CONVERTIBLE SECURED PROMISSORY NOTE
-----------------------------------
$15,300,000 June 17, 1997
FOR VALUE RECEIVED, the undersigned, SUPERGEN, INC., a California
corporation ("BORROWER"), hereby promises to pay to TAKO VENTURES, LLC, a
California limited liability company, or order ("LENDER"), Fifteen Million
Three Hundred Thousand Dollars ($15,300,000), as provided herein.
This Note is issued pursuant to the Convertible Secured Note, Option and
Warrant Purchase Agreement, dated as of the date hereof, by and among
Borrower, Lender and, solely for the purposes of Sections 5.3 and 5.5
thereof, Xxxxxxxx X. Xxxxxxx (the "PURCHASE AGREEMENT"). Capitalized terms
used herein without definition shall have the meanings ascribed to them in
the Purchase Agreement.
A. PAYMENT SCHEDULE.
1. PRINCIPAL. The principal indebtedness shall be payable in
full upon Xxxxxx's delivery of a Notice of Demand prior to the Conversion
Time in accordance with the terms of Section 1.1 of the Purchase Agreement.
If a timely Notice of Demand is not given and this Note is not fully
converted into shares of Common Stock of the Borrower in accordance with
Section 1.1 of the Purchase Agreement because any applicable waiting period
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1975, as amended
(the "HSR ACT") shall not have expired or been terminated or any required
regulatory approval shall not have been received, then on the Option
Termination Date the principal indebtedness outstanding shall be payable in
full in accordance with Section 1.1 of the Purchase Agreement.
2. PREPAYMENT. Borrower shall have not have any right to prepay,
in whole or in part, the principal of this Note.
3. FORM OF PAYMENT. Principal and all other amounts due
hereunder are to be paid in lawful money of the United States of America in
federal or other immediately available funds.
B. CONVERSION. In the event that a Notice of Demand is not given
prior to the Conversion Time as provided in Section 1.1 of the Purchase
Agreement, then the outstanding unpaid principal hereunder shall be
converted, in whole or in part, to the maximum extent permitted under the HSR
Act and any other applicable laws, effective at the Conversion Time, into
fully paid and nonassessable shares of Common Stock of Borrower in accordance
with the terms and conditions of Section 1.1 of the Purchase Agreement.
C. SECURITY INTEREST. Xxxxxxxx's obligations hereunder are secured by
the Collateral, as defined in the Pledge and Security Agreement, dated as of
the date hereof, by and between Borrower and Xxxxxx (the "SECURITY
AGREEMENT").
D. EVENTS OF DEFAULT.
1. DEFINITION OF EVENT OF DEFAULT. The occurrence of any one or
more of the following events on or after the Conversion Time shall constitute
an "EVENT OF DEFAULT" hereunder:
(i) any failure by Borrower to pay any amount payable, or
to issue any securities issuable, hereunder in accordance with the terms
hereof;
(ii) subjection of the Collateral to levy of execution or
other judicial process; or
(iii) Borrower's institution of proceedings against it, or
Xxxxxxxx's filing of a petition or answer or consent seeking reorganization
or release, under the federal Bankruptcy Code, or any other applicable
federal or state law relating to creditor rights and remedies, or Xxxxxxxx's
consent to the filing of any such petition or the appointment of a receiver,
liquidator, assignee, trustee or other similar official of Borrower or of any
substantial part of its property, or Borrower's making of an assignment for
the benefit of creditors, or the taking of corporate action in furtherance of
such action.
2. RIGHTS AND REMEDIES ON EVENT OF DEFAULT. During the
continuance of an Event of Default, Lender shall have the right (i) to
accelerate the payment of the principal, interest and charges owing hereunder
and (ii) to enforce this Note by exercise of the rights and remedies granted
to it by applicable law or under the Transaction Documents.
E. OTHER PROVISIONS.
1. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally or
by overnight courier or mailed by first class mail, or Express Mail, postage
prepaid, or via facsimile, delivered as follows:
(i) if to Lender, to:
Tako Ventures, LLC,
c/o Xxxxxx Xxxxx
Xxxxxx & Xxxxx CPAs L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
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with copies to:
Springs, Xxxxx, Detwiler, Xxxxxxx & Stikker
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Gray Xxxx Xxxx & Freidenrich
A Professional Corporation
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxx, Esq. & Xxxx X. Xxxx, Esq.
or at such other address as Lender shall have furnished to Borrower
in writing,
(ii) if to Borrower, to:
SuperGen, Inc.
Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-1050
Attn: Xxxx X. Xxxx, Esq. and Page Xxxxxxxxx, Esq.
or at such other address as Borrower shall have furnished to Lender
in writing.
Notices that are mailed by (i) first class mail shall be deemed received
three (3) business days after deposit in the mail and (ii) Express Mail or
overnight courier shall be deemed received one (1) business day after deposit
in the mail. In the event that the notice is sent by facsimile, notice shall
be deemed to have been received when sent and confirmed as to receipt.
2. LENDER'S RIGHTS; BORROWER WAIVERS. Xxxxxx's acceptance of
partial or delinquent payment from Borrower hereunder, or Xxxxxx's failure to
exercise any right hereunder, shall not constitute a waiver of any obligation
of Borrower hereunder, or any right of Lender hereunder, and shall not affect
in any way the right to require full performance at any time thereafter.
Borrower waives presentment, diligence, demand of payment, notice, protest
and all other demands
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and notices in connection with the delivery, acceptance, performance, default
or enforcement of this Note and, to the greatest extent permitted by law,
Borrower waives any defense based upon any statutes of limitation. In any
action on this Note, Lender need not produce or file the original of this
Note, but need only file a photocopy of this Note certified by Lender be a
true and correct copy of this Note in all material respects.
3. ENFORCEMENT COSTS. Borrower shall pay all costs and expenses,
including, without limitation, reasonable attorneys' fees and expenses Lender
expends or incurs in connection with the enforcement of this Note, the
collection of any sums due hereunder, any actions for declaratory relief in
any way related to this Note, or the protection or preservation of any rights
of Lender hereunder, including all costs and expenses incurred during a
bankruptcy or similar proceeding of Borrower.
4. SEVERABILITY. Whenever possible each provision of this Note
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision is prohibited by or invalid under
applicable law, it shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of the provision or the
remaining provisions of this Note.
5. AMENDMENT PROVISIONS. This Note may not be amended or
modified, nor may any of its terms be waived, except by written instruments
signed by Xxxxxxxx and Xxxxxx.
6. BINDING EFFECT. This Note shall be binding upon, and shall
inure to the benefit of, Xxxxxxxx and Lender and their respective successors
and assigns; PROVIDED, HOWEVER, that Xxxxxxxx's rights and obligations shall
not be assigned or delegated without Xxxxxx's prior written consent, given in
its sole discretion, and any purported assignment or delegation without such
consent shall be void AB INITIO.
7. TIME OF ESSENCE. Time is of the essence of each and every
provision of this Note.
8. HEADINGS. Section headings used in this Note have been set
forth herein for convenience of reference only. Unless the contrary is
compelled by the context, everything contained in each section hereof applies
equally to this entire Note.
SUPERGEN, INC.
By /s/ Xx. Xxxxxx Xxxxxxxxx
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Name: Xx. Xxxxxx Xxxxxxxxx
Title: Chief Executive Officer, President and
Chief Scientific Officer
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