FIRST AMENDMENT
TO
COMMON STOCK SALE/REPURCHASE AGREEMENT
FIRST AMENDMENT dated November 12, 1997 ("Amendment") to the Common
Stock Sale/Repurchase Agreement by and between ISRAEL CHEMICALS, LTD., an
Iraeli limited liability company ("ICL") and SUPERGEN, INC., a Delaware
company ("Company") dated as of August 6, 1997 ("Repurchase Agreement").
Unless otherwise defined herein, all capitalized terms shall have the
meanings given them in the Repurchase Agreement.
RECITALS
WHEREAS, pursuant to the Repurchase Agreement, the Company repurchased
from ICL 740,000 shares of the common stock of the Company, with 1,831,000
Remaining ICL Shares placed in escrow pursuant to an Escrow Agreement dated
as of August 6, 1997 among ICL, the Company and the Escrow Agent named
therein ("Escrow Agreement"); and
WHEREAS, subject to the terms and conditions of Section 7(iii) of the
Repurchase Agreement, the Remaining ICL Shares may not be transferred or
otherwise disposed of by ICL (the "Lock-up") for the duration of the Lock-Up
Period, and 915,500 of the Remaining ICL Shares (the "Option Shares") are
further subject to a Put Option and a Call Option; and
WHEREAS, the parties wish to effect a sale by ICL of 346,750 shares of
the Remaining ICL Shares ("JLS Shares") to Xxxxxx & Xxxxxx Securities
Corporation ("JLS") and, accordingly, (i) the Company has agreed to release
the JLS Shares from the Lock-up and from Escrow (as said term is defined in
the Escrow Agreement), (ii) ICL has agreed to permit the Company to assign
its Call Option, (iii) ICL has agreed to transfer to the number of Option
Shares subject to the Put Option and Call Option, that number of shares
equal to 50% of the JLS Shares from such of the Remaining ICL Shares that are
not Option Shares ("Transferred Option Shares"), and (iv) the parties agree
to otherwise amend the Repurchase Agreement on the terms and subject to the
conditions set forth below and to confirm and reaffirm the obligations of
each party under the Repurchase Agreement, as so amended hereby.
NOW, THEREFORE, the parties hereby agree that, on the terms and subject
to the conditions hereinafter set forth, the Repurchase Agreement is hereby
amended as follows:
1. SALE OF SHARES. Subject to the terms and conditions set forth herein,
the parties agree that ICL may sell the JLS Shares to JLS at a price per
share equal to $14.3125 per share on a date as soon as practical after the
date of execution of this Amendment (the "Sale").
2. RELEASE FROM LOCK-UP. As of the date hereof, in accordance with the
terms of a letter of instructions to the Escrow Agent of even date herewith,
the Company expressly released the JLS Shares from the Lock-up and from
Escrow and the escrow arrangements set forth in the Escrow Agreement.
3. NEW OPTION SHARES. Upon consummation of the Sale, ICL agrees to add
to the number of Option Shares, the Transferred Option Shares, such that the
total number of Option Shares subject to the Put Option and Call Option
provisions of Section 9 of the Repurchase Agreement shall equal 1,088,875
shares of the Company's common stock (the "New Option Shares"). For the
avoidance of doubt, all of the New Option Shares shall, upon consummation of
the Sale, be subject to ICL's Put Option and to the Company's Call Option
under the terms of the Repurchase Agreement.
4. ASSIGNMENT. The Company's Call Option with respect to the New Option
Shares may be assigned by the Company; provided that the Company shall
provide ICL three (3) business days' prior written notice of any such
assignment ("Notice"). No assignment hereunder shall be made by the Company
if it receives written notice from ICL, within two (2) business days' from
ICL's receipt of the Notice, that ICL is prohibited from selling to, or
otherwise transacting business with, the purported assignee under the laws of
the State of Israel.
5. CONDITIONS PRECEDENT. The Sale and the agreements set forth above
shall be subject to delivery by the Company or its counsel, prior to the
Sale, of appropriate instructions or other documentation required by the
Transfer Agent and the Escrow Agent to effect (i) release of the Certificate
in Escrow by the Escrow Agent to the Transfer Agent, and (ii) delivery by the
Transfer Agent of substitute stock certificates representing the JLS Shares,
the New Option Shares and the number of shares remaining after subtracting
from the Remaining ICL Shares, the JLS Shares and the New Option Shares (the
"New Remaining Shares") all as more specifically described in the letter of
instructions referenced in Section 2 above.
6. UNWIND. In the event that the Sale is not consummated on the terms
described in Section 1 within 30 days of the date hereof, this Amendment
shall have no further force and effect, and the parties agree that each shall
return to their relative positions just prior to this Amendment under the
terms and conditions of the Repurchase Agreement and the Escrow Agreement
with respect to the Remaining ICL Shares, Option Shares, Lock-up and
otherwise.
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7. OTHER PROVISIONS OF REPURCHASE AGREEMENT. Except as expressly
modified or supplemented by this Amendment, the terms, covenants and
conditions of the Repurchase Agreement remain in full force and effect
as executed.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be signed on the date first written above.
SUPERGEN, INC. ISRAEL CHEMICALS, LTD.
By: /s/ Xx. Xxxxxx Xxxxxxxxx By:
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Name: Name:
Title: Time:
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