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As filed with the Securities and Exchange Commission on September 29, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
TWO ANNABEL LANE, SUITE 220
SAN RAMON, CALIFORNIA 94583
(925) 327-0200
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(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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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, 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
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PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) PRICE(1)(2) FEE(3)
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Common Stock $0.001 par value......... 2,014,036 $21.438 $43,176,904 $12,003.17
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(1) Pursuant to Rule 416 under the Securities Act, this Registration
Statement also relates to a presumably indeterminable number of shares
of Common Stock which are issuable upon stock splits, stock dividends,
recapitalizations or other similar transactions.
(2) Estimated solely for the purpose of computing the registration fee and
based on the average high and low sale prices of the Common Stock of
SuperGen, Inc. as reported on the Nasdaq National Market on September
27, 1999.
(3) Computed pursuant to Rule 457(c) based on the average high and low sale
prices of the Common Stock of SuperGen, Inc. as reported on the Nasdaq
National Market on September 27, 1999.
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>
PROSPECTUS
SUBJECT TO COMPLETION, DATED SEPTEMBER 29, 1999
2,014,036 SHARES
SUPERGEN, INC.
COMMON STOCK
The selling stockholders of SuperGen, Inc. ("SuperGen," "we," or
"the Company") listed on page 12 may offer and resell up to 2,014,036 shares
of SuperGen, Inc. Common Stock under this Prospectus, for their own account.
We will not receive any proceeds from such sales. We issued these shares of
our common stock to the selling stockholders in private transactions.
Our common stock is listed on the Nasdaq National Market under the
symbol "SUPG". On September 27, 1999, the last reported sale price for the
Common Stock on the Nasdaq National Market was $21.063 per share.
SEE "RISK FACTORS" BEGINNING AT PAGE 3 TO READ ABOUT CERTAIN FACTORS
YOU SHOULD CONSIDER BEFORE BUYING SHARES OF THE 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 September 29, 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 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,
94583, and our telephone number at that address is (925) 327-0200.
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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.
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.
In contrast to our proposed proprietary products, Nipent-Register
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
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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.
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, or the
exercise of outstanding warrants and stock options. 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 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
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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 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
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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:
- - 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
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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.
- - 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.
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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 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 27, 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 27, 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.
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.
-8-
<PAGE>
- - 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.
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 27, 1999, we had 24,742,636 shares of our common stock
outstanding. Of these shares, approximately 22,768,222 shares were eligible
for sale in the public market.
As of September 27, 1999, we had reserved an additional 11,347,907
shares of our common stock for future issuance upon exercise of outstanding
options and warrants. If these securities are exercised, and subsequently
sold in the public market, this may cause the price of our common stock to
fall.
THE REDEMPTION OF OUR OUTSTANDING PUBLIC WARRANTS MAY CAUSE THE PRICE OF
OUR COMMON STOCK TO FALL AND MAY RESULT IN DILUTION
On September 20, 1999 we issued a notice of redemption of warrants for
the purchase of shares of our common stock that we issued in connection with
our initial public offering. These warrants enable the holder to purchase
shares of our common stock at a price of $9.00 per share. As of September 27,
1999 there were 3,829,702 of such warrants outstanding. We will redeem any of
these warrants that are outstanding as of April 16, 2000 at a price of $0.25
per share. We expect that holders of the warrants will choose to exercise
these warrants rather than have them redeemed if the price of our common
stock trades above $9.00 per share during the period immediately preceding
April 16, 2000. Our issuance of common stock at a price of $9.00 per share
may result in dilution to other holders of common stock and may cause the
price of our common stock to fall. In addition, if the price of our common
stock for the thirty day trading period following April 16, 2000 is less than
$19.46, we may be required to issue additional shares of common stock to
investors that bought our common stock in privately negotiated transactions
in September 1999. Any such issuance would have a dilutive effect on holders
of our common stock.
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 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
-9-
<PAGE>
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.
RECENT DEVELOPMENTS
On September 20, 1999 we issued a notice of redemption of warrants
for the purchase of shares of our common stock that we issued in connection
with our initial public offering. These warrants enable the holder to
purchase shares of our common stock at a price of $9.00 per share. We will
redeem any of these warrants that are outstanding as of April 16, 2000 at a
price of $0.25 per share. 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. See "Risk Factors."
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 the selling stockholders listed on page 12 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 acquisition of Sparta Pharmaceuticals, Inc. on
August 12, 1999, contained in our Current Report on Form 8-K filed on
August 26, 1999.
-10-
<PAGE>
- - 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 filed 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 Prospectus or any Prospectus Supplement. We have not
authorized anyone else to provide you with different information. 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 certain 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 such as "believes," "does
not believe," "plans," "expects," "intends," "estimates," "anticipates" and
other phrases of similar meaning are considered to contain 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
in certain sections of 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, in the materials referred to in this Prospectus;
- - in the materials incorporated by reference into this Prospectus;
- - in 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
We will not receive any proceeds from the sale of the common stock by
the selling stockholders.
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.
SELLING STOCKHOLDERS
The following table sets forth information for each selling stockholder,
as of September 27, 1999:
- - The name of the selling stockholder;
- - The number of shares and the percentage the selling stockholder
beneficially owns before this offering;
- - How many shares of common stock the selling stockholder may resell under
this Prospectus; and
- - Assuming the selling stockholder sells all the shares listed next to its
name, how many shares of common stock and the percentage the selling
stockholder will beneficially own after completion of the offering.
Beneficial ownership is determined in accordance with rules promulgated
by the SEC, and the information is not necessarily indicative of beneficial
ownership for any other purpose. The following table is based upon
information supplied to us by officers, directors and principal stockholders.
Except as otherwise indicated, we believe that the persons or entities named
in the following table have sole voting and investment power with respect to
all shares of the common stock shown as beneficially owned by them, subject
to community property laws where applicable.
In order to prevent dilution to the selling stockholders, the following
numbers may change because of (1) stock splits, (2) stock dividends or (3)
similar events involving our common stock.
The selling stockholders currently hold unregistered shares of our
common stock and/or warrants for the purchase of common stock. We agreed to
register 2,014,036 shares of our common stock for resale by the selling
stockholders. The 2,014,036 shares of our common stock being offered by the
selling stockholders were acquired from us in connection with private
placement transactions pursuant to Common Stock and Warrant Purchase
Agreements dated as of August 9 and August 30, 1999, and a Purchase Agreement
and Supplement Agreement
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<PAGE>
dated as of September 15, 1999 and September 23, 1999, respectively. Certain
of the shares of common stock being registered for resale will be issued upon
exercise of warrants issued in connection with the private placements. The
selling stockholders represented to us that they would acquire those shares
for investment and with no present intention of distributing any such shares
except pursuant to this Prospectus or sales exempt from the registration
requirements of the Securities Act of 1933.
Pursuant to our obligation under an Amended and Restated Registration
Rights Agreement dated as of September 1, 1999, and a Registration Rights
Agreement dated as of September 15, 1999, we filed with the SEC under the
Securities Act of 1933 a Registration Statement, of which this Prospectus
forms a part, with respect to the resale of such shares from time to time on
the Nasdaq National Market or in privately-negotiated transactions.
The selling stockholders have not held any positions or offices or had
material relationships with us or any of our affiliates within the past three
years other than as a result of the ownership of our common stock. We may
amend or supplement this Prospectus from time to time to update the
disclosure set forth herein.
The following table shows information known to us about the beneficial
ownership of our common stock as of September 27, 1999, and as adjusted to
reflect the sale of common stock offered hereby by each selling stockholder
known by us to own beneficially the common stock. As of September 27, 1999,
there were 24,742,636 shares of common stock outstanding.
The following table sets forth the beneficial ownership of each selling
stockholder. Beneficial ownership is determined in accordance with the rules
of the SEC. In computing the number of shares beneficially owned by a person
and the percentage ownership of that person, shares of common stock subject
to warrants held by that person that are currently exercisable are deemed
outstanding, [while these shares are not deemed outstanding for purposes of
computing percentage ownership of any other person]. Unless otherwise indicated
in the footnotes below, the persons and entities named in the table have sole
voting and investment power as to all shares beneficially owned, subject to
community property laws where applicable.
<TABLE>
<CAPTION>
SHARES OF COMMON STOCK SHARES OF COMMON STOCK
BENEFICIALLY OWNED TO BE BENEFICIALLY OWNED
BEFORE OFFER AFTER OFFERING
UNDER THIS PROSPECTUS UNDER THIS PROSPECTUS(1)
------------------------- SHARES TO BE ------------------------
NAME NUMBER PERCENTAGE OFFERED NUMBER PERCENTAGE
- --------------------------------------------- --------- ---------- ------------ ------ ----------
<S> <C> <C> <C> <C> <C>
SMALLCAP World Fund, Inc(2) 1,129,400 6% 1,129,400 0 0%
The Tail Wind Fund Ltd.(3) 376,138 2% 376,138 0 0%
Carriage Partners LLC(4) 205,013 1% 205,013 0 0%
LBI Group Inc.(5) 273,349 1% 273,349 0 0%
Dunwoody Brokerage Services, Inc.(6) 30,136 * 30,136 0 0%
</TABLE>
* REPRESENTS LESS THAN 1% OF THE OUTSTANDING COMMON STOCK OF THE COMPANY
(1) Assumes the selling stockholders sell all of their shares offered hereby
to unaffiliated third parties pursuant to this Prospectus. The selling
stockholders may sell all or part of their shares.
(2) Includes 568,400 shares of common stock issuable upon exercise of
immediately exercisable warrants held by Clipperbay & Co., an affiliate
of SMALLCAP World Fund, Inc., all of which Clipperbay & Co. may sell
under this prospectus.
(3) Includes 141,052 shares of common stock issuable upon exercise of
immediately exercisable warrants.
(4) Includes 76,880 shares of common stock issuable upon exercise of
immediately exercisable warrants.
(5) Includes 102,506 shares of common stock issuable upon exercise of
immediately exercisable warrants.
(6) Represents 30,136 shares of common stock issuable upon exercise of
immediately exercisable warrants.
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<PAGE>
PLAN OF DISTRIBUTION
We will not receive any proceeds from the sale of the shares. The shares
are being offered on behalf of the selling stockholders. The shares may be
sold or distributed from time to time by the selling stockholders, or by
pledgees, donees or transferees of, or other successors in interest to, the
selling stockholders, directly to one or more purchasers (including pledgees)
or through brokers, dealers or underwriters who may act solely as agents or
may acquire shares as principals, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated
prices, or at fixed prices, which may be changed.
The sale of the shares may be effected in one or more of the following
methods:
- - ordinary brokers' transactions, which may include long or short sales;
- - transactions involving cross or block trades or otherwise on the Nasdaq
National Stock Market;
- - purchases by brokers, dealers or underwriters as principal and resale by
such purchasers for their own accounts pursuant to this prospectus;
- - "at the market" to or through market makers or into an existing market
for the shares;
- - in other ways not involving market makers or established trading
markets, including direct sales to purchases or sales effected through
agents;
- - through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise); or
- - any combination of the foregoing, or by any other legally available
means.
In addition, the selling stockholders or their successors in
interest may enter into hedging transactions with broker-dealers who may
engage in short sales of shares in the course of hedging the positions they
assume with the selling stockholders. The selling stockholders or their
successors in interest may also enter into option or other transactions with
broker-dealers that require the delivery by such broker-dealers of the
shares, which shares may be resold thereafter pursuant to this prospectus.
Brokers, dealers, underwriters or agents participating in the
distribution of the shares as agents may receive compensation in the form of
commissions, discounts or concessions from the selling stockholders and/or
purchasers of the shares for whom such broker-dealers may act as agent, or to
whom they may sell as principal, or both (which compensation as to a
particular broker-dealer may be less than or in excess of customary
commissions). The selling stockholders and any broker-dealers who act in
connection with the sale of shares hereunder may be deemed to be
"Underwriters" within the meaning of the Securities Act, and any commissions
they receive and proceeds of any sale of shares may be deemed to be
underwriting discounts and commissions under the securities act. Neither
SuperGen nor any selling stockholder can presently estimate the amount of
such compensation. SuperGen knows of no existing arrangements between any
selling stockholder, any other stockholder, broker, dealer, underwriter or
agent relating to the sale or distribution of the shares.
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<PAGE>
LEGAL MATTERS
The validity of the issuance of common stock 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 the
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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<PAGE>
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. The
information contained in this prospectus is current only as of its date.
TABLE OF CONTENTS
PAGE
----
Summary.............................................................2
Risk Factors........................................................3
Recent Developments................................................10
Where You Can Find More Information................................10
Note Regarding Forward-Looking Statements..........................11
Use of Proceeds....................................................11
Dividend Policy....................................................11
Selling Stockholders...............................................11
Plan Of Distribution...............................................13
Legal Matters......................................................14
Experts............................................................14
2,014,036 SHARES
SUPERGEN, INC.
Common Stock
--------
PROSPECTUS
---------
September 29, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Registrant will pay all reasonable expenses incident to the
registration of the shares other than any commissions and discounts of
underwriters, dealers or agents. Such expenses are set forth in the following
table. All of the amounts shown are estimates except the SEC registration fee.
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
<S> <C>
SEC registration fee................................................. $ 12,003
Legal fees and expenses.............................................. 10,000
Accounting fees and expense.......................................... 7,500
-------
Total ............................................................. $ 29,503
======
</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. 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.
Under both registration rights agreements (Exhibits 4.1 and 4.2
hereto), the Registrant has agreed to indemnify the selling stockholders and
persons controlling the selling stockholders against certain liabilities,
including liabilities under the Securities Act of 1933, and the selling
stockholders have agreed to indemnify the Registrant, its directors, its
officers and certain control and related persons against certain liabilities,
including liabilities under the Securities Act of 1933.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------------------- -----------------------------------------------------------------------------------------------
<S> <C>
3.1 (a) Certificate of Incorporation of the Registrant
3.2 (b) Bylaws, as amended, of the Registrant
4.1 Amended & Restated Registration Rights Agreement dated September 1, 1999 between the Registrant
and SMALLCAP World Fund, Inc.
4.2 Purchase Agreement dated September 15, 1999 between the Registrant and The Tail Wind Fund Ltd.,
Carriage Partners, LLC, and LBI Group Inc.
4.3 Supplement Agreement dated September 23, 1999 between the Registrant and the Tail Wind Fund, Ltd.
4.4 Registration Rights Agreement dated September 15, 1999 between the Registrant and The Tail Wind
Fund Ltd., Carriage Partners, LLC, and LBI Group Inc.
4.5 Form of Warrant Agreement between Registrant and Clipperbay & Co.
4.6 Form of Warrant Agreement between Registrant and The Tail Wind Fund Ltd., Carriage Partners,
LLC, and LBI Group Inc.
5.1 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
23.4 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-4)
</TABLE>
(a) Incorporated by reference from the Registrant's Proxy Statement filed
with the Securities and Exchange Commission on April 25, 1997.
(b) 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.
SuperGen hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
II-2
<PAGE>
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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;
(c) 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) and (b) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by us pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
4. That, for the purpose of determining any liability under the
Securities Act, each filing of our annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act, (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
5. To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not set forth in
the prospectus, to deliver, or cause to be delivered to each person to whom
the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
6. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of SuperGen pursuant to the foregoing provisions, or otherwise,
SuperGen has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by SuperGen of expenses
incurred or paid by a director, officer, or controlling person of SuperGen in
the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the
securities being registered, SuperGen will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-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
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of San Ramon, state of California, on
September 29, 1999.
SUPERGEN, INC.
By: /S/ JOSEPH RUBINFELD
Joseph Rubinfeld, Ph.D.
CHIEF EXECUTIVE OFFICER,
PRESIDENT AND DIRECTOR
POWER OF ATTORNEY
We, the undersigned officers and directors of SuperGen, Inc. hereby
constitute Joseph Rubinfeld our true and lawful attorney with full power to
sign for us and in our names in the capacities indicated below the
Registration Statement filed herewith and any and all amendments to said
Registration Statement, and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable SuperGen, Inc.
to comply with the provisions of the Securities Act of 1933, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorney to
said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and Power of Attorney has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------------ ------------------------------------------------ ------------------
<S> <C>
/S/JOSEPH RUBINFELD Chief Executive Officer, President and Director September 29, 1999
(Joseph Rubinfeld) (PRINCIPAL EXECUTIVE OFFICER)
/S/RONALD H. SPAIR Chief Financial Officer (PRINCIPAL FINANCIAL AND September 29, 1999
(Ronald H. Spair) ACCOUNTING OFFICER)
/S/DENIS BURGER Director September 29, 1999
(Denis Burger)
/S/LAWRENCE J. ELLISON Director September 29, 1999
(Lawrence J. Ellison)
/S/JULIUS A. VIDA Director September 29, 1999
(Julius A. Vida)
/S/DANIEL ZURR Director September 29, 1999
(Daniel Zurr)
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
3.1 (a) Certificate of Incorporation of the Registrant
3.2 (b) Bylaws, as amended, of the Registrant
4.1 Amended & Restated Registration Rights Agreement dated September 1, 1999 between the Registrant and
SMALLCAP World Fund, Inc.
4.2 Purchase Agreement dated September 15, 1999 between the Registrant and The Tail Wind Fund Ltd.,
Carriage Partners, LLC, and LBI Group Inc
4.3 Supplement Agreement dated September 23, 1999 between the Registrant and the Tail Wind Fund, Ltd.
4.4 Registration Rights Agreement dated September 15, 1999 between the Registrant and The Tail Wind Fund
Ltd., Carriage Partners, LLC, and LBI Group Inc.
4.5 Form of Warrant Agreement between Registrant and Clipperbay & Co.
4.6 Form of Warrant Agreement between Registrant and The Tail Wind Fund Ltd., Carriage Partners, LLC,
and LBI Group Inc.
5.1 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
23.4 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-4)
</TABLE>
(a) Incorporated by reference from the Registrant's Proxy Statement filed
with the Securities and Exchange Commission on April 25, 1997.
(b) Incorporated by reference from the Registrant's Report on Form 10-K
filed with the Securities and Exchange Commission on March 19, 1998.
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Exhibit 4.1
SUPERGEN, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the
"AGREEMENT") is made as of September 1, 1999 between SuperGen, Inc., a
Delaware corporation (the "COMPANY") and the SMALLCAP World Fund, Inc. (the
"PURCHASER").
RECITALS
1. The Company and the Purchaser entered into a Stock and Warrant
Purchase Agreement dated as of August 9, 1999 (the "STOCK AND WARRANT
PURCHASE AGREEMENT") pursuant to which they entered into a registration
rights agreement dated as of the same date (the "PRIOR RIGHTS AGREEMENT").
2. On August 30, 1999 the Company and the Purchaser are entered into a
Common Stock and Warrant Purchase Agreement (the "PURCHASE AGREEMENT")
whereby the Purchaser will purchase additional Company securities.
3. The Company and the Purchaser desire to amend the Prior Rights
Agreement to specify the terms of and conditions upon which the Company will
register the securities issued to the Purchaser pursuant to the Stock and
Warrant Purchase Agreement and the Purchase Agreement.
NOW, THEREFORE, the parties agree as follows:
SECTION 1
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"CLOSING DATES" shall mean August 9, 1999 and September 1, 1999, the
dates of the Closing of the Stock and Warrant Purchase Agreement and the
Purchase Agreement, respectively.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean Company Common Stock, par value $0.001 per
share.
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"CONVERSION STOCK" means the Common Stock issued or issuable upon
exercise of the Warrants.
"HOLDER" shall mean (i) the Purchaser and (ii) any person holding
Registrable Securities to whom the rights under this Section 1 have been
transferred in accordance with Section 1.12 hereof.
"INITIATING HOLDERS" shall mean Holders or transferees of any Holders
under Section 1.12 hereof who in the aggregate are Holders of greater than
50% of the Registrable Securities.
"REGISTRABLE SECURITIES" means the Shares, the Conversion Stock and any
Common Stock of the Company issued or issuable in respect of the Shares or
Conversion Stock upon any stock split, stock dividend, recapitalization, or
similar event, or any Common Stock otherwise issuable with respect to the
Shares or the Conversion Stock; provided, however, that such securities shall
only be treated as Registrable Securities if and so long as they have not
been (A) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold or are, in the
opinion of counsel for the Company, available for sale in a single
transaction exempt from the registration and prospectus delivery requirements
of the Securities Act so that all transfer restrictions and restrictive
legends with respect thereto are removed upon the consummation of such
sale,and provided that the exemption does not require filing of a
notification by the Holder prior to the Sale.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Sections 1.5 and 1.6
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of
counsel for the Company, blue sky fees and expenses, the expense of any
special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company which shall be
paid in any event by the Company) and the reasonable fees and disbursements
of one counsel for all Holders.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legend set forth in Section 1.3 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered
by the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
"SHARES" shall mean the Common Stock issued pursuant to the Purchase
Agreement.
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"WARRANTS" shall mean the warrants for the purchase of Common Stock
issued pursuant to the Stock and Warrant Purchase Agreement and the warrants
for the purchase of Common Stock issued pursuant to the Purchase Agreement.
1.2 RESTRICTIONS ON TRANSFERABILITY. The Warrants and the Conversion
Stock shall not be sold, assigned, transferred or pledged except upon the
conditions specified in this Section 1. The Holder will cause any proposed
purchaser, assignee, transferee, or pledgee of any such shares held by the
Holder to agree to take and hold such securities subject to the provisions
and upon the conditions specified in this Section 1.
1.3 RESTRICTIVE LEGEND. Each certificate representing (i) the Shares,
(ii) the Conversion Stock, and (iii) any other securities issued in respect
of such Shares or Conversion Stock upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall (unless
otherwise permitted by the provisions of Section 1.4 below) be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE
COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
Each Holder consents to the Company making a notation on its records
and giving instructions to any transfer agent of the Common Stock in order to
implement the restrictions on transfer established in this Section 1.
1.4 RESTRICTIONS ON TRANSFER; NOTICE OF PROPOSED TRANSFERS. The holder
of each certificate representing Restricted Securities by acceptance thereof
agrees to comply in all respects with the provisions of this Section 1.4.
Prior to any proposed sale, assignment, transfer or pledge of any Restricted
Securities (other than (i) a transfer not involving a change in beneficial
ownership, (ii) in transactions involving the distribution without
consideration of Restricted Securities by the Holder to any of its partners,
or retired partners, or to the estate of any of its partners or retired
partners, (iii) any transfer by any Holder to (A) any individual or entity
controlled by, controlling, or under common control with, such Holder or (B)
any individual or entity with respect to which such Holder (or any person
controlled by, controlling, or under common control with, such Holder) has
the power to direct investment decisions, or (iv) in transactions in
compliance with Rule 144), and unless there is in effect a registration
statement under the Securities Act covering the proposed transfer, the holder
thereof shall give written notice to the Company of such holder's intention
to effect such transfer, sale, assignment or pledge. Each such notice shall
describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail, and shall be accompanied, at
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such holder's expense by either (i) a written opinion of legal counsel who
shall be, and whose legal opinion shall be, reasonably satisfactory to the
Company addressed to the Company, to the effect that the proposed transfer of
the Restricted Securities may be effected without registration under the
Securities Act, or (ii) a "no action" letter from the Commission to the
effect that the transfer of such securities without registration will not
result in a recommendation by the staff of the Commission that action be
taken with respect thereto, whereupon the holder of such Restricted
Securities shall be entitled to transfer such Restricted Securities in
accordance with the terms of the notice delivered by the holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear, except if such transfer is made pursuant to Rule
144, the appropriate restrictive legend set forth in Section 1.3 above,
except that such certificate shall not bear such restrictive legend if in the
opinion of counsel for such holder and the Company such legend is not
required in order to establish compliance with any provision of the
Securities Act.
1.5 REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. In case the Company shall receive from
Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to the Registrable
Securities, the Company will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such
registration, qualification or compliance (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may
be so requested and as would permit or facilitate the sale and distribution
of all or such portion of such Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities
of any Holder or Holders joining in such request as are specified in a
written request received by the Company within twenty (20) days after receipt
of such written notice from the Company;
Provided, however, that the Company shall not be obligated to take
any action to effect any such registration, qualification or compliance
pursuant to this Section 1.5:
(1) In any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting
such registration, qualification or compliance unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act;
(2) During the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on the date
six (6) months immediately following the effective date of, any registration
statement pertaining to securities of the Company (other than a registration
of securities in a Rule 145 transaction or with respect to an employee
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benefit plan), provided that the Company is actively employing in good faith
all reasonable efforts to cause such registration statement to become
effective;
(3) Unless the aggregate number of shares of Registrable
Securities sought to be registered by all Initiating Holders and other
Holders pursuant to this Section 1.5 is at least 250,000 shares;
(4) After the Company has effected one (1) such registration
pursuant to this subparagraph 1.5(a), and such registration has been declared
or ordered effective; or
(5) If the Company shall furnish to such Holders a certificate
signed by the President of the Company stating that in the good faith
judgment of the Board of Directors it would be seriously detrimental to the
Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to
register, qualify or comply under this Section 1.5 shall be deferred for a
period not to exceed 120 days from the date of receipt of written request
from the Initiating Holders; PROVIDED THAT the Company may not exercise this
deferral right more than once per twelve (12) month period.
Subject to the foregoing clauses (1) through (5), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable, after receipt of the
request or requests of the Initiating Holders, but in any event within 90
days of such request.
(b) UNDERWRITING. In the event that a registration pursuant to
Section 1.5 is for a registered public offering involving an underwriting,
the Company shall so advise the Holders as part of the notice given pursuant
to Section 1.5(a)(i). In such event, the right of any Holder to registration
pursuant to Section 1.5 shall be conditioned upon such Holder's participation
in the underwriting arrangements required by this Section 1.5, and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent requested shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter
selected for such underwriting by a majority in interest of the Initiating
Holders, but subject to the Company's reasonable approval. Notwithstanding
any other provision of this Section 1.5, if the managing underwriter advises
the Initiating Holders in writing that marketing factors require a limitation
of the number of shares to be underwritten, then the Company shall so advise
all holders of Registrable Securities and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders at the time
of filing the registration statement. No Registrable Securities excluded from
the underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. To facilitate the allocation of shares in
accordance with the above provisions, the
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<PAGE>
Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms
of the underwriting, such person may elect to withdraw therefrom by written
notice to the Company, the managing underwriter and the Initiating Holders.
The Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to 120 days after the effective
date of such registration, or such other shorter period of time as the
underwriters may require.
1.6 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time to time the
Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans, or (ii) a
registration relating solely to a Commission Rule 145 transaction, the
Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within twenty (20) days after receipt of such written notice
from the Company, by any Holder.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.6(a)(i). In such event, the right of any Holder to
registration pursuant to Section 1.6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting
by the Company.
Notwithstanding any other provision of this Section 1.6, if the managing
underwriter determines that marketing factors require a limitation of the
number of shares to be underwritten, the managing underwriter and the Company
may reduce the Registrable Securities to be included in such registration to
the extent the underwriters deem necessary. The Company shall so advise all
Holders and other holders distributing their securities through such
underwriting and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
the Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders at the time of filing
the registration statement. To
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facilitate the allocation of shares in accordance with the above provisions,
the Company may round the number of shares allocated to any Holder or holder
to the nearest 100 shares.
If any Holder or holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration, and shall
not be transferred in a public distribution prior to 120 days after the
effective date of the registration statement relating thereto, or such other
shorter period of time as the underwriters may require.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section
1.6 prior to the effectiveness of such registration whether or not any Holder
has elected to include securities in such registration.
1.7 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with (i) one (1) registration pursuant to Section 1.5 and (ii) all
registrations pursuant to Section 1.6 shall be borne by the Company. Unless
otherwise stated, all Selling Expenses relating to securities registered on
behalf of the Holders and all other Registration Expenses shall be borne by
the Holders of such securities, and by the Company, in the event the Company
participates in the registration, pro rata on the basis of the number of
shares so registered. Notwithstanding the above, the Company shall not be
required to pay for any expenses of any registration proceeding begun
pursuant to Section 1.5 above if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered (which Holders shall bear such expenses).
1.8 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section
1, the Company will keep each Holder advised in writing as to the initiation
of each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one
hundred eighty (180) days or until the distribution described in the
registration statement has been completed;
(b) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may reasonably
request in order to facilitate the public offering of such securities;
(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statements as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;
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(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue
sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions; and
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
1.9 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant to this
Section 1, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against
all expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or
any amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they
were made, not misleading, or any violation by the Company of the Securities
Act, the Exchange Act, state securities law or any rule or regulation
promulgated under such laws applicable to the Company in connection with any
such registration, qualification or compliance, and within a reasonable
period the Company will reimburse each such Holder, each of its officers and
directors, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action; PROVIDED THAT
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Holder, controlling person or
underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification
or compliance is being effected, indemnify the Company, each of its directors
and officers, each underwriter, if any, of the Company's securities covered
by such a registration statement, each person who controls the Company or
such underwriter within the meaning of Section 15 of the Securities Act, and
each other such Holder, each of its
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officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and within a reasonable period will
reimburse the Company, such Holders, such directors, officers, persons,
underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein.
Notwithstanding the above, the liability of each Holder under this subsection
(b) shall not exceed such Holder's net proceeds from the sale of securities
pursuant to such registration statement, unless such liability arises out of
or is based on willful misconduct by such Holder.
(c) Each party entitled to indemnification under this Section 1.9
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not unreasonably be withheld), and the Indemnified Party may participate in
such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 1 unless the
failure to give such notice is materially prejudicial to an Indemnifying
Party's ability to defend such action and provided further, that the
Indemnifying Party shall not assume the defense for matters as to which there
is a conflict of interest or separate and different defenses. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation. No
Indemnifying Party shall be liable for indemnification hereunder with respect
to any settlement or consent to judgment, in connection with any claim or
litigation to which these indemnification provisions apply, that has been
entered into without the prior consent of the Indemnifying Party (which
consent will not be unreasonably withheld).
1.10 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held
by them and the distribution proposed by such Holder or Holders as the
Company may request in writing and as shall be required in connection with
any registration, qualification or compliance referred to in this Section 1.
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1.11 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration,
after such time as a public market exists for the Common Stock of the
Company, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times
during which the Company is subject to the reporting requirements of the
Securities Act or the Exchange Act;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) So long as a Holder owns any Restricted Securities, to furnish
to the Holder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable
by the Company as the Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing the Holder to sell any such
securities without registration.
1.12 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
register securities granted Holders under Sections 1.5 and 1.6 may be
assigned to a transferee or assignee reasonably acceptable to the Company
(which consent shall not be unreasonably withheld) in connection with any
transfer or assignment of Registrable Securities by a Holder, provided that
(i) such transfer may otherwise be effected in accordance with applicable
securities laws, and (ii) such assignee or transferee acquires at least
100,000 shares of Registrable Securities (adjusted for stock splits, stock
dividends, stock recombinations and the like after the date of this
Agreement).
1.13 STANDOFF AGREEMENT. In connection with any public offering of the
Company's securities, provided that the Holders and entities affiliated with
the Holder collectively hold more than 2% of the Company's Common Stock, the
Holder agrees, upon request of the Company or the underwriters managing any
underwritten offering of the Company's securities, not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed one
hundred eighty (180) days) from the effective date of such registration as
may be requested by the underwriters, provided that the officers and
directors of the Company who own stock of the Company and each holder
representing at least 2% ownership of the Company's outstanding Common Stock
also agrees to such restrictions.
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1.14 TERMINATION OF REGISTRATION RIGHTS. The registration rights granted
pursuant to Section 1 shall terminate as to each Holder at such time as a
public market for the Company's Common Stock exists and all Registrable
Securities held by such Holder may, in the opinion of counsel to the Company
(which opinion shall be addressed and rendered to Holder), be sold pursuant
to Rule 144(k).
SECTION 2
MISCELLANEOUS
2.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the internal laws of the State of Delaware.
2.2 SURVIVAL. The covenants and agreements made herein shall survive the
closing of the transactions contemplated hereby.
2.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
2.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
delivered on the Closing Dates constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof, and no party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except as specifically
set forth herein or therein. The provisions of this Agreement amend and
supersede any rights or obligations under the Prior Rights Agreement. Except
as expressly provided herein, neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought; provided, however,
that holders of a majority of the Registrable Securities may, with the
Company's prior written consent, waive, modify or amend on behalf of all
holders, any provisions hereof.
2.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed (a) if to a Holder, at such address as such Holder shall
have furnished the Company in writing, or, until any such holder so furnishes
an address to the Company, then to and at the address of the last Holder who
has so furnished an address to the Company, or (b) if to the Company, one
copy should be sent to its address set forth on the cover page of this
Agreement and addressed to the attention of the President, or at such other
address as the Company shall have furnished to the Holders.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the
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earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
2.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any party to
this Agreement upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such nondefaulting
party nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character
on the part of any party of any breach or default under this Agreement, or
any waiver on the part of any holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any party to this Agreement,
shall be cumulative and not alternative.
2.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
2.8 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective
if it materially changes the economic benefit of this Agreement to any party.
2.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing
or interpreting this Agreement.
[SIGNATURE PAGE(S) FOLLOW(S)]
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The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY"
SUPERGEN, INC.
a Delaware Corporation
By:
-------------------------------------
Joseph Rubinfeld
Chief Executive Officer and President
"PURCHASER"
Capital Research and Management
Company on behalf of
SMALLCAP World Fund, Inc.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Signature Page to Registration Rights Agreement]
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EXHIBIT 4.2
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of the 15th
day of September, 1999 by and between Supergen, Inc., a Delaware corporation
(the "Company"), and the Investors set forth on the signature page affixed
hereto (each an "Investor" and collectively the "Investors").
RECITALS
A. The Company and the Investors are executing and delivering
this Agreement in reliance upon the exemption from securities registration
afforded by the provisions of Regulation D ("Regulation D"), as promulgated
by the U.S. Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended;
B. The Investors wish to purchase, and the Company wishes to
sell and issue to the Investors, upon the terms and conditions stated in this
Agreement, such number of shares of the common stock of the Company, $0.001
par value per share (the "Common Stock") and that number of Class A warrants
and Class B warrants to purchase Common Stock in the form attached hereto as
Exhibit A (collectively, the "Warrants"), as are set forth on the signature
page attached hereto and executed by each such Investor; and
C. Contemporaneous with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration
Rights Agreement, in the form attached hereto as Exhibit B (the "Registration
Rights Agreement"), pursuant to which the Company has agreed to provide
certain registration rights under the Securities Act of 1933, as amended and
the rules and regulations promulgated thereunder, and applicable state
securities laws.
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and
elsewhere in this Agreement, for the purposes of this Agreement, the
following terms shall have the meanings here set forth:
1.1 "Affiliate" means, with respect to any person, any other
person which directly or indirectly controls, is controlled by, or is under
common control with, such person.
1.2 "Agreements" means this Agreement, the Registration Rights
Agreement, and the Warrants.
1.3 "Change in Control" means the (i) the Company's sale of all
or substantially all of its assets, (ii) a merger of the Company with and
into another corporation, provided that the stockholders of the Company, as a
group, do not hold, immediately after such event, at least 50% of the voting
power of the surviving or successor corporation, or (iii) any
<PAGE>
person or entity, including any "person" as such term is used in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), becomes the "beneficial owner" (as defined in the Exchange Act) of
Common Stock of the Company representing 50% or more of the combined voting
power of the voting securities of the Company.
1.4 "Closing" means the consummation of the transactions
contemplated by this Agreement, and "Closing Date" means the date of such
Closing.
1.5 "Control" means the possession , direct or indirect, of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract or
otherwise.
1.6 "Material Adverse Effect" means an effect which, either
alone or in conjunction with other effects, constitutes a material adverse
effect on the (i) condition (financial or otherwise), business, assets, or
results of operations of the Company and its subsidiaries, taken as a whole;
or (ii) ability of the Company to perform any of its material obligations
under the terms of this Agreement.
1.7 "Person" means an individual, corporation, partnership,
trust, business trust, association, joint stock company, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.
1.8 "SEC Filings" has the meaning set forth in Section 4.6.
1.9 "Securities" means the Shares, the Warrants and the Warrant
Shares (defined below).
1.10 "Shares" means the shares of Common Stock being purchased
by the Investors hereunder.
1.11 "Warrant Shares" means the shares of Common Stock issuable
upon exercise of or otherwise pursuant to the Warrants.
1.12 "1933 Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
1.13 "1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
2. Purchase and Sale of the Shares and Warrants. Subject to the
terms and conditions of this Agreement, each of the Investors hereby
severally, and not jointly, agrees to purchase and the Company hereby agrees
to sell and issue to the Investor, the number of Shares and Warrants to
purchase the number of shares of Common Stock set forth on such Investor's
signature page attached hereto. The number of Shares to be purchased by each
Investor shall be determined by dividing such Investor's aggregate purchase
price (as such aggregate purchase price is set forth on such Investor's
signature page attached hereto), by an amount equal to 90.5% of the average
of the lowest two closing bid prices of the Company's Common Stock over the
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ten (10) trading days immediately preceding the date hereof (the "Purchase
Price"). The number of shares of Common Stock purchasable by each Investor
pursuant to the Warrants shall be as follows: (i) for Class A Warrants, 30%
of the number of Shares purchased by such Investor, and the exercise price of
the Warrants will be the closing bid price of the Common Stock on the day
prior to the Closing Date, and the term shall be 3 years; (ii) for Class B
Warrants, 30% of the number of Shares purchased by such Investor, with the
exercise price of one-third thereof being $30 per share; the exercise price
of one-third thereof being $45 per share, and the exercise price of one-third
thereof being $60 per share, and the term being 2 years.
3. Closing. On the date of this Agreement, the Purchase Price shall
be determined. The Company shall promptly deliver to Investors' counsel, in
trust, a certificate or certificates, registered in such name or names as the
Investors may designate, representing all of the Shares and all of the
Warrants, with instructions that such certificates are to be held for release
to the Investors only upon payment of the Purchase Price to the Company. Upon
receipt by counsel to the Investors of the certificates, each Investor shall
promptly cause a wire transfer in same day funds to be sent to the account of
the Company or its designee as instructed in writing by the Company, in
amounts representing such Investor's aggregate Purchase Price. On the date
the Company or its designee receives such funds, the certificates evidencing
the Shares and the Warrants shall be released to the Investors (and such date
shall be deemed the "Closing Date").
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Investors on the date hereof and the
Closing Date that:
4.1 Organization, Good Standing and Qualification. The Company
and each of its subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its organization and has all
requisite power and authority to carry on its business and own its properties
as now conducted and owned. The Company and each of its subsidiaries is duly
qualified or licensed to do business as a foreign corporation and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property makes such qualification or licensing
necessary unless the failure to so qualify or be licensed would not have a
Material Adverse Effect.
4.2 Authorization. The Company has full power and authority and
has taken all requisite action on the part of the Company, its officers,
directors and stockholders necessary for (i) the authorization, execution and
delivery of the Agreements, (ii) the performance of all obligations of the
Company hereunder or thereunder, and (iii) the authorization, issuance (or
reservation for issuance) and delivery of the Securities. The Agreements
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability, relating to or affecting creditors'
rights generally.
4.3 Capitalization. Set forth on Schedule 4.3 hereto is (a) the
authorized capital stock of the Company on the date hereof; (b) the number of
shares of capital stock issued and outstanding; (c) the number of shares of
capital stock issuable pursuant to the Company's stock plans; and (d) the
number of shares of capital stock issuable and reserved for issuance pursuant
to securities (other than the Shares and the Warrants) exercisable for, or
convertible into
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<PAGE>
or exchangeable for any shares of capital stock. All of the issued and
outstanding shares of the Company's capital stock have been duly authorized
and validly issued and are fully paid, nonassessable and free of pre-emptive
rights. Except as set forth on Schedule 4.3, no Person is entitled to
pre-emptive or similar statutory or contractual rights with respect to any
securities of the Company. Except as set forth on Schedule 4.3, there are no
outstanding warrants, options, convertible securities or other rights,
agreements or arrangements of any character under which the Company is or may
be obligated to issue any equity securities of any kind, or to transfer any
equity securities of any kind, and except as contemplated by this Agreement,
the Company and its subsidiaries do not have any present plan or intention to
issue any equity securities of any kind, or to transfer any equity securities
of any kind owned by them. Except as set forth on Schedule 4.3, the Company
does not know of any voting agreements, buy-sell agreements, option or right
of first purchase agreements or other agreements of any kind among any of the
securityholders of the Company relating to the securities held by them.
Except as set forth on Schedule 4.3, the Company has not granted any Person
the right to require the Company to register any securities of the Company
under the 1933 Act, whether on a demand basis or in connection with the
registration of securities of the Company for its own account or for the
account of any other Person.
4.4 Valid Issuance. The Company has reserved a sufficient number
of shares of Common Stock for issuance pursuant to this Agreement and upon
exercise of the Warrants. The Company will take such steps as may be
necessary to reserve sufficient shares for issuance pursuant to Section 7
below when such issuance is determinable. The Shares and Warrants are duly
authorized, and such Securities, along with the Warrant Shares when issued in
accordance herewith and with the terms of the Warrants, will be duly
authorized, validly issued, fully paid, non-assessable and free and clear of
all encumbrances and restrictions, except for restrictions on transfer
imposed by applicable securities laws.
4.5 Consents. The execution, delivery and performance by the
Company of the Agreements and the offer, issuance and sale of the Securities
require no consent of, action by or in respect of, or filing with, any
Person, governmental body, agency, or official other than filings that have
been made pursuant to applicable state securities laws and post-sale filings
pursuant to applicable state and federal securities laws and the requirements
of the Nasdaq Stock Market, which the Company undertakes to file within the
applicable time periods.
4.6 Delivery of SEC Filings; Business. The Company has provided
the Investors with copies of the Company's most recent Annual Report on Form
10-K for the fiscal year ended December 31, 1998, and all other reports filed
by the Company pursuant to the 1934 Act since the filing of the Annual Report
on Form 10-K (collectively, the "SEC Filings"). The Company and its
subsidiaries are engaged only in the business described in the SEC Filings
and the SEC Filings contain a complete and accurate description of the
business of the Company and its subsidiaries.
4.7 Use of Proceeds. The proceeds of the sale of the Securities
hereunder shall be used by the Company for repaying obligations as they
become due, financing capital expenditures and working capital.
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4.8 No Material Adverse Change. Since the filing of the
Company's most recent Annual Report on Form 10-K or as otherwise identified
and described in subsequent reports filed by the Company pursuant to the 1934
Act, there has not been:
(i) any change in the consolidated assets, liabilities,
financial condition or operating results of the Company from that reflected
in the financial statements included in the Company's most recent Quarterly
Report on Form 10-Q, except changes in the ordinary course of business which
have not had, in the aggregate, a Material Adverse Effect;
(ii) any declaration or payment of any dividend, or any
authorization or payment of any distribution, on any of the capital stock of
the Company, or any redemption or repurchase of any securities of the Company;
(iii) any material damage, destruction or loss, whether or
not covered by insurance to any assets or properties of the Company or any of
its subsidiaries;
(iv) any waiver by the Company or any of its subsidiaries of
a valuable right or of a material debt owed to it;
(v) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company or any of its
subsidiaries, except in the ordinary course of business and which is not
material to the assets, properties, financial condition, operating results or
business of the Company and its subsidiaries taken as a whole (as such
business is presently conducted and as it is proposed to be conducted);
(vi) any material change or amendment to a material contract
or arrangement by which the Company or any of their subsidiaries or any of
its assets or properties is bound or subject;
(vii) any labor difficulties or labor union organizing
activities with respect to employees of the Company or any of its
subsidiaries;
(viii) any transaction entered into by the Company or any of
its subsidiaries other than in the ordinary course of business; or
(ix) any other event or condition of any character that
might have a Material Adverse Effect.
4.9 SEC Filings; Material Contracts.
(a) As of its filing date, each SEC Filing filed by the
Company with the SEC pursuant to the 1934 Act, complied as to form in all
material respects with the requirements of the 1934 Act and did not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(b) Each registration statement and any amendment thereto
filed by the Company pursuant to the 1933 Act and the rules and regulations
thereunder, as of the date
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such statement or amendment became effective, complied as to form in all
material respects with the 1933 Act and did not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and each
prospectus filed pursuant to Rule 424(b) under the 1933 Act, as of its issue
date and as of the closing of any sale of securities pursuant thereto did not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading.
(c) Except as set forth on Schedule 4.3 hereto, there are no
agreements or instruments currently in force and effect that constitute a
warrant, option, convertible security or other right, agreement or
arrangement of any character under which the Company is or may be obligated
to issue any material amounts of any equity security of any kind, or to
transfer any material amounts of any equity security of any kind.
4.10 Form S-3 Eligibility. The Company is currently eligible to
register the resale of its Common Stock on a registration statement on Form
S-3 under the 1933 Act.
4.11 No Conflict, Breach, Violation or Default. The execution,
delivery and performance of the Agreements by the Company and the issuance
and sale of the Securities will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under (i) the Company's Certificate of Incorporation ("Articles") or Bylaws
as in effect on the date hereof, or (ii) except where it would not reasonably
be expected to have a Material Adverse Effect, (a) any statute, rule,
regulation or order of any governmental agency or body or any court, domestic
or foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or (b) any agreement or instrument to
which the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject.
4.12 Tax Matters. The Company and its subsidiaries have timely
prepared and filed all tax returns required to have been filed by it with all
appropriate governmental agencies and timely paid all taxes owed by them. The
charges, accruals and reserves on the books of the Company and its
subsidiaries in respect of taxes for all fiscal periods are adequate in all
material respects, and there are no material unpaid assessments of the
Company or any subsidiary nor, to the knowledge of the Company, any basis for
the assessment of any additional taxes, penalties or interest for any fiscal
period or audits by any federal, state or local taxing authority except such
as which are not material. All material taxes and other assessments and
levies that the Company or any subsidiary is required to withhold or to
collect for payment have been duly withheld and collected and paid to the
proper governmental entity or third party. There are no tax liens or claims
pending or threatened against the Company or any subsidiary or any of their
respective assets or property. There are no outstanding tax sharing
agreements or other such arrangements between the Company or any subsidiary
and any other corporation or entity.
4.13 Title to Properties. Except as disclosed in the SEC
Filings, the Company and its subsidiaries have good and marketable title to
all real properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
currently planned
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to be made thereof by them; and except as disclosed in the SEC Filings, the
Company and its subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or currently planned to be made thereof by them.
4.14 Certificates, Authorities and Permits. The Company and its
subsidiaries possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the business
now operated by them, the lack of which would have a Material Adverse Effect,
and have not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
4.15 No Labor Disputes. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent.
4.16 Intellectual Property. Except as set forth in the Company's
SEC filings, the Company and its subsidiaries own or possess adequate
trademarks and trade names and have all other rights to inventions, know-how,
patents, copyrights, trademarks, trade names, confidential information and
other intellectual property (collectively, "Intellectual Property Rights"),
free and clear of all liens, security interests, charges, encumbrances,
equities and other adverse claims, necessary to conduct the business now
operated by them, or presently employed by them, and presently contemplated
to be operated by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any Intellectual
Property Rights. To the Company's knowledge, no proprietary technology of any
Person was used in the design or development by the Company of (or otherwise
with respect to) any of the Intellectual Property Rights, which technology
was not properly acquired by the Company from such Person.
4.17 Environmental Matters. To the Company's knowledge, neither
the Company nor any of its subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "Environmental Laws"). Except as set forth on Schedule 4.17,
to the Company's knowledge, neither the Company nor any of its subsidiaries
owns or operates any real property contaminated with any substance that is
subject to any Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to any claim
relating to any Environmental Laws, which violation, contamination, liability
or claim would individually or in the aggregate have a Material Adverse
Effect; and the Company is not aware of any pending investigation that might
lead to such a claim.
4.18 Litigation. Except as disclosed in the SEC Filings, there
are no pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties that,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, or
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which are otherwise material in the context of the sale of the Securities;
and to the Company's knowledge, no such actions, suits or proceedings are
threatened or contemplated.
4.19 Financial Statements. The financial statements included in
each SEC Filing present fairly and accurately the consolidated financial
position of the Company and its subsidiaries as of the dates shown and their
consolidated results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. Except as set
forth on Schedule 4.19 or in the financial statements of the Company included
in the SEC Filings filed prior to the date hereof, the Company has no
liabilities, contingent or otherwise, except those which individually or in
the aggregate are not material to the financial condition or operating
results of the Company.
4.20 Insurance Coverage. The Company and its subsidiaries
maintain in full force and effect insurance coverage that is customary for
comparably situated companies for the business being conducted, and
properties owned or leased, by the Company and its subsidiaries, and the
Company reasonably believes such insurance coverage to be adequate against
all liabilities, claims and risks against which it is customary for
comparably situated companies to insure.
4.21 Compliance with Nasdaq Continued Listing Requirements. On
or promptly after the Closing Date the Company will file a listing
application with the NASDAQ National Market, whereupon the shares of Common
Stock will be duly listed for trading on the Nasdaq National Market. The
Company is in compliance with all applicable Nasdaq National Market continued
listing requirements. There are no proceedings pending or to the Company's
knowledge threatened against the Company relating to the continued listing of
the Company's Common Stock on the Nasdaq National Market and the Company has
not received any notice of, nor to the knowledge of the Company is there any
basis for, the delisting of the Common Stock from the Nasdaq National Market.
4.22 Acknowledgement of Dilution. The number of shares of Common
Stock issuable pursuant to this Agreement may increase substantially. The
Company's executive officers and directors have studied and fully understand
the nature of the transactions being contemplated hereunder and recognize
that they have a potential dilutive effect.
4.23 Brokers and Finders. The Investors shall have no liability
or responsibility for the payment of any commission or finder's fee to any
third party in connection with or resulting from this agreement or the
transactions contemplated by this Agreement. A cash fee equal to 4.5% of the
gross proceeds received by the Company hereunder will be paid by the Company
to Dunwoody Brokerage Services, Inc. ("Dunwoody"). The Company will also
issue to Dunwoody a five-year warrant (the "Dunwoody Warrant") for the
purchase of a number of shares of Common Stock equal to 7% of the aggregate
Purchase Price divided by the five-day average closing bid price (the
"Average Price") of the Company's common stock as reported on the Nasdaq
National Market over the five trading days immediately preceding the Closing
Date. The Dunwoody Warrant shall be substantially in the form of the Warrants
and shall have an initial exercise price per share equal to the Average Price
and Dunwoody shall be entitled to
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"piggy-back" registration rights with respect to the shares of common stock
underlying the Dunwoody Warrants.
4.24 No Directed Selling Efforts or General Solicitation. Neither the
Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D)
in connection with the offer or sale of any of the Securities.
4.25 Sales of Securities. Neither the Company nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers
to buy any security, under circumstances that would adversely affect reliance
by the Company on Section 4(2) for the exemption from registration for the
transactions contemplated hereby, or would require registration of the
Securities under the 1933 Act, or to the Company's knowledge would require a
Shareholder vote under applicable Nasdaq rules.
4.26 [INTENTIONALLY LEFT BLANK]
5. Representations and Warranties of the Investor. Each of the Investors
hereby severally, and not jointly, represents and warrants to the Company
that:
5.1 Organization and Existence. The Investor is a validly existing
corporation or limited liability company and has all requisite corporate or
limited liability company power and authority to invest in the Securities
pursuant to this Agreement.
5.2 Authorization. The execution, delivery and performance by the
Investor of the Agreements have been duly authorized and the Agreements will
each constitute the valid and legally binding obligation of the Investor,
enforceable against the Investor in accordance with their terms.
5.3 Purchase Entirely for Own Account. The Securities to be received
by the Investor hereunder will be acquired for the Investor's own account,
not as nominee or agent, and not with a view to the resale or distribution of
any part thereof in violation of securities laws, and the Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same.
5.4 Investment Experience. The Investor acknowledges that it can bear
the economic risk and complete loss of its investment in the Securities and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
hereby.
5.5 Disclosure of Information. The Investor has had an opportunity to
receive documents related to the Company and to ask questions of and receive
answers from the Company regarding the Company, its business and the terms
and conditions of the offering of the Securities. Neither such inquiries nor
any other due diligence investigation conducted by the Investor shall modify,
amend or affect the Investor's right to rely on the Company's representations
and warranties contained in this Agreement or made pursuant to this Agreement.
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5.6 Restricted Securities. The Investor understands that the
Securities are characterized as "restricted securities" under the U.S.
federal securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration
under the 1933 Act only in certain limited circumstances.
5.7 Legends. It is understood that, until registration for resale
pursuant to the Registration Rights Agreement, or until resale under Rule
144(k) is available, certificates evidencing the Securities may bear one or
all of the following legends or legends substantially similar thereto:
These securities have not been registered under the Securities Act of
1933, as amended (the "Act"), and may not be offered, sold, pledged,
hypothecated, assigned or transferred except (i) pursuant to a registration
statement under the Act which has become effective and is current with
respect to these securities, or (ii) pursuant to a specific exemption from
registration under the Act but only upon the Company receiving at its request
the written opinion of counsel reasonably acceptable to the Company, that the
proposed disposition is consistent with all applicable provisions of the Act
as well as any applicable "blue sky" or similar securities laws, or (iii)
pursuant to Rule 144, provided the Investor shall provide reasonable
assurances that such Rule is available.
(a) If required by the authorities of any state in connection
with the issuance of sale of the Securities, the legend required by such
state authority.
Upon registration for resale pursuant to the Registration Rights
Agreement, or upon Rule 144(k) becoming available, the Company shall promptly
cause certificates evidencing the Shares previously issued hereunder to be
replaced with certificates which do not bear such restrictive legends.
5.8 Accredited Investor. The Investor is an accredited investor as
defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act.
5.9 No General Solicitation. The Investor did not learn of the
investment in the Securities as a result of any public advertising or
general solicitation.
6. Registration Rights Agreement. The parties acknowledge and agree that
part of the inducement for the Investor to enter into this Agreement is the
Company's execution and delivery of the Registration Rights Agreement. The
parties acknowledge and agree that simultaneously with the execution hereof,
the Registration Rights Agreement is being duly executed and delivered by the
parties thereto.
7. Covenants and Agreements of the Company.
7.1 Subsequent Sale at Lower Price.
(a) Required Adjustments. Subject to the exclusions contained in
Section 7.1(e) below, if during the period ending on the earlier of (i)
thirty (30) months following the effective date of the Registration Statement
or (ii) a Change in Control (the "MFN Period"),
10
<PAGE>
the Company issues or sells any shares of its Common Stock at a selling price
lower than the Purchase Price per share set forth in Section 2 hereof
(subject to adjustment as provided in Section 7.1(d) below), the Purchase
Price per share of the Shares sold to the Investors hereunder shall be
adjusted downward to equal such lower selling price and Investors shall be
entitled to receive the additional shares as provided by Section 7.1(b);
provided, however, that an Investor shall be entitled to additional shares
only with respect to the number of Shares then owned by such Investor as
provided in Section 7.1(b). The Company shall give to the Investors written
notice of any such sale within three (3) business days of the closing of any
such issuance or sale.
(b) Adjustment Mechanism. If an adjustment of the Purchase Price
is required pursuant to Section 7.1(a), the Company shall deliver to the
Investors within eight business days of the closing of the transaction giving
rise to the adjustment ("Delivery Date") each Investor's pro-rata share of
such number of additional shares of Common Stock equal to (i) the aggregate
Purchase Price paid by such Investor divided by the adjusted per share
purchase price as required under Section 7.1(a), minus (ii) the total number
of shares of Common Stock previously delivered to that Investor hereunder;
provided however, that the Company shall effect such adjustment in cash, in
whole or in part, to the extent required by Section 7.1(c), and provided that
if an adjustment would result in the issuance of less than 100 Shares, the
issuance of such Shares may be delayed until the end of the MFN Period or
until Investors are entitled to receive at least 100 Shares. The additional
shares referred to herein shall be considered Shares for purposes of this
Agreement.
(c) Limitation on Number of Shares. No Investor shall be entitled
to accept, by way of any such adjustment a number of shares of the Company
such that the total number of such shares held by the Investor as of the date
of such adjustment would exceed 9.90% of the total outstanding Common Stock
of the Company. The Company shall effect the adjustment required by this
Section by cash refund to the extent necessary to avoid causing the aforesaid
limitation to be exceeded.
(d) Capital Adjustments. In case of any stock split or reverse
stock split, stock dividend, reclassification of the common stock,
recapitalization, merger or consolidation, or like capital adjustment
affecting the Common Stock of the Company, the provisions of Section 7.1
shall be applied in a fair, equitable and reasonable manner so as to give
effect, as nearly as may be, to the purposes hereof.
(e) Exclusions. Section 7.1(a) shall not apply to (i) sales of
shares of Common Stock by the Company upon conversion or exercise of any
convertible securities, options or warrants outstanding prior to the date
hereof; (ii) sales of shares of Common Stock by the Company pursuant to the
provisions of any shareholder-approved option or similar plan heretofore
adopted by the Company; (iii) shares issued in connection with strategic
relationships including sales and marketing, distribution, manufacturing,
clinical trials and research and development collaborations (including the
issuance of shares for cash consideration in connection with any of the
foregoing), (iv) shares issued to banks or other institutional lenders of
lessors in connection with capital asset leases or borrowings for the
acquisition of capital assets, (v) shares issued pursuant to Section 7 of
this Agreement, or (vi) shares issued pursuant to any acquisition, merger or
purchase of assets of another corporation (provided that such acquisition,
merger or purchase of assets is not essentially equivalent to or for the
purpose of a financing).
11
<PAGE>
(f) Definitions. For purposes of Section 7.1 hereof, an issuance
or sale of shares of Common Stock shall include (without limitation) the sale
or issuance of rights, options, warrants or convertible securities under
which the Company is or may become obligated to issue shares of Common Stock
only when the Common Stock underlying such securities is issued. The selling
price (the "Selling Price") of the Common Stock covered thereby shall be the
exercise or conversion price thereof plus the consideration (if any) received
by the Company upon such sale or issuance. If shares are issued for a
consideration other than cash, the Selling Price shall be the fair value of
such consideration as determined in good faith by the Board of Directors of
the Company. The term "Shares" as used in this Agreement shall include shares
issued pursuant to this Section 7.1.
7.2 Limitation on Transactions.
(a) Intentionally left blank.
(b) Until the expiration of the MFN Period, without the prior
written consent of the Investors (which consent may be withheld in the
Investors' discretion), the Company shall not enter into an agreement with
any investor pursuant to which the investor would provide the Company with a
common stock equity line.
7.3 Intentionally left blank.
7.4 Opinion of Counsel. On or prior to the Closing Date, the Company
will deliver to the Investors the opinion of legal counsel to the Company, in
form and substance reasonably acceptable to the Investors, addressing those
legal matters set forth in Exhibit C hereto.
7.5 Reservation of Common Stock Pursuant to Section 7.1 and Exercise
of Warrants. The Company hereby agrees, at all times with respect to shares
issuable upon exercise of the Warrants, and at all appropriate times with
respect to shares issuable pursuant to Section 7.1, to reserve and keep
available out of its authorized but unissued shares of Common Stock, solely
for the purpose of providing for the additional issuance(s) of Common Stock
pursuant to Section 7.1 and exercise of the Warrants, such number of shares
of Common Stock as shall from time to time equal the number of shares
sufficient to permit the issuance, if any, required pursuant to Section 7.1
plus the number of shares of Common Stock as shall be necessary to permit the
exercise of the Warrants in accordance with the terms of the Warrants.
7.6 Reports. The Company will furnish to the Investors the following
reports, each of which shall be provided to the Investors by air mail:
(a) Quarterly Reports. As soon as available and in any event
within 45 days after the end of each fiscal quarter of the Company, the
Company's quarterly report on Form 10-Q or, in the absence of such report,
consolidated balance sheets of the Company and its subsidiaries as at the end
of such period and the related consolidated statements of operations,
stockholders' equity and cash flows for such period and for the portion of
the Company's fiscal year ended on the last day of such quarter, all in
reasonable detail and certified by a principal financial officer of the
Company to have been prepared in accordance with generally accepted
accounting principles, subject to year-end and audit adjustments.
12
<PAGE>
(b) Annual Reports. As soon as available and in any event within
90 days after the end of each fiscal year of the Company, the Company's Form
10-K or, in the absence of a Form 10-K, consolidated balance sheets of the
Company and its subsidiaries as at the end of such year and the related
consolidated statements of earnings, stockholders' equity and cash flows for
such year, all in reasonable detail and accompanied by the report on such
consolidated financial statements of an independent certified public
accountant selected by the Company and reasonably satisfactory to the
Investor.
(c) Securities Filings. As promptly as practicable and in any
event within five days after the same are issued or filed, copies of (i) all
notices, proxy statements, financial statements, reports and documents as the
Company or any subsidiary shall send or make available generally to its
stockholders or to financial analysts, and (ii) all periodic and special
reports, documents and registration statements (other than on Form S-8) which
the Company or any subsidiary furnishes or files, or any officer or director
of the Company or any of its subsidiaries (in such person's capacity as such)
furnishes or files with the SEC.
(d) Other Information. Such other information relating to the
Company or its subsidiaries as from time to time may reasonably be requested
by the Investors provided the Company produces such information in its
ordinary course of business, and further provided that the Company, solely in
its own discretion, determines that such information is not confidential in
nature and disclosure to the Investor would not be harmful to the Company.
7.7 Press Releases. Any press release or other publicity concerning
this Agreement or the transactions contemplated by this Agreement shall be
submitted to the Investors for comment at least two (2) business days prior
to issuance, unless the release is required to be issued within a shorter
period of time by law or pursuant to the rules of a national securities
exchange. The Company shall issue a press release concerning the fact and
material terms of this Agreement within one business day of the Closing.
7.8 No Conflicting Agreements. The Company will not, and will not
permit its subsidiaries to, take any action, enter into any agreement or make
any commitment that would conflict or interfere in any material respect with
the obligations to the Investors under the Agreements.
7.9 Insurance. For so long as any Investor beneficially owns any of
the Securities, the Company shall, and shall cause each subsidiary to, have
in full force and effect (a) insurance reasonably believed to be adequate on
all assets and activities of a type customarily insured, covering property
damage and loss of income by fire or other casualty, and (b) insurance
reasonably believed to be adequate protection against all liabilities, claims
and risks against which it is customary for companies similarly situated as
the Company and the subsidiaries to insure.
7.10 Compliance with Laws. For so long as any Investor beneficially
owns any of the Securities, the Company will use reasonable efforts, and will
cause each of its subsidiaries to use reasonable efforts, to comply with all
applicable laws, rules, regulations, orders and decrees of all governmental
authorities, except to the extent non-compliance (in one instance or in the
aggregate) would not have a Material Adverse Effect.
13
<PAGE>
7.11 Listing of Underlying Shares and Related Matters. The Company
hereby agrees, promptly following the Closing of the transactions
contemplated by this Agreement, to take such action to cause the Shares and
the Warrant Shares to be listed on the Nasdaq National Market as promptly as
possible but no later than the effective date of the registration
contemplated by the Registration Rights Agreement. The Company further agrees
that if the Company applies to have its Common Stock or other securities
traded on any other principal stock exchange or market, it will include in
such application the Common Stock underlying the Warrants, and will take such
other action as is necessary to cause such Common Stock to be so listed. The
Company will take all action necessary to continue the listing and trading of
its Common Stock on the Nasdaq National Market and will comply in all
respects with the Company's reporting, filing and other obligations under the
bylaws or rules of such exchange, as applicable, to ensure the continued
eligibility for trading of the Shares and the Warrant Shares thereon.
In the event it is determined that the issuance of the Shares would
or does constitute an issuance which, pursuant to the rules or regulations of
the Nasdaq National Market (or any other national securities exchange upon
which the Common Stock is or becomes traded), renders the Shares ineligible
for inclusion on the Nasdaq (or any other national securities exchange upon
which the Common Stock is then traded), then the Company shall promptly
redeem such number of Shares held by the Investors (pro rata in accordance
with their participation in this offering) which are so ineligible at a per
share redemption price equal to the per share Purchase Price for those Shares
as set forth in Section 2 hereof.
7.12 Intentionally left blank.
7.13 Remedies. The Investors shall be entitled to a decree of
specific performance to enforce its rights hereunder. The Company shall
indemnify and hold harmless the Investors from and against any loss,
liability, costs, expenses or fees (including reasonable attorneys fees)
arising out of (i) any breach by the Company of any representation, warranty,
covenant or agreement in any of the Agreements, and/or (iii) the enforcement
of this Section 7.13.
7.14 Intentionally left blank.
7.15 IPO Warrants. If the Company calls the warrants, issued in
connection with the initial public offering of the Company, for redemption
and the average closing price of the Company's Common Stock for the thirty
(30) trading day period following the scheduled redemption date (the
"Post-Redemption Price") is less than the Purchase Price per Share, the
Company shall issue to the Investor a number of additional whole Shares
determined by multiplying (i) the Purchase Price per Share less the
Post-Redemption Price, by (ii) the number of Shares held by the Investor at
the end of the thirty day period following the scheduled redemption date, and
dividing the result by (iii) the Post-Redemption Price. The additional shares
referred to in this section shall be considered Shares for purposes of this
Agreement.
8. Survival. All representations, warranties, covenants and agreements
contained in this Agreement shall be deemed to be representations,
warranties, covenants and agreements as of the date hereof and shall survive
the execution and delivery of this Agreement for a period of
14
<PAGE>
three years from the date of this Agreement; provided, however, that the
provisions contained in Section 7 hereof shall survive in accordance
therewith.
9. Arbitration.
9.1 Scope. Resolution of any and all disputes arising from or in
connection with the Agreements, whether based on contract, tort, common law,
equity, statute, regulation, order or otherwise ("Disputes"), shall be
exclusively governed by and settled in accordance with the provisions of this
Section 9; provided, that the foregoing shall not preclude equitable or other
judicial relief to enforce the provisions hereof or to preserve the status
quo pending resolution of Disputes hereunder.
9.2 Binding Arbitration. The parties hereby agree to submit all
Disputes to arbitration for final and binding resolution. Either party may
initiate such arbitration by delivery of a demand therefor (the "Arbitration
Demand") to the other party. The arbitration shall be conducted in New York
City, New York by a sole arbitrator selected by agreement of the parties not
later than 10 days after delivery of the Arbitration Demand, or, failing such
agreement, appointed pursuant to the Commercial Arbitration Rules of the
America Arbitration Association, as amended from time to time (the "AAA
Rules"). If the arbitrator becomes unable to serve, his successor(s) shall be
similarly selected or appointed.
9.3 Procedure. The arbitration shall be conducted pursuant to the
Federal Arbitration Act and such procedures as the parties may agree or, in
the absence of or failing such agreement, pursuant to the AAA Rules.
Notwithstanding the foregoing, (a) each party shall have the right to conduct
limited discovery of information relevant to the Dispute; (b) each party
shall provide to the other, reasonably in advance of any hearing, copies of
all documents that a party intends to present in such hearing; (c) all
hearings shall be conducted on an expedited schedule; and (d) all proceedings
shall be confidential, except that either party may at its expense make a
stenographic record thereof.
9.4 Timing. The arbitrator shall complete all hearings not later than
90 days after his or her selection or appointment, and shall make a final
award not later than 30 days thereafter. The arbitrator shall apportion all
costs and expenses of the arbitration, including the arbitrator's fees and
expenses, and fees and expenses of experts ("Arbitration Costs") between the
prevailing and non-prevailing party as the arbitrator shall deem fair and
reasonable. In circumstances where a Dispute has been asserted or defended
against on grounds that the arbitrator deems manifestly unreasonable, the
arbitrator may assess all Arbitration Costs against the non-prevailing party
and may include in the award the prevailing party's attorney's fees and
expenses in connection with any and all proceedings under this Section 9.
Notwithstanding the foregoing, in no event may the arbitrator award multiple
or punitive damages.
10. Miscellaneous.
10.1 Successors and Assigns. This Agreement may not be assigned by a
party hereto without the prior written consent of the other party hereto,
except that without the prior written consent of the Company, but after
notice duly given, an Investor may assign its rights and delegate its duties
hereunder in whole or in part to an Affiliate, or to a third party acquiring
at
15
<PAGE>
least 25,000 of its Shares in a private transaction. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective permitted successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
10.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.3 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.4 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given only upon delivery to each party to be notified by (i)
personal delivery, (ii) telex or telecopier, upon receipt of the correct
answer back, or (iii) an internationally recognized overnight air courier,
addressed to the party to be notified at the address as follows, or at such
other address as such party may designate by ten days' advance written notice
to the other party:
If to the Company:
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, California 94583
Attention: Joseph Rubinfeld
Facsimile: 925-327-7347
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: John V. Roos
Facsimile: 650-493-6811
If to the Investors, to the addresses set forth on
the signature pages hereto.
10.5 Fees and Expenses. The parties hereto shall pay their own costs
and expenses in connection herewith, except that the Company shall pay to
Tail Wind, Inc. the sum of 0.5% of the gross proceeds of this offering by the
Company as and for legal and due diligence expenses in connection herewith
and such amount shall be paid at Closing from gross proceeds of the offering.
16
<PAGE>
10.6 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Investors holding a majority of the Shares. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon each holder of any
Securities purchased under this Agreement at the time outstanding, each
future holder of all such securities, and the Company.
10.7 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
10.8 Entire Agreement. This Agreement, including the Exhibits and
Schedules hereto, and the Registration Rights Agreement constitute the entire
agreement among the parties hereof with respect to the subject matter hereof
and thereof and supersede all prior agreements and understandings, both oral
and written, between the parties with respect to the subject matter hereof
and thereof.
10.9 Further Assurances. The parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and
to evidence the fulfillment of the agreements herein contained.
10.10 Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without
regard to principles of conflicts of laws.
[Signature Page Follows]
17
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
The Company:
SUPERGEN, INC.
By:
------------------------
Name: Joseph Rubinfeld
Title: President
[signature page to Purchase Agreement]
18
<PAGE>
The Investor: THE TAIL WIND FUND LIMITED
By:
-------------------------
Name:
Title:
By:
--------------------
Name:
Title:
Aggregate Purchase Price: __________
Number of Shares of Common Stock: ____________
Number of Class A Warrants: _______________
Number of Class B Warrants: _______________
Effective per share Purchase Price of Shares: $__________
Exercise price of Class A Warrants: $__________
Address for Notice:
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
with a copy to:
Kleinberg Kaplan Wolff & Cohen PC
551 Fifth Avenue, 18th Floor
New York, New York 10176
Attn: Mr. Stephen M. Schultz
Telephone: 212/986 6000
Facsimile: 212/986 8866
[signature page to Purchase Agreement]
19
<PAGE>
The Investor: LBI GROUP INC.
By:
--------------------------
Name:
Title:
By:
---------------------
Name:
Title:
Aggregate Purchase Price: $3,000,003.08
Number of Shares of Common Stock: 170,843
Number of Class A Warrants: 51,253
Number of Class B Warrants: 51,253
Effective per share Purchase Price of Shares: $17.56
Exercise price of Class A Warrants: $22.50
Address for Notice:
LBI Group Inc.
c/o Lehman Brothers, Inc.
3 World Financial Center
New York, NY 10285
Attn: Steven Weinstein
Phone: (212) 526-6957
Fax: (212) 526-2198
with a copy to:
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[signature page to Purchase Agreement]
20
<PAGE>
The Investor:
--------------------------------
By:
---------------------------
Name:
Title:
By:
----------------------
Name:
Title:
Aggregate Purchase Price: __________
Number of Shares of Common Stock: ____________
Number of Class A Warrants: _______________
Number of Class B Warrants: _______________
Effective per share Purchase Price of Shares: $__________
Exercise price of Class A Warrants: $__________
Address for Notice:
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
with a copy to:
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[signature page to Purchase Agreement]
21
<PAGE>
The Investor:
--------------------------------
By:
---------------------------
Name:
Title:
By:
----------------------
Name:
Title:
Aggregate Purchase Price: __________
Number of Shares of Common Stock: ____________
Number of Class A Warrants: _______________
Number of Class B Warrants: _______________
Effective per share Purchase Price of Shares: $__________
Exercise price of Class A Warrants: $__________
Address for Notice:
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
with a copy to:
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[----------------------------]
[signature page to Purchase Agreement]
22
<PAGE>
EXHIBIT 4.3
THIS SUPPLEMENT AGREEMENT (this "Supplement Agreement") dated as of
September 23, 1999, is entered into by and between Supergen, Inc., a Delaware
corporation (the "Company") and The Tail Wind Fund Limited, a British Virgin
Islands company ("Tail Wind").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, as of September 15, 1999, the Company, Tail Wind and certain
other investors (Tail Wind, together with the other investors, the
"Investors") entered into a Purchase Agreement (the "Purchase Agreement")
pursuant to which the Investors purchased from the Company such number of
shares of Common Stock and such number of Class A warrants and Class B
warrants as set forth therein; and
WHEREAS, as of September 15, 1999, the Company and the Investors entered
into a Registration Rights Agreement pursuant to which the Company agreed to
provide certain registration rights under the 1933 Act and applicable state
securities laws (the "Registration Rights Agreement").
NOW, THEREFORE, the Company and Tail Wind wish to effect a transaction
pursuant to the terms of the Purchase Agreement and on the terms hereinafter
set forth. (Capitalized terms which are not otherwise defined herein shall
have the meanings ascribed thereto in the Purchase Agreement.)
1. PURCHASE AND SALE OF SHARES AND WARRANTS.
(a) Tail Wind agrees to purchase, and the Company agrees to
sell and issue to Tail Wind, upon the terms and conditions set forth herein
and in the Purchase Agreement, such number of shares of Common Stock and that
number of Class A warrants and Class B warrants as set forth on the signature
page attached hereto for the aggregate purchase price set forth on the
signature page attached hereto.
(b) The shares and warrants purchased hereunder shall be
considered and treated as Shares and Warrants under the Purchase Agreement
and the Registration Rights Agreement.
2. PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT TO REMAIN IN
EFFECT. All of the terms and provisions of the Purchase Agreement (including
but not limited to Section 10.5 of the Purchase Agreement) and the
Registration Rights Agreement shall apply to this Supplement Agreement,
except as specifically set forth herein. In addition, each party hereto
represents that its representations and warranties contained in the Purchase
Agreement and the Registration Rights Agreement are true and correct as of
the date hereof, except that Schedule 4.3 to the Purchase Agreement has been
updated as of the date hereof.
3. PRESS RELEASE. Notwithstanding Section 7.7 of the Purchase
Agreement, the Company represents and warrants that the purchase hereunder is
not a material event and that the Company, therefore, is not required to
issue a press release concerning the facts and material terms of this
Supplement Agreement.
<PAGE>
4. CONDITIONS TO CLOSING.
(a) On or prior to the closing date of this offering the
Company shall deliver to Tail Wind an update to the opinion of legal counsel
to the Company specified in Section 7.4 of the Purchase Agreement.
(b) The warrants issued hereunder shall be in the same form as
those issued pursuant to the Purchase Agreement.
5. IPO WARRANTS. The Company acknowledges that it has given notice
to redeem the warrants referred to in Section 7.15 of the Purchase Agreement
and that the scheduled redemption date of such warrants is on April 16, 2000.
6. WAIVER; MODIFICATION. No provision of this Supplement Agreement
may be waived or modified other than by a writing signed by the party to be
charged with such waiver or modification.
7. GOVERNING LAW. This Supplement Agreement shall be governed by
and construed in accordance with the internal laws of the State of Delaware.
8. COUNTERPARTS. This Supplement Agreement may be executed in one
or more counterparts, all of which taken together shall be deemed one
original.
IN WITNESS WHEREOF, the parties have executed this Supplement Agreement
as of the date first above written.
The Company:
SUPERGEN, INC.
By:
------------------------------
Name: Joseph Rubinfeld
Title: President
2
<PAGE>
THE TAIL WIND FUND LIMITED
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
Aggregate Purchase Price: $1,250,000
Number of Shares of Common Stock: 64,243
Number of Class A Warrants: 19,273
Number of Class B Warrants: 19,273
Effective per share Purchase Price of Shares: $19.4575
Exercise price of Class A Warrants: $22.1875
Address for Notice:
[____________________________]
[____________________________]
[____________________________]
[____________________________]
[____________________________]
[____________________________]
with a copy to:
Kleinberg Kaplan Wolff & Cohen PC
551 Fifth Avenue, 18th Floor
New York, New York 10176
Attn: Mr. Stephen M. Schultz
Telephone: 212/986 6000
Facsimile: 212/986 8866
3
<PAGE>
EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into as of this 15th day of September, 1999 by and between
Supergen, Inc., a Delaware corporation (the "Company"), and the "Investors"
named in that Purchase Agreement of even date herewith by and between the
Company and the Investors (the "Purchase Agreement").
The parties hereby agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"ADDITIONAL REGISTRABLE SECURITIES" shall mean the shares of
Common Stock, if any, issued to the Investors pursuant to Section 7.1 of the
Purchase Agreement.
"COMMON STOCK" shall mean the Company's Common Stock, par value
$0.001 per share.
"INVESTORS" shall mean the purchasers identified in the
Purchase Agreement and any affiliate or permitted transferee of any Investor
who is a subsequent holder of any Warrants, Registrable Securities or
Additional Registrable Securities.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities or Additional Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by reference in such prospectus.
"REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration made by preparing and filing a registration statement or similar
document in compliance with the 1933 Act (as defined below), and the
declaration or ordering of effectiveness of such registration statement or
document.
"REGISTRABLE SECURITIES" shall mean the shares of Common Stock
and other securities issued and issuable to the Investors pursuant to the
Purchase Agreement (other than additional shares of Common Stock issuable
pursuant to Section 7.1 of the Purchase Agreement) and issuable upon the
exercise of the Warrants, and any other securities issued or issuable with
respect to or in exchange for Registrable Securities, provided, however, that
shares of Common Stock, or other securities shall only be treated as
Registrable Securities if and so long as they have not been (A) sold to or
through a broker or dealer or underwriter in a public distribution or a
<PAGE>
public securities transaction, whether in a registered offering, Rule 144 or
otherwise, or (B) sold or are, in the opinion of counsel for the Company,
available for sale in a single transaction exempt from the registration and
prospectus delivery requirements of the 1933 Act pursuant to Rule 144(k) so
that all transfer restrictions and restrictive legends with respect thereto
are removed upon the consummation of such sale.
"REGISTRATION STATEMENT" shall mean any registration statement
filed under the 1933 Act of the Company that covers the resale of any of the
Registrable Securities or Additional Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"1933 ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"WARRANTS" mean the warrants to purchase shares of Common Stock
issued to the Investors pursuant to the Purchase Agreement, the form of which
is attached to the Purchase Agreement as Exhibit A.
2. REGISTRATION.
(a) REGISTRATION STATEMENTS.
(i) REGISTRABLE SECURITIES. Promptly following
the closing of the purchase and sale of Common Stock and Warrants
contemplated by the Purchase Agreement (the "Closing Date") (but no later
than forty-five (45) days after the Closing Date), the Company shall prepare
and file with the SEC one Registration Statement on Form S-3 (or, if Form S-3
is not then available to the Company, on such form of registration statement
as is then available to effect a registration for resale of the Registrable
Securities, subject to the Investors' consent) covering the resale of the
Registrable Securities in an amount equal to the number of shares of Common
Stock issued to the Investors on the Closing Date plus the number of shares
of Common Stock necessary to permit the exercise in full of the Warrants.
Such Registration Statement also shall cover, to the extent allowable under
the 1933 Act and the Rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from
stock splits, stock dividends or similar transactions with respect to the
Registrable Securities. The Registration Statement (and each amendment or
supplement thereto, and each request for acceleration of effectiveness
thereof) shall be provided in accordance with Section 3(c) to the Investors
and their counsel prior to its filing or other submission.
(ii) ADDITIONAL REGISTRABLE SECURITIES. Upon the
written demand of any Investor and following the issuance of any additional
shares of Common Stock to
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such Investor pursuant to Section 7.1, of the Purchase Agreement, the Company
shall prepare and file with the SEC one Registration Statement on Form S-3
(or, if Form S-3 is not then available to the Company, on such form of
registration statement as is then available to effect a registration for
resale of the Additional Registrable Securities, subject to the Investor's
consent) covering the resale of the Additional Registrable Securities in an
amount equal to the number of shares of Common Stock issued to and designated
in the demand by such Investor. Such Registration Statement also shall cover,
to the extent allowable under the 1933 Act and the Rules promulgated
thereunder (including Rule 416), such indeterminate number of additional
shares of Common Stock resulting from stock splits, stock dividends or
similar transactions with respect to the Additional Registrable Securities.
The Registration Statement (and each amendment or supplement thereto, and
each request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investor and its counsel prior to its
filing or other submission.
(b) EXPENSES. The Company will pay all expenses
associated with each registration, including the Investors' reasonable
expenses in connection with the registration but excluding discounts,
commissions, fees of underwriters, selling brokers, dealer managers or
similar securities industry professionals.
(c) EFFECTIVENESS.
(i) The Company shall use its best efforts to
have each Registration Statement declared effective as soon as practicable.
(ii) For not more than twenty-five (25)
consecutive trading days or for a total of not more than thirty-five (35)
trading days in any twelve (12) month period, the Company may delay the
disclosure of material non-public information concerning the Company, by
terminating or suspending effectiveness of any registration contemplated by
this Section containing such information, the disclosure of which at the time
is not, in the good faith opinion of the Company, in the best interests of
the Company (an "Allowed Delay"); provided, that the Company shall promptly
(a) notify the Investors in writing of the existence of (but in no event,
without the prior written consent of an Investor, shall the Company disclose
to such Investor any of the facts or circumstances regarding) material
non-public information giving rise to an Allowed Delay, and (b) advise the
Investors in writing to cease all sales under the Registration Statement
until the end of the Allowed Delay. The duration of the MFN Period provided
for in the Purchase Agreement will be extended by the number of days of any
and all Allowed Delays.
(d) UNDERWRITTEN OFFERING. If any offering by the
Investors pursuant to a Registration Statement pursuant to Section 2(a)
hereof involves a firm commitment underwritten offering, the Company shall
have the right to select an investment banker and manager to administer the
offering, which investment banker or manager shall be reasonably satisfactory
to the Investors.
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3. COMPANY OBLIGATIONS. The Company will use its best efforts
to effect the registration of the Registrable Securities and Additional
Registrable Securities in accordance with the terms hereof, and pursuant
thereto the Company will, as expeditiously as possible:
(a) use its best efforts to cause such Registration
Statement to become effective and to remain continuously effective for a
period that will terminate upon the earlier of the date on which all
Registrable Securities or Additional Registrable Securities, as the case may
be, covered by such Registration Statement, as amended from time to time,
have been sold (the "Registration Period");
(b) (1) prepare and file with the SEC such amendments
and post-effective amendments to the Registration Statement and the
Prospectus as may be necessary to keep the Registration Statement effective
for the period specified in Section 3(a) and to comply with the provisions of
the 1933 Act and the 1934 Act with respect to the distribution of all
Registrable Securities and Additional Registrable Securities; provided that,
at least five (5) business days prior to the filing of a Registration
Statement or Prospectus, or any amendments or supplements thereto, the
Company will furnish to the Investors or its counsel copies of all documents
proposed to be filed, which documents will be subject to the comments of the
Investors;
(2) permit counsel designated by the Investors to
review each Registration Statement and all amendments and supplements thereto
prior to their filing with the SEC;
(c) furnish to the Investors and their legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company, one copy of any Registration Statement and
any amendment thereto, each preliminary prospectus and Prospectus and each
amendment or supplement thereto, and each letter written by or on behalf of
the Company to the SEC or the staff of the SEC, and each item of
correspondence from the SEC or the staff of the SEC, in each case relating to
such Registration Statement (other than any portion of any thereof which
contains information for which the Company has sought confidential
treatment), and (ii) such number of copies of a Prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents as each Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities and Additional
Registrable Securities owned by such Investor;
(d) in the event the Company selects an underwriter for
the offering, the Company shall enter into and perform its reasonable
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the underwriter of such offering;
(e) if required by the underwriter, or if any Investor is
described in the Registration Statement as an underwriter, the Company shall
furnish, on the effective date of the Registration Statement, on the date
that Registrable Securities or Additional Registrable Securities, as
applicable, are delivered to an underwriter, if any, for sale in connection
with the Registration Statement and at periodic intervals thereafter from
time to time on request, (i) an
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<PAGE>
opinion, dated as of such date, from independent legal counsel representing
the Company for purposes of such Registration Statement, in form, scope and
substance as is customarily given in an underwritten public offering,
addressed to the underwriter and the Investors and (ii) a letter, dated such
date, from the Company's independent certified public accountants in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the
underwriter and the Investors;
(f) make effort to prevent the issuance of any stop order
or other suspension of effectiveness and, if such order is issued, obtain the
withdrawal of any such order at the earliest possible moment;
(g) furnish to each Investor at least five (5) copies of
the Registration Statement and any post-effective amendment thereto,
including financial statements and schedules by courier pursuant to the
notice requirements of Section 10.4 of the Purchase Agreement;
(h) prior to any public offering of Registrable
Securities or Additional Registrable Securities, use its reasonable best
efforts to register or qualify or cooperate with the Investors and their
counsel in connection with the registration or qualification of such
Registrable Securities or Additional Registrable Securities, as applicable,
for offer and sale under the securities or blue sky laws of all United States
jurisdictions and do any and all other reasonable acts or things necessary or
advisable to enable the distribution in such jurisdictions of the Registrable
Securities or Additional Registrable Securities covered by the Registration
Statement;
(i) cause all Registrable Securities or Additional
Registrable Securities covered by a Registration Statement to be listed on
each securities exchange, interdealer quotation system or other market on
which similar securities issued by the Company are then listed;
(j) immediately notify the Investors, at any time when a
Prospectus relating to the Registrable Securities or Additional Registrable
Securities is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of which, the
Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such holder, promptly prepare and furnish
to such holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities or Additional
Registrable Securities, as applicable, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; and
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC under the 1933 Act and the 1934
Act, take such other actions as may
5
<PAGE>
be reasonably necessary to facilitate the registration of the Registrable
Securities and Additional Registrable Securities, if applicable, hereunder;
and make available to its security holders, as soon as reasonably
practicable, but not later than the Availability Date (as defined below), an
earnings statement covering a period of at least twelve months, beginning
after the effective date of each Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933 Act (for
the purpose of this subsection 3(l), "Availability Date" means the 45th day
following the end of the fourth fiscal quarter that includes the effective
date of such Registration Statement, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year, "Availability Date"
means the 90th day after the end of such fourth fiscal quarter).
4. DUE DILIGENCE REVIEW. The Company shall make available,
during normal business hours, for inspection and review by the Investors,
advisors to and representatives of the Investors (who may or may not be
affiliated with the Investors and who are reasonably acceptable to the
Company), any underwriter participating in any disposition of Common Stock on
behalf of the Investors pursuant to the Registration Statement or amendments
or supplements thereto or any blue sky, NASD or other filing, all financial
and other records, all SEC Documents and other filings with the SEC, and all
other corporate documents and properties of the Company as may be reasonably
necessary for the purpose of such review, and cause the Company's officers,
directors and employees, within a reasonable time period, to supply all such
information reasonably requested by the Investors or any such representative,
advisor or underwriter in connection with such Registration Statement
(including, without limitation, in response to all questions and other
inquiries reasonably made or submitted by any of them), prior to and from
time to time after the filing and effectiveness of the Registration Statement
for the sole purpose of enabling the Investors and such representatives,
advisors and underwriters and their respective accountants and attorneys to
conduct initial and ongoing due diligence with respect to the Company and the
accuracy of the Registration Statement.
The Company shall not disclose nonpublic information to the
Investors, advisors to or representatives of the Investors unless prior to
disclosure of such information the Company identifies such information as
being nonpublic information and provides the Investors, such advisors and
representatives with the opportunity to accept or refuse to accept such
nonpublic information for review. The Company may, as a condition to
disclosing any nonpublic information hereunder, require the Investors, their
advisors and representatives to enter into a confidentiality agreement
(including an agreement with such advisors and representatives prohibiting
them from trading in Common Stock during such period of time as they are in
possession of nonpublic information) in form reasonably satisfactory to the
Company and the Investors.
Nothing herein shall require the Company to disclose nonpublic
information to the Investors or their advisors or representatives, and the
Company represents that it does not disseminate nonpublic information to any
investors who purchase stock in the Company in a public offering, to money
managers or to securities analysts, provided, however, that notwithstanding
anything herein to the contrary, the Company will, as hereinabove provided,
immediately notify the advisors and representatives of the Investors and, if
any, underwriters, of
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<PAGE>
any event or the existence of any circumstance (without any obligation to
disclose the specific event or circumstance) of which it becomes aware,
constituting nonpublic information (whether or not requested of the Company
specifically or generally during the course of due diligence by and such
persons or entities), which, if not disclosed in the Prospectus included in
the Registration Statement, would cause such Prospectus to include a material
misstatement or to omit a material fact required to be stated therein in
order to make the statements therein, in light of the circumstances in which
they were made, not misleading. Nothing contained in this Section 4 shall be
construed to mean that such persons or entities other than the Investors
(without the written consent of the Investors prior to disclosure of such
information) may not obtain nonpublic information in the course of conducting
due diligence in accordance with the terms of this Agreement and the Purchase
Agreement; provided, however, that in no event shall the Investor's advisors
or representatives disclose to the Investors the nature of the specific event
or circumstances constituting any nonpublic information discovered by such
advisors or representatives in the course of their due diligence without the
written consent of the Investors prior to disclosure of such information. The
Investors' advisors or representatives shall make complete disclosure to the
Investors' independent counsel of all events or circumstances constituting
nonpublic information discovered by such advisors or representatives in the
course of their due diligence upon which such advisors or representatives
form the opinion that the Registration Statement contains an untrue statement
of a material fact or omits a material fact required to be stated in the
Registration Statement or necessary to make the statements contained therein,
in the light of the circumstances in which they were made, not misleading.
Upon receipt of such disclosure, the Investor's independent counsel shall
consult with the Company's independent counsel in order to address the
concern raised as to the existence of a material misstatement or omission and
to discuss appropriate disclosure with respect thereto; provided, however,
that such consultation shall not constitute the advice of the Company's
independent counsel to the Investors as to the accuracy of the Registration
Statement and related Prospectus. In the event after such consultation the
Investors' independent counsel reasonably believes that the Registration
Statement contains an untrue statement or a material fact or omits a material
fact required to be stated in the Registration Statement or necessary to make
the statements contained therein, in light of the circumstances in which they
were made, not misleading, (a) the Company shall file with the SEC an
amendment to the Registration Statement responsive to such alleged untrue
statement or omission and provide the Investors, as promptly as practicable,
with copies of the Registration Statement and related Prospectus, as so
amended, or (b) if the Company disputes the existence of any such material
misstatement or omission, (i) the Company's independent counsel shall provide
the Investor's independent counsel with an opinion stating that nothing has
come to their attention that would lead them to believe that the Registration
Statement or the related Prospectus, as of the date of such opinion, contains
an untrue statement of a material fact or omits a material fact required to
be stated in the Registration Statement or the related Prospectus or
necessary to make the statements contained therein, in light of the
circumstances in which they were made, not misleading and (ii) in the event
the dispute relates to the adequacy of financial disclosure and the Investors
shall reasonably request, the Company's independent auditors shall provide to
the Company a letter outlining the performance of such "agreed upon
procedures" as shall be reasonably requested by the Investors and the Company
shall provide the Investors with a copy of such letter.
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<PAGE>
5. OBLIGATIONS OF THE INVESTORS.
(a) Each Investor shall furnish in writing to the Company
such information regarding itself, the Registrable Securities or Additional
Registrable Securities, as applicable, held by it and the intended method of
disposition of the Registrable Securities or Additional Registrable
Securities, as applicable, held by it, as shall be reasonably required to
effect the registration of such Registrable Securities or Additional
Registrable Securities, as applicable, and shall execute such documents in
connection with such registration as the Company may reasonably request. At
least fifteen (15) business days prior to the first anticipated filing date
of any Registration Statement, the Company shall notify each Investor of the
information the Company requires from such Investor if such Investor elects
to have any of the Registrable Securities or Additional Registrable
Securities included in the Registration Statement. An Investor shall provide
such information to the Company at least seven (7) business days prior to the
first anticipated filing date of such Registration Statement if such Investor
elects to have any of the Registrable Securities or Additional Registrable
Securities included in the Registration Statement.
(b) Each Investor, by its acceptance of the Registrable
Securities and Additional Registrable Securities, if any, agrees to cooperate
with the Company as reasonably requested by the Company in connection with
the preparation and filing of a Registration Statement hereunder, unless such
Investor has notified the Company in writing of its election to exclude all
of its Registrable Securities or Additional Registrable Securities, as
applicable, from the Registration Statement, in which case the Investor shall
be deemed to have waived its rights to have Registrable Securities or
Additional Registrable Securities, as the case may be, registered under this
Agreement.
(c) In the event the Company at an Investor's request,
determines to engage the services of an underwriter, such Investor agrees to
enter into and perform its obligations under an underwriting agreement, in
usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing underwriter
of such offering and take such other actions as are reasonably required in
order to expedite or facilitate the dispositions of the Registrable
Securities or Additional Registrable Securities, as applicable.
(d) Each Investor agrees that, upon receipt of any notice
from the Company of the happening of any event rendering a Registration
Statement no longer effective, such Investor will immediately discontinue
disposition of Registrable Securities or Additional Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
or Additional Registrable Securities, until the Investor's receipt of the
copies of the supplemented or amended prospectus filed with the SEC and
declared effective and, if so directed by the Company, the Investor shall
deliver to the Company (at the expense of the Company) or destroy (and
deliver to the Company a certificate of destruction) all copies in the
Investor's possession of the prospectus covering the Registrable Securities
or Additional Registrable Securities, as applicable, current at the time of
receipt of such notice.
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(e) No Investor may participate in any third party
underwritten registration hereunder unless it (i) agrees to sell the
Registrable Securities or Additional Registrable Securities, as applicable,
on the basis provided in any underwriting arrangements in usual and customary
form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to the terms of this Agreement.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law the
Investors, each of their officers, directors, partners and employees and each
person who controls the Investors (within the meaning of the 1933 Act)
against all losses, claims, damages, liabilities, costs (including, without
limitation, reasonable attorney's fees) and expenses imposed on such person
caused by (i) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or any preliminary
prospectus or any amendment or supplement thereto or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
the same are based upon any information furnished in writing to the Company
by such Investors, expressly for use therein, or (ii) any violation by the
Company of any federal, state or common law, rule or regulation applicable to
the Company in connection with any Registration Statement, Prospectus or any
preliminary prospectus, or any amendment or supplement thereto, and shall
reimburse in accordance with subparagraph (c) below, each of the foregoing
persons for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claims. The foregoing is
subject to the condition that, insofar as the foregoing indemnities relate to
any untrue statement, alleged untrue statement, omission or alleged omission
made in any preliminary prospectus or Prospectus that is eliminated or
remedied in any Prospectus or amendment or supplement thereto, the above
indemnity obligations of the Company shall not inure to the benefit of any
indemnified party if a copy of such corrected Prospectus or amendment or
supplement thereto had been made available to such indemnified party and was
not sent or given by such indemnified party at or prior to the time such
action was required of such indemnified party by the 1933 Act and if delivery
of such Prospectus or amendment or supplement thereto would have eliminated
(or been a sufficient defense to) any liability of such indemnified party
with respect to such statement or omission. Indemnity under this Section 6(a)
shall remain in full force and effect regardless of any investigation made by
or on behalf of any indemnified party and shall survive the permitted
transfer of the Registrable Securities and Additional Registrable Securities.
(b) INDEMNIFICATION BY HOLDER. In connection with any
registration pursuant to the terms of this Agreement, each Investor will
furnish to the Company in writing such information as the Company reasonably
requests concerning the holders of Registrable Securities and Additional
Registrable Securities or the proposed manner of distribution for use in
connection with any Registration Statement or Prospectus and agrees,
severally but not jointly, to
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indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its directors, officers, employees, stockholders and each person who
controls the Company (within the meaning of the 1933 Act) against any losses,
claims, damages, liabilities and expense (including reasonable attorney's
fees) resulting from any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact required
to be stated in the Registration Statement or Prospectus or preliminary
prospectus or amendment or supplement thereto or necessary to make the
statements therein not misleading, to the extent, but only to the extent that
such untrue statement or omission is contained in any information furnished
in writing by such Investor to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement thereto and
that such information was substantially relied upon by the Company in
preparation of the Registration Statement or Prospectus or any amendment or
supplement thereto. In no event shall the liability of an Investor be greater
in amount than the dollar amount of the proceeds (net of all the amount of
any damages such holder has otherwise been required to pay by reason of such
untrue statement or omission) received by such Investor upon the sale of the
Registrable Securities or Additional Registrable Securities included in the
Registration Statement giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person
entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party;
PROVIDED that any person entitled to indemnification hereunder shall have the
right to employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the expense of
such person unless (a) the indemnifying party has agreed to pay such fees or
expenses, or (b) the indemnifying party shall have failed to assume the
defense of such claim and employ counsel reasonably satisfactory to such
person or (c) in the reasonable judgment of any such person, based upon
written advice of its counsel, a conflict of interest exists between such
person and the indemnifying party with respect to such claims (in which case,
if the person notifies the indemnifying party in writing that such person
elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
claim on behalf of such person); and PROVIDED, FURTHER, that the failure of
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations hereunder, except to the extent that
such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more
than one separate firm of attorneys at any time for all such indemnified
parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation.
(d) CONTRIBUTION. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to an
indemnified party or insufficient to hold
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it harmless, other than as expressly specified therein, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party
as a result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations.
No person guilty of fraudulent misrepresentation within the meaning of
Section 11(f) of the 1933 Act shall be entitled to contribution from any
person not guilty of such fraudulent misrepresentation. In no event shall the
contribution obligation of a holder of Registrable Securities or Additional
Registrable Securities be greater in amount than the dollar amount of the
proceeds (net of the amount of any damages such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission) received by it upon the sale of the Registrable
Securities or Additional Registrable Securities giving rise to such
contribution obligation.
7. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. This Agreement may be amended
only by a writing signed by the Company and the holders of a majority of the
Registrable Securities and Additional Registrable Securities. The Company may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, only if the Company shall have obtained the written
consent to such amendment, action or omission to act, of each Investor.
(b) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made as set forth in Section 10.4 of the
Purchase Agreement.
(c) ASSIGNMENTS AND TRANSFERS BY INVESTORS. This Agreement
and all the rights and obligations of the Investors hereunder may not be
assigned or transferred to any transferee or assignee except to an affiliate
or transferee of an Investor who is a subsequent holder of any Warrants,
Registrable Securities or Additional Registrable Securities, provided that
such affiliate or transferee holds at least 25,000 Registrable Securities
upon completion of such assignment or transfer.
(d) ASSIGNMENTS AND TRANSFERS BY THE COMPANY. This Agreement
may not be assigned by the Company without the prior written consent of each
Investor, except that without the prior written consent of the Investors, but
after notice duly given, the Company shall assign its rights and delegate its
duties hereunder to any successor-in-interest corporation, and such
successor-in-interest shall assume such rights and duties, in the event of a
merger or consolidation of the Company with or into another corporation or
the sale of all or substantially all of the Company's assets.
(e) BENEFITS OF THE AGREEMENT. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the
respective permitted successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
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(f) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g) TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(h) SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms to the fullest extent permitted by law.
(i) FURTHER ASSURANCES. The parties shall execute and deliver
all such further instruments and documents and take all such other actions as
may reasonably be required to carry out the transactions contemplated hereby
and to evidence the fulfillment of the agreements herein contained.
(j) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(k) APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without
regard to principles of conflicts of law.
12
<PAGE>
[Signature Page Follows]
13
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
The Company: SUPERGEN, INC.
By:_________________________
Name:
Title:
[signature page to Registration Rights Agreement]
14
<PAGE>
The Investors: THE TAIL WIND FUND LIMITED
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
[signature page to Registration Rights Agreement]
15
<PAGE>
The Investors: LBI GROUP INC.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
[signature page to Registration Rights Agreement]
16
<PAGE>
The Investors: ____________________________
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
[signature page to Registration Rights Agreement]
17
<PAGE>
The Investors: ____________________________
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
[signature page to Registration Rights Agreement]
18
<PAGE>
EXHIBIT 4.5
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN TAKEN FOR INVESTMENT
PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES OR
SUPERGEN, INC. (THE "COMPANY") RECEIVES AN OPINION OF COUNSEL (WHICH
MAY BE COUNSEL FOR THE COMPANY) STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SUCH ACT.
No. Right to Purchase
----- -----
Date: Shares of Common Stock
Void After:
----------
SUPERGEN, INC.
WARRANT
THIS CERTIFIES THAT, subject to the terms of this agreement, CLIPPERBAY
& CO., (the "HOLDER") is entitled to subscribe for and purchase from SuperGen,
Inc, a Delaware corporation (the "COMPANY"), at the Warrant Price defined in
Section 2 herein, fully paid and non-assessable shares of the
Company's Common Stock (the "COMMON STOCK"), such price and such number of
shares being subject to adjustment upon occurrence of the contingencies set
forth in this Warrant.
This Warrant is issued pursuant to a Common Stock and Warrant Purchase
Agreement dated between the Company and the purchaser named
therein (the "PURCHASE AGREEMENT").
Upon delivery of this Warrant (with the Notice of Exercise in the form
attached hereto as EXHIBIT A), together with payment of the Warrant Price of the
shares of Common Stock thereby purchased, at the principal office of the Company
or at such other office or agency as the Company may designate by notice in
writing to the holder hereof, the holder of this Warrant shall be entitled to
receive a certificate or certificates for the shares of Common Stock so
purchased. All shares of Common Stock which may be issued upon the exercise of
this Warrant will, upon issuance, be fully paid and non-assessable and free from
all taxes, liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
1. TERM OF WARRANT.
This Warrant may be exercised in whole or in part, at any
time, and from time to time, after issuance and prior to the first to occur of
the following:
<PAGE>
(a) _____________., Pacific Standard Time, ______________; or
(b) The consummation of any transaction or Series of
transactions (collectively, the "TRANSACTION"), including without limitation,
the sale, transfer or disposition of all or substantially all of the
Company's assets or the merger of the Company with or into, or consolidation
with, any other corporation, whereby the holders of the Company's voting
securities prior to the Transaction do not hold more than 50% of the voting
securities of the surviving entity following consummation of the Transaction
(a "CHANGE OF CONTROL").
2. WARRANT PRICE. The exercise price of this Warrant (the
"WARRANT PRICE") shall equal $ _______ per share.
3. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES;
LIMITATION ON EXERCISE.
The number and kind of securities purchasable upon the
exercise of this Warrant and the Warrant Price shall be subject to adjustment
from time to time in accordance with the following provisions; provided that, no
such adjustment shall be made if a corresponding adjustment is made pursuant to
the Company's Amended and Restated Certificate of Incorporation.
(a) RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of
any reclassification or change of outstanding securities of the class
issuable upon exercise of this Warrant (other than as a result of a
subdivision or combination), or in case of any consolidation or merger of the
Company with or into another corporation (other than a Change of Control as
provided in Section 1(b) hereof), the Company, or such successor corporation,
as the case may be, shall execute a new Warrant, providing that the holder of
this Warrant shall have the right to exercise such new Warrant and procure
upon such exercise in lieu of each share of Common Stock theretofore issuable
upon exercise of this Warrant the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification, change,
consolidation or merger by a holder of one share of Common Stock. Such new
Warrant shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 3. The
provisions of this subsection (a) shall similarly apply to successive
reclassifications, changes, consolidations and mergers.
(b) SUBDIVISION OR COMBINATION OF SHARES. If at any time
on or after the date of this Warrant the Company shall subdivide its
outstanding shares of Common Stock into a greater number of shares, the
Warrant Price in effect immediately prior to such subdivision shall be
proportionately reduced and the number of shares receivable upon exercise of
the Warrant shall be proportionately increased; and, conversely, if at any
time on or after the date of this Warrant the outstanding number of shares of
Common Stock shall be combined into a smaller number of shares, the Warrant
Price in effect immediately prior to such combination shall be
proportionately increased and the number of shares receivable upon exercise
of the Warrant shall be proportionately decreased.
(c) ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment
in the Warrant Price, the number of Shares of Common Stock purchasable
hereunder shall be adjusted, to the nearest whole share, to the product
obtained by multiplying the number of Shares purchasable immediately prior to
such adjustment in the Warrant Price by a fraction, the numerator of which
-2-
<PAGE>
shall be the Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately thereafter.
4. NOTICES.
(a) Upon any adjustment of the Warrant Price and any
increase or decrease in the number of shares of Common Stock purchasable upon
the exercise of this Warrant, then, and in each such case, the Company, within
thirty (30) days thereafter, shall give written notice thereof to the registered
holder of this Warrant (the "NOTICE"). The Notice shall be mailed to the address
of such holder as shown on the books of the Company, and shall state the Warrant
Price as adjusted and the increased or decreased number of shares purchasable
upon the exercise of this Warrant, setting forth in reasonable detail the method
of calculation of each.
(b) In the event that the Company shall propose at any
time to effect a Change of Control, the Company shall send to the Holder at
least twenty (20) days' prior written notice of the date when the same shall
take place.
(c) Each such written notice shall be given by first class
mail, postage prepaid, addressed to the Holder at the address as shown on the
books of the Company for the Holder.
5. INVESTMENT LETTER. Upon exercise or conversion of this
Warrant in accordance with the provisions hereof, the Holder shall either (i)
execute and deliver to the Company an investment letter in the form attached
to the Notice of Exercise on Exhibit A, or (ii) deliver to the Company an
opinion of counsel for the Holder reasonably satisfactory to the Company,
stating that such exercise or conversion is exempt from the registration and
prospectus delivery requirements of the Securities Act of 1933, as amended
(the "SECURITIES ACT").
6. REGISTRATION RIGHTS. The Common Stock issued or issuable
upon the exercise of this Warrant are subject to registration in accordance
with the registration rights in favor of the Holder as provided for in that
certain Amended and Restated Registration Rights Agreement dated as of
September 1, 1999 between the Company and the Holder.
7. RESTRICTIONS ON TRANSFER. Certificates representing any of
the Common Stock acquired pursuant to the provisions of this Warrant shall
have endorsed thereon legends substantially in the following form, as
appropriate.
(a) Unless such shares of Common Stock are received in a
transaction registered under the Securities Act and qualified (if necessary)
under applicable state securities laws:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT."
-3-
<PAGE>
(b) Any legend required to be placed thereon by any
applicable state securities laws.
8. COMPLIANCE WITH ACT. The Holder, by acceptance hereof,
agrees that this Warrant and the Common Stock to be issued upon the exercise
or conversion hereof are being acquired solely for its own account and not as
a nominee for any other party and not with a view toward the resale or
distribution thereof and that it will not offer, sell or otherwise dispose of
this Warrant or any of the Common Stock to be issued upon the exercise or
conversion hereof except in accordance herewith and under circumstances which
will not result in a violation of the Securities Act or of applicable state
securities laws.
9. MISCELLANEOUS.
(a) The terms of this Warrant shall be binding upon and
shall inure to the benefit of any successors or assigns of the Company and of
the holder or holders hereof and of the Common Stock issued or issuable upon
the exercise hereof.
(b) No holder of this Warrant, as such, shall be entitled
to vote or receive dividends or be deemed to be a stockholder of the Company
for any purpose, nor shall anything contained in this Warrant be construed to
confer upon the holder of this Warrant, as such, any rights of a stockholder
of the Company or any right to vote, give or withhold consent to any
corporate action, receive notice of meetings, receive dividends or
subscription rights, or otherwise.
(c) Receipt of this Warrant by the holder hereof shall
constitute acceptance of and agreement to the foregoing terms and conditions.
(d) The Company will not, by amendment of its Restated
Certificate of Incorporation or through any other means, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in
order to protect the rights of the holder of this Warrant against impairment.
(e) Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of any such loss, theft or distribution, upon delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, upon surrender and cancellation of
such Warrant, the Company at its expense will execute and deliver, in lieu
thereof, a new Warrant of like date and tenor.
(f) This Warrant shall be nontransferable, other than
pursuant to (i) a transfer not involving a change in beneficial ownership,
(ii) a distribution without consideration of the Warrant by the Holder to any
of its partners, or retired partners, or to the estate of any of its partners
or retired partners, or if the Holder is a limited liability company, to any
of its members, former members, or to the estate of any of its members or
former members, and (iii) any transfer by any Holder to (A) any individual or
entity controlled by, controlling, or under common control with, such Holder
or (B) any individual or entity with respect to which such Holder (or
-4-
<PAGE>
any person controlled by, controlling, or under common control with, such
Holder) has the power to direct investment decisions
(g) This Warrant or any provision of this Warrant may be amended,
waived, discharged or terminated by a statement in writing signed by the
either (i) the Company and the holders of warrants representing at least
sixty percent (60%) of the Common Stock issuable upon exercise of all then
outstanding Warrants issued pursuant to the Purchase Agreement, or (ii) the
party against which enforcement of the amendment, waiver, discharge or
termination is sought. A written instrument signed as provided in clause (i)
above shall be effective as to all then outstanding Warrants issued under the
Purchase Agreement.
(h) This Warrant shall be governed by the laws of the State of
Delaware.
[SIGNATURE PAGE FOLLOWS]
-5-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
Dated:
-------------------------
SUPERGEN, INC.
---------------------------------------
Dr. Joseph Rubinfeld
President and Chief Executive Officer
-6-
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE
TO: SuperGen, Inc.
1. The undersigned hereby elects to purchase ___________ shares of the
Common Stock of SUPERGEN, INC. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in full,
together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
---------------------------------
(Name)
---------------------------------
---------------------------------
(Address)
3. The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares. In support thereof, the undersigned has executed the Investment
Representation Statement attached hereto as Exhibit A.
Signature of Holder
-------------------------------------
By:
---------------------------------
Title:
------------------------------
Date:
------------------------------
-7-
<PAGE>
EXHIBIT A TO NOTICE OF EXERCISE
SUPERGEN, INC.
WARRANT EXERCISE
INVESTMENT REPRESENTATION STATEMENT
PURCHASER :
COMPANY : SuperGen, Inc.
SECURITY : Common Stock
NUMBER OF SHARES :
DATE : ________________, _____
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Company the following:
(a) I am an accredited investor within the meaning of Rule 501 under
the Securities Act of 1933, as amended (the "Securities Act") and have such
knowledge and experience in financial and business matters that I am capable of
evaluating the merits and risks of the purchase of the Securities.
(b) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. In making my
decision to the acquire the Securities, I am not relying on representations of
any officer, director, stockholder or agent of the Company. I am purchasing
these Securities for my own account for investment purposes only and not with a
view to, or for the resale in connection with, any "distribution" thereof for
purposes of the Securities Act.
(c) I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, and that
reliance by the Company on such an exemption is predicated in part on the
representations set forth in this letter.
(d) I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available. Moreover, except as set forth in that
certain Amended and Restated Registration Rights Agreement dated as of September
1, 1999 between the Company and certain purchasers referred to therein, I
understand that the Company is under no obligation to register the Securities.
In addition, I understand that the certificate evidencing the Securities will be
imprinted with a legend which prohibits the transfer of the Securities unless
they are registered or such registration is not required in the opinion of
counsel for the Purchaser satisfactory to the Company or unless the Company
receives a no-action letter from the Securities and Exchange Commission.
-8-
<PAGE>
(e) I am familiar with the provisions of Rule 144, promulgated under
the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, including, among other things: (1)
the resale occurring not less than one year after the later of the date the
securities were sold by the Company or the date they were sold by an affiliate
of the Company, within the meaning of Rule 144; and, in the case of an
affiliate, or of a non-affiliate who has held the securities less than two
years, (2) the availability of certain public information about the Company, (3)
the sale being made through a broker in an unsolicited "broker's transaction" or
in transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934), and (4) the amount of securities being sold
during any three month period not exceeding the specified limitations stated
therein, if applicable.
(f) I further understand that at the time I wish to sell the Securities
there may be no public market upon which to make such a sale, and that, even if
such a public market exists, the Company may not be satisfying the current
public information requirements of Rule 144, and that, in such event, I would be
precluded from selling the Securities under Rule 144 even if the one-year
minimum holding period had been satisfied.
(g) I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the SEC has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
Signature of Purchaser
-------------------------------------
By:
---------------------------------
Title:
------------------------------
Date:
------------------------------
-9-
<PAGE>
EXHIBIT 4.6
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN TAKEN FOR INVESTMENT
PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
SECURITIES, OR SUPERGEN, INC. (THE "COMPANY") RECEIVES AN OPINION OF
COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) STATING THAT SUCH SALE
OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT.
No. _____ Right to Purchase ______
Date ____________ Shares of Common Stock
Void After _______
SUPERGEN, INC.
CLASS A WARRANT
THIS CERTIFIES THAT, subject to the terms of this agreement, THE
TAIL WIND FUND LIMITED, (the "HOLDER") is entitled to subscribe for and
purchase from SuperGen, Inc, a Delaware corporation (the "COMPANY"), at the
Warrant Price defined in Section 2 herein, _____ fully paid and
non-assessable shares of the Company's Common Stock (the "COMMON STOCK"),
such price and such number of shares being subject to adjustment upon
occurrence of the contingencies set forth in this Warrant.
This Warrant is issued pursuant to a Purchase Agreement dated
__________________ between the Company and the purchaser(s) named therein
(the "PURCHASE AGREEMENT").
Upon delivery of this Warrant (with the Notice of Exercise in the
form attached hereto as EXHIBIT A), together with payment of the Warrant
Price of the shares of Common Stock thereby purchased, at the principal
office of the Company or at such other office or agency as the Company may
designate by notice in writing to the holder hereof, the holder of this
Warrant shall be entitled to receive a certificate or certificates for the
shares of Common Stock so purchased. All shares of Common Stock which may be
issued upon the exercise of this Warrant will, upon issuance, be fully paid
and non-assessable and free from all taxes, liens and charges with respect
thereto.
This Warrant is subject to the following terms and conditions:
1. TERM OF WARRANT.
This Warrant may be exercised in whole or in part, at any
time, and from time to time, after issuance and prior to the first to occur
of the following:
<PAGE>
(a) _________ Pacific Standard Time, _________________; or
(b) The consummation of any transaction or Series of
transactions (collectively, the "TRANSACTION"), including without limitation,
the sale, transfer or disposition of all or substantially all of the
Company's assets or the merger of the Company with or into, or consolidation
with, any other corporation, whereby the holders of the Company's voting
securities prior to the Transaction do not hold more than 50% of the voting
securities of the surviving entity following consummation of the Transaction
(a "CHANGE OF CONTROL").
2. WARRANT PRICE. The exercise price of this Warrant (the "WARRANT
PRICE") shall equal $_______ per share.
3. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES; LIMITATION ON
EXERCISE.
The number and kind of securities purchasable upon the exercise
of this Warrant and the Warrant Price shall be subject to adjustment from
time to time in accordance with the following provisions:
(a) RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of any
reclassification or change of outstanding securities of the class issuable
upon exercise of this Warrant (other than as a result of a subdivision or
combination), or in case of any consolidation or merger of the Company with
or into another corporation (other than a Change of Control as provided in
Section 1(b) hereof), the Company, or such successor corporation, as the case
may be, shall execute a new Warrant, providing that the holder of this
Warrant shall have the right to exercise such new Warrant and procure upon
such exercise in lieu of each share of Common Stock theretofore issuable upon
exercise of this Warrant the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification, change,
consolidation or merger by a holder of one share of Common Stock. Such new
Warrant shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 3. The
provisions of this subsection (a) shall similarly apply to successive
reclassifications, changes, consolidations and mergers.
(b) SUBDIVISION OR COMBINATION OF SHARES. If at any time on
or after the date of this Warrant the Company shall subdivide its outstanding
shares of Common Stock into a greater number of shares, or shall pay a
dividend with respect to its outstanding shares of Common Stock in shares of
Common Stock, the Warrant Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares
receivable upon exercise of the Warrant shall be proportionately increased;
and, conversely, if at any time on or after the date of this Warrant the
outstanding number of shares of Common Stock shall be combined into a smaller
number of shares, the Warrant Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares
receivable upon exercise of the Warrant shall be proportionately decreased.
(c) ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in
the Warrant Price, the number of Shares of Common Stock purchasable hereunder
shall be adjusted, to the
-2-
<PAGE>
nearest whole share, to the product obtained by multiplying the number of
Shares purchasable immediately prior to such adjustment in the Warrant Price
by a fraction, the numerator of which shall be the Warrant Price immediately
prior to such adjustment and the denominator of which shall be the Warrant
Price immediately thereafter.
4. NOTICES.
(a) Upon any adjustment of the Warrant Price and any increase or
decrease in the number of shares of Common Stock purchasable upon the
exercise of this Warrant, then, and in each such case, the Company, within
thirty (30) days thereafter, shall give written notice thereof to the
registered holder of this Warrant (the "NOTICE"). The Notice shall be mailed
to the address of such holder as shown on the books of the Company, and shall
state the Warrant Price as adjusted and the increased or decreased number of
shares purchasable upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation of each.
(b) The Company shall send to the Holder at least twenty (20)
days' prior written notice of the date when any change of control of which
the Company has knowledge shall take place.
(c) Each such written notice shall be given by first class
mail, postage prepaid, addressed to the Holder at the address as shown on the
books of the Company for the Holder.
5. INVESTMENT LETTER. Upon exercise or conversion of this Warrant in
accordance with the provisions hereof, if the Common Stock issuable upon
exercise of this Warrant is not registered as contemplated by Section 6
below, the Holder shall either (i) execute and deliver to the Company an
investment letter in the form attached to the Notice of Exercise on Exhibit
A, or (ii) deliver to the Company an opinion of counsel for the Holder
reasonably satisfactory to the Company, stating that such exercise or
conversion is exempt from the registration and prospectus delivery
requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT").
6. REGISTRATION RIGHTS. The Common Stock issued or issuable upon the
exercise of this Warrant are subject to registration in accordance with the
registration rights in favor of the Holder as provided for in that certain
Registration Rights Agreement dated as of or about the date hereof between
the Company and the Holder.
7. RESTRICTIONS ON TRANSFER. Certificates representing any of the
Common Stock acquired pursuant to the provisions of this Warrant shall have
endorsed thereon legends substantially in the following form, as appropriate.
Unless such shares of Common Stock are registered under the Securities
Act and qualified (if necessary) under applicable state securities laws:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
-3-
<PAGE>
UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT
SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT."
(b) Any legend required to be placed thereon by any
applicable state securities laws.
8. COMPLIANCE WITH ACT. The Holder, by acceptance hereof, agrees
that this Warrant and the Common Stock to be issued upon the exercise or
conversion hereof are being acquired solely for its own account and not as a
nominee for any other party and not with a view toward the resale or
distribution thereof and that it will not offer, sell or otherwise dispose of
this Warrant or any of the Common Stock to be issued upon the exercise or
conversion hereof except in accordance herewith and under circumstances which
will not result in a violation of the Securities Act or of applicable state
securities laws.
9. MISCELLANEOUS.
(a) The terms of this Warrant shall be binding upon and shall
inure to the benefit of any successors or assigns of the Company and of the
holder or holders hereof and of the Common Stock issued or issuable upon the
exercise hereof.
(b) No holder of this Warrant, as such, shall be entitled to
vote or receive dividends or be deemed to be a stockholder of the Company for
any purpose, nor shall anything contained in this Warrant be construed to
confer upon the holder of this Warrant, as such, any rights of a stockholder
of the Company or any right to vote, give or withhold consent to any
corporate action, receive notice of meetings, receive dividends or
subscription rights, or otherwise.
(c) Receipt of this Warrant by the holder hereof shall
constitute acceptance of and agreement to the foregoing terms and conditions.
(d) The Company will not, by amendment of its Restated
Certificate of Incorporation or through any other means, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in
order to protect the rights of the holder of this Warrant against impairment.
(e) Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of any such loss, theft or distribution, upon delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, upon surrender and cancellation of
-4-
<PAGE>
such Warrant, the Company at its expense will execute and deliver, in lieu
thereof, a new Warrant of like date and tenor.
(f) This Warrant shall be nontransferable, other than
pursuant to (i) a transfer not involving a change in beneficial ownership,
(ii) a distribution without consideration of the Warrant by the Holder to any
of its partners, or retired partners, or to the estate of any of its partners
or retired partners, or if the Holder is a limited liability company, to any
of its members, former members, or to the estate of any of its members or
former members, (iii) any transfer by any Holder to (A) any individual or
entity controlled by, controlling, or under common control with, such Holder
or (B) any individual or entity with respect to which such Holder (or any
person controlled by, controlling, or under common control with, such Holder)
has the power to direct investment decisions, and (iv) a transfer exempt from
registration under the Securities Act, upon the Company's receipt of an
opinion of counsel (which may be counsel for the Company) satisfactory to the
Company stating that such transfer is exempt from the registration and
prospectus delivery requirements of the federal securities laws.
(g) This Warrant or any provision of this Warrant may be
amended, waived, discharged or terminated by a statement in writing signed by
the either (i) the Company and the holders of warrants representing at least
fifty percent (50%) of the Common Stock issuable upon exercise of all then
outstanding Warrants issued pursuant to the Purchase Agreement, or (ii) the
party against which enforcement of the amendment, waiver, discharge or
termination is sought. A written instrument signed as provided in clause (i)
above shall be effective as to all then outstanding Warrants issued under the
Purchase Agreement.
(h) This Warrant shall be governed by the laws of the State of
Delaware.
[SIGNATURE PAGE FOLLOWS]
-5-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
Dated:
-------------
SUPERGEN, INC.
---------------------------------------
Dr. Joseph Rubinfeld
President and Chief Executive Officer
-6-
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE
TO: SuperGen, Inc.
1. The undersigned hereby elects to purchase ___________ shares
of the Common Stock of SUPERGEN, INC. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full, together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name
as is specified below:
---------------------------------
(Name)
---------------------------------
---------------------------------
(Address)
3. The undersigned represents that the aforesaid shares of
Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of
distributing or reselling such shares. In support thereof, the undersigned
has executed the Investment Representation Statement attached hereto as
Exhibit A.
Signature of Holder
------------------------------------
By:
----------------------------------
Title:
-------------------------------
Date:
--------------------------------
-7-
<PAGE>
EXHIBIT A TO NOTICE OF EXERCISE
SUPERGEN, INC.
WARRANT EXERCISE
INVESTMENT REPRESENTATION STATEMENT
PURCHASER :
COMPANY : SuperGen, Inc.
SECURITY : Common Stock
NUMBER OF SHARES :
DATE : ________________, _____
In connection with the purchase of the above-listed Securities, I,
the Purchaser, represent to the Company the following:
(a) I am an accredited investor within the meaning of Rule 501
under the Securities Act of 1933, as amended (the "Securities Act") and have
such knowledge and experience in financial and business matters that I am
capable of evaluating the merits and risks of the purchase of the Securities.
(b) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Securities. In
making my decision to the acquire the Securities, I am not relying on
representations of any officer, director, stockholder or agent of the
Company. I am purchasing these Securities for my own account for investment
purposes only and not with a view to, or for the resale in connection with,
any "distribution" thereof for purposes of the Securities Act.
(c) I understand that the Securities have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, and
that reliance by the Company on such an exemption is predicated in part on
the representations set forth in this letter.
(d) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or
unless an exemption from registration is otherwise available. Moreover,
except as set forth in that certain Registration Rights Agreement dated as of
September __, 1999 between the Company and certain purchasers referred to
therein, I understand that the Company is under no obligation to register the
Securities. In addition, I understand that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of
the Securities unless they are registered or such registration is not
required in the opinion of counsel for the Purchaser satisfactory to the
Company or unless the Company receives a no-action letter from the Securities
and Exchange Commission.
-8-
<PAGE>
(e) I am familiar with the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permits limited public resale
of "restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions, including, among other
things: (1) the resale occurring not less than one year after the later of
the date the securities were sold by the Company or the date they were sold
by an affiliate of the Company, within the meaning of Rule 144; and, in the
case of an affiliate, or of a non-affiliate who has held the securities less
than two years, (2) the availability of certain public information about the
Company, (3) the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934), and (4) the amount of
securities being sold during any three month period not exceeding the
specified limitations stated therein, if applicable.
(f) I further understand that at the time I wish to sell the
Securities there may be no public market upon which to make such a sale, and
that, even if such a public market exists, the Company may not be satisfying
the current public information requirements of Rule 144, and that, in such
event, I would be precluded from selling the Securities under Rule 144 even
if the one-year minimum holding period had been satisfied.
(g) I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will
be required; and that, notwithstanding the fact that Rule 144 is not
exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial
burden of proof in establishing that an exemption from registration is
available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own
risk.
Signature of Purchaser
------------------------------------
By:
--------------------------------
Title:
-----------------------------
Date:
------------------------------
-9-
<PAGE>
EXHIBIT 5.1
September 29, 1999
SuperGen, Inc.
2 Annabel Lane, Suite 220
San Ramon, California 94583
RE: Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the registration statement on Form S-3 to be filed by
you with the Securities and Exchange Commission on or about September 29,
1999 (the "Registration Statement"), in connection with the registration
under the Securities Act of 1933, of 2,014,036 shares of Common Stock, to be
sold by certain stockholders listed in the Registration Statement. As your
counsel, we have examined the transactions taken and proposed to be taken in
connection with the sale of such shares by such stockholders in the manner
set forth in the Registration Statement.
It is our opinion that such shares, if sold by such stockholders in the
manner set forth in the Registration Statement, will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in
the Registration Statement, including the Prospectus constituting a part
thereof, and any amendment thereto.
Very truly yours,
/s/ Wilson Sonsini Goodrich & Rosati
------------------------------------
Wilson Sonsini Goodrich & Rosati
Professional Corporation
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of SuperGen, Inc.
for the registration of 2,014,036 shares of its 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 23, 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 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 24, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Form S-3
Registration Statement and related Prospectus of SuperGen, Inc. for the
registration of 2,014,036 shares of its 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 24,
1999.
/s/ ERNST & YOUNG LLP
Raleigh, North Carolina
September 23, 1999
