EXHIBIT 6
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The attached form of Shareholder Agreement was made and entered into as
of June 17, 1997 by and between Tako Ventures, LLC, and the following
shareholders of SuperGen, Inc.: (i) Xxxxxx X. Xxxxxxxxx, (ii) Xxxxx X.
Xxxxxx Xx., (iii) Xxxxx Xxxxxxx, (iv) Xxxxxxx Xxx, (v) R. Xxxxx Xxxxxx, (vi)
Xxxxxx X. Xxxxx, (vii) Xxxxxxxxx X. Xxxxx, and (viii) Xxxx Grab.
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT is made and entered into as of June 17, 1997 by
and between Tako Ventures, LLC, a California limited liability company
("PURCHASER"), and the undersigned shareholder ("SHAREHOLDER") of SuperGen,
Inc., a California corporation ("SUPERGEN"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Convertible
Secured Note, Option and Warrant Purchase Agreement by and among SuperGen,
Purchaser and, solely for purposes of Sections 5.3 and 5.5 thereof, Xxxxxxxx X.
Xxxxxxx dated as of June 17, 1997 (the "PURCHASE AGREEMENT").
RECITALS
Pursuant to the Purchase Agreement, Purchaser has agreed, subject to
certain conditions precedent, to acquire certain securities convertible into or
exerciseable for shares of common stock, par value $.001 per share of SuperGen
("SUPERGEN COMMON STOCK"). It is a condition to Purchaser's obligation to
purchase the Convertible Secured Note contemplated by the Purchase Agreement
that, at or prior to the Note Closing thereunder, this Shareholder Agreement
shall have been executed by Shareholder and delivered to Purchaser, and that
this Shareholder Agreement shall be in full force and effect. The execution and
delivery of this Shareholder Agreement by Shareholder is a material inducement
to Purchaser to enter into the Purchase Agreement. As the record holder and
beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of the number of shares (and options to acquire shares) of
SuperGen Common Stock set forth on the signature page of this Shareholder
Agreement, Shareholder believes that the transactions contemplated by the
Purchase Agreement are in the interests and to the benefit of the Company, and
that it is therefore in the personal interest and to the personal benefit of
Shareholder to induce Purchaser to enter into the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. ACKNOWLEDGMENTS BY SHAREHOLDER. Shareholder acknowledges and
understands that the representations, warranties and covenants made by
Shareholder set forth herein will be relied upon by Purchaser, and that
substantial losses and damages may be incurred by Purchaser if Shareholder's
representations, warranties or covenants are breached. Shareholder has
carefully read this Shareholder Agreement and the Purchase Agreement and has
consulted with such legal counsel and financial advisers as Shareholder has
deemed appropriate in connection with the execution of this Shareholder
Agreement.
2. RESTRICTIONS ON SALE AND OTHER TRANSACTIONS; LEGEND.
(a) Prior to 11:59 p.m. October 31, 1998 (the "EXPIRATION DATE"),
Shareholder shall not sell (or permit to be sold), exchange, transfer, pledge
(except in connection with margin loans in an aggregate principal amount not to
exceed thirty percent (30%) of the "current market value" of the pledged
securities as defined in applicable federal margin regulations), distribute or
otherwise dispose of, or grant any option with respect to, establish any "short"
or put-equivalent position with respect to, or otherwise enter into any
agreement, arrangement, transaction or series of transactions (through
derivatives or otherwise) which has or is intended to have the effect, directly
or indirectly, of reducing Shareholder's risk of ownership (each of the
foregoing, a "RESTRICTED TRANSACTION" and collectively, the "RESTRICTED
TRANSACTIONS") in, more than fifteen percent (15%) of the shares of SuperGen
Common Stock owned beneficially or of record, or purchasable by Shareholder
pursuant to options, warrants and other securities outstanding, as of the date
of this Agreement. In determining compliance with the foregoing percentage
limitation, adjustment shall be made for any stock split, stock dividend,
subdivision, combination, recapitalization, reclassification, or other
transaction within the scope of Section 1.3 of the Purchase Agreement, in
accordance with the terms thereof. Notwithstanding the foregoing provisions,
(a) if Shareholder's employment with SuperGen and its subsidiaries is
voluntarily terminated by Shareholder, Shareholder shall be permitted and
entitled to sell such further shares of SuperGen Common Stock as may be required
to pay any taxes imposed on any exercise of options to purchase SuperGen Common
Stock; (b) if Shareholder's employment with SuperGen and its subsidiaries is
terminated involuntarily and without "Cause" (as defined below), Shareholder
shall be permitted and entitled to sell, in excess of sales permitted under the
15% limitation above, any or all shares of SuperGen Common Stock purchasable
pursuant to options held by Shareholder at the time of such termination; and
(c) all restrictions on Shareholder under this Agreement shall immediately and
automatically cease and terminate in the event of Shareholder's death. For
purposes of this provision, the term "Cause" shall mean (i) failure to perform
reasonably assigned duties, (ii) commission of any act of gross misconduct which
is injurious to SuperGen or any of its subsidiaries or contrary to important
announced policies of SuperGen and its subsidiaries, (iii) commission of any
unlawful or fraudulent act, or (iv) breach of any confidentiality or proprietary
information agreement with or obligation to SuperGen or any of its subsidiaries.
(b) SuperGen shall give stop transfer instructions to its transfer
agent with respect to any SuperGen Common Stock owned beneficially or of record
by Shareholder, or issued to Shareholder upon exercise of any option, warrant or
other security outstanding, as of the date hereof, and there shall be placed on
the certificates representing such SuperGen Common Stock, or any substitutions
therefor, a legend stating in substance:
"PRIOR TO NOVEMBER 1, 1998, THE SHARES REPRESENTED BY THIS CERTIFICATE
MAY NOT BE OFFERED, SOLD, EXCHANGED, TRANSFERRED, PLEDGED (EXCEPT IN
CONNECTION WITH MARGIN LOANS IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
30% OF THE "CURRENT MARKET VALUE" OF THE PLEDGED SECURITIES AS DEFINED IN
APPLICABLE FEDERAL MARGIN REGULATIONS), DISTRIBUTED, OR
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OTHERWISE DISPOSED OF, AND NO OPTION SHALL BE GRANTED WITH RESPECT TO SUCH
SHARES, NO "SHORT" OR PUT-EQUIVALENT POSITION SHALL BE ESTABLISHED WITH
RESPECT TO SUCH SHARES, AND NO OTHER AGREEMENT, ARRANGEMENT TRANSACTION OR
SERIES OF TRANSACTIONS SHALL BE MADE AFFECTING SUCH SHARES (THROUGH
DERIVATIVES OR OTHERWISE) WHICH HAS OR IS INTENDED TO HAVE THE EFFECT,
DIRECTLY OR INDIRECTLY, OF REDUCING THE RISK OF OWNERSHIP OF SUCH SHARES,
EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE CONDITIONS SPECIFIED IN
THE SHAREHOLDER AGREEMENT DATED AS OF JUNE 17, 1997 BETWEEN THE HOLDER OF
THIS CERTIFICATE AND TAKO VENTURES, LLC, A COPY OF WHICH AGREEMENT MAY BE
INSPECTED BY THE HOLDER OF THIS CERTIFICATE AT THE PRINCIPAL OFFICES OF
SUPERGEN OR FURNISHED BY SUPERGEN TO THE HOLDER OF THIS CERTIFICATE UPON
WRITTEN REQUEST AND WITHOUT CHARGE."
(c) In the event that Shareholder shall propose to engage in a
Restricted Transaction, (i) Shareholder shall deliver to Purchaser and SuperGen
a notice (the "NOTICE OF PROPOSED DISPOSITION"), setting forth (A) the number of
shares of SuperGen Common Stock owned beneficially or of record by Shareholder,
or purchasable by Shareholder pursuant to options, warrants and other securities
outstanding, as of the date hereof; (B) the nature and amount of any adjustments
within the scope of Section 1.3 of the Purchase Agreement; (C) the nature of the
proposed Restricted Transaction and the number of shares of SuperGen Common
Stock covered thereby; and (D) the number of shares of SuperGen Common Stock as
to which Restricted Transactions have previously been effected and the nature of
the Restricted Transactions effected with respect to such shares; and (ii)
SuperGen shall deliver to Purchaser a certificate of an appropriate officer of
SuperGen (the "CERTIFICATE OF COMPLIANCE") to the effect that such proposed
Restricted Transaction complies with the limitations set forth in Section 2(a)
of this Shareholder Agreement. The legend set forth above shall thereafter be
removed, and an unlegended certificate shall be issued, as to the number of
shares of SuperGen Common Stock covered by such Notice of Proposed Disposition
and Certificate of Compliance, and SuperGen shall instruct its transfer agent to
effect the transfer of such shares as proposed in the Notice of Proposed
Disposition. Notwithstanding any other provision of this Shareholder Agreement,
the legend set forth above shall be removed to the extent Shareholder shall have
certified to Purchaser and the Company that such removal is necessary to permit
Shareholder to pledge the legended shares of SuperGen Common Stock in connection
with a margin loan authorized by this Shareholder Agreement. All other shares
owned beneficially or of record by Shareholder shall continue to bear the legend
set forth above and a substitute certificate therefore shall be delivered to
Shareholder.
(d) If Shareholder pledges any shares of SuperGen Common Stock as
collateral for any margin loan, Shareholder shall (i) at all times prior to the
Expiration Date maintain sufficient collateral for, and shall meet all margin
calls (if any) made with respect to, each such loan, and (ii) provide (or cause
Shareholder's broker to provide) a copy of Shareholder's monthly margin account
statements to the Chief Financial Officer or Controller of SuperGen, who
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shall be required to give prompt notice to Purchaser of any noncompliance by
Shareholder with the margin loan limitations or Restricted Transaction
limitations set forth in this Agreement. Shareholder acknowledges and agrees
that if any shares of SuperGen Common Stock pledged by Shareholder are sold to
meet a margin call or to satisfy any obligations of Shareholder relating to such
loan, such shares shall count toward the limitations set forth in Section 2(a),
and Shareholder shall promptly provide notice to Purchaser and the Company of
the number of shares so sold. All notices hereunder shall be given in
accordance with the notice provisions of Section 8.7 of the Purchase Agreement.
3. MISCELLANEOUS.
(a) This Shareholder Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
(b) This Shareholder Agreement shall be enforceable by, and shall
inure to the benefit of and be binding upon, the parties hereto and their
respective successors and assigns. As used herein, the term "successors and
assigns" shall mean, where the context so permits, heirs, executors,
administrators, trustees and successor trustees, and personal and other
representatives.
(c) This Shareholder Agreement shall be governed by and construed,
interpreted and enforced in accordance with the internal laws of the state of
incorporation (or reincorporation, as the case may be) of SuperGen applicable to
agreements made and performed wholly within such state. Each party hereto
irrevocably and unconditionally consents and submits to the jurisdiction of the
courts of the State of California and of the United States of America located in
the City of San Francisco for any actions, suits or proceedings arising out of
or relating to this Shareholder Agreement and the transactions contemplated
hereby.
(d) If any provision of this Shareholder Agreement is held to be
unenforceable for any reason, it shall be modified rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Shareholder Agreement shall be deemed
valid and enforceable to the extent possible.
(e) This Shareholder Agreement shall not be modified or amended, or
any right hereunder waived or any obligation excused, except by a written
agreement signed by both parties.
(f) This Shareholder Agreement shall terminate in the event of a
merger, consolidation, share exchange or other reorganization or business
combination transaction in which the Company voting securities held by
shareholders of the Company immediately prior to the effective time of such
transaction shall represent less than a majority of the voting power of the
surviving, resulting or acquiring entity.
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IN WITNESS WHEREOF, this Shareholder Agreement is executed as of the date
first shown above.
TAKO VENTURES, LLC
a California limited liability company
By: CEPHALOPOD CORPORATION,
Member
By:
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Xxxxxx X. Xxxxx
President
SUPERGEN, INC.
a California corporation
By:
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Name:
Title:
SHAREHOLDER
By:
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Name of Shareholder:
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Name of Signatory
(if different from name of Shareholder):
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Title of Signatory
(if applicable):
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Number of shares of SuperGen Common Stock
owned as of the date hereof:
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Number of shares of SuperGen Common Stock
issuable upon exercise of stock options
owned as of the date hereof:
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