EXHIBIT 4.6


 


THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT
WITH A VIEW TO THE DISTRIBUTION THEREOF, AND SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES OR SUPERGEN, INC. (THE “COMPANY”) RECEIVES AN OPINION
OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF SUCH ACT.


 


	
  No. KG-C

  	
   

  	
  Right to Purchase 100,000

  
	
  Date of Issuance:  March 22, 2001

  	
   

  	
  Shares of Common Stock

  
	
  Void after February 2,
  2005

  	
   

  	
   

  



 


SUPERGEN,
INC.


WARRANT


THIS CERTIFIES THAT, subject to the terms of this agreement, The
Kriegsman Group, (the “Holder”) is entitled to subscribe for and
purchase from SuperGen, Inc, a Delaware corporation (the “Company”), at the Warrant
Price defined in Section 2 herein, One Hundred Thousand (100,000) fully
paid and non-assessable shares of the Company’s Common Stock (the “Common Stock”),
such price and such number of shares being subject to adjustment upon
occurrence of the contingencies set forth in this Warrant.


Upon delivery of this Warrant (with the Notice of Exercise in the form
attached hereto as Exhibit A), together with payment of
the Warrant Price of the shares of Common Stock thereby purchased, at the
principal office of the Company or at such other office or agency as the
Company may designate by notice in writing to the holder hereof, the holder of
this Warrant shall be entitled to receive a certificate or certificates for the
shares of Common Stock so purchased. 
All shares of Common Stock which may be issued upon the exercise of this
Warrant will, upon issuance, be fully paid and non-assessable and free from all
taxes, liens and charges with respect thereto.


This Warrant is
subject to the following terms and conditions:


1.             Term of Warrant.


(a)           Vesting.  The Holder may exercise the purchase right
represented by this Warrant with respect to any number of shares of Common
Stock if the purchase right with respect to such shares becomes vested.  The purchase right with respect to up to
100,000 shares


 

















 


of Common Stock subject to this Warrant shall become
vested on February 2, 2002 provided that a March 22, 2001 letter agreement
between the parties has not been terminated on or before August 7, 2001 and
provided that at least one of the performance conditions specified in Section 3
of the March 22, 2001 letter agreement between the parties has been satisfied,
and such condition shall be non-duplicative of the conditions Holder must
satisfy as specified in Warrant No. KG-B which has been issued to Holder.


(b)           The purchase right with respect to
any number of shares of Common Stock that is vested may be exercised at any
time after such vesting and prior to the first to occur of the following:


(i)    5:00 p.m., Pacific Standard Time, August 7,
2004; or


(ii)   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 of Control”).


Upon the occurrence of any of the events described in clauses (i)
through (ii) above, this Warrant, to the extent not exercised, shall terminate.


2.             Warrant
Price.  The exercise price of this
Warrant (the “Warrant Price”) shall equal the lower of (i) the weighted
average closing price of the Company’s Common Stock over a six-month period
preceding February 2, 2002 or (ii) the closing price of the Company’s Common
Stock on February 2, 2002.


3.             Adjustment
of Purchase Price and Number of Shares; Limitation on Exercise.


The number and kind of
securities purchasable upon the exercise of this Warrant and the Warrant Price
shall be subject to adjustment from time to time in accordance with the
following provisions; provided that, no such adjustment shall be made if a
corresponding adjustment is made pursuant to the Company’s Certificate of
Incorporation.


(a)           Reclassification,
Consolidation or Merger.  In case of
any reclassification or change of outstanding securities of the class issuable
upon exercise of this Warrant (other than as a result of a subdivision or combination),
or in case of any consolidation or merger of the Company with or into another
corporation (other than a Change of Control as provided in Section 1(b)
hereof), the Company, or such successor corporation, as the case may be, shall
execute a new Warrant, providing that the holder of this Warrant shall have the
right to exercise such new Warrant and procure upon such exercise in lieu of
each share of Common Stock theretofore issuable upon exercise of this Warrant
the kind and amount of shares of stock, other securities, money and property
receivable upon such reclassification, change, consolidation or merger by a
holder of one share of Common Stock. 
Such new Warrant shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments


 


2

















 


provided for in this Section 3.  The provisions of this subsection (a)
shall similarly apply to successive reclassifications, changes, consolidations
and mergers.


(b)           Subdivision
or Combination of Shares.  If
at  any time on or after the date of
this Warrant the  Company shall
subdivide its outstanding shares of Common Stock  into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall be proportionately reduced and the
number of shares receivable upon exercise of the Warrant shall be
proportionately increased; and, conversely, if at any time on or after the date
of this Warrant the outstanding number of shares of Common Stock shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall be proportionately increased and the number of shares
receivable upon exercise of the Warrant shall be proportionately decreased.


(c)           Adjustment
of Number of Shares.  Upon each
adjustment in the Warrant Price, the number of Shares of Common Stock
purchasable hereunder shall be adjusted, to the nearest whole share, to the
product obtained by multiplying the number of Shares purchasable immediately
prior to such adjustment in the Warrant Price by a fraction, the numerator of
which shall be the Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately thereafter.


4.             Notices.


(a)           Upon
any adjustment of the Warrant Price and any increase or decrease in the number
of shares of Common Stock purchasable upon the exercise of this Warrant, then,
and in each such case, the Company, within thirty (30) days thereafter, shall
give written notice thereof to the registered holder of this Warrant (the “Notice”).  The Notice shall be mailed to the address of
such holder as shown on the books of the Company, and shall state the Warrant
Price as adjusted and the increased or decreased number of shares purchasable
upon the exercise of this Warrant, setting forth in reasonable detail the
method of calculation of each.


(b)           In
the event that the Company shall propose at any time to effect a Change of
Control, the Company shall send to the Holder at least twenty (20) days’ prior
written notice of the date when the same shall take place.


(c)           Each
such written notice shall be given by first class mail, postage prepaid,
addressed to the Holder at the address as shown on the books of the Company for
the Holder.


5.             Investment
Letter.  Upon exercise or conversion
of this Warrant in accordance with the provisions hereof, the Holder shall
either (i) execute and deliver to the Company an investment letter in the
form attached to the Notice of Exercise on Exhibit A, or (ii) deliver to
the Company an opinion of counsel for the Holder reasonably satisfactory to the
Company, stating that such exercise or conversion is exempt from the
registration and prospectus delivery requirements of the Securities Act of
1933, as amended (the “Securities Act”).


6.             Restrictions
on Transfer.  Certificates
representing any of the Common Stock acquired pursuant to the provisions of
this Warrant shall have endorsed thereon legends substantially in the following
form, as appropriate.


 


3

















 


(a)           Unless
such shares of Common Stock are received in a transaction registered under the
Securities Act and qualified (if necessary) under applicable state securities
laws:


“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933.  SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF SAID ACT.”


(b)           Any
legend required to be placed thereon by any applicable state securities laws.


7.             Compliance
with Act.  The Holder, by acceptance
hereof, agrees that this Warrant and the Common Stock to be issued upon the
exercise or conversion hereof are being acquired solely for its own account and
not as a nominee for any other party and not with a view toward the resale or
distribution thereof and that it will not offer, sell or otherwise dispose of
this Warrant or any of the Common Stock to be issued upon the exercise or
conversion hereof except in accordance herewith and under circumstances which
will not result in a violation of the Securities Act or of applicable state
securities laws.


8.             Miscellaneous.


(a)           The
terms of this Warrant shall be binding upon and shall inure to the benefit of
any successors or assigns of the Company and of the holder or holders hereof
and of the Common Stock issued or issuable upon the exercise hereof.


(b)           No
holder of this Warrant, as such, shall be entitled to vote or receive dividends
or be deemed to be a stockholder of the Company for any purpose, nor shall
anything contained in this Warrant be construed to confer upon the holder of
this Warrant, as such, any rights of a stockholder of the Company or any right
to vote, give or withhold consent to any corporate action, receive notice of
meetings, receive dividends or subscription rights, or otherwise.


(c)           Receipt
of this Warrant by the holder hereof shall constitute acceptance of and
agreement to the foregoing terms and conditions.


(d)           The
Company will not, by amendment of its Certificate of Incorporation or through
any other means, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holder of this
Warrant against impairment.


(e)           Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or distribution, upon delivery of an indemnity agreement reasonably
satisfactory in form and


 


4

















 


amount to the Company or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like date
and tenor.


(f)            This
Warrant shall be nontransferable, other than pursuant to (i) a transfer not
involving a change in beneficial ownership, (ii) a distribution without
consideration of the Warrant by the Holder to any of its partners, or retired
partners, or to the estate of any of its partners or retired partners, or if
the Holder is a limited liability company, to any of its members, former
members, or to the estate of any of its members or former members, and (iii)
any transfer by any Holder to (A) any individual or entity controlled by,
controlling, or under common control with, such Holder or (B) any individual or
entity with respect to which such Holder (or any person controlled by,
controlling, or under common control with, such Holder) has the power to direct
investment decisions.


(g)           This
Warrant or any provision of this Warrant may be amended, waived, discharged or
terminated by a statement in writing signed by the either (i) the Company and
the Holder, or (ii) the party against which enforcement of the amendment,
waiver, discharge or termination is sought.


(h)           This
Warrant shall be governed by the laws of the State of Delaware.


[Signature
Page Follows]


 


 


 


5

















 


IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.


 


	
  Dated:  March
  22, 2001

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUPERGEN,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/  DR.
  JOSEPH RUBINFELD

  
	
   

  	
   

  	
  Dr.
  Joseph Rubinfeld

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  



 


 


 


 


 


6

















EXHIBIT A


NOTICE OF EXERCISE


TO:         SuperGen, Inc.


1.             The undersigned
hereby elects to purchase ___________ shares of the Common Stock of SUPERGEN,
INC. pursuant to the terms of the attached Warrant, and tenders herewith
payment of the purchase price of such shares in full, together with all
applicable transfer taxes, if any.


2.             Please issue a
certificate or certificates representing said shares of Common Stock in the
name of the undersigned or in such other name as is specified below:


 


	
   

  	
   

  	
   

  
	
   

  	
  (Name)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Address)

  	
   

  



 


3.             The undersigned
represents that the aforesaid shares of Common Stock are being acquired for the
account of the undersigned for investment and not with a view to, or for resale
in connection with, the distribution thereof and that the undersigned has no
present intention of distributing or reselling such shares.  In support thereof, the undersigned has
executed the Investment Representation Statement attached hereto as
Exhibit A.


 


	
   

  	
  Signature
  of Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
					



 


 


 


 


 


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EXHIBIT A TO NOTICE OF EXERCISE


SUPERGEN, INC.


WARRANT EXERCISE


INVESTMENT REPRESENTATION STATEMENT


 


	
  PURCHASER

  	
   

  	
  :

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COMPANY

  	
   

  	
  :

  	
   

  	
  SuperGen, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECURITY

  	
   

  	
  :

  	
   

  	
  Common Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NUMBER OF SHARES

  	
   

  	
  :

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DATE

  	
   

  	
  :

  	
   

  	
  __________________ ,
  _____

  	
   

  



In connection with the
purchase of the above-listed Securities, I, the Purchaser, represent to the
Company the following:


(a)           I am an accredited
investor within the meaning of Rule 501 under the Securities Act of 1933,
as amended (the “Securities Act”) and have such knowledge and experience in
financial and business matters that I am capable of evaluating the merits and
risks of the purchase of the Securities.


(b)           I am aware of the
Company’s business affairs and financial condition, and have acquired
sufficient information about the Company to reach an informed and knowledgeable
decision to acquire the Securities.  In
making my decision to the acquire the Securities, I am not relying on
representations of any officer, director, stockholder or agent of the
Company.  I am purchasing these
Securities for my own account for investment purposes only and not with a view
to, or for the resale in connection with, any “distribution” thereof for
purposes of the Securities Act.


(c)           I understand that
the Securities have not been registered under the Securities Act in reliance
upon a specific exemption therefrom, and that reliance by the Company on such
an exemption is predicated in part on the representations set forth in this
letter.


(d)           I further understand
that the Securities must be held indefinitely unless subsequently registered
under the Securities Act or unless an exemption from registration is otherwise
available.  Moreover, I understand that
the Company is under no obligation to register the Securities.  In addition, I understand that the
certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel for the Purchaser
satisfactory to the Company or unless the Company receives a no-action letter
from the Securities and Exchange Commission.


(e)           I am familiar with
the provisions of Rule 144, promulgated under the Securities Act, which,
in substance, permits limited public resale of “restricted securities”
acquired, directly or indirectly, from the issuer thereof (or from an affiliate
of such issuer), in a non-public offering


 


8

















 


subject to the satisfaction of certain conditions,
including, among other things: 
(1) the resale occurring not less than one year after the later of
the date the securities were sold by the Company or the date they were sold by
an affiliate of the Company, within the meaning of Rule 144; and, in the
case of an affiliate, or of a non-affiliate who has held the securities less
than two years, (2) the availability of certain public information about
the Company, (3) the sale being made through a broker in an unsolicited
“broker’s transaction” or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934), and (4) the amount
of securities being sold during any three month period not exceeding the
specified limitations stated therein, if applicable.


(f)            I further
understand that at the time I wish to sell the Securities there may be no
public market upon which to make such a sale, and that, even if such a public
market exists, the Company may not be satisfying the current public information
requirements of Rule 144, and that, in such event, I would be precluded
from selling the Securities under Rule 144 even if the one-year minimum holding
period had been satisfied.


(g)           I further understand
that in the event all of the applicable requirements of Rule 144 are not
satisfied, registration under the Securities Act, compliance with
Regulation A, or some other registration exemption will be required; and
that, notwithstanding the fact that Rule 144 is not exclusive, the Staff
of the SEC has expressed its opinion that persons proposing to sell private
placement securities other than in a registered offering and otherwise than
pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers
or sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.


 


	
   

  	
  Signature
  of Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
					



 


 


 


 


 


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