Exhibit 10.23
SUPERGEN, INC.
AMENDMENT NO. 1 TO
CONVERTIBLE SECURED NOTE, OPTION AND WARRANT
PURCHASE AGREEMENT
This amendment (the "Amendment") is entered into as of March 17, 1999 among
SuperGen, Inc., a Delaware corporation (the "Company"), and Tako Ventures, LLC,
a California limited liability company ("Tako").
BACKGROUND
A. The Company and Tako are parties to that certain Convertible
Secured Note, Option and Warrant Purchase Agreement dated June 17, 1997 (the
"Purchase Agreement").
B. Section 5.2 of the Purchase Agreement provides that until the
occurrence of certain events, the Company shall not cause or permit the
aggregate number of shares of Common Stock issued or issuable under all Stock
Plans (as such term is defined in the Purchase Agreement) to exceed 12% of
the Company's Total Equity Securities (as such term is defined in the
Purchase Agreement) (the "Percentage Limitation").
C. The Company believes the Stock Plans play a key role in the
Company's ability to recruit, reward and retain executives, directors and key
employees and that increasing the Percentage Limitation will add value to the
Company and, therefore, to the Company's stockholders, including but not
limited to Tako.
D. The Company and Tako desire to amend Section 5.2 of the Purchase
Agreement to increase the Percentage Limitation from 12% to 15%.
AGREEMENT
NOW, THEREFORE, in consideration for the premises and covenants set
forth in this Amendment, the parties agree as follows:
1. AMENDMENT TO SECTION 5.2 OF PURCHASE AGREEMENT. Section 5.2 of the
Purchase Agreement is hereby amended to read in its entirety as follows:
"5.2. STOCK PLANS. Until the earlier of the seventh anniversary
of the date of this Agreement or such time as Purchaser no longer owns,
either outright or pursuant to rights to acquire, at least five percent (5%)
of the Common Stock of the Company on either a primary or fully diluted
basis, the Company shall not cause or permit the aggregate number of shares
of Common Stock issued or issuable under all Stock Plans to exceed fifteen
percent (15%) of the Company's Total Equity Securities. Any waiver by
Purchaser of this fifteen percent (15%) limit shall constitute a like
modification of the fifteen percent (15%) limitation referenced in Section
1.2(c)(i)."
2. EFFECTIVENESS. This Amendment is effective as of March 8, 1998.
3. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. The provisions hereof shall inure
to the benefit of the parties and their respective successors,
administrators, executors, representatives and heirs.
(b) ENTIRE AGREEMENT. This Amendment constitutes an amendment
to and a modification of the Purchase Agreement. Except as expressly amended
or modified hereby, the Purchase Agreement shall continue in full force and
effect in accordance with the provisions thereof as of the date hereof and
are hereby ratified and confirmed in all respects.
(c) GOVERNING LAW. This Amendment shall be governed in all
respects by the internal laws of the State of California.
(d) COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, and all of
which together shall constitute one instrument.
-2-
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
SUPERGEN, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Title: Chief Executive Officer
--------------------------------
TAKO VENTURES, LLC
By: CEPHALOPOD CORPORATION, Member
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Title: President
--------------------------------
-3-
