EXHIBIT 4.5


 


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.


 


	
  February 26, 2003

  	
   

  	
  Right to Purchase 363,125

  
	
  Void After February 25,
  2007

  	
   

  	
  Shares of Common Stock

  



 


SUPERGEN,
INC.


WARRANT


THIS CERTIFIES THAT, subject to the terms of this agreement, PAUL
REVERE, LLC, (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, 363,125 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.


This Warrant is issued in connection with the issuance of shares by the
Company pursuant to a Securities Purchase Agreement dated February 26, 2003
between the Company and the purchaser(s) named therein (the “Purchase
Agreement”).


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.


This Warrant may be
exercised in whole or in part, at any time, and from time to time, after
issuance and prior to the first to occur of the following:


(a)           5:00
p.m., Pacific Standard Time, February 25, 2007; or


(b)           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”).


2.             Warrant
Price.  The exercise price of this
Warrant (the “Warrant Price”) shall equal $4.00 per share.


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:


(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 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, or shall
pay a dividend with respect to its outstanding shares of Common Stock in shares
of Common Stock, 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


 


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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 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)           The
Company shall send to the Holder at least twenty (20) days’ prior written
notice of the date when any change of control of which the Company has
knowledge 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, if the Common Stock
issuable upon exercise of this Warrant is not registered as contemplated by
Section 6 below, 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.             Registration
Rights.  The Company shall include
the shares of Common Stock issued or issuable upon the exercise of this Warrant
in the S-3 Registration Statement that the Company shall file pursuant to that
certain Registration Rights Agreement dated February 26, 2003.


7.             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.


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


 


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(a)           “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.


8.             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.


9.             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 Restated 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 amount to the Company or, in the case of any such
mutilation, upon surrender and cancellation of


 


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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, (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, and (iv) a transfer exempt from registration under the
Securities Act, upon the Company’s receipt of an opinion of counsel (which may
be counsel for the Company) satisfactory to the Company stating that such
transfer is exempt from the registration and prospectus delivery requirements
of the federal securities laws.


(g)           This
Warrant or any provision of this Warrant may be amended, waived, discharged or
terminated by a statement in writing signed by the Company and the Holder, and
in the event of any permitted transfer(s) of this Warrant, by the Company and
the Holder and transferee(s) representing at least fifty percent (50%) of the
Common Stock issuable upon exercise of the Warrant.


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


[Signature
Page Follows]


 


 


 


 


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


 


	
  Dated: February 26, 2003

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUPERGEN,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/  DR.
  JOSEPH RUBINFELD

  
	
   

  	
   

  	
  Dr.
  Joseph Rubinfeld

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  



 


 


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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:

  	
   

  
					



 


 

















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 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.  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 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: