EXHIBIT 99.1
CONFIDENTIAL TREATMENT REQUESTED
SUPERGEN, INC.
0 XXXXXXX XXXX, XXXXX 000
XXX XXXXX, XXXXXXXXXX 00000
COMMON STOCK AND OPTION PURCHASE AGREEMENT
DECEMBER 21, 1999
TABLE OF CONTENTS
PAGE
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SECTION 1 AUTHORIZATION AND SALE OF SECURITIES...................................................1
1.1 AUTHORIZATION..................................................................1
1.2 SALE OF SHARES.................................................................1
1.3 SALE OF OPTION.................................................................2
SECTION 2 CLOSING DATE; DELIVERY.................................................................2
2.1 CLOSING........................................................................2
2.2 DELIVERY.......................................................................3
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................4
3.1 ORGANIZATION; STANDING AND POWER; QUALIFICATION................................4
3.2 CAPITALIZATION.................................................................4
3.3 AUTHORIZATION; NO CONFLICTS; APPROVALS.........................................4
3.4 FINANCIAL STATEMENTS...........................................................5
3.5 ABSENCE OF UNDISCLOSED LIABILITIES.............................................6
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS...........................................6
3.7 TAXES..........................................................................7
3.8 INTELLECTUAL PROPERTY..........................................................7
3.9 ENVIRONMENTAL MATTERS..........................................................7
3.10 SEC FILINGS....................................................................8
3.11 LISTING........................................................................8
3.12 EMPLOYEE BENEFIT PLANS.........................................................8
3.13 EMPLOYEES......................................................................8
3.14 BROKERS OR FINDERS.............................................................9
3.15 COMPLIANCE WITH LAWS...........................................................9
3.16 LITIGATION.....................................................................9
3.17 NO MISREPRESENTATION...........................................................9
3.18 INVESTMENT COMPANY............................................................10
3.19 VALID PRIVATE PLACEMENT.......................................................10
3.20 SECTION 203...................................................................10
SECTION 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER...........................................10
4.1 ORGANIZATION..................................................................10
4.2 AUTHORITY.....................................................................10
4.3 EXEMPT OFFERING; ACQUISITION FOR INVESTMENT...................................11
4.4 ACCESS TO INFORMATION; INVESTMENT EXPERIENCE; NO RELIANCE.....................12
4.5 BROKERS OR FINDERS............................................................13
SECTION 5 ADDITIONAL AGREEMENTS.................................................................13
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS........................................13
5.2 CONFIDENTIALITY...............................................................13
5.3 PUBLIC ANNOUNCEMENTS..........................................................13
5.4 HSR ACT.......................................................................14
5.5 RESTRICTIONS ON TRANSFER......................................................14
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TABLE OF CONTENTS (CONTINUED)
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5.6 LEGENDS.......................................................................14
5.7 SHARE ADJUSTMENTS.............................................................15
5.8 FURTHER ASSURANCES............................................................17
5.9 USE OF FUNDS..................................................................17
5.10 REGISTRATION RIGHTS AGREEMENT.................................................17
SECTION 6 CONDITIONS TO CLOSINGS................................................................18
6.1 CONDITIONS TO PURCHASER'S OBLIGATION TO ACQUIRE THE SHARES....................18
6.2 CONDITIONS TO COMPANY'S OBLIGATION TO ISSUE THE SHARES........................19
6.3 CONDITIONS TO ISSUANCE OF OPTION SHARES.......................................20
SECTION 7 MISCELLANEOUS.........................................................................20
7.1 ACCESS TO INFORMATION.........................................................20
7.2 WAIVERS AND AMENDMENTS........................................................20
7.3 GOVERNING LAW.................................................................20
7.4 SURVIVAL......................................................................20
7.5 SUCCESSORS AND ASSIGNS........................................................20
7.6 ENTIRE AGREEMENT..............................................................21
7.7 NOTICES.......................................................................21
7.8 SEVERABILITY..................................................................21
7.9 EXPENSES......................................................................21
7.10 TITLES AND SUBTITLES..........................................................21
7.11 CALIFORNIA CORPORATE SECURITIES LAW...........................................21
7.12 COUNTERPARTS..................................................................22
7.13 DELAYS OR OMISSIONS...........................................................22
7.14 DISPUTE RESOLUTION............................................................22
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SUPERGEN, INC.
COMMON STOCK AND OPTION PURCHASE AGREEMENT
THIS COMMON STOCK AND OPTION PURCHASE AGREEMENT (the "AGREEMENT") is
made as of December 21, 1999 by and between SuperGen, Inc., a Delaware
corporation (the "COMPANY"), and Xxxxxx Laboratories, an Illinois corporation
(the "PURCHASER").
SECTION 1
AUTHORIZATION AND SALE OF SECURITIES
1.1 AUTHORIZATION. The Company will, prior to the first Tranche
Closing (as defined below), authorize the sale and issuance of the number of
shares (the "SHARES") of the Company's Common Stock ("COMMON STOCK"),
including the Option Shares (as defined below), pursuant to the terms of this
Agreement.
1.2 SALE OF SHARES; TRANCHES. Subject to the terms and conditions of
this Agreement, Purchaser agrees to purchase and the Company agrees to sell
and issue to Purchaser, in aggregate, up to $81,500,000 worth of the
Company's Common Stock, to be completed in up to nine (9) tranches (each a
"TRANCHE," the closing date for each Tranche is referred to as a "TRANCHE
CLOSING DATE"), at a cash price per share that shall be
[_______________________]. For purposes of this Agreement, Relevant Date
means, (i) in the case of the first Tranche, the business day upon which the
Company announces the execution of the Worldwide Sales, Distribution and
Development Agreement between the Company and Purchaser (the "Worldwide
Agreement"); (ii) in the case of the second Tranche, the business day upon
which the condition set forth in Section 5.1(b) of the Worldwide Agreement is
first satisfied; (iii) in the case of the third Tranche, the business day
upon which the condition set forth in Section 5.1(b) of the Worldwide
Agreement is next satisfied; (iv) in the case of the fourth Tranche, the
business day upon which the condition set forth in Section 5.1(c)(i) of the
Worldwide Agreement is satisfied; (v) in the case of the fifth Tranche, the
business day upon which the condition set forth in Section 5.1(c)(ii) of the
Worldwide Agreement is satisfied; (vi) in the case of the sixth Tranche
(which may be bifurcated into two (2) separate Tranches), the business day,
or the respective business days, upon which the condition(s) set forth in
Section 5.1(h) of the Worldwide Agreement is/are satisfied; (vii) in the case
of the seventh Tranche (which may be bifurcated into two (2) separate
Tranches), the business day, or the respective business days, upon which the
condition(s) set forth in Section 5.1(j) of the Worldwide Agreement is/are
satisfied; (viii) in the case of the eighth Tranche, the business day upon
which the condition set forth in Section 5.1(n) of the Worldwide Agreement is
satisfied; and (ix) in the case of the ninth Tranche, the business day upon
which the condition set forth in Section 5.1(p) of the Worldwide Agreement is
satisfied. The number of Shares to be purchased in each Tranche
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shall be that number of Shares which, at the purchase price specified above,
are valued as near as possible to the dollar value set forth in the
corresponding section of the Worldwide Agreement (which, for purposes of the
first Tranche, is Section 5.1(a)). No fractions of any Shares shall be
allotted pursuant to this Agreement and the obligations of Purchaser to
purchase Shares hereunder shall be rounded down to the nearest whole number
of Shares.
1.3 SALE OF OPTION. Subject to the terms and conditions of this
Agreement, Purchaser agrees to purchase and the Company agrees to sell an
option to purchase (the "OPTION") up to forty-nine percent (49%) of the
outstanding shares of Common Stock at the time of the exercise of the Option
at $85 per share (the "OPTION EXERCISE PRICE") (such price to be adjusted
pursuant to Section 5.7), which Option shall be exercisable at any time or
from time to time prior to March 31, 2003 (the "OPTION TERMINATION DATE")
(shares to be purchased pursuant to the Option are hereinafter referred to as
the "OPTION SHARES," and together with the Shares, "SECURITIES"), subject
to authorization by SuperGen's shareholders of the Option Shares to be
acquired.
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING. Purchase and sale of the Shares for the first Tranche
hereunder shall take place in accordance with the provisions of Section
5.1(a) of the Worldwide Agreement at a closing to occur upon the satisfaction
of all of the conditions set forth in Sections 6.1 and 6.2 hereof and Section
16.13 of the Worldwide Agreement (the "FIRST TRANCHE CLOSING DATE"); the
purchase and sale of the Shares for the second Tranche hereunder shall take
place at a closing to occur on the fifth business day following the first
satisfaction of the condition set forth in Section 5.1(b) of the Worldwide
Agreement; the purchase and sale of the Shares for the third Tranche
hereunder shall take place at a closing to occur on the fifth business day
following the next satisfaction of the condition set forth in Section 5.1(b)
of the Worldwide Agreement; the purchase and sale of the Shares for the
fourth Tranche hereunder shall take place at a closing to occur on the fifth
business day following satisfaction of the condition set forth in Section
5.1(c)(i) of the Worldwide Agreement; the purchase and sale of the Shares for
the fifth Tranche hereunder shall take place at a closing to occur on the
fifth business day following satisfaction of the condition set forth in
Section 5.1(c)(ii) of the Worldwide Agreement; the purchase and sale of the
Shares for the sixth Tranche hereunder shall take place at a closing to occur
on the fifth business day following satisfaction of the condition set forth
in Section 5.1(h) of the Worldwide Agreement (provided that if the sixth
Tranche is bifurcated into two (2) Tranches in accordance with the terms of
Section 5.1(h) of the Worldwide Agreement, each Tranche shall take place at a
closing to occur on the fifth business day following satisfaction of the
relevant alternative condition set forth in Section 5.1(h) of the Worldwide
Agreement); the purchase and sale of the Shares for the seventh Tranche
hereunder shall take place at a closing to occur on the fifth business day
following satisfaction of the condition set forth in Section 5.1(j) of the
Worldwide Agreement (provided that if the seventh Tranche is bifurcated into
two (2) Tranches in accordance with the terms of Section 5.1(j) of the
Worldwide Agreement, each Tranche shall take place at a closing to occur on
the fifth business day following satisfaction of the relevant alternative
condition set forth in Section 5.1(j) of the Worldwide Agreement); the
purchase and sale of the
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Shares for the eighth Tranche hereunder shall take place at a closing to
occur on the fifth business day following satisfaction of the condition set
forth in Section 5.1(n) of the Worldwide Agreement; and the purchase and sale
of the Shares for the ninth Tranche hereunder shall take place at a closing
to occur on the fifth business day following satisfaction of the condition
set forth in Section 5.1(p) of the Worldwide Agreement (each a "TRANCHE
CLOSING"). The Tranche Closings shall be held at the offices of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx, at
10:00 a.m. local time, on the Tranche Closing Date, or at such other time and
place upon which the Company and Purchaser shall agree.
2.1.1 EXERCISE OF OPTION. The Option may be exercised by
Purchaser, in whole or in part, at any time or from time to time prior to 5:00
p.m. California time on the Option Termination Date. In the event that Purchaser
wishes to exercise the Option, Purchaser shall deliver to the Company written
notice (an "EXERCISE NOTICE") specifying the total number of shares of Common
Stock, up to the number of such shares provided by Section 2.1.2, that Purchaser
wishes to purchase. Notwithstanding the expiration or termination of the Option,
Purchaser shall be entitled to receive the shares of Common Stock with respect
to which Purchaser had delivered an Exercise Notice prior to 5:00 p.m. on the
Option Termination Date.
2.1.2 OPTION CLOSING. Each closing of a purchase of shares of
Common Stock under the Option (an "OPTION CLOSING") shall occur at the offices
of the Company at 9:00 a.m. California time (or such other time and place as may
be agreed by the parties) on a date designated by Purchaser in an Exercise
Notice delivered not less than five (5) and not more than twenty (20) business
days prior to the date of such Option Closing (the "OPTION CLOSING DATE"). At
each Option Closing: (i) the Company shall deliver to Purchaser or its designee
a single certificate representing the number of shares of Common Stock
designated by Purchaser for purchase in the applicable Exercise Notice (the
"OPTION EXERCISE Number"), such certificate to be registered in the name of
Purchaser or as designated by Purchaser in the Exercise Notice and to bear the
legend set forth in Section 5.6; and (ii) Purchaser shall deliver the aggregate
Option Exercise Price for the shares of Common Stock so designated for purchase
to the Company by wire transfer (in immediately available funds). Upon request
by Purchaser, the Option Closing Date will be deferred as reasonably necessary
until the conditions to consummation of the Option Closing and the Company's
obligation to issue the Option Shares at such Option Closing pursuant to Section
6.3 are satisfied.
2.2 DELIVERY. At each Tranche Closing and the Option
Closing, the Company shall cause the delivery to Purchaser of certificates
registered in Purchaser's name or as designated by Purchaser in the Exercise
Notice representing the Shares or Option Shares, as the case may be, for
payment of the purchase price therefor as set forth in Section 2.1 above, by
check payable to the Company or wire transfer per the Company's instructions.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the Company SEC Filings (as defined in Section
3.10) or as set forth in the disclosure schedule previously provided to
Purchaser, the Company represents and warrants to Purchaser as follows:
3.1 ORGANIZATION; STANDING AND POWER; QUALIFICATION. The
Company and each of its subsidiaries is a corporation duly organized and
existing under, and by virtue of, the laws of the State of Delaware and is in
good standing under such laws. The Company and each of its subsidiaries has
all requisite corporate power to own, lease and operate its property and to
carry on its businesses, and is duly qualified to do business and is in good
standing as a foreign corporation in any jurisdiction except where the
failure to be so qualified and in good standing would not have a material
adverse effect on the business, assets (including intangible assets),
properties, liabilities (contingent or otherwise), financial condition,
operations, or results of operation of the Company or its subsidiaries, taken
as a whole (a "MATERIAL ADVERSE EFFECT").
3.2 CAPITALIZATION. The authorized capital stock of the
Company consists of 40,000,000 shares of Common Stock, $0.001 par value, and
2,000,000 shares of preferred stock, $0.001 par value. As of November 30,
1999, there were 25,142,970 shares of Common Stock issued and outstanding,
3,392,229 shares of Common Stock issuable under the Company's stock option
plans and 7,556,957 shares issuable pursuant to warrants and there were no
issued and outstanding shares of Preferred Stock. All such issued and
outstanding shares have been duly authorized and validly issued, are fully
paid and nonassessable. Except as set forth in Schedule 3.2, no shares of
Common Stock are entitled to preemptive rights or registration rights and
there are no outstanding options, warrants, scrip, rights to subscribe to,
call or commitments of any character whatsoever relating to, or securities or
rights convertible into, any shares of capital stock of the Company.
Furthermore, except as set forth in this Agreement and Schedule 3.2 there are
no contracts or commitments by which the Company is or may become bound to
issue additional shares of the capital stock of the Company or options,
securities or rights convertible into shares of capital stock of the Company.
The Company is not a party to, and it has no knowledge of, any agreement
restricting the voting or transfer of any shares of the capital stock of the
Company other than transfer restrictions imposed to satisfy state and federal
securities laws. Except as set forth in Schedule 3.2, the offer and sale of
all capital stock, convertible securities, rights, warrants, or options of
the Company issued prior to each Tranche Closing complied with all applicable
federal and state securities laws. Each of the Company's subsidiaries is
wholly-owned by the Company.
3.3 AUTHORIZATION; NO CONFLICTS; APPROVALS.
3.3.1 All corporate action on the part of the Company, its
shareholders and its directors necessary for the authorization, execution,
delivery and performance of the Agreement by the Company, the authorization,
sale, issuance and delivery of the Shares, the authorization and issuance of the
Option, and the authorization, sale, issuance and delivery of the Option
Shares (other than shareholder authorization of the Option Shares), and
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the performance of all of the Company's obligations under the Agreement has
been taken or will be taken prior to the First Tranche Closing Date or the
Option Closing Date. The Agreement and the other documents required to be
executed and delivered by the Company hereunder (collectively, the "TRANSACTION
DOCUMENTS"), when executed and delivered by the Company, shall constitute valid
and binding obligations of the Company, enforceable in accordance with their
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies. The Shares and Option Shares,
when issued in compliance with the provisions of this Agreement, will be validly
issued, fully paid and nonassessable, and free of any liens or encumbrances,
other than any permissible liens or encumbrances created by or imposed upon the
Shares and Option Shares by Purchaser; provided, however, that the Shares and
Option Shares are subject to restrictions on transfer under state and/or federal
securities laws and as set forth in this Agreement.
3.3.2 The execution and delivery by the Company of this
Agreement and the other Transaction Documents do not, and the consummation of
the transactions contemplated hereby and thereby will not, (i) conflict with, or
result in any violation of or breach of any provision of the Certificate of
Incorporation or Bylaws of the Company, (ii) result in any violation or breach
of, or constitute (with or without notice or lapse of time, or both) a default
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any benefit under any license, assignment, note,
mortgage, indenture, lease, contract or other agreement or obligation to which
the Company is a party or by which the Company or any of its properties or
assets may be bound, (iii) conflict with or violate any judgment, order, decree,
statute, law, ordinance, rule or regulation or any material permit, concession,
franchise or license applicable to the Company or any of its properties or
assets, except in the case of (ii) for such violations, breaches, defaults,
rights of termination, cancellation or acceleration, or losses of benefits which
would not be reasonably likely to have a Material Adverse Effect.
3.3.3 No consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity is required
by or with respect to the Company in connection with the execution and
delivery of this Agreement and the other Transaction Documents or the
consummation of the transactions contemplated hereby or thereby, except that
the filing of one or more notification and report forms under the HSR Act may
be required with respect to the acquisition by Purchaser of the Shares and
Option Shares, and except (i) such other consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required
under applicable federal and state securities laws and the laws of any
foreign country, and (ii) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not be
reasonably likely to have a Material Adverse Effect.
3.4 FINANCIAL STATEMENTS. The Company has delivered to Purchaser
copies of the Company's audited consolidated financial statements (balance
sheet, statement of operations, statement of shareholders' equity, and
statement of cash flows) for the year ended December 31, 1998 and its
unaudited consolidated financial statements (balance sheet, statement of
operations, statement of shareholders' equity, and statement of cash flows)
for the quarter ended September 30,
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1999 (the "COMPANY FINANCIAL STATEMENTS"). The Company Financial Statements
were prepared in accordance with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved
(except (i) as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to the
extent they may not include footnotes or may be condensed or summary
statements). The Company Financial Statements present fairly in all material
respects the financial position of the Company and its subsidiaries as of the
respective dates and the consolidated results of its operations and cash
flows for the periods indicated (except, in the case of unaudited statements,
to normal year-end audit adjustment).
3.5 ABSENCE OF UNDISCLOSED LIABILITIES. Neither the Company nor any
of its subsidiaries has any liabilities, either accrued or contingent
(whether or not required to be reflected in financial statements in
accordance with GAAP), and whether due or to become due, other than (i)
liabilities reflected or provided for on the balance sheet as of September
30, 1999 (the "COMPANY BALANCE SHEET") contained in the Company Financial
Statements, (ii) liabilities specifically described in this Agreement or
Schedule 3.5, and (iii) normal or recurring liabilities incurred since
September 30, 1999 in the ordinary course of business consistent with past
practices that would not reasonably be expected to result in a Material
Adverse Effect.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
Schedule 3.6, and except as reflected in the Company Financial Statements,
since September 30, 1999, the Company and its subsidiaries have conducted
their businesses in the ordinary course and in a manner consistent with past
practices, and have not:
3.6.1 suffered any event or occurrence that has had or would
reasonably be expected to have a Material Adverse Effect;
3.6.2 declared, set aside or paid any dividend or made any
other distribution on or in respect of the shares of its capital stock or
declared any direct or indirect redemption, retirement, purchase or other
acquisition of such shares, except for purchases of stock from terminated
non-officer employees in the ordinary course of business and in a manner
consistent with past practices;
3.6.3 issued any shares of their capital stock or any
warrants, rights, or options for, or entered into any commitment relating to
such capital stock, except for issuances made in the ordinary course of business
in arm's length transactions for value and in a manner consistent with past
practices (including issuances made upon exercises and conversions of employee
and director stock options);
3.6.4 made any material change in the accounting methods or
practices they follow, whether for general financial or tax purposes, or any
change in depreciation or amortization policies or rates;
3.6.5 bought, rented, sold, leased, abandoned or otherwise
disposed of any real property or machinery, equipment or other operating
property except in the ordinary course of
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business and in a manner consistent with past practices and in an amount
that is not material to the Company and its subsidiaries taken as a whole;
3.6.6 sold, assigned, transferred, licensed, pledged, or
otherwise disposed of or encumbered any patent, trademark, trade name, brand
name, Food and Drug Administration ("FDA") license or approval application,
copyright (or pending application for any patent, trademark or copyright),
invention, work of authorship, process, know-how, formula or trade secret or
interest thereunder or other material intangible asset, except for non-exclusive
licenses which were granted in the ordinary course of business and in a manner
consistent with past practices and in an amount that is not material to the
Company and its subsidiaries taken as a whole;
3.6.7 entered into any material commitment or transaction
(including without limitation any borrowing or capital expenditure) other than
the transactions contemplated by this Agreement and the other Transaction
Documents; or
3.6.8 paid, loaned or advanced any amount to, or sold,
transferred or leased any properties or assets or rights under license to, or
entered into any agreement or arrangement with any of its officers, directors or
shareholders or any affiliate of any of the foregoing, other than employee
compensation and benefits and reimbursement of employment related business
expenses incurred in the ordinary course of business.
3.7 TAXES. The Company (including its subsidiaries) has timely made
or filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject and has paid
all taxes and other governmental assessments and charges, shown or determined
to be due on such returns, reports and declarations, except those being
contested in good faith and has set aside on its books provision reasonably
adequate for the payment of all taxes for periods subsequent to the periods
to which such returns, reports or declarations apply. There are no material
unpaid taxes claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company know of no basis for any such claim. To the
best knowledge of the Company, there are no pending or proposed audits or
claims from any tax authority for deficiencies, penalties or interest against
the Company or its subsidiaries and the officers of the Company know of no
basis for any such audit or claim
3.8 INTELLECTUAL PROPERTY. To the Company's knowledge after
reasonable inquiry, (i) each of the Company and its subsidiaries has the
right to use, free and clear of all liens, charges, claims and restrictions,
all intellectual property, patents, trademarks, service marks, trade names,
copyrights, licenses and rights which are material to its business as
presently conducted and (ii) neither the Company nor any of its subsidiaries
is infringing upon or otherwise acting adversely to the right or claimed
right of any other person under or with respect to the foregoing.
3.9 ENVIRONMENTAL MATTERS. To the Company's knowledge after
reasonable inquiry, neither the Company nor any of its subsidiaries is in
violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the
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environment or human exposure to hazardous or toxic substances (collectively,
"ENVIRONMENTAL LAWS") which, individually or in aggregate, would have a
Material Adverse Effect. Except as set forth on Schedule 3.9, to the
Company's knowledge after reasonable inquiry, neither the Company nor any of
its subsidiaries owns or operates any real property contaminated with any
substance that is subject to any Environmental Laws, is liable for any
off-site disposal or contamination pursuant to any Environmental Laws, or is
subject to any claim relating to any Environmental Laws, which violation,
contamination, liability or claim would individually or in aggregate have a
Material Adverse Effect; and the Company is not aware of any pending
investigation that might lead to such a claim.
3.10 SEC FILINGS. The Company has timely filed all reports,
registration statements, proxy statements and other materials, together with
any amendments thereto, required to be filed by the Company with the
Securities and Exchange Commission (the "SEC") under the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT") (the "SEC FILINGS"). The Company
has furnished to Purchaser copies of its Annual Report on Form 10-K for the
year ended December 31, 1998, its Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999, and all Current Reports on Form 8-K and
proxy statements, as filed with the SEC. As of the date filed, the SEC
Filings do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading. The financial
statements contained in the SEC Filings fairly present the financial position
of the Company and its subsidiaries as at the dates thereof and for the
periods covered thereby and have been prepared in accordance with GAAP and
with the published rules and regulations of the SEC with respect thereto.
3.11 LISTING. The Company's Common Stock is duly listed on the
Nasdaq National Market ("NMS"). The Company is not in violation of the
listing requirements of the NMS and does not reasonably anticipate that the
Common Stock will be delisted by the NMS for the foreseeable future.
3.12 EMPLOYEE BENEFIT PLANS. Except as set forth in Schedule
3.12, all the Company's employee benefit plans comply with and are and have
been operated in accordance with applicable laws and regulations. There are
no funded benefit obligations for which contributions have not been made or
properly accrued and there are no unfunded benefit obligations which have not
been accounted for by reserves on the Company's Financial Statements, and no
event has occurred, and there exists no condition or set of circumstances,
with respect to the employee benefit plans of the Company, which would
reasonably be expected to subject the Company to any liability, other than
liabilities which would not be reasonably likely, either individually or in
the aggregate, to have a Material Adverse Effect.
3.13 EMPLOYEES. To the Company's knowledge, no employee or
consultant of the Company is in material violation of any material term of
any such employment or consulting agreement, confidentiality agreement, or
any other contract or agreement relating to the relationship
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of such employee or consultant with the Company or any other party because of
the nature of the business conducted or to be conducted by the Company.
3.14 BROKERS OR FINDERS. No agent, broker, investment banker,
financial advisor or other firm or person is or will be entitled to any
broker's or finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by this Agreement or any of the
other Transaction Documents, and the Company agrees to indemnify and hold
Purchaser harmless from and against any and all claims, liabilities or
obligations with respect to any other fees, commissions or expenses asserted
by any person on the basis of any act or statement alleged to have been made
by the Company.
3.15 COMPLIANCE WITH LAWS. Each of the Company and its subsidiaries
has complied in all material respects with all applicable federal, state,
local and foreign statutes, laws and regulations, and is not in violation of,
and has not received any notices of violation with respect to, any such
statute, law or regulation, with respect to the conduct, ownership or
operation of its businesses which, individually or in aggregate, would have a
Material Adverse Effect. Each of the Company and its subsidiaries has
obtained each governmental consent, license, permit, grant or other
authorization of a governmental entity that is required for the operation of
its business as currently conducted (collectively, the "COMPANY
AUTHORIZATIONS"), and all such Company Authorizations are in full force and
effect, except for such Company Authorizations which, if not obtained by the
Company or any of its subsidiaries, would not be reasonably likely, either
individually or in the aggregate, to have a Material Adverse Effect.
3.16 LITIGATION. Except as set forth in Schedule 3.16, there is no
action, suit, proceeding, claim, arbitration or investigation, pending before
any agency, court or tribunal, or to the knowledge of the Company,
threatened, against the Company, its subsidiaries or any of their respective
properties or officers or directors (in their capacities as such), and, to
the knowledge of the Company, there is no valid basis for any action, suit,
proceeding, claim, arbitration or investigation, against the Company or any
of its subsidiaries which if determined adversely to the Company or any such
subsidiary, would reasonably be expected to have a Material Adverse Effect.
There is no judgment, decree or order against the Company or any of its
subsidiaries or, to the knowledge of the Company after reasonable inquiry,
any of its respective directors or officers (in their capacities as such)
that would prevent, enjoin, or materially alter or delay any of the
transactions contemplated by this Agreement or that would reasonably be
expected to have a Material Adverse Effect.
3.17 NO MISREPRESENTATION. No representation or warranty by the
Company in this Agreement or any of the other Transaction Documents, and no
statement, certificate or schedule furnished or to be furnished by or on
behalf of the Company pursuant to this Agreement or any of the other
Transaction Documents, when taken together, contains any untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary in order to make such statements, in light of the
circumstances under which they were made, not misleading.
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3.18 INVESTMENT COMPANY. The Company is not, and after giving effect
to the issuance of the Shares and the Option Shares will not be, an
investment company under the Investment Company Act of 1940.
3.19 VALID PRIVATE PLACEMENT. Subject to the accuracy of Purchaser's
representations in Section 4.3, the Company is entitled to rely on an
exemption from the provisions of Section 5 of the Securities Act in its sale
and issuance of Shares and Option Shares to Purchaser pursuant to the terms
of this Agreement.
3.20 SECTION 203. The purchase of Shares and Option Shares pursuant
to this Agreement has been approved by the Board of Directors of the Company
prior to the date of this Agreement for the purposes of Section 203 of the
Delaware General Corporation Law such that after the date of this Agreement,
neither Purchaser nor any of its affiliates will be subject to the
restrictions on business combination transactions set forth in said Section
203 with respect to the Company on account of such purchase.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to and agrees with the
Company as follows:
4.1 ORGANIZATION. Purchaser is duly organized and validly existing
under the laws of the State of Illinois. Purchaser has the requisite power
and authority to enter into this Agreement and to carry out its obligations
hereunder.
4.2 AUTHORITY.
4.2.1 The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been authorized by
all necessary company action on behalf of Purchaser and constitutes the
legal, valid and binding obligation of Purchaser, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to creditors' rights generally, and
general principles of equity.
4.2.2 No consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity is required
by or with respect to Purchaser in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated
hereby, except that the filing of one (1) or more notification and report
forms under the HSR Act may be required with respect to the acquisition by
Purchaser of the Shares and Option Shares, and except for (i) such consents,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal and state securities laws and the
laws of any foreign country, and (ii) such other consents, authorizations,
filings, approvals and registrations which, if not obtained or made, would
not be reasonably likely to have a material adverse effect on the ability of
Purchaser to execute and deliver this Agreement and to perform its
obligations thereunder.
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4.3 EXEMPT OFFERING; ACQUISITION FOR INVESTMENT.
4.3.1 Purchaser is acquiring the Shares and Option Shares
solely for Purchaser's or its designated affiliate's own account for passive
investment purposes and not with a view to, or for resale in connection with,
any distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "SECURITIES ACT"). Purchaser further represents that Purchaser
does not have any present intention of selling, offering to sell or otherwise
disposing of or distributing the Shares or Option Shares or any portion
thereof. Purchaser acknowledges and understands that the entire legal and
beneficial interest of the Shares and Option Shares Purchaser is acquiring is
being purchased for, and will be held for the account of, Purchaser or its
designated affiliate only and neither in whole nor in part for any other
person. Purchaser understands that the Shares and Option Shares have not been
registered under the Securities Act or other securities laws in reliance on
specific exemptions therefrom, which exemptions depend upon, among other
things, the bona fide nature of Purchaser's investment intent as expressed
herein.
4.3.2 The Shares and Option Shares were not offered to
Purchaser through, and Purchaser is not aware of, any form of general
solicitation or general advertising, including, without limitation, (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
and (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
4.3.3 Purchaser is an "accredited" investor as defined in
Regulation D under the Securities Act, and a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act.
4.3.4 Purchaser further acknowledges and understands that
the Shares and Option Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available, and the transfer complies with the restrictions
set forth in Section 5.5 of this Agreement. Purchaser understands that the
certificate(s) evidencing the Shares and Option Shares will be imprinted with
a legend that sets forth the restrictions on transfer.
4.3.5 Purchaser understands that Rule 144 promulgated under
the Securities Act permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things, the existence of a public market for the Shares and Option
Shares, the availability of certain current public information about the
Company, more than one year having elapsed between the resale and the date
the security to be sold was last held by the Company or an affiliate of the
Company, the sale being made through a "broker's transaction" or in
transactions directly with a "market maker," and the number of shares being
sold during any three-month period not exceeding specified limitations.
Purchaser is further aware that Rule 144(k) permits persons who have not been
affiliates of the Company for at least three months and whose shares have
been beneficially owned by a person other than the Company or its affiliates
for at least two years after full payment for such shares to sell such shares
without regard to the current public information, manner of sale and volume
limitations described above.
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4.3.6 Purchaser has reviewed with its own tax advisers the
federal, state, and local tax consequences of this investment and the
transactions contemplated by this Agreement and has relied solely on such
advisers and not on any statements or representations of the Company or any
of its agents other than the representations and warranties set forth herein.
Purchaser understands that it (and not the Company) shall be responsible for
its own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
4.4 ACCESS TO INFORMATION; INVESTMENT EXPERIENCE; NO RELIANCE.
4.4.1 ACCESS TO INFORMATION. Purchaser has, prior to the
date of this Agreement, been furnished with the Company's most recent SEC
Filings and given an opportunity to review material contracts and documents
of the Company which have been filed as exhibits to such SEC Filings.
Purchaser has had opportunity to discuss the Company's business, management
and financial affairs with its management. Purchaser has also had an
opportunity to ask questions of officers of the Company, which questions were
answered to its satisfaction. Purchaser, in making the investment decision,
has read, reviewed, and relied solely on the Company's SEC Filings and other
documents furnished by the Company, including the Company's Financial
Statements, pursuant to this Agreement and the Company's representations and
warranties contained herein, and has made an independent investigation, or
obtained any additional information which Purchaser deems necessary to verify
the accuracy and completeness of the information received. Purchaser is not
relying on any oral representation of the Company or any other person, nor
any written representation or assurance from the Company other than those
contained in the SEC Filings or incorporated herein or therein. The
foregoing, however, does not limit or modify Purchaser's right to rely upon
covenants, representations and warranties of the Company in Section 3 of this
Agreement. Purchaser acknowledges and agrees that the Company has no
responsibility for, does not ratify, and is under no responsibility
whatsoever to comment upon or correct any reports, analyses or other comments
made about the Company by any third parties, including, but not limited to,
analysts' research reports or comments, and Purchaser has not relied upon any
such third party reports in making the decision to invest.
4.4.2 RISK OF INVESTMENT; INVESTMENT EXPERIENCE; CAPABILITY
TO EVALUATE. Purchaser recognizes that an investment in the Company involves
substantial risks, including the potential loss of Purchaser's entire
investment herein. Purchaser has substantial knowledge and experience in
investing in securities and in financial and business matters that it is
capable of evaluating the merits and risks of the investment. Purchaser
acknowledges that it is able to fend for itself in the transactions
contemplated by this Agreement, and that Purchaser has the ability to bear
the economic risk of investment pursuant to this Agreement.
4.4.3 RELIANCE ON OWN JUDGEMENT OR ADVISORS. Purchaser has
relied completely on its own judgement or the advice of its own tax,
investment, legal or other advisors and has not relied on the Company or any
of its affiliates, officers, directors, attorneys, accountants or any
affiliates of any thereof and each other person, if any, who controls any of
the foregoing, within the meaning of Section 15 of the Securities Act for any
tax, investment or legal advice (other than
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reliance on information furnished by the Company, the representations,
warranties and covenants contained herein).
4.5 BROKERS OR FINDERS. No agent, broker, investment banker,
financial adviser or other firm or person is or will be entitled to any
broker's or finder's fee, or any other commission or similar fee, in
connection with any of the transactions contemplated by this Agreement or any
of the other Transaction Documents, and Purchaser agrees to indemnify and
hold the Company and its subsidiaries harmless from and against any and all
claims, liabilities or obligations with respect to any such fees or
commissions asserted by any person on the basis of any act or statement
determined to have been made to such person by Purchaser.
SECTION 5
ADDITIONAL AGREEMENTS
The Company and Purchaser further agree with each other as follows:
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS. As long as Purchaser
beneficially 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 deliver to Purchaser, promptly after
transmission thereof, copies of all such financial statements, proxy
statements, notices and reports as the Company shall send to its public
stockholders and copies of all registration statements (without exhibits),
other than registration statements on Form S-8 or any similar successor form,
and all reports which it files with the SEC (or any governmental body or
agency succeeding to the functions of the SEC). Purchaser shall have the
right to discuss such financial statements, proxy statements, notices,
reports, registration statements and filings with such officers of the
Company as Purchaser may reasonably designate upon reasonable notice and at
reasonable times, and to share such information with Purchaser's professional
advisers, subject to the confidentiality provisions set forth in Section 5.2.
5.2 CONFIDENTIALITY. Except as permitted by Section 5.3, Purchaser
agrees (and shall cause its professional advisers to agree) not to disclose
to any person any information or data obtained by them pursuant to Section
5.1 until such information or data otherwise becomes publicly available or
except pursuant to a valid subpoena, judicial process or its equivalent or as
otherwise required by law. At the Company's request, Purchaser shall, and
shall cause its professional advisers to, sign a confidentiality agreement,
in form and substance reasonably satisfactory to Purchaser and the Company,
as a condition to the receipt of confidential nonpublic information of the
Company by such advisers pursuant to Section 5.1.
5.3 PUBLIC ANNOUNCEMENTS. Each of the parties hereto will cooperate
with each other in the development and distribution of all news releases and
other public information disclosures with respect to this Agreement and the
other Transaction Documents and any of the transactions contemplated hereby
and thereby, and neither party hereto directly or indirectly through its
officers
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and/or directors shall make any further announcement, news release or
disclosure without first consulting with the other party hereto except (a)
with the prior written consent of the other party or (b) to the extent such
party believes in good faith, after consultation with legal counsel, that
such announcement, release or disclosure is required by law. The Company
shall not, and shall cause its officers and directors not to, make or
contribute to any public statement, news release or other public
communication or filing disclosing personal information concerning Purchaser
or any member of Purchaser without the prior written consent of Purchaser and
such member unless the Company believes in good faith, after consultation
with legal counsel, that such statement, release, communication or filing is
required by law.
5.4 HSR ACT The Company shall be responsible for all applicable
filing fees under the Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of 0000
(xxx "XXX XXX") relating to the acquisition of Shares and Option Shares.
Purchaser shall use its best efforts to cooperate with the Company in making
the applicable filings under the HSR Act, and with respect to the exercise of
the Option, Purchaser agrees not to designate an Option Closing Date on any
date prior to the expiration or early termination of the applicable waiting
periods under the HSR Act.
5.5 RESTRICTIONS ON TRANSFER. Purchaser shall not, directly or
indirectly, sell, transfer, assign, pledge, 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 Purchaser's risk of ownership in the
Shares or Option Shares (each of the foregoing, a "Transfer") unless the
Transfer is effected pursuant to (a) a registration statement under the
Securities Act and any applicable state securities laws or (b) an exemption
from the registration requirements under federal and state securities laws,
and the Company receives an opinion of counsel, reasonably satisfactory to
the Company stating that such Transfer will not require registration of the
Shares or the Option Shares, as the case may be, under the Securities Act or
state securities laws, except that such an opinion will not be required for
transactions made pursuant to Rule 144 provided that Purchaser and
Purchaser's broker, if necessary, provide the Company with the necessary
representations for counsel to the Company to issue an opinion with respect
to such transaction.
5.6 LEGENDS. Each certificate representing Shares and Option Shares
shall be endorsed with the following legends, and any other legends required
by law:
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
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EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SUCH ACT.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER SET FORTH IN AN AGREEMENT DATED AS OF DECEMBER
21, 1999, BY AND BETWEEN SUPERGEN, INC. AND XXXXXX LABORATORIES, 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.
The Company need not register a transfer of legended Securities, and
may also instruct its transfer agent not to register the transfer of the
Securities, unless the conditions specified in each of the foregoing legends
are satisfied. The first of the foregoing legends shall be removed from any
security legended pursuant to this Section 5.6, and the Company shall issue a
certificate without such legend to the holder of such Securities, if such
Securities are registered under the Securities Act and a prospectus meeting
the requirements of Section 10 of the Securities Act is available or if such
holder satisfies the requirements of Rule 144(k), or the holder provides the
Company with an opinion of counsel, reasonably satisfactory to the Company,
to the effect that a public sale, transfer or assignment of such Securities
may be made without registration. The second of the foregoing legends shall
be removed from any Security legended in accordance with this Section 5.6,
and the Company shall issue a certificate without such legend to the holder
of such Security at such time as such Security is transferred in accordance
with Section 5.5. The stop transfer instructions with respect to any legended
Security shall be removed if both of the foregoing legends are removed in
accordance with this Section 5.6.
5.7 SHARE ADJUSTMENTS. The following adjustments shall apply to the
then-unexercised portion (if any) of the Option.
5.7.1 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 of Common Stock purchasable pursuant to the Option shall be
adjusted so that Purchaser shall be entitled to receive at the same aggregate
Option Exercise Price the number of shares of capital stock and other
securities (of one or more classes) which Purchaser would have owned or would
have been entitled to receive immediately following the happening of any of
the events described above had Purchaser acquired all shares of Common Stock
purchasable under the then-unexercised portion of the Option, in full,
immediately prior to the record date with respect to such event. Any
adjustment made pursuant to this Section 5.7.1 shall, in the case of a
dividend or distribution of Common Stock or other securities of the Company,
become effective as of the record
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date therefor and, in the case of a subdivision or combination, be made as of
the effective date thereof.
5.7.2 In the event of a capital reorganization or a
reclassification of the Common Stock (except as provided in Section 5.7.1
above or Section 5.7.3 below), Purchaser shall be entitled to receive, in
substitution for the Common Stock to which Purchaser 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 Purchaser would have been entitled to
receive at the same Option Exercise Price upon such reorganization or
reclassification if Purchaser had acquired all shares of Common Stock
purchasable under the Option, in full, 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 Purchaser, shall be
evidenced by a certified Board resolution delivered to Purchaser) shall be
made for the application of this Section 5.7.2 with respect to the rights and
interests thereafter of Purchaser (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 5.7.2
(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 conversions
and purchases pursuant to this Agreement for any shares or securities or
other property (or cash) thereafter deliverable upon the conversion or
purchase thereof.
5.7.3 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
person 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 Purchaser a
supplemental agreement providing that Purchaser shall have the right
thereafter (until the expiration of all purchase rights under the Option) to
receive, pursuant to such supplemental agreement, 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
which Purchaser might have acquired pursuant to the Option immediately prior
to such consolidation, share exchange reorganization, merger, sale or
transfer. Such supplemental agreement shall provide for adjustments, which
shall be as nearly equivalent as may be practicable to the adjustments
provided in this Section 5.7.3.
5.7.4 For the purpose of this Section 5.7, the term "COMMON
STOCK" shall mean (i) the class of stock designated as Common Stock in the
Certificate of Incorporation, at the date of this Agreement, or (ii) any
other class of stock resulting from successive changes or reclassifications
of such Common Stock. In the event that at any time as a result of an
adjustment made pursuant to this Section 5.7, Purchaser shall become entitled
to receive any shares of capital stock of the
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Company other than shares of Common Stock, thereafter the number of such
other shares so receivable pursuant to this Agreement or any of the other
documents required to be executed and delivered by the Company hereunder
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 5.7, and all other provisions of this
Agreement and the other Transaction Documents with respect to the Common
Stock shall apply on like terms to any such other shares.
5.7.5 Whenever the number of shares of Common Stock
purchasable pursuant to the Option is adjusted as provided in this Section
5.7, the Option Exercise Price for each share of Common Stock payable upon
such 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 of Common Stock purchasable pursuant to the
then-unexercised portion of the Option immediately prior to such adjustment,
and the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
5.7.6 The provisions of this Section 5.7 shall apply
similarly to successive stock dividends, subdivisions and combinations;
successive reorganizations or recapitalizations; and successive
consolidations, share exchange reorganizations, mergers, sales and transfers.
5.8 FURTHER ASSURANCES
At any time or from time to time after each Tranche Closing and each
Option Closing, each party shall execute and deliver to the other party or
parties such other documents and instruments, provide such materials and
information and take such other actions as either party may reasonably
request more effectively to carry out the provisions of this Agreement and
the other Transaction Documents.
5.9 USE OF FUNDS
The Company shall use the proceeds from the sale of the Shares to
Purchaser and the milestone payments contemplated by Section 5.1 of the
Worldwide Agreement for proper corporate purposes, including allocating in a
responsible manner a sufficient portion of such proceeds and milestone
payments calculated to cause the Company to use its reasonable efforts to
fulfill its obligations under the Worldwide Agreement.
5.10 REGISTRATION RIGHTS AGREEMENT
If requested in writing by Purchaser, the Company agrees to enter
into a registration rights agreement, in substantially the form attached
hereto as Exhibit 5.10, prior to Purchaser's sale of any of the Shares
acquired hereunder; provided, however, that the number of requests by Abbott
to register the Shares pursuant to this Section 5.10 shall not exceed, in
aggregate, five (5) times.
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SECTION 6
CONDITIONS TO CLOSINGS
6.1 CONDITIONS TO PURCHASER'S OBLIGATION TO ACQUIRE THE SHARES. The
obligation of Purchaser to purchase the Shares hereunder is subject to the
satisfaction, on or prior to each Tranche Closing Date (or, where specified,
the First Tranche Closing Date), of the following conditions, any of which
may be waived by Purchaser, in Purchaser's sole discretion, to the extent
permitted by law:
6.1.1 REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made by the Company in this Agreement and the
other Transaction Documents shall be true and correct when made and as of the
First Tranche Closing Date.
6.1.2 PERFORMANCE OF OBLIGATIONS. The Company shall have
performed in all material respects all covenants, agreements and other
obligations required to be performed or observed by the Company pursuant to
this Agreement on or prior to the First Tranche Closing Date, and the Company
shall have delivered to Purchaser a certificate to such effect, executed by
the chief executive officer and chief financial officer of the Company and
dated the First Tranche Closing Date.
6.1.3 COMPLIANCE WITH LAW. At the time of each Tranche
Closing, the issuance by the Company, and the acquisition by Purchaser, of
the Shares hereunder shall be legally permitted by all laws and regulations
to which Purchaser and the Company are subject; all waiting periods, if any,
under the HSR Act applicable to the issuance and sale of the Shares hereunder
shall have expired or been terminated and no preliminary or permanent
injunction or other order by any court of competent jurisdiction prohibiting
or otherwise restraining such acquisition shall be in effect.
6.1.4 WORLDWIDE AGREEMENT. The Worldwide Agreement shall be
in full force and effect and shall not have been terminated by either party
thereto nor shall either party have given notice of such termination.
6.1.5 SHARE PURCHASE LIMITATION. Purchaser shall not be
obligated to purchase any Shares on any Tranche Closing Date if and to the
extent that such purchase would result in the aggregate number of Shares
purchased by Purchaser constituting more than nineteen percent (19%) of the
total number of shares of Common Stock issued and outstanding immediately
following the Tranche Closing, provided that Purchaser shall continue to be
obligated to purchase Shares up to and including such number of Shares as
would be as close as possible to nineteen percent (19%) of the total number
of shares of Common Stock issued and outstanding immediately following such
Tranche Closing. If this Section 6.1.5 shall have operated to restrict the
number of Shares to be purchased by Purchaser on any Tranche Closing Date,
(i) Purchaser's obligation to make such purchase shall be tolled for a period
of [__________], and (ii) Purchaser shall remain bound by any subsequent
obligations to purchase Shares hereunder (unless Purchaser is also then
prevented from making any further purchases pursuant to the further operation
of this Section 6.1.5). In the event that the Company increases its share
capital (other than by purchase of any equity interest in the
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Company by Purchaser) during the [_______] period following the tolling of any
Tranche Closing Date due to the provisions of this Section 6.1.5 such that
Purchaser would then be able to purchase Shares in such delayed Tranche
without exceeding nineteen percent (19%) of the total number of shares of
Common Stock issued and outstanding immediately following such Tranche
Closing, then Purchaser shall be obligated, on the fifth business day
following its receipt of written notification from the Company of such
increase, at the cash price per Share set forth in Section 1.2 for such
Tranche, to purchase such number of additional Shares in such delayed Tranche
which it would have been obligated to purchase but for the operation of this
Section 6.1.5, provided that Purchaser is only obligated to purchase Shares
in any delayed Tranche on one occasion during the [_______] tolling period and
that Purchaser shall be under no obligation to purchase any additional Shares
in any delayed Tranche more than [__________] following the tolling of the
Tranche Closing Date.
6.1.6 REGISTRATION RIGHTS AGREEMENT. The Company shall have
executed and delivered a Registration Rights Agreement by and between the
parties hereto (the "Registration Rights Agreement") and the Registration
Rights Agreement shall be in full force and effect and shall not have been
terminated by either party thereto nor shall either party have given notice
of such termination.
6.2 CONDITIONS TO COMPANY'S OBLIGATION TO ISSUE THE SHARES. The
Company's obligation to sell the Shares to Purchaser hereunder is subject to
the satisfaction, on or prior to the First Tranche Closing Date, of the
following conditions, any of which may be waived by the Company, in its sole
discretion, to the extent permitted by law:
6.2.1 REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made by Purchaser in this Agreement shall be
true and correct when made, and shall be true and correct on the First
Tranche Closing Date with the same force and effect as if they had been made
on and as of the First Tranche Closing Date, and Purchaser shall have
delivered to the Company a certificate to such effect, executed by a duly
authorized officer of Purchaser and dated the First Tranche Closing Date.
6.2.2 PERFORMANCE OF OBLIGATIONS. Purchaser shall have
performed in all material respects all covenants, agreements and other
obligations required to be performed or observed by Purchaser pursuant to
this Agreement on or prior to the First Tranche Closing Date, and Purchaser
shall have delivered to the Company a certificate to such effect, executed by
a duly authorized officer of Purchaser and dated the First Tranche Closing
Date.
6.2.3 COMPLIANCE WITH LAW. At the time of each Tranche
Closing, the issuance by the Company, and the acquisition by Purchaser, of
the Shares hereunder shall be legally permitted by all laws and regulations
to which either Purchaser or the Company is subject; all waiting periods, if
any, under the HSR Act applicable to the acquisition of such Shares hereunder
shall have expired or been terminated and no preliminary or permanent
injunction or other order by any court of competent jurisdiction prohibiting
or otherwise restraining such acquisition shall be in effect.
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6.3 CONDITIONS TO ISSUANCE OF OPTION SHARES. The consummation of
each Option Closing is subject to the conditions that, on or prior to the
applicable Option Closing Date, (i) the representations and warranties made
by the Company and Purchaser in this Agreement shall be true and correct on
the first Option Closing Date, (ii) the issuance by the Company and the
acquisition by Purchaser of the Option Shares hereunder shall be legally
permitted by all laws and regulations to which either Purchaser or the
Company is subject, (iii) all waiting periods, if any, under the HSR Act if
applicable to the acquisition of such Option Shares hereunder shall have
expired or been terminated, (iv) no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance or acquisition shall be in effect, (v) the
Worldwide Agreement shall be in full force and effect and shall not have been
terminated by either party thereto nor shall either party have given notice
of such termination, and (vi) SuperGen's shareholders shall have authorized
a sufficient number of shares to effect the Option Closing.
SECTION 7
MISCELLANEOUS
7.1 ACCESS TO INFORMATION. No information or knowledge obtained in
any investigation by Purchaser shall affect or be deemed to modify any
representation or warranty contained in this Agreement or the Transaction
Documents.
7.2 WAIVERS AND AMENDMENTS. This Agreement or any provision hereof
may be amended, waived, discharged or terminated only by a statement in
writing signed by the party against which enforcement of the amendment,
waiver, discharge or termination is sought.
7.3 GOVERNING LAW. This Agreement shall be governed in all respects
by the internal laws of the State of Delaware, without respect to the
conflicts or the laws or rules thereof.
7.4 SURVIVAL. The representations, warranties, covenants and
agreements made in this Agreement shall survive the closings of the
transactions contemplated hereby, notwithstanding any investigation made by
Purchaser. All statements as to factual matters contained in any certificate
delivered by or on behalf of the Company pursuant hereto or in connection
with the transactions contemplated hereby shall be deemed to be
representations and warranties by the Company hereunder as of the date of
such certificate or instrument.
7.5 SUCCESSORS AND ASSIGNS. Except as expressly provided or
contemplated by this Agreement and the other Transaction Documents, neither
this Agreement nor any right, obligation or interest hereunder shall be
assigned, either in whole or in part, by any party hereto (other than by
operation of law) without the prior written consent of the other parties;
provided, that nothing herein shall prevent or limit the ability of Purchaser
to assign any or all of its rights under this Agreement or any of the other
Transaction Documents to an affiliate. Subject to the foregoing limitations,
the provisions hereof shall inure to the benefit of, and be binding upon and
enforceable by, the parties hereto and their respective successors and
assigns.
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7.6 ENTIRE AGREEMENT. This Agreement, the other Transaction
Documents, and the other certificates and documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and supersede any prior and
contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written, of the parties with respect thereto.
7.7 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, addressed (a) if to Purchaser, at Xxxxxx
Laboratories, Hospital Products Division, 000 Xxxxxx Xxxx Xxxx, Xxxxxx Xxxx,
XX 00000, Attn: President, Hospital Products Division and Senior Vice
President, International Operations, with a copy of any said notice to be
sent to Xxxxxx Laboratories, Dept. 364, Bldg. AP6D, 000 Xxxxxx Xxxx Xxxx,
Xxxxxx Xxxx, XX 00000, Attn: General Counsel or to such other address
(including electronic mail address) as Purchaser shall have furnished to the
Company in writing or by electronic mail, or (b) if to the Company, to
SuperGen, Inc., Xxx Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, Attn: Xx.
Xxxxxx Xxxxxxxxx, with a copy of any said notice to be sent to Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000-0000, Attn: Page
Xxxxxxxxx, Esq., or to such other address (including electronic mail address)
as the Company shall have furnished to Purchaser in writing or by electronic
mail. 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 or delivery to such courier. 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.
7.8 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Agreement shall not in any way be
affected or impaired thereby.
7.9 EXPENSES. The Company and Purchaser shall each bear their own
fees, costs and expenses incurred on their behalf with respect to the
Agreement and the transactions contemplated hereby and any amendments or
waiver thereto.
7.10 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing
or interpreting this Agreement.
7.11 CALIFORNIA CORPORATE SECURITIES LAW. THE SALE OF THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED
WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE
ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE
SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100, 25102,
OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL
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PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION
BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
7.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.13 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to the Company or to Purchaser shall impair
any such right, power or remedy of the Company or Purchaser, nor shall it be
construed to be a waiver of any breach or default under this Agreement and
the other Transaction Documents, or an acquiescence therein or in any similar
breach or default thereafter occurring; nor shall any delay or omission to
exercise any right, power or remedy or any waiver of any single breach or
default be deemed a waiver of any other right, power or remedy or breach or
default theretofore or thereafter occurring. All remedies, either under this
Agreement and the other Transaction Documents, or by law otherwise afforded
to the Company or Purchaser, shall be cumulative and not alternative.
7.14 DISPUTE RESOLUTION. The parties hereto agree that any disputes
which may arise during the term of this Agreement which relate to either
party's rights and/or obligations hereunder shall be resolved in accordance
with the ADR provisions contained in Exhibit 20.3 of the Worldwide Agreement,
except that either party may seek judicial relief or enforcement to pursue
equitable or other remedies not addressed by the ADR provisions, including
without limitation specific performance or injunctive relief, to pursue a
claim of fraudulent or otherwise inequitable treatment under the ADR
proceedings or to otherwise enforce a judgment under the ADR proceedings.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Purchaser and the Company have caused this
Agreement to be duly executed as of the date and year first above written.
SUPERGEN, INC.
a Delaware corporation
By: /s/ Xx. Xxxxxx Xxxxxxxxx
-------------------------------
Name: Xx. Xxxxxx Xxxxxxxxx
Title: Pres.-CEO
XXXXXX LABORATORIES
an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President, HPD
[Signature Page to Purchase Agreement]
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FORM OF
COMPLIANCE CERTIFICATE
Pursuant to Section 6.1 of that certain Common Stock and Option
Purchase Agreement dated as of December 21, 1999 among SuperGen, Inc., a
Delaware corporation (the "Company"), and the Purchaser set forth therein
(the "Agreement"), the undersigned, Xxxxxx Xxxxxxxxx, does hereby certify on
behalf of the Company as follows:
1. He is the duly elected Chief Executive Officer of the
Company;
2. The Company has fulfilled all of the conditions specified
in Sections 5 and 6 of the Agreement; and
3. Except as set forth in the Agreement and the disclosure
schedules provided to the Purchaser, the representations and
warranties of the Company set forth in Section 3 of the
Agreement are true and correct as of the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this certificate on
_________ __, 2000.
___________________________
Name: Xxxxxx Xxxxxxxxx
Title: Chief Executive Officer
