through June 30, 1999. These losses included non-cash charges of
$7.5 million for the acquisition of in-process research and development. We
have not achieved profitability and expect to continue to incur substantial
operating losses at least through 2000. Substantially all of our revenues
have come from sales of Nipent-Registered Trademark-, and we expect this
trend to continue for some time. Nipent-Registered Trademark- revenues were
$2.1 million for the first six months of 1999, $2.7 million in 1998, $1.5
million in 1997 and $225,000 in 1996. All of these revenues resulted from
commercial sales. Our ability to achieve profitability will depend on our
ability to develop, obtain regulatory approval for and successfully market
Nipent-Registered Trademark- for other indications, and bring other
proprietary products to market. Our ability to become profitable will also
depend upon a variety of other factors, including the following:
- - The price, volume and timing of sales of products.
- - The mix between Nipent-Registered Trademark- sales in the United States
and those under a supply agreement with Warner-Lambert Company for sales
outside North America.
- - Variations in gross margins of our products, which may be affected by
sales mix and competitive pricing pressures.
- - Regulatory approvals of new products or expanded labeling of existing
products.
- - Changes in the level of our research and development, including the
timing of any expansion of clinical trials. Clinical trials include
the testing of drug compounds upon human subjects.
- - Acquisitions of products, technology or companies.
Our long-term success will also be affected by expenses, difficulties
and delays frequently encountered in developing and commercializing new
pharmaceutical products, competition, and the burdensome regulatory
environment in which we operate. We cannot be certain that we will ever
achieve significant revenues or profitable operations.
OUR BUSINESS COULD SUFFER IF THE RESULTS OF FURTHER CLINICAL TESTING INDICATE
THAT OUR PROPOSED PRODUCTS ARE NOT SUITABLE FOR COMMERCIAL USE
Our proposed proprietary products are in the development rather than the
research stage. However, we must significantly develop all of our proposed
products before we can market them. Although we believe that the results of
our early stage clinical studies support further development of our proposed
proprietary products, the results we have obtained to date do not necessarily
indicate results of further testing, including controlled human clinical
testing. All of the potential proprietary products that we are currently
developing will require extensive clinical testing before we can submit any
regulatory application for their commercial use.
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<PAGE>
In contrast to our proposed proprietary products, Nipent-Registered
Trademark- and our generic version of mitomycin have been approved for
commercial use and we began sales of these drugs in 1996 and 1998,
respectively.
OUR BUSINESS COULD SUFFER IF WE ARE UNABLE TO SUCCESSFULLY DEVELOP OUR
GENERIC PRODUCTS AND EXTRA PRODUCTS BASED ON GENERIC PRODUCTS BECAUSE THE
PATENTS FOR THE UNDERLYING DRUGS DO NOT EXPIRE
We plan to develop and market several generic and Extra drugs, some of
which are currently protected by one or more patents held by others. If the
existing patent protection for these drugs is maintained or extended, it is
unlikely that we will be able to market our own generic and Extra versions of
those drugs. We do not believe it is financially prudent to proceed with
substantial development efforts for generic or Extra drugs if we do not know
if or when existing patent protection will cease.
In particular, we plan to develop and market a generic and an Extra
version of paclitaxel, as well as an Extra version of cisplatin. However, the
original patent protection for both drugs has been extended through the
issuance of new patents in the United States. The current cisplatin patent
expires in 2013 and the current use patent for paclitaxel expires in 2002.
Other companies interested in marketing generic versions of these drugs are
actively disputing the legality of these patents and we anticipate that these
legal disputes will be resolved within the next three years. If the patent
protection for both these products is upheld, we will not proceed with
further development of these products. If the patent protection is
overturned, we plan to further develop these products and we believe we can
bring them to market within two years of a favorable patent ruling.
OUR BUSINESS WILL SUFFER IF WE FAIL TO OBTAIN ADEQUATE FUNDING IN A TIMELY
MANNER
We expect that we will need substantial additional funding. Our
business, results of operations and cash flows will be adversely affected if
we fail to obtain adequate funding in a timely manner. Our funding
requirements will depend on many factors, including:
- - The progress of our development programs.
- - The availability of additional drugs or drug candidates for
acquisition by SuperGen or to be licensed to SuperGen.
- - The availability of companies as potential acquisition or merger
candidates.
- - Revenue growth, if any.
- - The amount of cash generated, if any, by our operations.
- - The timing and receipt of regulatory approvals.
- - The costs involved in preparing, filing, prosecuting, maintaining,
enforcing and defending patent claims and other intellectual property
rights.
- - Developments related to reimbursement matters.
- - Competing technological and market developments.
- - The need for additional office and manufacturing facilities to
accommodate growth.
Without giving effect to the sale of any of our common stock in the
offering covered by this prospectus, we anticipate that our existing capital
resources as of the date of this prospectus will be adequate to fund
operations and capital expenditures at least through December 31, 2000.
However, if we experience unanticipated cash requirements during this period,
we could require additional funds much sooner. We may receive funds from the
sale of equity securities, including the sale of our common stock or the
exercise of Warrants to acquire common stock as part of this offering, as
well as the exercise of other outstanding warrants and stock options.
However,
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<PAGE>
we cannot assure you that any of those fundings will occur, or if they occur,
that they will be on terms favorable to us. Also, the dilutive effect of
those fundings could adversely affect our results per share.
OUR BUSINESS WILL SUFFER IF WE FAIL TO OBTAIN REGULATORY MANUFACTURING OR
MARKETING APPROVALS IN A TIMELY MANNER, IF AT ALL
We cannot assure you that we will obtain the necessary regulatory
approvals to manufacture or market our proposed products. The United States
Food and Drug Administration and comparable agencies in foreign countries
impose substantial requirements for the introduction of new pharmaceutical
products through lengthy and detailed clinical testing procedures, sampling
activities and other costly and time-consuming compliance procedures. We have
obtained marketing approval for Nipent-Registered Trademark- and our
internally developed generic version of mitomycin and approval of sources of
bulk drugs for our Extra and generic products. However, we have not yet
received marketing approval for any of our internally developed proprietary
products. Our proprietary drugs and Extra drugs may require substantial
clinical trials and FDA review as new drugs. Our generic drugs require both
approval of the bulk source of the drug and FDA approval of their final
formulation.
We cannot predict with certainty if or when we might submit for
regulatory review those products currently under development. Once we submit
our potential products for review, we cannot assure you that the FDA or other
regulatory agencies will grant approvals for any of our pharmaceutical
products on a timely basis or at all. For example, we initially believed that
the FDA would abbreviate the approval process for our Extra products.
However, the FDA is reviewing Mito Extra, our first Extra product submission,
as a new drug. Sales of our products outside the United States will be
subject to regulatory requirements governing clinical trials and marketing
approval. These requirements vary widely from country to country and could
delay the introduction of our products in those countries.
OUR BUSINESS WILL SUFFER IF WE FAIL TO COMPLY WITH GOVERNMENTAL REGULATIONS
If we fail to comply with regulatory requirements, we may be subject to
regulatory or judicial enforcement actions. Those actions could include
product recalls or seizures, injunctions, civil penalties, criminal
prosecution, refusals to approve new products, withdrawal of existing
approvals and potentially enhanced product liability exposure. Our research,
testing, manufacturing, labeling, distribution, marketing and advertising
activities are regulated extensively by governmental authorities in the
United States and other countries.
ASSERTING AND DEFENDING INTELLECTUAL PROPERTY RIGHTS WILL HARM OUR RESULTS OF
OPERATIONS REGARDLESS OF SUCCESS
Our business will be harmed if competitors develop substantially
equivalent proprietary information and techniques or otherwise gain access to
our trade secrets, if our trade secrets are disclosed or if we cannot
effectively protect our rights to unpatented trade secrets.
We actively seek patent protection for our proprietary products and
technologies. We have a number of United States patents and also have
licenses to, or assignments of, numerous issued United States patents.
However, litigation may be necessary to protect our patent position, and we
cannot be certain that we will have the required resources to pursue the
necessary litigation or otherwise to protect our patent rights. Our efforts
to protect our patents may fail. In addition to pursuing patent protection in
appropriate cases, we also rely on trade secret protection for unpatented
proprietary technology. However, trade secrets are difficult to protect.
Our proprietary products are dependent upon compliance with numerous
licenses and agreements. These licenses and agreements require us to make
royalty and other payments, reasonably exploit the underlying technology of
the applicable patents, and comply with regulatory filings. If we fail to
comply with these licenses and agreements, we could lose the underlying
rights to one or more
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<PAGE>
of these potential products, which would adversely affect our business,
results of operations and cash flows.
Claims may be brought against us in the future based on patents held by
others. These persons could bring legal actions against us claiming damages
and seeking to enjoin clinical testing, manufacturing and marketing of the
affected product. If any of these actions are successful, in addition to any
potential liability for damages, we could be required to obtain a license to
continue to manufacture or market the affected product. We cannot assure you
whether we would prevail in any of these actions or that we could obtain any
licenses required under any of these patents on acceptable terms, if at all.
We know of no pending patent infringement suits, discussions regarding
possible patent infringements or threats of patent infringement litigation
either related to:
- - patents held by us or our licensors; or
- - our products or proposed products.
There has been, and we believe that there will continue to be,
significant litigation in the pharmaceutical industry regarding patent and
other intellectual property rights. If we become involved in any litigation,
it could consume a substantial portion of our resources, regardless of the
outcome of the litigation.
OUR BUSINESS WILL SUFFER IF WE FAIL TO COMPETE EFFECTIVELY, PARTICULARLY
AGAINST LARGER, MORE ESTABLISHED PHARMACEUTICAL COMPANIES WITH GREATER
RESOURCES
Our competitors and probable competitors include, among others, Eli
Lilly & Co., Ortho-McNeil Pharmaceutical, Amgen Inc., Gensia-Sicor, Inc.,
Bristol-Myers Squibb Company and Immunex Corp. These companies have
substantially greater financial, research and development, manufacturing and
marketing experience and resources than we do and represent substantial
long-term competition for us. These companies may succeed in developing
pharmaceutical products that are more effective or less costly than any that
we may develop or market.
Factors affecting competition in the pharmaceutical industry vary
depending on the extent to which the competitor is able to achieve a
competitive advantage based on proprietary technology. If we are able to
establish and maintain a significant proprietary position with respect to our
proprietary products, competition will likely depend primarily on the
effectiveness of the product, its acceptance in the marketplace, and its
pricing and the number, gravity and severity of its unwanted side effects as
compared to alternative products.
Competition for generic products is based primarily on price and, to a
lesser extent, on name recognition and the reputation of the manufacturer in
its target markets. Moreover, the number of competitors offering a particular
generic product could dramatically affect price and gross margin for that
product, or an Extra product based on that generic product. We may be at a
disadvantage in competing with more established companies on the basis of
price or market reputation. In addition, a significant number of Extra
products that we are currently developing consist of, or are based upon,
generic products for which patent protection has expired or is expected to
expire. Increased competition in a particular generic market would likely
lead to significant price erosion for our generic products and Extra products
based on those generic products, which would adversely affect our sales and
potential gross profit margins.
For example, we believe that the total estimated U.S. sales for
mitomycin, bleomycin, etoposide and cisplatin, as well as other of our
proposed generic products and generic products upon which we propose to base
Extra products, have decreased in recent years due to increased competition.
We also believe that sales volumes and unit prices of these generics may
continue to decrease as a result of competitive factors, including the
following:
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<PAGE>
- - The introduction of additional generics as well as other anticancer
drugs.
- - The desire of some companies to increase their market share.
- - New formulations for these drugs and the use of different therapies.
Extensive research and development efforts and rapid technological
progress characterize our industry. Although we believe that our proprietary
position gives us a competitive advantage with respect to our proposed
non-generic drugs, we anticipate that development will continue and
discoveries by others may render our current and potential products
noncompetitive. In addition, we have only limited experience in selling and
marketing pharmaceutical products.
WE ARE DEPENDENT ON THIRD PARTIES FOR MANUFACTURING AND OUR BUSINESS MAY BE
HARMED IF THE MANUFACTURE OF OUR PRODUCTS IS INTERRUPTED OR DISCONTINUED AND
WE CANNOT OBTAIN THIRD PARTY MANUFACTURING ON ACCEPTABLE TERMS
We currently rely on vendors for manufacturing activities related to
Nipent-Registered Trademark- and our generic version of mitomycin. The
facilities used by these vendors have passed plant inspections required by
the FDA prior to market clearance of all pharmaceutical products. The FDA
conducts these inspections to ensure compliance with current Good
Manufacturing Practices regulations enforced by the FDA. If the facilities
fail to maintain their Good Manufacturing Practices status, or there is an
interruption at any of these facilities due to the occurrence of a fire,
natural disaster, equipment failure or other condition, we will need to
locate other facilities. However, we may not be able to locate facilities
that are FDA-approved for manufacturing activities in a timely manner and on
commercially acceptable terms.
In addition, we store the majority of our Nipent-Registered Trademark-
crude concentrate, the unpurified, bulk form of the drug, at a single storage
location. Improper storage, fire, natural disaster, theft or other conditions
at this location that may lead to the loss or destruction of our
Nipent-Registered Trademark- crude concentrate could adversely affect our
business, results of operations and cash flows. We are currently negotiating
a long-term agreement with the vendor that purifies our current supply of
crude concentrate to continue its purification services. However, we cannot
assure you that we will be able to finalize the agreement. If we are not able
to do so, our supply of Nipent-Registered Trademark- may be interrupted while
we seek to locate another facility and to have that facility approved by the
FDA. The delay could adversely affect our business, results of operations and
cash flows.
We will encounter similar issues with respect to any potential products
that the FDA clears for sale. We must establish and maintain relationships
with manufacturers to produce and package our finished pharmaceutical
products, including rubitecan (RFS 2000). In addition, the FDA must clear the
facilities used by these contract manufacturers. If we are unable to obtain
or retain third-party manufacturing on commercially acceptable terms or
obtain necessary FDA clearances to manufacture the products currently being
developed, we may not be able to commercialize pharmaceutical products as
planned. Our dependence upon third parties for the manufacture of
pharmaceutical products may adversely affect our profit margins and our
ability to develop and deliver pharmaceutical products on a timely and
competitive basis.
We currently rely on foreign and domestic manufacturers to obtain bulk
drug substances that are incorporated into our various products. We currently
rely on domestic manufacturers for the production of our unique single
source, Extra and generic formulations and to supply sufficient quantities of
products to conduct clinical trials on Extra and other proposed proprietary
products. If we are unable to contract for or obtain a sufficient supply of
bulk drug substance or potential pharmaceutical products on acceptable terms,
or these supplies are delayed or contaminated, we could experience:
- - Significant reductions in sales.
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<PAGE>
- - Delays in bringing our proposed Extra and other single source
proprietary and generic products to market.
- - Delays in preclinical and human clinical testing schedules.
- - Delays in submitting products for regulatory approval and initiating
new development programs.
Any of these factors could adversely affect our business, results of
operations and cash flows.
We do not currently intend to manufacture any pharmaceutical products,
although we may choose to do so in the future. If we decide to manufacture
products, we would be subject to the regulatory requirements described above.
We will also be subject to similar risks regarding delays or difficulties
encountered in manufacturing these pharmaceutical products and we will
require additional facilities and substantial additional capital. In
addition, we have only limited experience in manufacturing pharmaceutical
products. We cannot assure you that we would be able to manufacture any of
these products successfully and in a cost-effective manner.
OUR BUSINESS WILL SUFFER IF WE LOSE KEY PERSONNEL OR ARE UNABLE TO ATTRACT
AND RETAIN THE ADDITIONAL, HIGHLY SKILLED PERSONNEL REQUIRED FOR THE
EXPANSION OF OUR ACTIVITIES
Our success is dependent on key personnel, including Dr. Rubinfeld, our
President and Chief Executive Officer, and members of our senior management
and scientific staff. To successfully expand our operations, we will need to
attract additional, highly skilled individuals, particularly in the areas of
clinical administration, manufacturing and finance. We compete with other
companies for the services of existing and potential employees. We believe
our compensation and benefits packages are competitive for our geographical
region and our industry group. However, we may be at a disadvantage to the
extent that potential employees may favor larger, more established employers.
THE CONTINUING EFFORTS OF GOVERNMENT AND THIRD-PARTY PAYERS TO CONTAIN OR
REDUCE THE COSTS OF HEALTHCARE MAY ADVERSELY AFFECT OUR REVENUES AND
PROFITABILITY
Our revenues and profitability may be affected by the continuing efforts
of governmental and third-party payers to contain or reduce the costs of
health care. We cannot predict the effect that these health care reforms may
have on our business, and it is possible that any of these reforms will
adversely affect our business. In addition, in both the United States and
elsewhere, sales of prescription pharmaceuticals are dependent in part on the
availability of reimbursement to the consumer from third-party payers, like
government and private insurance plans. Third-party payers are increasingly
challenging the prices charged for medical products and services. If our
current and proposed products are not considered cost-effective,
reimbursement to the consumer may not be available or be sufficient to allow
us to sell products on a competitive basis.
WE MAY BE SUBJECT TO PRODUCT LIABILITY LAWSUITS AND OUR INSURANCE MAY BE
INADEQUATE TO COVER DAMAGES
Clinical trials or marketing of any of our current and potential
pharmaceutical products may expose us to liability claims from the use of
these pharmaceutical products. We currently carry product liability
insurance. However, we cannot be certain that we will be able to maintain
insurance on acceptable terms for clinical and commercial activities or that
the insurance would be sufficient to cover any potential product liability
claim or recall. If we fail to have sufficient coverage, our business,
results of operations and cash flows could be adversely affected.
IF WE ARE UNABLE TO COMPLY WITH ENVIRONMENTAL LAWS AND REGULATIONS, OUR
BUSINESS MAY BE HARMED
We are subject to federal, state and local laws and regulations
governing the use, manufacture, storage, handling and disposal of hazardous
-8-
<PAGE>
materials and waste products. We currently maintain a supply of several
hazardous materials at our facilities. While we currently outsource our
research and development programs involving the controlled use of
biohazardous materials, if in the future we conduct these programs, we might
be required to incur significant cost to comply with environmental laws and
regulations. In the event of an accident, we could be held liable for any
damages that result, and the liability could exceed our resources.
ANTI-TAKEOVER PROVISIONS MAY PREVENT YOU FROM REALIZING A PREMIUM RETURN
Anti-takeover provisions of our certificate of incorporation and bylaws
make it more difficult for a third party to acquire us, even if doing so
would be beneficial to our stockholders. These provisions include:
- - Authorization of the issuance of up to 2,000,000 shares of our preferred
stock.
- - Elimination of cumulative voting.
- - Elimination of stockholder action by written consent.
Our bylaws establish procedures, including notice procedures, with
regard to the nomination, other than by or at the direction of our board of
directors, of candidates for election as directors or for stockholder
proposals to be submitted at stockholder meetings.
We are also subject to Section 203 of the Delaware General Corporation
Law, an anti-takeover law. In general, Section 203 of the Delaware General
Corporation Law prevents stockholders owning 15% or more of a corporation's
outstanding voting stock from engaging in business combinations with a
Delaware corporation for three years following the date those stockholders
acquired 15% or more of a corporation's outstanding voting stock. This
restriction is subject to exceptions, including the approval of the board of
directors and of the holders of at least two-thirds of the outstanding shares
of voting stock not owned by the interested stockholder.
These provisions are expected to discourage different types of coercive
takeover practices and inadequate takeover bids and to encourage persons
seeking to acquire control of SuperGen to first negotiate with us.
We believe that the benefits of increased protection of SuperGen's
potential ability to negotiate with the proponents of unfriendly or
unsolicited proposals to acquire or restructure SuperGen outweigh the
disadvantages of discouraging those proposals because, among other things,
negotiation of those proposals could result in an improvement of their terms.
BECAUSE CURRENT OFFICERS AND DIRECTORS OWN A LARGE PERCENTAGE OF OUR STOCK,
THESE STOCKHOLDERS MAY BE ABLE TO CONTROL SUPERGEN AND ALSO PREVENT
POTENTIALLY BENEFICIAL ACQUISITIONS OF SUPERGEN
As of September 17, 1999, our officers and directors beneficially owned
approximately 28% of the outstanding shares of our common stock. Beneficial
ownership includes shares of our common stock subject to options and warrants
exercisable within sixty days of September 17, 1999.
These stockholders, if acting together, may be able to elect all of our
directors and otherwise significantly influence matters requiring approval by
our stockholders. This concentration of ownership and the lack of cumulative
voting may also delay or prevent a third party from acquiring us.
These stockholders may have interests that differ from other
stockholders of SuperGen, particularly in the context of potentially
beneficial acquisitions of SuperGen. For example, to the extent that these
stockholders are employees of SuperGen, they may be less inclined to vote for
acquisitions of SuperGen involving the termination of their employment or
diminution of their responsibilities or compensation.
-9-
<PAGE>
THE TRADING PRICE OF YOUR STOCK MAY DECREASE DUE TO FACTORS BEYOND OUR CONTROL
The trading prices of our common stock are subject to significant
fluctuations in response to numerous factors, including:
- - Variations in anticipated or actual results of operations.
- - Announcements of new products or technological innovations by
competitors.
- - FDA approval or rejection of pending applications.
- - Changes in earnings estimates of operational results by analysts.
- - Results of clinical trials.
Moreover, the stock market from time to time has experienced extreme
price and volume fluctuations, which have particularly affected the market
prices for emerging growth companies and which have often been unrelated to
the operating performance of these companies. These broad market fluctuations
may adversely affect the market price of our common stock.
During the past three years from the date of this prospectus, the market
price per share of our common stock has fluctuated between approximately
$5.125 and $24.375.
OUR BUSINESS MAY BE HARMED IF WE BECOME SUBJECT TO SECURITIES CLASS ACTION
LITIGATION
In the past, following periods of volatility in the market price of a
company's common stock, securities class action litigation has been brought
against the issuing company. This type of litigation could be brought against
us in the future. The litigation could be expensive and divert management's
attention and resources, which could adversely affect our business and
results of operations whether or not our defense is successful. If the
litigation is determined against us, we could also be subject to significant
liabilities.
WE MAY NOT EARN A FAVORABLE RETURN WITH THE PROCEEDS OF THIS OFFERING
Our management can spend the proceeds from this offering in ways with
which you may not agree. We cannot predict that the proceeds will be invested
to yield a favorable return.
THE MARKET PRICE OF OUR STOCK MAY FALL IF OTHER STOCKHOLDERS SELL THEIR STOCK
If our stockholders sell substantial amounts of our common stock in the
public market the price of our common stock could fall. These sales also
might make it more difficult for us to sell equity or equity-related
securities in the future at a price we deem appropriate.
As of September 17, 1999, we had 24,656,518 shares of our common stock
outstanding. Of these shares, approximately 22,825,893 shares were eligible
for sale in the public market.
As of September 17, 1999, we had reserved an additional 11,311,383
shares of our common stock for future issuance upon exercise of outstanding
options and warrants, including those in this offering. If these securities
are exercised, and subsequently sold in the public market, this may cause the
price of our common stock to fall.
THE YEAR 2000 PROBLEM COULD CAUSE DISRUPTIONS OF OUR OPERATIONS
The Year 2000 issue is the result of computer software applications
being written using two rather than four digits to define a year. On January
1, 2000, computer equipment and programs that have time sensitive software
may not be able to distinguish whether "00" means 1900 or 2000. This could
result in a system failure or miscalculations causing disruptions of
operations, including, among other things, a temporary inability to process
transactions or engage in similar normal business activities.
We converted to new accounting software in 1998 and that software
properly recognizes dates beyond December 31, 1999. We have determined that
no other software programs currently in use
-10-
<PAGE>
by SuperGen will require significant modification or replacement to properly
recognize dates beyond December 31, 1999. We have initiated and maintained
formal communications with significant contract manufacturers, contract
research organizations and other vendors to determine the extent to which we
are vulnerable to those third parties' failure to fix their own Year 2000
issues. Based upon those communications, we believe that all significant
computer software programs utilized by third parties upon which we rely are
either Year 2000 compliant or will be converted to Year 2000 compliance prior
to December 31, 1999.
One or more of SuperGen's or our business partners' software
applications may prove to be non-Year 2000 compliant. In that case, we may
experience difficulties on and after January 1, 2000. The worst case Year
2000 scenario envisioned by our management would involve delays in invoicing
and shipping, inventory production, and clinical trial documentation.
YOU MAY BE FORCED TO EXERCISE YOUR WARRANT OR ACCEPT THE REDEMPTION PRICE
The Warrants are subject to redemption at $0.25 per Warrant on at least
30 days written notice provided that the closing bid price of the common
stock for the 20 consecutive trading days immediately preceding the date of
the notice of redemption exceeds $18.00. On September 20, 1999, we issued a
redemption notice announcing our intent to redeem the Warrants in April 2000,
which will require holders to either exercise the Warrants prior to the
redemption date or accept the redemption price. Also see "Description of
Securities" and "Recent Developments."
A CURRENT PROSPECTUS AND STATE BLUE SKY REGISTRATION IS REQUIRED TO EXERCISE
THE WARRANTS.
Holders of Warrants will be able to exercise them only if a current
prospectus relating to the common stock underlying those Warrants is then in
effect, and only if that common stock is qualified for sale or exempt from
qualification under applicable state securities law of the state in which the
holders of the Warrants reside.
The Warrants are separately transferable. Although Warrants were not
knowingly sold to purchasers in jurisdictions in which the Warrants are not
registered or otherwise qualified for sale, purchasers may buy Warrants in
the after market in, or may move to, jurisdictions in which the shares
underlying the Warrants are not registered or qualified during the period
that the Warrants are exercisable. In this event, we would be unable to issue
shares to those persons desiring to exercise their Warrants, and holders of
Warrants would have no choice but to attempt to sell the Warrants in a
jurisdiction where the sale is permissible or allow them to expire
unexercised. See "Description of Securities."
RECENT DEVELOPMENTS
As of September 20, 1999, the closing bid price of the Company's Common
Stock for the preceding twenty consecutive trading days exceeded $18.00 per
share. Under the terms of the Warrant Agreement, the Company is entitled to
redeem the Warrants at least thirty days from the date of a redemption notice.
On September 20, 1999 we gave notice that we will redeem all outstanding
Warrants on April 16, 2000. Under the terms of the Warrant Agreement, all
rights of Warrant Holders other than the right to receive the redemption
price per Warrant equal to $0.25 per Warrant will terminate from and after
April 16, 2000. This action does not preclude the earlier exercise of a
Warrant by a Warrant holder as permitted under the terms of the Warrant
Agreement.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our filings are available to the public over
the internet at the SEC's web site at http://www.sec.gov. You may also read
and copy any document we file at the SEC's Public Reference Rooms in
Washington, D.C., New York, New York and Chicago, Illinois. The Public
Reference Room in Washington D.C. is located at 450 Fifth Street, N.W. Please
call the SEC at 1-800-SEC-0330 for further information on the Public
Reference Rooms.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference
is an important part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings
made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of our common stock registered under
this prospectus:
- - Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
- - Amendment No.1 to Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
- - Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
- - Quarterly Report on Form 10-Q for the quarter ended June 30, 1999.
- - Proxy Statement for the 1999 Annual Meeting of Stockholders.
- - The description of our common stock contained in our registration
statement on Form 8-A, filed on January 18, 1996, including any amendment
or report filed for the purpose of updating the description.
- - The description of our Warrants contained in our registration statement
on Form 8-A, filed on July 28, 1998.
- - The description of the warrants to purchase common stock we issued as
part of our acquisition of Sparta, contained in our registration statement
on Form 8-A, filed on August 12, 1999.
- - The description of our acquisition of Sparta Pharmaceuticals, Inc. on
August 12, 1999, contained in our Current Report on Form 8-K filed on
August 26, 1999.
- - All other reports filed in accordance with Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since December 31, 1998.
This Prospectus is part of a registration statement on Form S-3 with the
SEC under the Securities Act of 1933. This prospectus does not contain all of
the information set forth in the registration statement. You should read the
registration statement for further information about SuperGen and our common
stock. You may request a copy of these filings at no cost. Please direct your
requests to:
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, California 94583
Attn: Investor Relations
(925) 327-0200
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<PAGE>
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of our common stock in any state where the offer is not
permitted. You should not assume that the information in this prospectus or
any prospectus supplement is accurate as of any date other than the date on
the front page of those documents.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. Forward-looking statements deal with our
current plans, intentions, beliefs and expectations and statements of future
economic performance. Statements containing terms like "believes," "does not
believe," "plans," "expects," "intends," "estimates," "anticipates" and other
phrases of similar meaning are considered to imply uncertainty and are
forward-looking statements.
Forward-looking statements involve known and unknown risks and
uncertainties that may cause our actual results in future periods to differ
materially from what is currently anticipated. We make cautionary statements
throughout this prospectus, including under "Risk Factors." You should read
these cautionary statements as being applicable to all related
forward-looking statements wherever they appear in:
- - This prospectus.
- - The materials referred to in this prospectus.
- - The materials incorporated by reference into this prospectus, other than
forward-looking statements which do not comply with the "plain English"
requirements of Rule 421 under the Securities Act of 1933.
- - Our press releases.
No forward-looking statement is a guarantee of future performance and
you should not place undue reliance on any forward-looking statement.
USE OF PROCEEDS
In the event that all unexercised warrants covered under this
registration statement are exercised, which may not happen, we could realize
up to $38.8 million, before deducting the estimated expenses related to this
Prospectus. The proceeds will be considered uncommitted funds and may be used
by us as working capital and general corporate purposes, including research
and development and marketing and sales for products we are currently
marketing and products that we may develop.
DIVIDEND POLICY
We have not declared or paid cash dividends on our common stock. We
currently intend to retain all future earnings to fund the operation of our
business and therefore, we do not anticipate paying dividends in the
foreseeable future. Future cash dividends, if any, will be determined by our
board of directors.
PLAN OF DISTRIBUTION
The Warrants, the Representative's Warrant and the common stock issuable
upon exercise of these warrants (the "Securities") may be sold from time to
time by the holders thereof or by pledgees, donees, transferees or other
successors in interest. These sales may be made in any one or more
transactions (which may involve
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<PAGE>
block transactions) on The Nasdaq Stock Market, or any exchange on which the
Warrants and the common stock may then be listed, in the over-the-counter
market or otherwise in negotiated transactions or a combination of these
methods of sale. Sales may be made at market prices prevailing at the time of
sale, at prices related to the prevailing market prices or at negotiated
prices. The holders of the Securities may effect these transactions by
selling Warrants or shares to or through broker-dealers, and the
broker-dealers may sell the Securities as agent or may purchase the
Securities as principal and resell them for their own account. These
broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the holders and/or purchasers of
the Securities, for whom they may act as agent (which compensation may be in
excess of customary commissions). In connection with these sales, the holders
and any participating brokers or dealers may be deemed to be "underwriters"
as defined in the Securities Act of 1933.
From time to time, we may retain brokers and agents to solicit the
holders of Warrants to exercise their Warrants. We intend to pay these
brokers and agents a solicitation fee of $.25 per share of common stock
issued upon exercise of Warrants by holders solicited by the brokers and
agents. In addition, we have agreed that if we elect to redeem the Warrants,
we will retain the Paulson Investment Company, Inc. as our solicitation
agent. We have agreed to pay Paulson for its services a solicitation fee
equal to 2% of the total amount paid by the holders of the Warrants whom
Paulson solicited to exercise the Warrants. Any exercise will be presumed to
be unsolicited unless the customer states in writing that the transaction was
solicited by a broker or agent or Paulson as the case may be, and designates
in writing the registered representative as the broker or agent or Paulson,
as the case may be, entitled to receive compensation for the exercise. The
fee is not payable for the exercise of any Warrant held by a broker or agent
or Paulson, as the case may be, in a discretionary account at the time of
exercise, unless a broker or agent or Paulson, as the case may be, receives
from the customer prior specific written approval of the exercise.
DESCRIPTION OF SECURITIES
COMMON STOCK
Our authorized common stock consists of 40,000,000 shares. As of
September 17, 1999, 24,656,518 shares of common stock were issued and
outstanding. The holders of common stock are entitled to one vote for each
share held of record on all matters submitted to a vote of stockholders.
Subject to preferences that may be applicable to outstanding shares of
preferred stock, if any, the holders of common stock are entitled to receive
ratably such dividends as may be declared by our Board of Directors out of
funds legally available therefor. Holders of common stock have no preemptive,
subscription, or redemption rights, and there are no redemption, conversion,
or similar rights with respect to such shares. The outstanding shares of
common stock are fully paid and non assessable. Our Certificate of
Incorporation does not provide for cumulative voting rights.
PREFERRED STOCK
We are authorized to issue up to 2,000,000 shares of undesignated
preferred stock. Our Board of Directors has the authority to issue the
undesignated preferred stock in one or more series and to fix the rights,
preferences, privileges, and restrictions granted to or imposed upon any
wholly unissued shares of undesignated preferred stock, as well as to fix the
number of shares constituting any series and the designation of such series,
without any further vote or action by the stockholders. Our Board of
Directors, without stockholder approval, may issue preferred stock with
voting and conversion rights which could materially adversely affect the
voting power of the holders of common stock. The issuance of preferred stock
could also decrease the amount of earnings and assets available for
distribution to holders of common stock. In
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addition, the issuance of preferred stock may have the effect of delaying,
deferring, or preventing a change in control. At present, we have no plans to
issue any shares of preferred stock.
WARRANTS
Representative's Warrant
We have issued a Representative's Warrant exercisable for 350,000 units,
at an exercise price of $7.20 per unit. This warrant expires on March 13,
2001. A unit consists of one share of common stock and one Warrant
exercisable for one share of common stock at $9.00 per share. The Warrants
within each unit also expire on March 13, 2001. So far, a Representative has
exercised its warrant for 21,500 units and received 21,500 shares of common
stock and 21,500 Warrants for the purchase of common stock. The
Representative has exercised 1,500 of the 21,500 Warrants it received upon
exercise of its unit warrants.
Warrants for Common Stock
We have Warrants exercisable for 3,830,702 shares of common stock
currently outstanding (excluding those contained within the Representative's
Warrants). Each Warrant entitles the holder to purchase one share of common
stock at a price of $9.00 per share. The Warrants, subject to certain
conditions, are exercisable at any time until March 13, 2001, unless earlier
redeemed. We may redeem the Warrants at $.25 per Warrant, upon at least
thirty days written notice to our warrant agent and directly to each Warrant
holder, if the closing bid price (as defined in the warrant agreement
described below) per share of the common stock for the twenty consecutive
trading days immediately preceding the date notice of redemption is given
exceeds $18.00. On September 20, 1999, we issued a redemption notice
announcing our intent to redeem the Warrants in April 2000, which will
require holders to either exercise the Warrants prior to the redemption date
or accept the redemption price. Also see "Recent Developments."
The Warrants were issued in registered form under a warrant agreement
with ChaseMellon Shareholder Services, L.L.C. (formerly First Interstate Bank
of California), as the warrant agent. The shares of common stock underlying
the Warrants, when issued upon exercise of a Warrant, will be fully paid and
nonassessable, and we will pay any transfer tax incurred as a result of the
issuance of common stock to the holder upon its exercise.
Both the Representative's Warrant and the Warrants contain provisions
that protect the holders against dilution by adjustment of the exercise
price. These adjustments will occur in the event, among others, that we make
certain distributions to holders of its common stock. We are not required to
issue fractional shares upon the exercise of any of these warrants. Neither
Paulson nor the holders of the warrants will possess any rights as a
stockholder of the Company until they exercise.
A Warrant may be exercised upon surrender of the warrant certificate on
or before the redemption date of the Warrant at the offices of ChaseMellon,
with the form of "Election To Purchase" on the reverse side of the warrant
certificate completed and executed as indicated, accompanied by payment of
the exercise price (by certified or bank check payable to us) for the number
of shares with respect to which the Warrant is being exercised.
For a holder to exercise the Warrants, there must be a current
registration statement in effect with the Securities and Exchange Commission
and qualification in effect under applicable state securities laws (or
applicable exemptions from state qualification requirements) with respect to
the issuance of shares or other securities underlying the Warrants. We agree
to use all commercially reasonable efforts to cause a registration statement
with respect to these securities under the Securities Act of 1933 to be filed
and to become and
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<PAGE>
remain effective in anticipation of and prior to the exercise of the Warrants
and to take other actions under the laws of various states as may be required
to cause the sale of common stock (or other securities) upon exercise of the
Warrants to be lawful. If a current registration statement is not in effect
at the time a Warrant is exercised, we have the option to redeem the Warrant
by paying to the holder cash equal to the difference between the market price
of the common stock on the exercise date and the exercise price of the
Warrants. We will not be required to honor the exercise of Warrants if, in
our board of directors' opinion and upon advice of counsel, the sale of
securities upon exercise would be unlawful.
This discussion of certain terms and provisions of the Representative's
warrant and the Warrants is qualified in its entirety by reference to the
detailed provisions of the warrant agreement and the Representative's Warrant
certificate, the form of each of which has been filed as an exhibit to the
registration statement of which this prospectus is a part.
For the life of the Warrants, the holders have the opportunity to profit
from a rise in the market price of the common stock without assuming the risk
of ownership of the shares of common stock issuable upon the exercise of the
Warrants. The Warrant holders may be expected to exercise their Warrants at a
time when we would, in all likelihood, be able to obtain any needed capital
by an offering of common stock on terms more favorable than those provided
for by the Warrants. Further, the terms on which we could obtain additional
capital during the life of the Warrants may be adversely affected.
LEGAL MATTERS
The validity of the issuance of common stock upon exercise of the
outstanding warrants will be passed upon for us by Wilson Sonsini Goodrich &
Rosati, P.C., Palo Alto, California.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 1998, as set forth in their report, which is incorporated
by reference in this prospectus and elsewhere in this registration statement.
Our financial statements are incorporated by reference in reliance on Ernst &
Young LLP's report, given on their authority as experts in accounting and
auditing.
The consolidated financial statements of Sparta Pharmaceuticals, Inc.,
one of our wholly-owned subsidiaries, included in our report on Form 8-K
dated August 26, 1999, have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and
are incorporated herein by reference in reliance upon the authority of said
firm as experts in giving said reports. Reference is made to said report,
which includes an explanatory paragraph with respect to the uncertainty
regarding Sparta's ability to continue as a going concern as discussed in
Note 1 to the financial statements.
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No dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this prospectus. You
must not rely on any unauthorized information or representations. This
prospectus is an offer to sell only the shares offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. This
information contained in this prospectus is current only as of its date.
--------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
The Company............................................................ 2
Risk Factors........................................................... 3
Recent Developments.................................................... 11
Where You Can Find More Information.................................... 12
Note Regarding Forward-Looking Statements.............................. 13
Use of Proceeds........................................................ 13
Dividend Policy........................................................ 13
Plan of Distribution................................................... 13
Description of Securities.............................................. 14
Legal Matters.......................................................... 16
Experts................................................................ 16
</TABLE>
<PAGE>
4,487,702 SHARES
328,500 WARRANTS
SUPERGEN, INC.
COMMON STOCK & WARRANTS FOR THE PURCHASE OF COMMON STOCK
--------------------
PROSPECTUS
--------------------
SEPTEMBER 22, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth our estimated expenses payable in
connection with this update of the Prospectus dated March 13, 1996.
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
-----------------
<S> <C>
Legal fees and expenses..................... $ 10,000
Accounting fees and expenses................ 5,000
--------
Total....................................... $ 15,000
--------
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation's Law authorizes a
corporation to indemnify its directors, officers, employees or other agents
in terms sufficiently broad to permit indemnification (including
reimbursement for expenses incurred) under certain circumstances for
liabilities arising under the Securities Act. Our Certificate of
Incorporation (Exhibit 3.1 hereto) and Bylaws (Exhibit 3.2 hereto) provide
indemnification of our directors and officers to the maximum extent permitted
by the Delaware General Corporation Law. In addition, we have entered into
indemnification agreements with our directors and officers. Reference is also
made to Section 8 of the Underwriting Agreement contained in Exhibit 1.1
hereto, indemnifying our officers and directors against certain liabilities.
ITEM 16. EXHIBITS.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------ -----------------------
<S> <C>
1.1(a) Form of Underwriting Agreement.
3.1(b) Certificate of Incorporation of the Registrant
3.2(c) Bylaws, as amended, of the Registrant
4.1(c) Specimen Common Stock Certificate.
4.2(a) Form of Representative's Warrant.
4.3(a) Form of Warrant Agreement (including form of Common Stock
Purchase Warrant).
5.1(a) Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ernst & Young LLP
24.1(a) Power of Attorney.
</TABLE>
- -------------------
(a) Previously filed.
II-1
<PAGE>
(b) Incorporated by reference from the Registrant's Proxy Statement filed
with the Securities and Exchange Commission on April 25, 1997.
(c) Incorporated by reference from the Registrant's Report on Form
10-K filed with the Securities and Exchange Commission on March 19,
1998.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant as provided by the foregoing provisions, or otherwise, we have
been advised that, in the opinion of the Securities and Exchange Commission,
this indemnification is against public policy as expressed in the Securities
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against this type of liability (other than the payment by us
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 a director, officer or controlling person in connection with
the securities being registered, we will, unless in the opinion of our
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether our indemnification is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication. We hereby undertake that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of Prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
in a form of Prospectus filed by us under Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities being offered, and the offering of those securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, we
certify we have reasonable grounds to believe that we meet all of the
requirements of filing on Form S-3 and authorize this Post-Effective
Amendment on Form S-3 to the Registration Statement on Form SB-2 to be signed
on our behalf by the undersigned, in the City of San Ramon, State of
California, on the 22nd day of September, 1999.
SUPERGEN, INC.
By: /s/ JOSEPH RUBINFELD
-----------------------------
Joseph Rubinfeld
CHIEF EXECUTIVE OFFICER,
PRESIDENT AND DIRECTOR
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities
stated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/Joseph Rubinfeld Chief Executive Officer, President and September 22, 1999
- --------------------------------------- Director (Principal Executive Officer)
Joseph Rubinfeld
/s/Ronald H. Spair Chief Financial Officer (Principal September 22, 1999
- --------------------------------------- Financial and Accounting Officer)
Ronald H. Spair
Director ____________, 1999
- ---------------------------------------
Lawrence J. Ellison
/s/ Daniel Zurr* Director September 22, 1999
- ---------------------------------------
Daniel Zurr
/s/ Denis Burger* Director September 22, 1999
- ---------------------------------------
Denis Burger
/s/ Julius Vida* Director September 22, 1999
- ---------------------------------------
Julius Vida
*By: /s/ JOSEPH RUBINFELD
-----------------------------------
Joseph Rubinfeld
ATTORNEY-IN-FACT
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<S> <C>
1.1(a) Form of Underwriting Agreement.
3.1(b) Certificate of Incorporation of the Registrant
3.2(c) Bylaws, as amended, of the Registrant
4.1(c) Specimen Common Stock Certificate.
4.2(a) Form of Representative's Warrant.
4.3(a) Form of Warrant Agreement (including form of Common Stock
Purchase Warrant).
5.1(a) Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ernst & Young LLP
24.1(a) Power of Attorney.
</TABLE>
- -------------------
(a) Previously filed.
(b) Incorporated by reference from the Registrant's Proxy Statement filed with
the Securities and Exchange Commission on April 25, 1997.
(c) Incorporated by reference from the Registrant's Report on Form 10-K filed
with the Securities and Exchange Commission on March 19, 1998.
II-4
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 5 on Form S-3 to Form SB-2 in the Registration Statement (Form
S-3, No. 333-476-LA) and related Prospectus of SuperGen, Inc. for the
registration of 4,487,702 shares of its common stock, 328,500 warrants
exercisable for common stock and to the incorporation by reference therein of
our report dated March 25, 1999, with respect to the consolidated financial
statements of SuperGen, Inc. included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
September 15, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement of our report dated
February 11, 1999 included in SuperGen, Inc.'s Form 8-K dated August 26,
1999, and to all references to our firm included in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
Philadelphia, PA
September 15, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Amendment No. 5 on Form S-3
to Form SB-2 in the Registration Statement (Form S-3, No. 333-476-LA) and
related Prospectus of SuperGen, Inc. for the registration of 4,487,702 shares
of its common stock and 328,500 warrants exercisable for common stock of our
report dated January 31, 1996 with respect to the financial statements of
Sparta Pharmaceuticals, Inc. included in SuperGen, Inc.'s Form 8-K dated
August 26, 1999.
/s/ ERNST & YOUNG LLP
Raleigh, North Carolina
September 15, 1999
