Stock Purchase Agreement - SuperGen Inc. and Tako Ventures LLC
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into
effective as of this 29th day of January, 1999, by and among SuperGen, Inc.,
a Delaware corporation (the "COMPANY") and Tako Ventures, LLC, a California
limited liability company (the "PURCHASER").
BACKGROUND
A. Pursuant to Section 5.1 of that certain Convertible Note, Option
and Warrant Purchase Agreement dated as of June 17, 1997, by and among the
Company, the Purchaser and Lawrence J. Ellison ("ELLISON") (the "ORIGINAL
PURCHASE AGREEMENT"), the Purchaser has the right to purchase its pro rata
share of securities to be issued by the Company (the "PRE-EMPTIVE RIGHT").
B. In connection with the Company's sale and issuance of 460,000
shares of Common Stock to an institutional investor on December 23, 1998
pursuant to the Common Stock Purchase Agreement dated as of November 23, 1998
(the "NOVEMBER PURCHASE AGREEMENT"), the Purchaser desires to exercise its
Pre-emptive Right and purchase 61,350 shares of the Company's Common Stock
pursuant to this Agreement, and the Company and the Purchaser desire to
resolve certain differences that have arisen between them as to the
adjustments to be made pursuant to the antidilution provisions under Section
1.2(b) of the Original Purchase Agreement as a result of the November
Purchase Agreement.
NOW THEREFORE, the parties agree as follows:
1. SALE AND PURCHASE OF SECURITIES. On the terms and subject to the
conditions set forth in this Agreement, the Company will issue and sell to
the Purchaser, and the Purchaser will purchase 61,350 shares of the Company's
Common Stock (the "SHARES") at a per share purchase price of approximately
$6.52 for an aggregate purchase price of $400,002 (the "PURCHASE PRICE").
2. CLOSING.
a. The closing of the purchase and sale of the Shares (the
"CLOSING") will be held at the office of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, 650 Page Mill Road, Palo Alto, California
94304-1050 at 10:00 a.m. on January 29, 1999, or such other time or place as
the parties may agree.
b. At the Closing, the representations and warranties of the
parties set forth in Section 3 below shall be true and correct in all
material respects.
c. At the Closing, (A) the Purchaser shall (i) pay the Purchase
Price by wire transfer to the Company's account and (ii) deliver to the
Company, for cancellation, exchange and reissuance in accordance with clause
(B)(ii) of this subsection, the Series 2 Warrants heretofore issued to
Purchaser to purchase an aggregate of seven hundred seventy-five thousand
(775,000) shares of Common Stock, and (B) the Company shall (i) cause the
transfer agent to deliver a
<PAGE>
certificate evidencing the Shares in the name of the Purchaser (ii) shall
deliver to Purchaser Series 1 Warrants to purchase an aggregate of seven
hundred seventy-five thousand (775,000) shares of Common Stock, two hundred
thirty thousand (230,000) of which shall be subject to an initial Warrant
Exercise Price of ten dollars thirty-five cents ($10.35) per share and five
hundred forty-five thousand (545,000) of which shall be subject to an initial
Warrant Exercise Price of thirteen dollars and fifty cents ($13.50) per
share, subject in each case to adjustment as set forth therein and in the
Original Purchase Agreement and (iii) shall deliver to Purchaser a
certificate evidencing 107,333 shares of Common Stock of the Company (the
"ANTIDILUTION SHARES"). The certificates evidencing the Shares and the
Antidilution Shares and the Series 1 Warrants issued hereunder shall bear the
restrictive legends set forth in Section 5.11 of the Original Purchase
Agreement.
3. REPRESENTATIONS AND WARRANTIES. (a) In connection with the
issuance and purchase of the Shares, the Series 1 Warrants and the
Antidilution Shares, the Purchaser hereby represents and warrants to the
Company as set forth in Section 4 of the Original Purchase Agreement
(provided that any references therein to Option, Note, Warrants or Securities
shall be deemed to refer solely to the Shares and the Antidilution Shares and
the Series 1 Warrants issued hereunder, and the term "Agreement" shall refer
to this Agreement), and (b) in connection with the issuance and purchase of
the Shares, the Company hereby represents and warrants to the Purchaser that
except as set forth on a separate disclosure letter delivered to the
Purchaser as of the date of this Agreement, the representations and
warranties set forth in Section 3.1 of the November Purchase Agreement are
true and correct in all material respects as of the date of this Agreement
(provided that the term "Agreement" shall refer to this Agreement and the
term "Shares" shall refer to the Shares, the Antidilution Shares and the
Series 1 Warrants issued hereunder and shares of Common Stock issued upon
exercise of the Series 1 Warrants). The Purchaser acknowledges and agrees
that the issuance of the Shares in accordance with this Agreement satisfies
its Pre-emptive Right with respect to the November Purchase Agreement and
that the issuance of the Series 1 Warrants and the Antidilution Shares in
accordance with this Agreement satisfies Purchaser's antidilution rights
under Section 1.2(b) of the Original Purchase Agreement with respect to the
November Purchase Agreement.
4. MISCELLANEOUS. This Agreement is governed by the laws of the state
of California. This Agreement may not be amended nor any provision waived
except in writing signed by both parties. This Agreement represents the
entire agreement between the parties regarding subject matter hereof. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument.
-2-
<PAGE>
IN WITNESS WHEREOF, the parties execute this Agreement as of the date
first written above.
SuperGen, Inc.
/s/ Dr. Joseph Rubinfeld
-------------------------------------
Dr. Joseph Rubinfeld, CEO
Tako Ventures, LLC
By: CEPHALOPOD CORPORATION,
MEMBER
/s/ Philip Simon
-------------------------------------
Philip Simon, PRESIDENT
CEPHALOPOD CORPORATION
-3-