Common Stock Purchase Warrant - SuperGen Inc. and Tako Ventures LLC
THE SECURITY EVIDENCED BY THIS WARRANT AND THE SECURITIES TO BE PURCHASED UNDER
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE
SALE, TRANSFER OR ASSIGNMENT IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT,
OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER OR
ASSIGNMENT IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF SUCH ACT.
THE SECURITY EVIDENCED BY THIS WARRANT AND THE SECURITIES TO BE PURCHASED UNDER
THIS WARRANT ARE SUBJECT TO RESTRICTIONS ON TRANSFER, INCLUDING RIGHTS OF FIRST
REFUSAL SET FORTH IN A CONVERTIBLE SECURED NOTE, OPTION AND WARRANT PURCHASE
AGREEMENT DATED JUNE 17, 1997, BY AND AMONG SUPERGEN, INC., TAKO VENTURES, LLC
AND, SOLELY FOR PURPOSES OF SECTIONS 5.3 AND 5.5 THEREOF, LAWRENCE J. ELLISON, A
COPY OF WHICH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF SUPERGEN, INC. AT
SUPERGEN, INC.'S PRINCIPAL EXECUTIVE OFFICES.
March 25, 1999 Right to Purchase 500,000
Void after March 25, 2004 Shares of Common Stock
SUPERGEN, INC.
SERIES 1 COMMON STOCK PURCHASE WARRANT
(Non-redeemable)
SuperGen, Inc., a Delaware corporation (the "Company"), hereby certifies
that, for good and valuable consideration, Tako Ventures, LLC, a California
limited liability company (the "Warrant Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company at any time during the
period commencing at 10:00 a.m. on March 25, 1999 and ending at 5:00 p.m.,
Pacific Time, on March 25, 2004 (the "Exercise Period"), up to the number of
fully-paid and non-assessable shares of Common Stock of the Company set forth in
Section 1 below for the price per share set forth in Section 2 below, subject to
adjustment as herein provided.
1. NUMBER OF SHARES. Subject to adjustment as provided in Section 8
below, this Warrant shall be exercisable for five hundred thousand (500,000)
shares of Common Stock of the Company, par value $0.001 (the "Shares").
2. EXERCISE PRICE. This Warrant shall be exercisable at a price
(the "Exercise Price") equal to Eleven Dollars ($11.00) per Share, in U.S.
dollars, subject to adjustment as provided in Section 8 below.
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3. REDEMPTION BY THE ISSUER. This Warrant is not subject to
redemption by the Company.
4. EXERCISE OF WARRANT.
4.1. EXERCISE. During the Exercise Period, this Warrant may
be exercised in whole or in part by the Warrant Holder by executing and
delivering to the Company at its principal office the written notice of exercise
in the form attached hereto as EXHIBIT W-1, specifying the portion of the
Warrant to be exercised and accompanied by this Warrant, and paying to the
Company the amount obtained by multiplying the number of Shares designated in
the notice of exercise by the Exercise Price, as then in effect, in cash (in
immediately available funds) or, where permitted by law, by cancellation of
indebtedness of the Company to the Warrant Holder, or by surrender of shares of
the Company's Common Stock that are clear of all liens, claims, encumbrances or
security interests. Cash used in payment of some or all of the purchase price
of any exercise hereunder, if in an amount in excess of One Hundred Thousand
Dollars ($100,000), shall be by wire transfer of immediately available funds
payable to the order of the Company.
4.2. INVESTMENT LETTER. Upon exercise of the Warrant in
accordance with Section 4.1 hereof, the Warrant Holder shall either (i) execute
and deliver to the Company an investment letter in the form attached hereto as
EXHIBIT W-2 or (ii) deliver to the Company an opinion of counsel for the Warrant
Holder reasonably satisfactory to the Company, stating that such exercise or
conversion is exempt from the registration and prospectus delivery requirements
of such the Securities Act of 1933, as amended (the "Securities Act").
4.3. LIMITATION ON EXERCISE . Notwithstanding Section 4.1 and
any other provisions of this Warrant, the Warrant Holder's rights to obtain
shares of Common Stock (or other voting securities that the Warrant Holder may
otherwise become entitled to receive in accordance with Section 8 below) upon
exercise of this Warrant shall be subject to the expiration or early termination
of any applicable waiting periods relating to the acquisition of such securities
by the Warrant Holder under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and, if applicable, shall be subject to and limited by the
provisions set forth in Section 5.5 of the Convertible Secured Note, Option and
Warrant Purchase Agreement by and among the Company, Tako Ventures, LLC and,
solely for purposes of Sections 5.3 and 5.5 thereof, Lawrence J. Ellison dated
as of June 17, 1997 (the "Purchase Agreement").
5. DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable
after the exercise of this Warrant (in full or in part) in accordance with
Section 4 above, the Company at its expense will cause to be issued in the name
of and delivered to the Warrant Holder (i) a certificate or certificates for the
number of fully paid and nonassessable Shares to which the Warrant Holder shall
be entitled upon such exercise and (ii) a new Warrant of like tenor to purchase
all of the Shares that may be purchased pursuant to the portion, if any, of the
Warrant not exercised by the Warrant Holder. The Warrant Holder shall for all
purposes be deemed to have become the holder of record of such Shares at the
close of business on the date on which this Warrant was surrendered together
with a notice of exercise and that payment of the Exercise Price was made,
irrespective of the date of
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delivery of such certificate or certificates, except that, if the date of
such surrender, notice and payment is a date when the stock transfer books of
the Company are closed, the Warrant Holder shall be deemed to have become the
holder of record of such Shares at the close of business on the next
succeeding date on which the stock transfer books are open.
6. COVENANTS AS TO COMMON STOCK. The Company covenants and agrees
that all the Shares will, upon issuance, be validly issued and outstanding,
fully paid and nonassessable, with no personal liability attaching to the
ownership thereof, and free from all taxes, liens and charges with respect to
the issuance thereof. The Company further covenants and agrees that the Company
will at all times have authorized and reserved, and free from preemptive rights,
a sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant.
7. REGISTRATION RIGHTS. This Warrant and the Shares issued or
issuable upon the exercise of this Warrant are subject to registration in
accordance with the registration rights in favor of the Warrant Holder as
provided for in Article VI of the Purchase Agreement.
8. ADJUSTMENTS.
8.1. In the event that the Company shall (i) pay a dividend
in, or make a distribution of, shares of capital stock or other securities
(including, without limitation, any rights or options to subscribe to or
purchase any additional shares of any class of its capital stock, any evidence
of its indebtedness or assets, or any other rights or options) on its
outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of such shares or (iii) combine its outstanding shares of
Common Stock into a smaller number of such shares, the total number of Shares
purchasable upon the exercise of this Warrant shall be adjusted so that upon the
subsequent exercise of this Warrant, the Warrant Holder shall be entitled to
receive at the same aggregate Exercise Price the number of shares of capital
stock and other securities (of one or more classes) which such holder would have
owned or would have been entitled to receive immediately following the happening
of any of the events described above had this Warrant been exercised in full
immediately prior to the record date with respect to such event. Any adjustment
made pursuant to this Section shall, in the case of a dividend or distribution
of stock or other securities, become effective as of the record date therefor
and, in the case of a subdivision or combination, be made as of the effective
date thereof. If, as a result of an adjustment made pursuant to this Section,
the Warrant Holder shall become entitled to receive shares or other units of two
or more classes of capital stock or other securities of the Company upon a
subsequent exercise hereof, the Board of Directors of the Company (whose
reasonable determination shall be conclusive and, upon request by the Warrant
Holder, shall be evidenced by a certified Board resolution delivered to the
Warrant Holder) shall determine the allocation of the adjusted Exercise Price
between or among shares of such classes of capital stock. The above provisions
of this Section 8.1 shall apply similarly to successive stock dividends,
subdivisions and combinations.
8.2. In the event of a capital reorganization or a
reclassification of the Common Stock (except as provided in Section 8.1 above or
Section 8.4 below), any Warrant Holder, upon
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exercise of this Warrant, shall be entitled to receive, in substitution for
the Common Stock to which it would have become entitled upon exercise
immediately prior to such reorganization or reclassification, the shares (of
any class or classes) or other securities or property of the Company (or
cash) that it would have been entitled to receive at the same aggregate
Exercise Price upon such reorganization or reclassification if this Warrant
had been exercised immediately prior to the record date with respect to such
event; and in any such case, appropriate provision (as determined by the
Board of Directors of the Company, whose reasonable determination shall be
conclusive and, upon request by the Warrant Holder, shall be evidenced by a
certified Board resolution delivered to the Warrant Holder) shall be made for
the application of this Section 8.2 with respect to the rights and interests
thereafter of the Warrant Holder (including but not limited to the allocation
of the Exercise Price between or among shares of classes of capital stock or
other securities), to the end that this Section 8.2 (including the
adjustments of the number of shares of Common Stock or other securities
purchasable and the Exercise Price thereof) shall thereafter be reflected, as
nearly as reasonably practicable, in all subsequent exercises of this Warrant
for any shares or securities or other property (or cash) thereafter
deliverable upon the exercise hereof. The above provisions of this Section
8.2 shall apply similarly to successive reorganizations or recapitalizations.
8.3. Whenever the number of shares of Common Stock or other
securities purchasable upon exercise of this Warrant is adjusted as provided in
this Section 8, the Company will promptly deliver to the Warrant Holder a
certificate signed by a Chairman or co-Chairman of the Board or the President or
a Vice President of the Company and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary of the Company setting forth the
number and kind of securities or other property purchasable upon exercise of
this Warrant, as so adjusted, stating that such adjustments in the number or
kind of shares or other securities or property conform to the requirements of
this Section 8, and setting forth a brief statement of the facts accounting for
such adjustments; PROVIDED, HOWEVER, that failure to deliver any notice required
under this Section 8.3, or any defect therein, shall not affect the legality or
validity of any such adjustments under this Section 8; and PROVIDED, FURTHER,
that, where appropriate, such notice may be given in advance and included as
part of the notice required to be given pursuant to Section 9 hereof.
8.4. In the event of any consolidation or share exchange
reorganization of the Company with, or merger of the Company into, another
corporation (other than a consolidation, share exchange reorganization or merger
which does not result in any reclassification or change of the outstanding
Common Stock), or in case of any sale or conveyance to another corporation of
the property of the Company as an entirety or substantially as an entirety, the
entity formed by such consolidation, share exchange reorganization or merger or
the person which shall have acquired such property, as the case may be, shall
execute and deliver to the Warrant Holder a new warrant providing that the
Warrant Holder shall have the right thereafter (until the expiration of this
Warrant) to receive, upon exercise of such warrant, solely the kind and amount
of shares of stock and other securities and property (or cash) receivable upon
such consolidation, share exchange reorganization, merger, sale or transfer by a
holder of the number of shares of Common Stock of the Company for which this
Warrant might have been exercised immediately prior to such consolidation, share
exchange reorganization, merger, sale or transfer. Such new warrant
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shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided in this Section 8.4. The above
provision of this Section 8.4 shall similarly apply to successive
consolidations, share exchange reorganizations, mergers, sales or transfers.
8.5. Irrespective of any adjustments in the number or kind of
shares or other securities or property issuable upon exercise of this Warrant,
this Warrant and any replacement or balance Warrants thereafter issued may
continue to express the same price and number and kind of shares as are stated
in the original Warrant.
8.6. The Company may retain a firm of independent public
accountants of recognized standing, which may be the firm regularly retained by
the Company, selected by the Board of Directors of the Company or the Executive
Committee of said Board, to make any computation required under this Section 8,
and a certificate signed by such firm shall, in the absence of fraud or gross
negligence, be conclusive evidence of the correctness of any computation made
under this Section 8.
8.7. For the purpose of this Section 8, the term "Common
Stock" shall mean (i) the class of stock designated as Common Stock in the
Certificate of Incorporation of the Company, or (ii) any other class of stock
resulting from successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value. In the event that at any time as a result of an
adjustment made pursuant to this Section 8, the Warrant Holder shall become
entitled to receive any shares of capital stock of the Company other than shares
of Common Stock, thereafter the number of such other shares so receivable upon
exercise of this Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in this Section 8, and all other
provisions of this Warrant, with respect to the Common Stock, shall apply on
like terms to any such other shares.
8.8. The Company may, from time to time and to the extent
permitted by law, reduce the exercise price of this Warrant by any amount for a
period of not less than twenty (20) days. If the Company so reduces the
exercise price of this Warrant, it will give the Warrant Holder not less than
fifteen (15) days' notice of such decrease, and shall take such other steps as
may be required under applicable law in connection with any offers or sales of
securities at the reduced price.
8.9. Whenever the number of Shares purchasable upon the
exercise of this Warrant is adjusted as provided in Section 8, the Exercise
Price for each Share payable upon exercise shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, the numerator
of which shall be the number of Shares purchasable upon the exercise of the
Warrant immediately prior to such adjustment, and the denominator of which shall
be the number of Shares so purchasable immediately thereafter.
9. NOTICE OF CERTAIN CORPORATE ACTIONS. In case the Company after
the date hereof shall propose (i) to offer to the holders of Common Stock,
generally, rights to subscribe to or purchase any additional shares of any class
of its capital stock, any evidences of its indebtedness or assets, or any other
rights or options or (ii) to effect any reclassification of Common Stock
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(other than a reclassification involving merely the subdivision or
combination of outstanding shares of Common Stock) or any capital
reorganization, or any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is required,
or any sale, transfer or other disposition of its property and assets
substantially as an entirety, or the liquidation, voluntary or involuntary
dissolution or winding-up of the Company, then, in each such case, the
Company shall deliver to the Warrant Holder notice of such proposed action,
which notice shall specify the date on which the books of the Company shall
close or a record be taken for such offer of rights or options, or the date
on which such reclassification, reorganization, consolidation, merger, sale,
transfer, other disposition, liquidation, voluntary or involuntary
dissolution or winding-up shall take place or commence, as the case may be,
and which shall also specify any record date for determination of holders of
Common Stock entitled to vote thereon or participate therein and shall set
forth such facts with respect thereto as shall be reasonably necessary to
indicate any adjustments in the Exercise Price and the number or kind of
shares or other securities purchasable upon exercise of the Warrant which
will be required as a result of such action. Such notice shall be sent, in
the case of any action covered by clause (i) above, at least ten (10) days
prior to the record date for determining holders of the Common Stock for
purposes of such action or, if a record is not to be taken, the date as of
which the holders of shares of Common Stock of record are to be entitled to
such offering; and, in the case of any action covered by clause (ii) above,
at least twenty (20) days prior to the earlier of the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer,
other disposition, liquidation, voluntary or involuntary dissolution or
winding-up is expected to become effective and the date on which it is
expected that holders of shares of Common Stock of record on such date shall
be entitled to exchange their shares for securities or other property
deliverable upon such reclassification, reorganization, consolidation,
merger, sale, transfer, other disposition, liquidation, voluntary or
involuntary dissolution or winding-up.
10. TAXES. The Company shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares of
capital stock or other securities of the Company upon the exercise hereof.
11. NO FRACTIONAL INTERESTS. The Company shall not be required to
issue any replacement or balance Warrant evidencing a fraction of a Warrant or
to issue fractions of shares or other securities upon the exercise or conversion
of this Warrant. If any fraction (calculated to the nearest one-hundredth) of a
Warrant or of a share or other securities would, except for the provisions of
this Section 11, be issuable upon the exercise or conversion of any Warrant, the
Company shall, at its option, either purchase such fraction for an amount in
cash equal to the current value of such fraction computed on the basis of the
Fair Market Value thereof, or issue the required fractional Warrant, or share or
other security. The Warrant Holder expressly waives any right to receive a
replacement or balance Warrant evidencing any fraction of a Warrant or to
receive any fractional share or other securities upon exercise or conversion of
this Warrant, except as expressly provided in this Section 11. Each adjustment
in the number of shares of Common Stock purchasable hereunder shall be
calculated to the nearest whole share with fractional shares disregarded.
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12. NO STOCKHOLDER RIGHTS. This Warrant, as such, shall not entitle
the Warrant Holder to vote, receive dividends or be deemed the holder of Common
Stock or any other securities of the Company which may at any time be issuable
on the exercise of this Warrant for any purpose whatever, nor shall anything
contained herein be construed to confer upon the Warrant Holder any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger, conveyance or
otherwise), or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 9 hereof), or to receive dividend or
subscription rights, or otherwise, until this Warrant shall have been exercised
or converted in accordance with the provisions hereof.
13. TRANSFER AND EXCHANGE OF WARRANT. Subject to Section 11, this
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the rights to subscribe for and purchase the number of Shares
which may be subscribed for and purchased hereunder, each of such new Warrants
to represent the right to subscribe for and purchase such number of Shares as
shall be designated by the Warrant Holder at the time of such surrender.
Subject, if applicable, to the restrictions provided in Section 5.10 of the
Purchase Agreement, this Warrant and all rights hereunder may be transferred, in
whole or in part, on the books of the Company maintained for such purpose at the
principal office of the Company, by the Warrant Holder hereof in person, or by
duly authorized attorney, upon surrender of this Warrant properly endorsed and
upon payment of any necessary transfer tax or other governmental charge imposed
upon such transfer. Upon any partial transfer, the Company will issue and
deliver to the Warrant Holder a new Warrant with respect to the Warrant balance
not so transferred. Each taker and holder of this Warrant or any Warrant issued
upon transfer hereof, by taking or holding the same, consents and agrees to be
bound by the terms, conditions, representations and warranties hereof (and as a
condition to any transfer of this Warrant the transferee shall upon request by
the Company execute an agreement confirming the same), and, when this Warrant
shall have been so endorsed and presented, the person in possession of this
Warrant may be treated by the Company, and all other persons dealing with this
Warrant, as the absolute owner hereof for any purpose and as the person entitled
to exercise the rights represented hereby, any notice to the contrary
notwithstanding; PROVIDED, HOWEVER that until a transfer of this Warrant is duly
registered on the books of the Company, the Company may treat the Warrant Holder
hereof as the owner of this Warrant for all purposes.
14. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is
lost, stolen, mutilated or destroyed, the Company may, on such customary and
reasonable terms as to indemnity or otherwise as it may in its discretion impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so
lost, stolen, mutilated or destroyed.
15. RESTRICTIONS ON TRANSFER.
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15.1. CERTIFICATES. Certificates representing any of the
Shares acquired pursuant to the provisions of this Warrant shall have endorsed
thereon the following legends, as appropriate.
(a) Unless such Shares are received in a transaction
registered under the Securities Act and qualified (if necessary) under
applicable state securities laws:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH
RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
(b) If such Shares are to be issued to Tako Ventures,
LLC or its affiliates:
"UNTIL JUNE 17, 2002, THE SECURITIES EVIDENCED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER, INCLUDING RIGHTS OF
FIRST REFUSAL SET FORTH IN A CONVERTIBLE SECURED NOTE, OPTION AND
WARRANT PURCHASE AGREEMENT DATED AS OF JUNE 17, 1997 BY AND AMONG
SUPERGEN, INC., TAKO VENTURES, LLC AND, SOLELY FOR PURPOSES OF
SECTIONS 5.3 AND 5.5 THEREOF, LAWRENCE J. ELLISON, A COPY OF WHICH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF SUPERGEN, INC.
AT SUPERGEN, INC.'S PRINCIPAL EXECUTIVE OFFICES."
(c) Any legend required to be placed thereon by any
applicable state securities laws.
15.2. COMPLIANCE WITH ACT.
(a) The Warrant Holder, by acceptance hereof, agrees
that this Warrant and the Shares 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
Shares to be issued upon the exercise or conversion hereof except under
circumstances which will not result in a violation of the Securities Act or of
applicable state securities laws.
(b) The Warrant Holder, by acceptance hereof,
represents that it is (i) an accredited investor within the meaning of Rule 501
under the Securities Act and has such knowledge and experience in financial and
business matters that it is capable of evaluating the
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merits and risks of the purchase of the Warrant; (ii) aware of the Company's
business affairs and financial condition; and (iii) aware that the Warrant
has not been registered under the Securities Act in reliance upon a specific
exemption therefrom.
16. MISCELLANEOUS.
16.1. ENTIRE AGREEMENT. This Warrant and the related
agreements referenced herein constitute the entire agreement of the parties and
supersede all prior undertakings and agreements with respect to the subject
matter hereof.
16.2. WAIVERS AND AMENDMENTS. This Warrant or any provision
hereof may be changed, waived, discharged or terminated only by a statement in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
16.3. APPLICABLE LAW. This Warrant shall be governed and
controlled as to validity, enforcement, interpretation, construction, effect and
in all other respects by the internal laws (excluding conflicts of law rules) of
the State of Delaware applicable to contracts made and performed in that State.
16.4. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed given when delivered in person
or sent by confirmed facsimile, or when received if given by Federal Express or
other internationally recognized overnight courier service, or by mail, postage
prepaid, registered or certified airmail, addressed to the applicable party as
follows:
if to the Warrant Holder, addressed
to the Warrant Holder: Tako Ventures, LLC
c/o Howson & Simon
101 Ygnacio Valley Road, Suite 310
Walnut Creek, CA 94596
Attention: Philip Simon
Fax: (925) 977-9064
with copies to: Rivin Detwiler Dudnick & Strikker
351 California Street, Fifteenth Floor
San Francisco, CA 94104
Attention: Andrew Dudnick, Esq.
Fax: (415) 982-1401
Gray Cary Ware & Freidenrich, A
Professional Corporation
400 Hamilton Avenue
Palo Alto, CA 94301
Attention: Rod J. Howard, Esq., Brad J.
Rock, Esq.
Fax: (650) 327-3699
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if to the Company,
addressed to the Company: SuperGen, Inc.
Two Annabel Lane
Suite 220
San Ramon, California 94583
Attention: Dr. Joseph Rubinfeld
Fax: (925) 327-7347
with a copy to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attn: Page Mailliard, Esq.
(650) 493-6811
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section 16.4.
16.5. HEADINGS. The headings in this Warrant are for
convenience of reference only and shall not affect the meaning or interpretation
of this Warrant.
SUPERGEN, INC.:
By: /s/ Joseph Rubinfeld
-----------------------
Title: Chief Executive Officer
-----------------------
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EXHIBIT W-1
NOTICE OF EXERCISE
Date: _______, _____
SuperGen, Inc.
Two Annabel Lane
Suite 220
San Ramon, California 94583
Attention:_______________
Dear M__________________:
The undersigned hereby elects to exercise the enclosed Warrant dated
March ____, 1999 issued to it by SuperGen, Inc. (the "Company") and to purchase
thereunder shares of the Common Stock of the Company (the
"Shares") at an exercise price of $11.00 per Share (as adjusted pursuant to
Section 8 of the Warrant), or an aggregate purchase price of
Dollars ($ ) (the "Purchase Price").
Pursuant to the terms of the Warrant, the undersigned has delivered the Purchase
Price herewith in full, of which Purchase Price, $ is to be paid by
tender of shares of the Company's Common Stock which are delivered
herewith in form suitable for transfer.
The undersigned hereby represents and warrants that all of the
representations and warranties of the undersigned set forth in Section 15.2 of
the Warrant are true and correct as of the date hereof, and that the undersigned
has executed and delivered the Investment Letter attached as EXHIBIT W-2 to the
Warrant.
Very truly yours,
Warrant Holder
By:
-------------------------
Title:
----------------------
Accepted and Acknowledged:
SuperGen, Inc.
By:
-------------------------
Dated: __________________, _______
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EXHIBIT W-2
THIS AGREEMENT MUST BE COMPLETED, SIGNED AND RETURNED TO SUPERGEN, INC. ALONG
WITH THE SUBSCRIPTION FORM BEFORE THE COMMON STOCK ISSUABLE UPON EXERCISE OF THE
WARRANT DATED MARCH 25, 1999 WILL BE ISSUED.
INVESTMENT LETTER
_____________, ____
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, California 94583
Attention: ____________________
Dear M___________________:
The undersigned, _____________________("Purchaser"), intends to
acquire up to ____________ shares of the Common Stock (the "Stock") of
SuperGen, Inc. ("SuperGen") from SuperGen pursuant to the exercise of certain
warrants to purchase stock held by the Purchaser. The Stock will be issued
to Purchaser in a transaction not involving a public offering and pursuant to
an exemption from registration under the Securities Act of 1933, as amended
(the "1933 Act") and applicable state securities laws. In connection with
such purchase and in order to comply with the exemptions from registration
relied upon by SuperGen, Purchaser represents, warrants and agrees as follows:
The Purchaser is an accredited investor within the meaning of Rule 501
under the 1933 Act and has such knowledge and experience in financial and
business matters that the Purchaser is capable of evaluating the merits and
risks of the purchase of the Stock and of protecting Purchaser's interests in
connection therewith.
Purchaser is acquiring the Stock for its own account, to hold for
investment, and Purchaser shall not make any sale, transfer or other disposition
of the Stock in violation of the 1933 Act or the General Rules and Regulations
promulgated thereunder by the Securities and Exchange Commission (the "SEC") or
in violation of any applicable state securities law.
Purchaser has been advised that the Stock has not been registered under
the 1933 Act or state securities laws on the ground that this transaction is
exempt from registration, and that reliance by SuperGen on such exemptions is
predicated in part on Purchaser's representations set forth in this letter.
Purchaser has been informed that under the 1933 Act, the Stock must be
held indefinitely unless it is subsequently registered under the 1933 Act or
unless an exemption from such registration (such as Rule 144) is available with
respect to any proposed transfer or disposition by
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<PAGE>
Purchaser of the Stock. Purchaser further agrees that SuperGen may refuse to
permit Purchaser to sell, transfer or dispose of the Common Stock (except as
permitted under Rule 144) unless there is in effect a registration statement
under the 1933 Act and any applicable state securities laws covering such
transfer, or unless Purchaser furnishes an opinion of counsel reasonably
satisfactory to counsel for SuperGen, to the effect that such registration is
not required.
Purchaser also understands and agrees that there will be placed on the
certificate(s) for the Stock, or any substitutions therefor, applicable legends
stating in substance:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH
RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
If such Shares are to be issued to Tako Ventures, LLC or its affiliates:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER, INCLUDING RIGHTS OF FIRST REFUSAL SET FORTH IN A CONVERTIBLE SECURED
NOTE, OPTION AND WARRANT PURCHASE AGREEMENT DATED AS OF JUNE 17, 1997 BY AND
AMONG SUPERGEN, INC., TAKO VENTURES, LLC AND, SOLELY FOR PURPOSES OF
SECTIONS 5.3 AND 5.5 THEREOF LAWRENCE J. ELLISON, A COPY OF WHICH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF SUPERGEN, INC. AT SUPERGEN, INC.'S PRINCIPAL
EXECUTIVE OFFICES."
Purchaser has carefully read this letter and has discussed its
requirements and other applicable limitations upon Purchaser's resale of the
Stock with Purchaser's counsel.
Very truly yours,
Purchaser
By:
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Title:
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