EXHIBIT 4.4
WARRANT AGREEMENT
BETWEEN
SUPERGEN, INC.
AND
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
DATED AS OF AUGUST 12, 1999
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This Agreement, dated as of August 12, 1999, is between SuperGen, Inc.,
a Delaware corporation (the "Company"), and ChaseMellon Shareholder Services
L.L.C., a New Jersey limited liability company, (the "Warrant Agent").
The Company, at or about the time that it is entering into this
Agreement, proposes to issue up to 220,945 Warrants (collectively, the
"Warrants"), each Warrant exercisable to purchase one share of Common Stock
for $18.18, upon the terms and conditions and subject to adjustment in
certain circumstances, all as set forth in this Agreement.
The Company wishes to retain the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange and replacement of the certificates evidencing
the Warrants to be issued under this Agreement (the "Warrant Certificates")
and the exercise of the Warrants;
The Company and the Warrant Agent wish to enter into this Agreement to
set forth the terms and conditions of the Warrants and the rights of the
holders thereof ("Warrantholders") and to set forth the respective rights and
obligations of the Company and the Warrant Agent. Each Warrantholder is an
intended beneficiary of this Agreement with respect to the rights of
Warrantholders herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. APPOINTMENT OF WARRANT AGENT
The Company appoints the Warrant Agent to act as agent for the Company
in accordance with the instructions in this Agreement and the Warrant Agent
accepts such appointment.
Section 2. DATE, DENOMINATION AND EXECUTION OF WARRANT CERTIFICATES
The Warrant Certificates (and the Form of Election to Purchase and the
Form of Assignment to be printed on the reverse thereof) shall be in
registered form only and shall be substantially of the tenor and purport
recited in Exhibit A hereto, and may have such letters, numbers or other
marks of identification or designation and such legends, summaries or
endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate (but which do not affect the rights or duties of the Warrant
Agent) and as are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law, or with any rule or regulation
made pursuant thereto, or with any rule or regulation of any stock exchange
on which the Common Stock or the Warrants may be listed or any automated
quotation system, or to conform to usage. Each Warrant Certificate shall
entitle the registered holder thereof, subject to the provisions of this
Agreement and of the Warrant Certificate, to purchase, on or before the date
(the "Expiration Date") that is the earlier of (i) 5:00 P.M., Pacific Time,
on August 12, 2001, or (ii) the effective date of the consummation of any
transaction or series of transactions (collectively, the "Transaction"),
including without limitation, the sale, transfer or disposition of all or
substantially all of the Company's assets or the merger of the Company with
or into, or consolidation with, any other corporation, whereby the holders of
the Company's voting securities prior to the Transaction do not hold more
than 50% of the voting securities of the surviving entity following
consummation of the Transaction (a "Change in
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Control"), one fully paid and non-assessable share of Common Stock for each
Warrant evidenced by such Warrant Certificate, subject to adjustments as
provided in Section 6 hereof, for $18.18 (the "Exercise Price"). Each Warrant
Certificate shall be dated the date on which the Warrant Agent receives valid
issuance instructions from the Company or a transferring holder of a Warrant
Certificate or, if such instructions specify another date, such other date.
Each Warrant Certificate shall be executed on behalf of the Company by
the Chairman of the Board or its President or a Vice President, either
manually or by facsimile signature printed thereon, and have affixed thereto
the Company's seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. Each Warrant Certificate shall be manually countersigned
by the Warrant Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any
Warrant Certificate shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issue and delivery thereof by the
Company, such Warrant Certificate, nevertheless, may be countersigned by the
Warrant Agent, issued and delivered with the same force and effect as though
the person who signed such Warrant Certificate had not ceased to be such
officer of the Company.
Section 3. SUBSEQUENT ISSUE OF WARRANT CERTIFICATES
Subsequent to their original issuance, no Warrant Certificates shall be
reissued except (i) Warrant Certificates issued upon transfer thereof in
accordance with Section 4 hereof, (ii) Warrant Certificates issued upon any
combination, split-up or exchange of Warrant Certificates pursuant to Section
4 hereof, (iii) Warrant Certificates issued in replacement of mutilated,
destroyed, lost or stolen Warrant Certificates pursuant to Section 5 hereof,
(iv) Warrant Certificates issued upon the partial exercise of Warrant
Certificates pursuant to Section 7 hereof, and (v) Warrant Certificates
issued to reflect any adjustment or change in the Exercise Price or the
number or kind of shares purchasable thereunder pursuant to Section 22
hereof. The Warrant Agent is hereby irrevocably authorized to countersign
and deliver, in accordance with the provisions of said Sections 4, 5, 7 and
22, the new Warrant Certificates required for purposes thereof, and the
Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrant Certificates duly executed on behalf of the Company for
such purposes.
Section 4. TRANSFERS AND EXCHANGES OF WARRANT CERTIFICATES
Upon receipt by the Warrant Agent of all necessary information, the
Warrant Agent will keep or cause to be kept books for registration of
ownership and transfer of the Warrant Certificates issued hereunder. Such
registers shall show the names and addresses of the respective holders of the
Warrant Certificates and the number of Warrants evidenced by each such
Warrant Certificate.
The Warrant Agent shall, from time to time, register the transfer of any
outstanding Warrants upon the books to be maintained by the Warrant Agent for
that purpose, upon surrender of the Warrant Certificate evidencing such
Warrants, with the Form of Assignment duly and properly filled in and
executed with such signature guaranteed by a banking institution or NASD
member and such supporting documentation as the Warrant Agent or the Company
may reasonably require, to the Warrant Agent at its stock transfer office in
San Francisco, California at any time on or before the Expiration Date, and
upon payment to the Warrant Agent for the account of the Company of an amount
equal to any applicable transfer tax or governmental charge. Payment of the
amount of such
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tax or charge may be made in cash, or by certified or official bank check,
payable in lawful money of the United States of America to the order of the
Company. The Warrant Agent shall have no duty or obligation to take any
action under any Section of this Agreement which requires the payment by a
Warrant holder of applicable taxes and governmental charges unless and until
the Warrant Agent is satisfied that all such taxes and/or charges have been
paid.
Upon receipt of a Warrant Certificate, with the Form of Assignment duly
filled in and executed, accompanied by payment of an amount equal to any
applicable transfer tax or charge, the Warrant Agent shall promptly cancel
the surrendered Warrant Certificate and countersign and deliver to the
transferee a new Warrant Certificate for the number of full Warrants
transferred to such transferee; PROVIDED, HOWEVER, that in case the
registered holder of any Warrant Certificate shall elect to transfer fewer
than all of the Warrants evidenced by such Warrant Certificate, the Warrant
Agent in addition shall promptly countersign and deliver to such registered
holder a new Warrant Certificate or Certificates for the number of full
Warrants not so transferred.
Any Warrant Certificate or Certificates may be exchanged at the option
of the holder thereof for another Warrant Certificate or Certificates of
different denominations, of like tenor and representing in the aggregate the
same number of Warrants, upon surrender of such Warrant Certificate or
Certificates, with the Form of Assignment duly filled in and executed, to the
Warrant Agent, at any time or from time to time after the close of business
on the date hereof and prior to the close of business on the Expiration Date.
The Warrant Agent shall promptly cancel the surrendered Warrant Certificate
and deliver the new Warrant Certificate pursuant to the provisions of this
Section.
Section 5. MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of any
Warrant Certificate, and in the case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and reimbursement to
them of all reasonable expenses incidental thereto, and, in the case of
mutilation, upon surrender and cancellation of the Warrant Certificate, the
Warrant Agent shall countersign and deliver a new Warrant Certificate of like
tenor for the same number of Warrants.
Section 6. ADJUSTMENTS OF NUMBER AND KIND OF SHARES PURCHASABLE AND EXERCISE
PRICE
The number and kind of securities or other property purchasable upon
exercise of a Warrant shall be subject to adjustment from time to time upon
the occurrence, after the date hereof, of any of the following events:
A. In case the Company shall (1) pay a dividend in, or make a
distribution of, shares of capital stock on its outstanding Common Stock, (2)
subdivide its outstanding shares of Common Stock into a greater number of
such shares or (3) combine its outstanding shares of Common Stock into a
smaller number of such shares, the total number of shares of Common Stock
purchasable upon the exercise of each Warrant outstanding immediately prior
thereto shall be adjusted so that the holder of any Warrant Certificate
thereafter surrendered for exercise shall be entitled to receive at the same
aggregate Exercise Price the number of shares of capital stock (of one or
more classes) which such holder would have owned or have been entitled to
receive immediately following the happening of any of the events described
above had such Warrant been exercised in full immediately
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prior to the record date with respect to such event. Any adjustment made
pursuant to this Subsection shall, in the case of a stock dividend or
distribution, become effective as of the record date therefor and, in the
case of a subdivision or combination, be made as of the effective date
thereof. If, as a result of an adjustment made pursuant to this Subsection,
the holder of any Warrant Certificate thereafter surrendered for exercise
shall become entitled to receive shares of two or more classes of capital
stock of the Company, the Board of Directors of the Company (whose
determination shall be conclusive and shall be evidenced by a Board
resolution filed with the Warrant Agent) shall determine the allocation of
the adjusted Exercise Price between or among shares of such classes of
capital stock.
B. In the event of a capital reorganization or a reclassification of
the Common Stock (except in connection with a Change in Control or as
provided in Subsection A. above or Subsection D. below), any Warrantholder,
upon exercise of Warrants, shall be entitled to receive, in substitution for
the Common Stock to which he 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 he would have been entitled to receive at the same aggregate
Exercise Price upon such reorganization or reclassification if such Warrants
had been exercised 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 determination shall be conclusive
and shall be evidenced by a certified Board resolution filed with the Warrant
Agent) shall be made for the application of this Section 6 with respect to
the rights and interests thereafter of the Warrantholders (including but not
limited to the allocation of the Exercise Price between or among shares of
classes of capital stock), to the end that this Section 6 (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 exercises of the Warrants
for any shares or securities or other property (or cash) thereafter
deliverable upon the exercise of the Warrants.
C. Whenever the number of shares of Common Stock or other securities
purchasable upon exercise of a Warrant is adjusted as provided in this
Section 6, the Company will promptly file with the Warrant Agent a
certificate signed by a Chairman or co-Chairman of the Board or the President
or a Vice President of the Company and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company setting
forth the number and kind of securities or other property purchasable upon
exercise of a Warrant, as so adjusted, stating that such adjustments in the
number or kind of shares or other securities or property conform to the
requirements of this Section 6, and setting forth a brief statement of the
facts and computations accounting for such adjustments. Promptly after
receipt of such certificate, the Company, or the Warrant Agent at the
Company's request, will deliver, by first-class, postage prepaid mail, a
brief summary thereof (to be supplied by the Company) to the registered
holders of the outstanding Warrant Certificates; PROVIDED, HOWEVER, that
failure to file or to give any notice required under this Subsection, or any
defect therein, shall not affect the legality or validity of any such
adjustments under this Section 6; and PROVIDED, FURTHER, that, where
appropriate, such notice may be given in advance and included as part of the
notice required to be given pursuant to Section 12 hereof.
D. Irrespective of any adjustments in the number or kind of shares
issuable upon exercise of Warrants, Warrant Certificates theretofore or
thereafter issued may continue to express the same price and number and kind
of shares as are stated in the similar Warrant Certificates initially
issuable pursuant to this Warrant Agreement.
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E. The Company may retain a firm of independent public accountants of
recognized standing, which may be the firm regularly retained by the Company,
selected by the Board of Directors of the Company or the Executive Committee
of said Board, and not disapproved by the Warrant Agent, to make any
computation required under this Section, and a certificate signed by such
firm shall, in the absence of fraud or gross negligence, be conclusive
evidence of the correctness of any computation made under this Section.
Notwithstanding the foregoing, the Warrant Agent shall be fully protected and
shall incur no liability in relying on such certificate of independent public
accountants unless and until it has been advised in writing of the gross
negligence or fraud of such accountants absent gross negligence or fraud on
the part of the Warrant Agent in relying on such certificate.
F. For the purpose of this Section, the term "Common Stock" shall mean
(i) the class of stock designated as Common Stock in the Articles of
Incorporation of the Company, as amended, at the date of this Agreement, or
(ii) any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
In the event that at any time as a result of an adjustment made pursuant to
this Section, the holder of any Warrant thereafter surrendered for exercise
shall become entitled to receive any shares of capital stock of the Company
other than shares of Common Stock, thereafter the number of such other shares
so receivable upon exercise of any Warrant 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, and all other provisions of this Agreement, with respect to the
Common Stock, shall apply on like terms to any such other shares.
G. The Company may, from time to time and to the extent permitted by
law, reduce the exercise price of the Warrants by any amount for a period of
not less than 20 days. If the Company so reduces the exercise price of the
Warrants, it will give not less than 15 days' notice (with prompt written
notice to the Warrant Agent) of such decrease, which notice may be in the
form of a press release and shall take such other steps as may be required
under applicable law in connection with any offers or sales of securities at
the reduced price.
Section 7. EXERCISE OF WARRANTS
The registered holder of any Warrant Certificate may exercise the
Warrants evidenced thereby, in whole at any time or in part from time to time
at or prior to the close of business on the Expiration Date, subject to the
provisions of Section 9, at which time the Warrant Certificates shall be and
become wholly void and of no value. Warrants may be exercised by their
holders as follows:
A. Exercise of Warrants shall be accomplished upon surrender of the
Warrant Certificate evidencing such Warrants, with the Form of Election to
Purchase on the reverse side thereof duly and properly filled in and
executed, to the Warrant Agent at its stock transfer office in San Francisco,
California, together with payment to the order of the Company of the Exercise
Price (as of the date of such surrender) of the Warrants then being exercised
and an amount equal to any applicable transfer tax or charge and, if
requested by the Company, any other taxes or governmental charges which the
Company may be required by law to collect in respect of such exercise. The
executed Warrant Certificate and payment are to be sent to the Warrant Agent
at its stock transfer office in San Francisco, California. Payment of the
Exercise Price and other amounts may be made by wire transfer of good funds,
or by certified or bank cashier's check, payable in lawful money of
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the United States of America to the order of the Company. No adjustment
shall be made for any cash dividends, whether paid or declared, on any
securities issuable upon exercise of a Warrant.
B. Upon receipt of a Warrant Certificate, with the Form of Election to
Purchase duly filled in and executed, accompanied by payment of the Exercise
Price of the Warrants being exercised (and of an amount equal to any
applicable taxes or government charges as aforesaid), the Warrant Agent shall
promptly request from the Transfer Agent with respect to the securities to be
issued and deliver to or upon the order of the registered holder of such
Warrant Certificate, in such name or names as such registered holder may
designate, a certificate or certificates for the number of full shares of the
securities to be purchased, together with cash made available by the Company
pursuant to Section 8 hereof in respect of any fraction of a share of such
securities otherwise issuable upon such exercise. If the Warrant is then
exercisable to purchase property other than securities, the Warrant Agent
shall take any reasonably appropriate steps to cause such property to be
delivered to or upon the order of the registered holder of such Warrant
Certificate. In addition, if it is required by law and upon instruction by
the Company, the Warrant Agent will deliver to each Warrantholder a
prospectus which complies with the provisions of Section 9 of the Securities
Act of 1933 and the Company agrees to supply Warrant Agent with sufficient
number of prospectuses to effectuate that purpose.
C. In case the registered holder of any Warrant Certificate shall
exercise fewer than all of the Warrants evidenced by such Warrant
Certificate, the Warrant Agent shall promptly countersign and deliver to the
registered holder of such Warrant Certificate, or to his duly authorized
assigns, a new Warrant Certificate or Certificates evidencing the number of
Warrants that were not so exercised.
D. Each person in whose name any certificate for securities is issued
upon the exercise of Warrants shall for all purposes be deemed to have become
the holder of record of the securities represented thereby as of, and such
certificate shall be dated, the date upon which the Warrant Certificate was
duly surrendered in proper form and payment of the Exercise Price (and of any
applicable taxes or other governmental charges) was made; PROVIDED, HOWEVER,
that if the date of such surrender and payment is a date on which the stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares as of, and the certificate for such
shares shall be dated, the next succeeding business day on which the stock
transfer books of the Company are open (whether before, on or after the
Expiration Date) and the Warrant Agent shall be under no duty to deliver the
certificate for such shares until such date. The Company covenants and
agrees that it shall not cause its stock transfer books to be closed for a
period of more than 20 consecutive business days except upon consolidation,
merger, sale of all or substantially all of its assets, dissolution or
liquidation or as otherwise provided by law.
Section 8. FRACTIONAL INTERESTS
The Company shall not be required to issue any Warrant Certificate
evidencing a fraction of a Warrant or to issue fractions of shares of
securities on the exercise of the Warrants. Upon initial issuance, in lieu
of any fractional Warrants, the number of shares underlying each Warrant
shall be rounded to the nearest whole number. If any fraction (calculated to
the nearest one-hundredth) of a Warrant or a share of securities would,
except for the provisions of this Section, be issuable on the exercise of any
Warrant, the Company shall purchase such fraction for an amount in cash equal
to the current value of such fraction computed on the basis of the closing
market price (as quoted on
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NASDAQ) on the trading day immediately preceding the day upon which such
Warrant Certificate was surrendered for exercise in accordance with Section 7
hereof. By accepting a Warrant Certificate, the holder thereof expressly
waives any right to receive a Warrant Certificate evidencing any fraction of
a Warrant or to receive any fractional share of securities upon exercise of a
Warrant. The Warrant Agent shall have no duty or obligation under this
Section unless and until it has received, and the Company has provided or
caused to be provided to the Warrant Agent, sufficient cash necessary to
satisfy the Company's obligations with respect to fractional shares.
Section 9. RESERVATION OF EQUITY SECURITIES
The Company covenants that it will at all times reserve and keep
available, free from any pre-emptive rights, out of its authorized and
unissued equity securities, solely for the purpose of issue upon exercise of
the Warrants, such number of shares of equity securities of the Company as
shall then be issuable upon the exercise of all outstanding Warrants ("Equity
Securities"). The Company covenants that all Equity Securities which shall
be so issuable shall, upon such issue, be duly authorized, validly issued,
fully paid and non-assessable.
The Company covenants that if any equity securities, required to be
reserved for the purpose of issue upon exercise of the Warrants hereunder,
require registration with or approval of any governmental authority under any
federal or state law before such shares may be issued upon exercise of
Warrants, the Company will use all commercially reasonable efforts to cause
such securities to be duly registered, or approved, as the case may be, and,
to the extent practicable, take all such action in anticipation of and prior
to the exercise of the Warrants, including, without limitation, filing any
and all post-effective amendments to the Company's Registration Statement on
Form S-4 (Registration No. 333-80517) necessary to permit a public offering
of the securities underlying the Warrants at any and all times during the
term of this Agreement, PROVIDED, HOWEVER, that in no event shall such
securities be issued, and the Company is authorized to refuse to honor the
exercise of any Warrant, if such exercise would result in the opinion of the
Company's Board of Directors, upon advice of counsel, in the violation of any
law.
Section 10. REDUCTION OF CONVERSION PRICE BELOW PAR VALUE
Before taking any action that would cause an adjustment pursuant to
Section 6 hereof reducing the portion of the Exercise Price required to
purchase one share of capital stock below the then par value (if any) of a
share of such capital stock, the Company will use its best efforts to take
any corporate action which, in the opinion of its counsel, may be necessary
in order that the Company may validly and legally issue fully paid and
non-assessable shares of such capital stock.
Section 11. PAYMENT OF TAXES
The Company covenants and agrees that it will pay when due and payable
any and all federal and state documentary stamp and other original issue
taxes which may be payable in respect of the original issuance of the Warrant
Certificates, or any shares of Common Stock or other securities upon the
exercise of Warrants. The Company shall not, however, be required (i) to pay
any tax or charge which may be payable in respect of any transfer involved in
the transfer and delivery of Warrant Certificates or the issuance or delivery
of certificates for Common Stock or other securities in a name other than
that of the registered holder of the Warrant Certificate surrendered for
purchase or (ii) to issue or deliver any certificate for shares of Common
Stock or other securities upon the
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exercise of any Warrant Certificate until any such tax or charge shall have
been paid, all such taxes or charges being payable by the holder of such
Warrant Certificate at the time of surrender.
Section 12. NOTICE OF CERTAIN CORPORATE ACTION
In case the Company after the date hereof shall propose (i) to offer the
holders of Common Stock, generally, rights to subscribe to or purchase any
additional shares of any class of its capital stock, any evidences of its
indebtedness or assets, or any other rights or options or (ii) to effect a
Change in Control, or the liquidation, voluntary or involuntary dissolution
or winding-up of the Company, then, in each such case, the Company shall file
with the Warrant Agent and the Company, or the Warrant Agent on its behalf,
shall mail (by first-class, postage prepaid mail) to all registered holders
of the Warrant Certificates notice of such proposed action, which notice
shall specify the date on which the books of the Company shall close or a
record be taken for such offer of rights or options or the date on which such
Change in Control, liquidation, voluntary or involuntary dissolution or
winding up event shall take place or commence, as the case may be, and which
shall also specify any record date for determination of holders of Common
Stock entitled to vote thereon or participate therein and shall set forth
such facts with respect thereto as shall be reasonably necessary to indicate
the number or kind of shares or other securities purchaseable or other
consideration to which the holders of Warrant Certificates would be entitled
upon exercise of the Warrants. Such notice shall be filed and mailed in the
case of any action covered by clause (i) above at least thirty days prior to
the record date for determining holders of the Common Stock for purposes of
such action or, if a record is not to be taken, the date as of which the
holders of shares of Common Stock of record are entitled to such offering;
and in the case of any action covered by clause (ii) above, at least 30 days
prior to a Change in Control or liquidation, voluntary or involuntary
dissolution or winding-up is expected to become effective.
Failure to give any such notice or any defect therein shall not affect
the legality or validity of any transaction listed in this Section 12.
Section 13. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANT CERTIFICATES, ETC.
The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all moneys received by
the Warrant Agent for the purchase of securities or other property through
the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement available for
inspection by Warrantholders during normal business hours at its stock
transfer office in San Francisco, California. Copies of this Agreement may
be obtained upon written request addressed to the Warrant Agent at its stock
transfer office in San Francisco, California.
Section 14. WARRANTHOLDER NOT DEEMED A STOCKHOLDER
No Warrantholder, as such, shall be entitled to vote, receive dividends
or be deemed the holder of Common Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Warrants
represented thereby for any purpose whatever, nor shall anything contained
herein or in any Warrant Certificate be construed to confer upon any
Warrantholder, as such, any of the rights of a stockholder of the Company or
any right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold
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consent to any corporate action (whether upon any recapitalization, issuance
of stock, reclassification of stock, change of par value or change of stock
to no par value, consolidation, merger, conveyance or otherwise), or to
receive notice of meetings or other actions affecting stockholders (except as
provided in Section 12 hereof), or to receive dividend or subscription
rights, or otherwise, until such Warrant Certificate shall have been
exercised in accordance with the provisions hereof and the receipt of the
Exercise Price and any other amounts payable upon such exercise by the
Warrant Agent.
Section 15. RIGHT OF ACTION
All rights of action in respect to this Agreement are vested in the
respective registered holders of the Warrant Certificates; and any registered
holder of any Warrant Certificate, without the consent of the Warrant Agent
or of any other holder of a Warrant Certificate, may, in his own behalf for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect
of, his right to exercise the Warrants evidenced by such Warrant Certificate,
for the purchase of shares of the Common Stock in the manner provided in the
Warrant Certificate and in this Agreement.
Section 16. AGREEMENT OF HOLDERS OF WARRANT CERTIFICATES
Every holder of a Warrant Certificate by accepting the same consents and
agrees with the Company, the Warrant Agent and with every other holder of a
Warrant Certificate that:
A. the Warrant Certificates are transferable on the registry books of
the Warrant Agent only upon the terms and conditions set forth in this
Agreement; and
B. the Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the absolute owner of the
Warrant (notwithstanding any notation of ownership or other writing thereon
made by anyone other than the Company or the Warrant Agent) for all purposes
whatever and neither the Company nor the Warrant Agent shall be affected by
any notice to the contrary.
Section 17. CANCELLATION OF WARRANT CERTIFICATES
In the event that the Company shall purchase or otherwise acquire any
Warrant Certificate or Certificates after the issuance thereof, such Warrant
Certificate or Certificates shall thereupon be delivered to the Warrant Agent
and be canceled by it and retired. The Warrant Agent shall also cancel any
Warrant Certificate delivered to it for exercise, in whole or in part, or
delivered to it for transfer, split-up, combination or exchange. Warrant
Certificates so canceled shall be delivered by the Warrant Agent to the
Company from time to time, or disposed of in accordance with the instructions
of the Company.
Section 18. CONCERNING THE WARRANT AGENT
The Company agrees to pay to the Warrant Agent from time to time, on
demand of the Warrant Agent, reasonable compensation for all services
rendered by it hereunder and also its reasonable expenses, including counsel
fees, and other disbursements incurred in the preparation, execution,
delivery, amendment and administration of this Agreement and the exercise and
performance of its duties hereunder provided that Counsel fees in connection
with the preparation of
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this Agreement shall not exceed $1,500.00. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability, damage, judgments, fine, penalty, claim, demand, settlement, cost
or expense (including reasonable attorney's fees), incurred without gross
negligence, bad faith or willful misconduct on the part of the Warrant Agent,
arising out of or in connection with the acceptance and administration of
this Agreement. The indemnity provided herein shall survive the termination
of this Agreement and the termination and the expiration of the Warrants.
The costs and expenses incurred in successfully enforcing this right of
indemnification shall be paid by the Company.
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT
Any entity into which the Warrant Agent may be merged or with which it
may be consolidated, or any entity resulting from any merger or consolidation
to which the Warrant Agent shall be a party, or any entity succeeding to the
business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided that such entity would be
eligible for appointment as a successor warrant agent under the provisions of
Section 21 hereof. In case at the time such successor to the Warrant Agent
shall succeed to the agency created by this Agreement, any of the Warrant
Certificates shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original
Warrant Agent and deliver such Warrant Certificates so countersigned; and in
case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such
Warrant Certificates either in the name of the predecessor Warrant Agent or
in the name of the successor Warrant Agent; and in all such cases such
Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent may adopt the countersignature under its
prior name and deliver Warrant Certificates so countersigned; and in case at
that time any of the Warrant Certificates shall not have been countersigned,
the Warrant Agent may countersign such Warrant Certificates either in its
prior name or in its changed name; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates
and in this Agreement.
Section 20. DUTIES OF WARRANT AGENT
The Warrant Agent undertakes only the duties and obligations expressly
imposed by this Agreement upon the following terms and conditions, by all of
which the Company and the holders of Warrant Certificates, by their
acceptance thereof, shall be bound:
A. The Warrant Agent may consult with counsel satisfactory to it (who
may be counsel for the Company or the Warrant Agent's in-house counsel), and
the advice or opinion of such counsel shall be full and complete
authorization and protection to the Warrant Agent as to any action taken,
suffered or omitted by it in good faith and in accordance with such advice or
opinion; PROVIDED, HOWEVER, that the Warrant Agent shall have exercised
reasonable care in the selection of such counsel. Reasonable fees and
expenses of such counsel, shall be paid by the Company.
-11-
B. Whenever in the performance of its duties under this Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking, suffering or omitting
to take any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by a Chairman or
co-Chairman of the Board or the President or a Vice President or the
Secretary of the Company and delivered to the Warrant Agent; and such
certificate shall be full authorization and protection to the Warrant Agent,
and the Warrant Agent shall incur no liability in respect of, any action
taken or omitted to be taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
C. The Warrant Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct. Anything to the contrary
notwithstanding, in no event shall the Warrant Agent be liable for special,
punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Warrant
Agent has been advised of the likelihood of such loss or damage.
D. The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Warrant Certificates (except its countersignature on the Warrant Certificates
and such statements or recitals as describe the Warrant Agent or action taken
or to be taken by it) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the
Company only.
E. The Warrant Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Warrant
Certificate; nor shall it be responsible for the making of any change in the
number of shares of Common Stock for which a Warrant is exercisable required
under the provisions of Section 6 or responsible for the manner, method or
amount of any such change or the ascertaining of the existence of facts that
would require any such adjustment or change (except with respect to the
exercise of Warrant Certificates after actual notice of any adjustment of the
Exercise Price); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant
Certificate or as to whether any shares of Common Stock will, when issued, be
validly issued, fully paid and non-assessable.
F. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or take any other action likely to involve
expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred. All rights of
action under this Agreement or under any of the Warrants may be enforced by
the Warrant Agent without the possession of any of the Warrants or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent, and any recovery of judgment shall be
for the ratable benefit of the registered holders of the Warrant
Certificates, as their respective rights or interests may appear.
G. The Warrant Agent and any stockholder, director, affiliate, officer
or employee of the Warrant Agent may buy, sell or deal in any of the Warrants
or other securities of the Company or
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become pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to or otherwise act as fully and
freely as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
H. The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from a
Chairman or co-Chairman of the Board or President or a Vice President or the
Secretary or the Controller of the Company, and to apply to such officers for
advice or instructions in connection with the Warrant Agent's duties, and it
shall not be liable for any action taken or suffered or omitted by it in good
faith in accordance with instructions of any such officer.
I. The Warrant Agent will not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
J. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys, agents or employees and the Warrant Agent shall not
be answerable or accountable for any act, default, neglect or misconduct of
any such attorneys, agents or employees or for any loss to the Company
resulting from such neglect or misconduct; PROVIDED, HOWEVER, that reasonable
care shall have been exercised in the selection and continued employment of
such attorneys, agents and employees.
K. The Warrant Agent will not incur any liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action taken,
or any failure to take action, in reliance on any notice, resolution, waiver,
consent, order, certificate, or other paper, document or instrument
reasonably believed by the Warrant Agent to be genuine and to have been
signed, sent or presented by the proper party or parties.
L. The Warrant Agent will act hereunder solely as agent of the Company
in a ministerial capacity, and its duties will be determined solely by the
provisions hereof.
M. No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of its
rights if it reasonably believes that repayment of such funds or adequate
indemnification against such risk or liability is not assured to it.
Section 21. CHANGE OF WARRANT AGENT
The Warrant Agent may resign and be discharged from its duties under
this Agreement upon 30 days' prior notice in writing mailed, by registered or
certified mail, to the Company. The Company may remove the Warrant Agent or
any successor warrant agent upon 30 days' prior notice in writing, mailed to
the Warrant Agent or successor warrant agent, as the case may be, by
registered or certified mail. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Warrant Agent and shall, within 15 days following
such appointment, give notice thereof in writing to each registered holder of
the Warrant Certificates. If the Company shall fail to make such appointment
within a period of 15 days after giving notice of such removal or after it
has been notified in writing of such resignation or
-13-
incapacity by the resigning or incapacitated Warrant Agent, then the Company
agrees to perform the duties of the Warrant Agent hereunder until a successor
Warrant Agent is appointed. After appointment and execution of a copy of
this Agreement in effect at that time, the successor Warrant Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor Warrant
Agent, within a reasonable time, any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for the purpose. Failure to give any notice provided for in
this Section, however, or any defect therein shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the
appointment of the successor warrant agent, as the case may be.
Section 22. ISSUANCE OF NEW WARRANT CERTIFICATES
Notwithstanding any of the provisions of this Agreement or the several
Warrant Certificates to the contrary, the Company may, at its option, issue
new Warrant Certificates in such form as may be approved by its Board of
Directors to reflect any adjustment or change in the Exercise Price or the
number or kind of shares purchasable under the several Warrant Certificates
made in accordance with the provisions of this Agreement.
Section 23. NOTICES
Notice or demand pursuant to this Agreement to be given or made on the
Company by the Warrant Agent or by the registered holder of any Warrant
Certificate shall be sufficiently given or made if sent by first-class or
registered mail, postage prepaid, addressed (until another address is filed
in writing by the Company with the Warrant Agent) as follows:
SuperGen, Inc.
Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Subject to the provisions of Section 21, any notice pursuant to this
Agreement to be given or made by the Company or by the holder of any Warrant
Certificate to or on the Warrant Agent shall be sufficiently given or made if
sent by first-class or registered mail, postage prepaid, addressed (until
another address is filed in writing by the Warrant Agent with the Company) as
follows:
ChaseMellon Shareholder Services
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Relationship Manager
Any notice or demand authorized to be given or made to the registered
holder of any Warrant Certificate under this Agreement shall be sufficiently
given or made if sent by first-class or registered mail, postage prepaid, to
the last address of such holder as it shall appear on the registers
maintained by the Warrant Agent.
Section 24. MODIFICATION OF AGREEMENT
The Warrant Agent may, without the consent or concurrence of the
Warrantholders, by supplemental agreement or otherwise, concur with the
Company in making any changes or
-14-
corrections in this Agreement that the Warrant Agent shall have been advised
by counsel (who may be counsel for the Company) are necessary or desirable to
cure any ambiguity or to correct any defective or inconsistent provision or
clerical omission or mistake or manifest error herein contained, or to make
any other provisions in regard to matters or questions arising hereunder and
which shall not be inconsistent with the provisions of the Warrant
Certificates and which shall not adversely affect the interests of the
Warrantholders and which shall not adversely affect or change the rights,
duties or immunities of the Warrant Agent. As of the date hereof, this
Agreement contains the entire and only agreement, understanding,
representation, condition, warranty or covenant between the parties hereto
with respect to the matters herein, supersedes any and all other agreements
between the parties hereto relating to such matters, and may be modified or
amended only by a written agreement signed by both parties hereto pursuant to
the authority granted by the first sentence of this Section; provided
however, that the Company and Warrant Agent may amend this Agreement in any
respect upon the written consent of the holders of a majority of the
outstanding Warrants.
Section 25. SUCCESSORS
All the covenants and provisions of this Agreement by or for the benefit
of the Company or the Warrant Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
Section 26. CALIFORNIA CONTRACT
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of California and
for all purposes shall be construed in accordance with the laws of said
State; provided, however, that all provisions regarding the rights, duties
and obligations of the Warrant Agent shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
Section 27. TERMINATION
This Agreement shall terminate as of the close of business on the
Expiration Date, or such earlier date upon which all Warrants shall have been
exercised, except that the Warrant Agent shall account to the Company as to
all Warrants outstanding and all cash held by it as of the close of business
on the Expiration Date.
Section 28. BENEFITS OF THIS AGREEMENT
Nothing in this Agreement or in the Warrant Certificates shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent, and their respective successors and assigns hereunder and the
registered holders of the Warrant Certificates any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent, their
respective successors and assigns hereunder and the registered holders of the
Warrant Certificates.
Section 29. DESCRIPTIVE HEADINGS
-15-
The descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 30. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
SUPERGEN, INC.
By: /s/ Xx. Xxxxxx Xxxxxxxxx
-------------------------------------
Xx. Xxxxxx Xxxxxxxxx
President and Chief Executive Officer
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Assistant Vice President
-16-
EXHIBIT A
VOID AFTER 5 P.M. PACIFIC TIME ON AUGUST 12, 2001
WARRANTS TO PURCHASE COMMON STOCK
SW_________ ___________Warrants
SUPERGEN, INC.
CUSIP 868059 12 2
THIS CERTIFIES THAT
or registered assigns, is the registered holder of the number of Warrants
("Warrants") set forth above. Each Warrant entitles the holder thereof to
purchase from SuperGen, Inc., a corporation incorporated under the laws of
the State of Delaware ("Company"), subject to the terms and conditions set
forth hereinafter and in the Warrant Agreement hereinafter more fully
described (the "Warrant Agreement") referred to, one fully paid and
non-assessable share of Common Stock, $0.001 par value, of the Company
("Common Stock") upon presentation and surrender of this Warrant Certificate
with the instructions for the registration and delivery of Common Stock
filled in, at any time prior to the earlier of (i) 5:00 P.M., Pacific Time,
on August 12, 2001 or, (ii) the effective date of the consummation of any
transaction or series of transactions (collectively, the "Transaction"),
including without limitation, the sale, transfer or disposition of all or
substantially all of the Company's assets or the merger of the Company with
or into, or consolidation with, any other corporation, whereby the holders of
the Company's voting securities prior to the Transaction do not hold more
than 50% of the voting securities of the surviving entity following
consummation of the Transaction (a "Change in Control"), at the stock
transfer office in San Francisco, California, of ChaseMellon Shareholder
Services, L.L.C., Warrant Agent of the Company ("Warrant Agent") or of its
successor warrant agent or, if there be no successor warrant agent, at the
corporate offices of the Company, and upon payment of the Exercise Price (as
defined in the Warrant Agreement) and any applicable taxes paid either in
cash, or by certified or official bank check, payable in lawful money of the
United States of America to the order of the Company which payment shall be
sent to the Warrant Agent. Each Warrant initially entitles the holder to
purchase one share of Common Stock
-i-
for $18.18. The number and kind of securities or other property for which the
Warrants are exercisable are subject to further adjustment in certain events,
such as stock splits, stock dividends, capital reorganizations or
reclassifications and the like, to prevent dilution. All Warrants not
theretofore exercised will expire on August 12, 2001.
This Warrant Certificate is subject to all of the terms, provisions and
conditions of the Warrant Agreement, dated as of August 12, 1999 ("Warrant
Agreement"), between the Company and the Warrant Agent, to all of which
terms, provisions and conditions the registered holder of this Warrant
Certificate consents by acceptance hereof. The Warrant Agreement is
incorporated herein by reference and made a part hereof and reference is made
to the Warrant Agreement for a full description of the rights, limitations of
rights, obligations, duties and immunities of the Warrant Agent, the Company
and the holders of the Warrant Certificates. Copies of the Warrant Agreement
are available for inspection at the stock transfer office of the Warrant
Agent in San Francisco, California or may be obtained upon written request
addressed to the Company at Xxx Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: Controller.
The Company shall not be required upon the exercise of the Warrants
evidenced by this Warrant Certificate to issue fractions of Warrants, Common
Stock or other securities, but shall make adjustment therefor in cash on the
basis of the current market value of any fractional interest as provided in
the Warrant Agreement.
In certain cases, the sale of securities by the Company upon exercise of
Warrants would violate the securities laws of the United States, certain
states thereof or other jurisdictions. The Company has agreed to use its
best efforts to cause a registration statement to continue to be effective
during the term of the Warrants with respect to such sales under the
Securities Act of 1933, and to take such action under the laws of various
states as may be required to cause the sale of securities upon exercise to be
lawful. However, the Company will not be required to honor the exercise of
Warrants if, in the opinion of the Board of Directors, upon advice of
counsel, the sale of securities upon such exercise would be unlawful.
This Warrant Certificate, with or without other Certificates, upon
surrender to the Warrant Agent, any successor warrant agent or, in the
absence of any successor warrant agent, at the corporate offices of the
Company, may be exchanged for another Warrant Certificate or Certificates
evidencing in the aggregate the same number of Warrants as the Warrant
Certificate or Certificates so surrendered. If the Warrants evidenced by
this Warrant Certificate shall be exercised in part, the holder hereof shall
be entitled to receive upon surrender hereof another Warrant Certificate or
Certificates evidencing the number of Warrants not so exercised.
No holder of this Warrant Certificate, as such, shall be entitled to
vote, receive dividends or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise
hereof for any purpose whatever, nor shall anything contained in the Warrant
Agreement or herein be construed to confer upon the holder of this Warrant
Certificate, as such, any of the rights of a stockholder of the Company or
any right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof or give or withhold consent to any
corporate action (whether upon any matter submitted to stockholders at any
meeting thereof, or give or withhold consent to any merger, recapitalization,
issuance of stock,
-ii-
reclassification of stock, change of par value or change of stock to no par
value, consolidation, conveyance or otherwise) or to receive notice of
meetings or other actions affecting stockholders (except as provided in the
Warrant Agreement) or to receive dividends or subscription rights or
otherwise until the Warrants evidenced by this Warrant Certificate shall have
been exercised and the Common Stock purchasable upon the exercise thereof
shall have become deliverable as provided in the Warrant Agreement.
If this Warrant Certificate shall be surrendered for exercise within any
period during which the transfer books for the Company's Common Stock or
other class of stock purchasable upon the exercise of the Warrants evidenced
by this Warrant Certificate are closed for any purpose, the Company shall not
be required to make delivery of certificates for shares purchasable upon such
transfer until the date of the reopening of said transfer books.
Every holder of this Warrant Certificate by accepting the same consents
and agrees with the Company, the Warrant Agent, and with every other holder
of a Warrant Certificate that:
(a) this Warrant Certificate is transferable on the registry books of
the Warrant Agent only upon the terms and conditions set forth in the Warrant
Agreement, and
(b) the Company and the Warrant Agent may deem and treat the person in
whose name this Warrant Certificate is registered as the absolute owner
hereof (notwithstanding any notation of ownership or other writing thereon
made by anyone other than the Company or the Warrant Agent) for all purposes
whatever and neither the Company nor the Warrant Agent shall be affected by
any notice to the contrary.
The Company shall not be required to issue or deliver any certificate
for shares of Common Stock or other securities upon the exercise of Warrants
evidenced by this Warrant Certificate until any tax or charge which may be
payable in respect thereof by the holder of this Warrant Certificate pursuant
to the Warrant Agreement shall have been paid, such tax or charge being
payable by the holder of this Warrant Certificate at the time of surrender.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
-iii-
WITNESS the facsimile signatures of the proper officers of the Company
and its corporate seal.
Dated: SUPERGEN, INC.
By: /s/ Xx. Xxxxxx Xxxxxxxxx
--------------------------
Chief Executive Officer
Attest: /s/ Xxxx X. Xxxx
----------------------
Secretary
Countersigned
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Authorized Officer
-iv-
