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As filed with the Securities and Exchange Commission on March 12, 1999
Registration No. 333-70505
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUPERGEN, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 2834 91-1841574
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(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
INCORPORATION OR
ORGANIZATION)
TWO ANNABEL LANE, SUITE 220
SAN RAMON, CALIFORNIA 94583
(925) 327-0200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JOSEPH RUBINFELD
PRESIDENT AND CHIEF
EXECUTIVE OFFICER
SUPERGEN, INC.
TWO ANNABEL LANE, SUITE 220
SAN RAMON, CALIFORNIA 94583
(925) 327-0200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
JOHN V. ROOS, ESQ.
WILSON SONSINI GOODRICH &
ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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Approximate date of commencement of proposed sale to the public: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
PROPOSED
TITLE OF EACH CLASS MAXIMUM AGGREGATE
OF SECURITIES TO BE REGISTERED OFFERING PRICE (1) AMOUNT OF REGISTRATION FEE (1)(2)
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<S> <C> <C>
Common Stock $0.001 par value . . . . . . . . . . $ 20,000,000 $ 5,560
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</TABLE>
(1) The maximum aggregate offering price of the Common Stock registered
hereunder will not exceed $20,000,000. Pursuant to Rule 457(o) under the
Securities Act, the registration fee is calculated on the aggregate maximum
offering price of the Common Stock, and the table does not specify
information about the amount of shares to be registered or the proposed
maximum offering price per share.
(2) Registration fee previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED MARCH 12, 1999
$20,000,000
SUPERGEN, INC.
COMMON STOCK
This prospectus is part of the registration statement we filed with the
Securities and Exchange Commission using a "shelf" registration process. This
means:
- - We may issue up to $20,000,000 of our common stock from time to time.
- - We will circulate a prospectus supplement each time we plan to issue our
common stock.
- - The prospectus supplement will inform you about the specific terms of that
offering and also may add, update or change information contained in this
prospectus.
- - You should read this prospectus and any prospectus supplement carefully
before you invest.
Our common stock is listed on the Nasdaq National Market under the symbol
"SUPG". On March 11, 1999, the last reported sale price for our common stock on
the Nasdaq National Market was $10.25 per share.
SEE "RISK FACTORS" BEGINNING AT PAGE 2 TO READ ABOUT FACTORS YOU SHOULD
CONSIDER BEFORE BUYING SHARES OF OUR COMMON STOCK.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this prospectus is March __, 1999.
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SUMMARY
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 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- in order to seek FDA approval to
expand its use for the treatment of additional forms of leukemia. RFS 2000 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 such as breast,
lung, colorectal, ovarian and prostate cancers.
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 also 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.
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 3, 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.
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW BEFORE MAKING AN
INVESTMENT DECISION. THE RISKS AND UNCERTAINTIES DESCRIBED 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.
THIS PROSPECTUS ALSO CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS
AND UNCERTAINTIES. OUR ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE
ANTICIPATED IN THE FORWARD-LOOKING STATEMENTS AS A RESULT OF NUMEROUS FACTORS,
INCLUDING THE RISKS DESCRIBED BELOW AND ELSEWHERE IN THIS PROSPECTUS.
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WE HAVE INCURRED LOSSES AND MAY NEVER ACHIEVE SIGNIFICANT REVENUES OR PROFITABLE
OPERATIONS
We have incurred cumulative losses of $56.0 million for the period from
inception through December 31, 1998. 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 1999. 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 $2.7 million
in 1998, $1.5 million in 1997 and $286,000 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 several of our 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 or technology.
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 PROPOSED PROPRIETARY PRODUCTS REQUIRE SIGNIFICANT ADDITIONAL DEVELOPMENT AND
CLINICAL TESTING AND MAY NOT BE SUITABLE FOR COMMERCIAL USE
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.
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.
WE MAY NEVER BE ABLE TO SUCCESSFULLY DEVELOP OUR GENERIC PRODUCTS AND EXTRA
PRODUCTS BASED ON GENERIC PRODUCTS IF THE PATENTS FOR THE UNDERLYING DRUGS DO
NOT EXPIRE
Our business could suffer if the patents held by others on drugs upon which
we are developing our generic products and Extra products based on generic
products do not expire as anticipated. Our ability to successfully develop our
generic products and Extra products based on generic products is dependent on
the expiration or anticipated expiration of the patents for those underlying
drugs. If the patents on those underlying drugs do not expire as anticipated,
we will not be able to successfully develop our generic products and Extra
products based on generic products for so long as those underlying drugs are
protected by the patents.
For instance, we plan to develop and market a generic and an Extra version
of paclitaxel, as well as an Extra version of cisplatin. An assumption inherent
in
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our plans is that the original patents relating to these two drugs would
expire and allow other companies to manufacture and market these drugs.
However, in both cases, the original patent protection has effectively been
extended through the issuance of new patents. Other companies interested in
marketing generic versions of these drugs are actively disputing the legality of
the extension of the patent protection for these drugs. However, we cannot
assure you that the disputes relating to these patents will be resolved
favorably or in a timely manner. An unfavorable resolution or significant
delays in the resolution of these disputes could significantly limit or prevent
our ability to compete in these marketplaces.
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.
- - Future 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 through December 31, 1999. 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 pursuant to this offering, or the
exercise of outstanding warrants and options to acquire common stock. However,
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 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.
OUR BUSINESS WILL SUFFER IF WE FAIL TO OBTAIN REGULATORY 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
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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.
ASSERTING AND DEFENDING INTELLECTUAL PROPERTY RIGHTS WILL AFFECT 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 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 in order 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.
WE MAY NOT BE ABLE TO COMPETE EFFECTIVELY, PARTICULARLY AGAINST LARGER, MORE
ESTABLISHED PHARMACEUTICAL COMPANIES WITH GREATER RESOURCES
Our competitors and probable competitors include 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.
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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 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:
- - 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. Our
competitive position also depends on our ability to attract and retain qualified
scientific and other personnel, develop effective proprietary products,
implement development and marketing plans, obtain patent protection and secure
adequate capital resources.
BECAUSE WE ARE DEPENDENT ON THIRD PARTIES FOR MANUFACTURING, OUR BUSINESS MAY BE
HARMED
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 may not be able to locate other facilities that are
FDA-approved for manufacturing activities in a timely manner or 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 RFS 2000. In addition, the FDA must clear the facilities used by
these
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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 manufacturers for the production of bulk Extra
and generic formulations and on domestic manufacturers to supply sufficient
quantities of compounds to conduct clinical trials on proposed proprietary
products. If we are unable to contract for or obtain a sufficient supply of
potential pharmaceutical products on acceptable terms, or these supplies are
delayed or contaminated, we could experience significant reductions in sales,
delays in bringing our proposed proprietary, Extra and generic products to
market, delays in preclinical and human clinical testing schedules, and 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.
IF WE LOSE THE SERVICES OF KEY EMPLOYEES, OUR BUSINESS WOULD BE HARMED
The loss of key personnel, or the inability to attract and retain the
additional, highly skilled personnel required for the expansion of our
activities, could adversely affect our business, results of operations and
cash flows. Our success is dependent on key management and scientific
personnel, including Dr. Joseph Rubinfeld, the loss of whose services could
significantly affect our ability to achieve our planned development
objectives. We maintain an executive life insurance policy in the amount
of $2.1 million on Dr. Rubinfeld.
THE CONTINUING EFFORTS OF GOVERNMENT AND THIRD-PARTY PAYORS 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 payors 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 payors, like government and
private insurance plans. Third-party payors 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 materials and
waste products. We currently maintain a supply of
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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 advance 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 EXISTING STOCKHOLDERS 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 March 5, 1999 our officers and directors beneficially owned
approximately 19% of the outstanding shares of our common stock. Beneficial
ownership includes shares of our common stock subject to options exercisable
within 60 days of March 5, 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.
OUR STOCK PRICE FLUCTUATES WIDELY AND ALSO EXPOSES US TO POTENTIAL SECURITIES
CLASS ACTION LITIGATION
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 or competitors, FDA approval or rejection of pending
applications and changes in earnings estimates by analysts. 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
8
<PAGE>
stock has fluctuated between approximately $4.13 and $19.00.
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. 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 following this offering, the market 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 March 5, 1999 we had 21,196,636 shares of our common stock
outstanding. Of these shares, approximately 20,953,537 shares were eligible for
sale in the public market.
THE VALUE OF YOUR STOCK MAY DECREASE IF OTHER SECURITY HOLDERS EXERCISE THEIR
OPTIONS AND WARRANTS
As of March 5, 1999 we had reserved an additional 8,784,951 shares of
our common stock for future issuance upon exercise of outstanding options and
warrants. If these securities are exercised, you may experience significant
dilution in the book value and earnings per share of your common stock. This
may cause the market 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, send
invoices, 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 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 remediate 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 our 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.
RECENT DEVELOPMENTS
On January 18, 1999, we entered into an agreement to acquire Sparta
Pharmaceuticals, Inc. Pursuant to the agreement, a wholly-owned subsidiary of
SuperGen will be merged into Sparta. After the merger, Sparta
9
<PAGE>
will operate as a wholly-owned subsidiary of SuperGen. In the merger, we
will issue 650,000 shares of our common stock, subject to adjustment, in
exchange for all of the outstanding capital stock of Sparta. In addition, we
have agreed to assume the outstanding options and warrants to purchase Sparta
capital stock. We anticipate that the merger will be accounted for as a
purchase.
We cannot assure you that the agreement to acquire Sparta will be
consummated. The consummation of the merger is contingent upon various
conditions to closing, including the:
- - Approval of the merger by the stockholders of Sparta.
- - Absence of material adverse effect on SuperGen or Sparta.
- - Accuracy of representations and warranties of SuperGen and Sparta.
- - Performance of covenants and obligations of SuperGen and Sparta.
- - Absence of restraining order, injunctions and other governmental order
preventing the consummation of the merger.
If all the conditions to closing are satisfied the merger is anticipated
to close in May 1999.
Sparta is a development stage pharmaceutical company engaged in the
business of acquiring rights to, and developing for commercialization,
technologies and drugs for the treatment of a number of life threatening
diseases including cancer, cardiovascular disorders and inflammation.
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:
- - Annual report on Form 10-K for the fiscal year ended December 31, 1998.
- - Proxy statement for the 1998 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.
- - Current Report on Form 8-K filed with the SEC on January 28, 1999.
- - All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since December 31, 1997.
We have also filed 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
You should rely only on the information incorporated by reference or
provided in this
10
<PAGE>
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 which 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
Each time we sell our common stock, we will provide a prospectus supplement
that will contain information about how we intend to use the net proceeds from
our common stock sold at that time.
Unless otherwise indicated in the applicable prospectus supplement, we plan
to use the net proceeds from the sale of our common stock for general corporate
purposes, including capital expenditures and to meet working capital needs. We
expect from time to time to evaluate the acquisition of businesses and products
for which a portion of the net proceeds may be used.
Pending these uses, we will invest the net proceeds in interest-bearing
securities.
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
We may offer our common stock:
- - Directly to purchasers.
- - To or through underwriters.
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<PAGE>
- - Through dealers, agents or institutional investors.
- - Through a combination of these methods.
Regardless of the method used to sell our common stock, we will provide a
prospectus supplement that will disclose the:
- - Identity of any underwriters, dealers, agents or institutional investors
who purchase our common stock.
- - Material terms of the distribution, including the number of shares sold and
the consideration paid.
- - Amount of any compensation, discounts or commissions to be received by any
underwriters, dealers or agents.
- - Terms of any indemnification provisions, including indemnification from
liabilities under the federal securities laws.
- - Nature of any transaction by any underwriter, dealer or agent during the
offering that is intended to stabilize or maintain the market price of our
common stock.
LEGAL MATTERS
The validity of the issuance of our common stock will be passed upon for
SuperGen by Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, California.
EXPERTS
The consolidated financial statements of SuperGenincluded in SuperGen's
Annual Report on Form 10-K for the year ended December 31, 1998, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
regarding the consolidated financial statements included in the Annual Report
and incorporated in this prospectus by reference. The consolidated financial
statements are incorporated in this prospectus by reference in reliance upon
that report given upon the authority of Ernst & Young as experts in accounting
and auditing.
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<PAGE>
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY OTHER PERSON TO GIVE
ANY INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU
MUST NOT RELY ON ANY UNAUTHORIZED INFORMATION. THIS PROSPECTUS DOES NOT OFFER
TO SELL OR SEEK AN OFFER TO BUY ANY SHARES IN ANY JURISDICTION WHERE IT IS
UNLAWFUL. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS CORRECT ONLY AS OF
THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF THE DELIVERY OF THIS
PROSPECTUS OR ANY SALE OF THE SHARES.
_______________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . 9
Where You Can Find More Information . . . . . . . . . . . . . . . . 10
Note Regarding Forward-Looking Statements . . . . . . . . . . . . . 11
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Dividend Policy . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . 11
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
$20,000,000
SUPERGEN, INC.
Common Stock
___________
PROSPECTUS
___________
March __, 1999
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses payable by the Registrant in
connection with this prospectus dated March __, 1999. All of the amounts shown
are estimates except the SEC registration fee.
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
-----------------
<S> <C>
SEC registration fee . . . . . . . . . . . . . . . . . . . $ 5,560
Legal fees and expenses . . . . . . . . . . . . . . . . . . 20,000
Accounting fees and expenses . . . . . . . . . . . . . . . 5,000
Miscellaneous expenses . . . . . . . . . . . . . . . . . . 3,540
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 34,100
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation 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. The Registrant's certificate of incorporation (Exhibit 3.1
hereto) and bylaws (Exhibit 3.2 hereto) provide indemnification of its directors
and officers to the maximum extent permitted by the Delaware General Corporation
Law. In addition, the Registrant has entered into indemnification agreements
with its directors and officers.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
<S> <C>
3.1 Certificate of Incorporation of the Registrant (1)
3.2 Bylaws, as amended, of the Registrant (2)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.*
23.1 Consent of Ernst & Young LLP, Independent Auditors*
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-4)**
</TABLE>
- ---------------------
* To be filed by amendment.
** Previously filed exhibits.
(1) Incorporated by reference from the Registrant's Proxy Statement filed with
the Securities and Exchange Commission on April 25, 1997.
(2) Incorporated by reference from the Registrant's Report on Form 10-K filed
with the Securities and Exchange Commission on March 19, 1998.
II-1
<PAGE>
ITEM 17. 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;
(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% change in the 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 the 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.
(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 Section 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 1934 Act)
that is incorporated by reference in the Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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
II-2
<PAGE>
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining liability under the Securities Act of
1933, 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 the Registrant pursuant to 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 purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of San Ramon, state of California, on
March 12, 1999.
SUPERGEN, INC.
By: /s/ Joseph Rubinfeld
------------------------------
Joseph Rubinfeld
CHIEF EXECUTIVE OFFICER,
PRESIDENT AND DIRECTOR
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
By: /s/ Joseph Rubinfeld Chief Executive Officer, President March 12, 1999
---------------------- and Director (Principal Executive
Joseph Rubinfeld and Financial Officer)
By: * Controller (Principal Accounting March 12, 1999
---------------------- Officer)
Kevin C. Lee
By: * Director March 12, 1999
----------------------
Denis Burger
By: Director March 12, 1999
----------------------
Lawrence J. Ellison
By: Director March 12, 1999
----------------------
Julius Vida
By: * Director March 12, 1999
----------------------
Daniel Zurr
By: /s/Joseph Rubinfeld
----------------------
Joseph Rubinfeld
Attorney-in-fact
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
<S> <C>
3.1 Certificate of Incorporation of the Registrant (1)
3.2 Bylaws, as amended, of the Registrant (2)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.*
23.1 Consent of Ernst & Young LLP, Independent Auditors*
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-4)**
</TABLE>
- -------------------
* To be filed by amendment.
** Previously filed exhibits.
(1) Incorporated by reference from the Registrant's Proxy Statement filed with
the Securities and Exchange Commission on April 25, 1997.
(2) Incorporated by reference from the Registrant's Report on Form 10-K filed
with the Securities and Exchange Commission on March 19, 1998.
II-5
