EXHIBIT 10.2


 


SUPERGEN, INC.


 


COMMON STOCK PURCHASE
AGREEMENT


 


October 22, 2009


 

















 


SUPERGEN, INC.


 


COMMON STOCK PURCHASE
AGREEMENT


 


This
Common Stock Purchase Agreement (this “Agreement”) is
made as of October 22, 2009 (the “Effective Date”)
by and between SuperGen, Inc., a Delaware corporation (the “Company”) and SmithKline Beecham Corporation, doing business
as GlaxoSmithKline, a Pennsylvania corporation (the “Purchaser”).


 


BACKGROUND


 


A.            The Company desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Company, shares of the Company’s common
stock, par value $0.001 per share (the “Common
Stock”), on the terms and conditions set forth in this Agreement.


 


B.            In connection with the sale and purchase of the shares of
Common Stock hereunder, the Purchaser and the Company have agreed to enter into
that certain Commercial Research and License Agreement of even date herewith
(the “Research Agreement”).


 


NOW,
THEREFORE, in
consideration of the respective representations, warranties, covenants and
conditions set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:


 


SECTION 1




AUTHORIZATION, SALE AND ISSUANCE


 


1.1          Authorization.  The Company
will, prior to the Closing (as defined below), authorize the sale and issuance
of up to nine hundred ninety thousand and ninety-nine (990,099) shares of the
Company’s Common Stock to the Purchaser in accordance with the terms of this
Agreement.


 


1.2          Sale and Issuance of
Shares.  Subject to the terms and conditions of this Agreement, the
Purchaser shall purchase from the Company, and the Company shall sell and issue
to the Purchaser, nine hundred ninety thousand and ninety-nine (990,099) shares
of the Common Stock (the “Shares”) at an
aggregate purchase price of Three Million U.S. Dollars ($3,000,000) (the “Purchase Price”), by wire transfer of immediately available
funds.


 


SECTION 2


 


CLOSING DATES AND DELIVERY


 


2.1          Closing.  Subject
to the satisfaction or waiver of the conditions set forth in this Agreement,
the purchase, sale and issuance of the Shares shall take place at one closing
(the “Closing”). The Closing shall take place
at 10:00 a.m. local time, on a date mutually agreed upon by the parties to
this Agreement, which shall be no later than the second business day after the
satisfaction or waiver of the conditions to the obligations of the parties set
forth in Section 6.1 and Section 6.2 of this Agreement (the “Closing Date”).


 


2.2          Delivery.  At the
Closing, the Company will deliver to the Purchaser a certificate registered in
the Purchaser’s name representing the number of Shares that the Purchaser is
purchasing against payment of the Purchase Price, by wire transfer of
immediately available funds to an account designated by the


 

















 


Company. 
The certificate representing the Shares shall be subject to legends
restricting transfer as set forth in Section 4.5 below.  Additionally, the Company shall deliver to
the Purchaser such other documents as required pursuant to Section 6.1 of
this Agreement.


 


SECTION 3




REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


The
Company hereby represents and warrants to the Purchaser as of the Effective
Date and as of the Closing Date, as applicable, as follows:


 


3.1          Organization, Good
Standing and Qualification.  The Company is a
corporation duly organized and validly existing under, and by virtue of, the
laws of Delaware and is in good standing under such laws, has all requisite
power and authority to own or lease its properties and operate its business as
it is now being conducted, and is duly qualified to do business and in good
standing as a foreign corporation in any applicable jurisdiction, except where
the failure to be so qualified or in good standing would not have a Material
Adverse Effect.  For purposes of this
Agreement, “Material Adverse Effect” shall
mean a material adverse effect on, or a material adverse change in, or group of
such effects on or changes in the business, properties, assets, liabilities,
operations or condition (financial or otherwise) of the Company.


 


3.2          Authorization


 


(a)           The Company has all requisite power
and authority to execute, deliver and perform its obligations under this
Agreement.  All corporate action on the
part of the Company and its board of directors necessary for the authorization,
execution, delivery and performance of this Agreement by the Company, the
authorization, sale, issuance and delivery of the Shares, and the performance
of all of the Company’s obligations under this Agreement has been taken or will
be taken prior to the Closing.


 


(b)           The Shares, when issued in compliance
with the provisions of this Agreement, will be validly issued, fully paid and
nonassessable, and free of any liens; provided, however, that the
Shares are subject to restrictions on transfer under state and/or federal
securities laws and as set forth in this Agreement.  The board of directors of the Company has
approved and adopted this Agreement and the transactions contemplated hereby,
declared the advisability of the transactions contemplated by this Agreement
and has not, as of the Effective Date, rescinded or modified in any respect any
of such actions.


 


(c)           The execution and delivery by the
Company of this Agreement does not, and the consummation of the transactions
contemplated hereby and thereby will not, (i) conflict with, or result in
any violation of or breach of any material provision of the Certificate of
Incorporation or Bylaws of the Company,  (ii) conflict
with or violate any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company, (iii) result in a violation or
breach of (or give rise to any right of termination, revocation, cancellation
or acceleration under or increased payments under), or constitute a default
(with or without due notice or lapse of time or both) under, or result in the
creation of any lien, mortgage, charge, encumbrance or security interest of any
kind upon any of the properties or assets of the Company under any of the
terms, conditions or provisions of any of the Material Contracts (as defined in
Section 3.7 below), except in the cases of clauses (ii) or (iii) for
such conflicts or violations which would not be reasonably likely to have a
Material Adverse Effect.


 


(d)           No consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
entity is required by or with respect to the Company in connection with the
execution and delivery of this Agreement, except (i) such other consents,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal and state securities laws and the laws
of


 


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any
foreign country and (ii) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not be
reasonably likely to have a Material Adverse Effect, all of which consents,
authorizations, filings, approvals and registrations (other than filings and registrations
with the Securities and Exchange Commission (the “SEC”)
and with state securities authorities and agencies pertaining to the issuance
of the Shares) have been made or obtained by the Company prior to the date of
this Agreement.


 


(e)           The Company is not in default under
or in violation of (and no event has occurred and no condition exists which,
upon notice or the passage of time (or both), would constitute a default under)
(i) the Company’s Certificate of Incorporation or Bylaws or (ii) any
order, writ, injunction or decree of any court or any governmental entity,
except, in the case of clause (ii), for defaults or violations which would not
be reasonably likely to have a Material Adverse Effect.


 


3.3          Enforceability.  This
Agreement, when executed and delivered by the Company, will constitute a legal
and binding agreement of the Company, enforceable against it in accordance with
its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.


 


3.4          SEC Documents.  The
Company has timely filed all reports, registration statements, proxy statements
and other materials, together with any amendments thereto, required to be filed
by the Company with the SEC under the Securities Exchange Act of 1934, as
amended (the “SEC  Filings”).  Each SEC Filing, as of its date, or if
amended prior to the date of this Agreement, as of the date of such amendment,
complied in all material respects with the applicable requirements of the
Securities Act of 1933, as amended (the “Securities Act”)
or the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
or any successor federal statute and the rules and regulations of the SEC
promulgated thereunder. As of their respective dates filed, the SEC Filings do
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading. 
The financial statements contained in the SEC Filings fairly present the
financial position of the Company and its subsidiaries as of the dates thereof
and for the periods covered thereby and have been prepared in accordance with
U.S. generally accepted accounting principles (“GAAP”) (in the case of the unaudited statements, all footnotes
required by GAAP may not be included and subject to normal year-end audit
adjustments).


 


3.5          Absence of Certain
Events and Changes. Except as disclosed in the SEC Filings filed prior
to the Effective Date, since the date of filing of the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 2009 with
the SEC, (i) the Company has conducted its businesses in the ordinary course
consistent with past practice, (ii) there has not been any event, change
or development which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect or (iii) there has not been any
acquisition or disposition of any material assets (or any contract or
arrangement therefore) or any other material transaction by the Company.


 


3.6          Compliance with Laws.  The Company has all material permits,
licenses, franchises, authorizations, orders and approvals of, and has made all
filings, applications and registrations with, governmental entities that are
required in order to permit it to carry on its business as presently conducted
and that are material to the business of the Company.  The Company has complied in all material
respects and is not in default or violation of, and, to the Company’s
knowledge, is not under investigation with respect to or threatened to be
charged with or given notice of any material violation of, any applicable
domestic (federal, state or local) or foreign law, statute, ordinance, license,
rule, regulation, policy or guideline, order, demand, writ, injunction, decree
or judgment of any governmental entity.


 


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3.7          Material Contracts.  As of the Effective Date, the Company has
filed as exhibits to the SEC Filings all material agreements required to be
filed under the rules and regulations of the SEC (the “Material Contracts”), and (i) to the Company’s
knowledge, all Material Contracts are valid, binding and in full force and
effect and enforceable against the Company as of the Effective Date, (ii) the
Company is in all material respects in compliance with and has in all material
respects performed all obligations required to be performed by it to date under
each Material Contract; and (iii) as of the Effective Date, the Company
does not know of, and has not received written notice of, any material
violation or default (or any condition which with the passage of time or the
giving of notice would cause such a violation of or a default) by any other
party under any Material Contract.


 


3.8          Private Placement.  Assuming the accuracy of the Purchaser’s
representations and warranties set forth in Section 4.2, no registration
under the Securities Act is required for the offer and sale of the Shares by
the Company to the Purchaser as contemplated hereby.


 


3.9          Investment Company.  The Company is not, and immediately after
receipt of payment for the Shares will not be, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended.  The Company is not an “affiliated person” of,
or “promoter” or “principal underwriter” for an investment company, within the
meaning of the Investment Company Act of 1940, as amended.


 


3.10        Subsidiaries.  The Company has no Subsidiaries and no equity
interests or investments in any partnership, trust or other entity or
organization.  For purposes of this
Agreement, “Subsidiary” shall mean an entity
of which a Person owns or controls, directly or indirectly, more than twenty
percent (20%) of the voting stock of such entity.


 


3.11        Brokerage.  There are no claims for brokerage commissions
or finder’s fees or similar compensation in connection with the transactions
contemplated by this Agreement or the Research Agreement based on any
arrangement made by or on behalf of the Company, and the Company agrees to
indemnify and hold the Purchaser harmless against any costs or damages incurred
as a result of any such claim.


 


3.12        Intellectual Property.  Except as disclosed in
the SEC Filings, and except for matters which are not reasonably likely to have
a Material Adverse Effect, the Company owns or controls the intellectual
property rights necessary for the conduct of its business as now conducted. To
the Company’s knowledge, the conduct of its business as currently conducted
does not materially infringe upon the intellectual property rights of any third
party.


 


3.13        FDA Approval


 


(a)           All clinical trials conducted by or
for the benefit of the Company, and that have or will be submitted to the Food
and Drug Administration (the “FDA”) as a basis for regulatory approval, have
been, or are being, conducted in material compliance with the applicable requirements of “Good Clinical
Practice,” informed consent, and all applicable requirements relating to
protection of human subjects contained in 21 C.F.R.;


 


(b)           All manufacturing operations
currently conducted by or for the benefit of the Company for the manufacture of
drugs for human use have been and are being conducted in material compliance
with the FDA’s applicable current “Good Manufacturing Practice” regulations;


 


(c)           The Company has not received any
notice that the FDA has commenced, or threatened to initiate, any action to
withdraw approval of any authorization needed to conduct its business as
currently conducted; and


 


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(d)           The Company has no product
on clinical hold nor has the Company received written notice indicating that
any product will be subject to a clinical hold.


 


SECTION 4




REPRESENTATIONS AND WARRANTIES OF THE PURCHASER


 


The
Purchaser hereby represents and warrants to the Company as of the Effective
Date and as of the Closing Date, as applicable, as follows:


 


4.1          Authorization


 


(a)           The Purchaser has all requisite power
and authority to execute and deliver this Agreement, to purchase the Shares
hereunder and to carry out and perform its obligations under the terms of this
Agreement. All action on the part of the Purchaser necessary for the
authorization, execution, delivery and performance of this Agreement, and the
performance of all of the Purchaser’s obligations under this Agreement, has
been taken or will be taken prior to the Closing.


 


(b)           This Agreement, when executed and
delivered by the Purchaser, will constitute a valid and legally binding
obligation of the Purchaser, enforceable in accordance with its terms except: (i)  as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable remedies or by
general principles of equity.


 


(c)           No consent, approval, authorization,
order, filing, registration or qualification of or with any court, governmental
authority or third person is required to be obtained by the Purchaser in
connection with the execution and delivery of this Agreement by the Purchaser
or the performance of the Purchaser’s obligations hereunder or thereunder.


 


4.2          No Registration; Investment Intent


 


(a)           Registration.  The Purchaser understands that the Shares
have not been, and will not be, registered under the Securities Act by reason
of a specific exemption from the registration provisions of the Securities Act,
the availability of which depends upon, among other things, the bona fide
nature of the investment intent and the accuracy of the Purchaser’s
representations as expressed in this Section 4.2.


 


(b)           Investment Intent. The
Purchaser is acquiring the Shares for investment for its own account, not as a
nominee or agent, and not with the view to, or for resale in connection with,
any distribution thereof, and the Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the
same.  The Purchaser further represents
that it does not have any contract, undertaking, agreement or arrangement with
any person or entity to sell, transfer or grant participation to such person or
entity or to any third person or entity with respect to any of the Shares.  The Shares were not offered to the Purchaser
through, and the Purchaser is not aware of, any form of general solicitation or
general advertising, including, without limitation, (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio and (ii) any seminar
or meeting whose attendees have been invited by any general solicitation or
general advertising.


 


(c)           Investment Experience.  The
Purchaser has substantial experience in evaluating and investing in private
placement transactions of securities in companies similar to the Company and


 


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acknowledges that the Purchaser can protect its own interests. The
Purchaser has such knowledge and experience in financial and business matters
so that the Purchaser is capable of evaluating the merits and risks of its
investment in the Company.  The Purchaser
understands and acknowledges that an investment in the Company is speculative
and involves substantial risks. The Purchaser can bear the economic risk of the
Purchaser’s investment and is able, without impairing the Purchaser’s financial
condition, to hold the Shares for an indefinite period of time and to suffer a
complete loss of the Purchaser’s investment.


 


(d)           Accredited Investor; Residency.  The
Purchaser is an “accredited investor” within the meaning of Regulation D, Rule 501(a),
promulgated by the SEC under the Securities Act.  The Purchaser’s place of business is
correctly set forth in this Agreement.


 


(e)           Rule 144.  The
Purchaser acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available. The Purchaser is aware of the provisions of Rule 144
promulgated under the Securities Act which permit resale of shares purchased in
a private placement subject to the satisfaction of certain conditions, which
may include, among other things, the availability of certain current public
information about the Company; the resale occurring not less than a specified
period after a party has purchased and paid for the security to be sold; the
number of shares being sold during any three-month period not exceeding
specified limitations; the sale being effected through a “brokers’ transaction,”
a transaction directly with a “market maker” or a “riskless principal
transaction” (as those terms are defined in the Securities Act or the Exchange
Act, and the rules and regulations promulgated thereunder); and the filing
of a Form 144 notice, if applicable. The Purchaser acknowledges and
understands that the Company may not be satisfying the current public
information requirement of Rule 144 at the time the Purchaser wishes to
sell the Shares, and that, in such event, the Purchaser may be precluded from
selling such securities under Rule 144, even if the other applicable
requirements of Rule 144 have been satisfied. The Purchaser acknowledges
that, in the event the applicable requirements of Rule 144 are not met,
registration under the Securities Act or an exemption from registration will be
required for any disposition of the Shares. The Purchaser understands that,
although Rule 144 is not exclusive, the SEC has expressed its opinion that
persons proposing to sell restricted securities received in a private offering
other than in a registered offering or 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 the brokers who
participate in the transactions do so at its own risk.


 


(f)            Access to Data.  The
Purchaser has, prior to the date of this Agreement, reviewed the Company’s most
recent SEC Filings and has had an opportunity to review material contracts and
documents of the Company which have been filed as exhibits to such SEC
Filings.  The Purchaser has had an
opportunity to discuss the Company’s business, management and financial affairs
with its management.  The Purchaser has
also had an opportunity to ask questions of officers of the Company, which
questions were answered to its satisfaction. 
The Purchaser, in making the investment decision, has read, reviewed,
and relied solely on the Company’s SEC Filings and other documents furnished by
the Company, pursuant to this Agreement and the Company’s representations and
warranties contained herein.  The
Purchaser is not relying on any oral representation of the Company or any other
person, nor any written representation or assurance from the Company other than
those contained in the SEC Filings or incorporated herein or therein.  The foregoing, however, does not limit or
modify the Purchaser’s right to rely upon the representations and warranties of
the Company in Section 3 of this Agreement.  The Purchaser acknowledges and agrees that
the Company has no responsibility for, does not ratify, and is under no
responsibility whatsoever to comment upon or correct any reports, analyses or other
comments made about the Company by any third parties, including, but not
limited to, analysts’ research reports or comments, and the Purchaser has not
relied upon any such third party reports in making the decision to invest.


 


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4.3          Brokers or Finders.  The
Purchaser has not engaged any brokers, finders or agents.  The Company shall have no liability or
obligation of any kind to any agent, broker, investment banker, financial
adviser or other firm or person engaged or retained by the Purchaser who is or
will be entitled to any broker’s or finder’s fee, or any other commission or
similar fee, in connection with any of the transactions contemplated by this
Agreement, and the Purchaser agrees to indemnify and hold the Company harmless
from and against any and all claims, liabilities or obligations with respect to
any such fees or commissions asserted by any person engaged or retained on the
basis of any act or statement determined to have been made to such person by
the Purchaser.


 


4.4          Tax Advisors.  The
Purchaser has reviewed with its own tax advisors the U.S. federal, state, local
and foreign tax consequences of this investment and the transactions
contemplated by this Agreement. With respect to such matters, the Purchaser
relies solely on such advisors and not on any statements or representations of
the Company or any of its agents, written or oral. The Purchaser understands
that it (and not the Company) shall be responsible for its own tax liability
that may arise as a result of this investment or the transactions contemplated
by this Agreement, and the Purchaser agrees to indemnify and hold the Company
harmless from and against any and all claims, liabilities or obligations with
respect to the tax consequences of this investment and the transactions
contemplated by this Agreement.


 


4.5          Legends.  The
Purchaser understands and agrees that the certificates evidencing the Shares,
or any other securities issued in respect of the Shares, any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall bear
the following legends:


 


THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND/OR APPLICABLE STATE SECURITIES
LAWS, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER
EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.”


 


THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY AND RESALE, INCLUDING A LOCK-UP PERIOD, AS SET FORTH IN A
COMMON STOCK PURCHASE AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF
THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF
THE COMPANY.


 


SECTION 5




ADDITIONAL AGREEMENTS & COVENANTS


 


The
Company and the Purchaser further agree with each other as follows:


 


5.1          Confidentiality. Except
as permitted by Section 5.2 below or by the terms of the Confidential
Disclosure Agreement between the Company and the Purchaser effective as of December 1,
2008 and the Confidential Disclosure Agreement between the Company and the
Purchaser effective as of June 18, 2009 (together, the “Confidentiality Agreements”), all
confidential information of the parties shall be protected in accordance with
the terms and conditions set forth in the Confidentiality Agreements.


 


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5.2          Public Announcements. The
parties may release a joint press release promptly after the Effective Date.
Except as may be required by law, the SEC, stock exchange or other regulatory
authority, neither party nor any of their respective Affiliates (as such term
is defined in the Research Agreement), shall originate any publicity, news
release or other public announcement, written or oral, relating to the
confidential terms or conditions contained herein without the prior express written
approval of the other party, and agreement upon the nature and text of such
announcement or disclosure, which approval shall not be unreasonably withheld.
A party desiring to make any such public announcement or other disclosure shall
seek confidential treatment if requested by the other party and to the extent
reasonably practical, and shall inform the other party of the proposed
announcement or disclosure in reasonably sufficient time prior to public
release, and shall provide the other party with a written copy thereof, in
order to allow such other party to comment upon such announcement or
disclosure. Unless disclosure is required in a shorter period of time, the
party receiving the proposed release will have at least five (5) days to
review any such release.


 


5.3          Restrictions on
Transfer.  The
Purchaser agrees that until the first anniversary of the Effective Date, it may
not effect any sale or transfer of the Shares, or any beneficial interest
therein (the “Lock-Up”).  On the first anniversary of the Effective
Date, twenty-five percent (25%) of the Shares shall be released from the
Lock-up.  The remaining seventy-five
percent (75%) of the Shares shall be released from the Lock-up in four equal
installments at the end of each three month period following the first
anniversary of the Effective Date, such that all of the Shares are released
from the Lock-up on the second anniversary of the Effective Date.  The Purchaser agrees that any Shares sold,
once released from the Lock-up, shall be sold in compliance with applicable
securities laws. Notwithstanding the foregoing, the Purchaser shall be entitled
to transfer any or all of the Shares to one or more affiliate(s) of the
Purchaser during the Lock-Up period; provided that the restrictions on
transfers set forth herein shall apply to such transferee affiliate(s).  For purposes of this Section 5.3, a “sale”
of the Shares means any sale, assignment, transfer, distribution or other
disposition thereof or of a participation therein, and “affiliate” means any corporation
or other business entity that controls, is controlled by, or is under common
control with the Purchaser (a corporation or other entity will be regarded as
in “control” of another corporation or entity if it (i) owns or directly
or indirectly controls at least fifty (50%) of the outstanding shares or other
voting rights of the other corporation or entity having the right to elect
directors or such lesser percentage that is the maximum permitted to be owned
by a foreign entity in those jurisdictions where majority ownership by foreign
entities is prohibited, or (ii) in the case of a non-corporate business
entity, if it possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of the corporation or non-corporate
business entity, as applicable, whether through the ownership or control of
voting securities, by contract or otherwise).


 


5.4          Further Assurances.  At any time or from time to time after the
Closing, each party shall execute and deliver to the other party such other
documents and instruments, provide such materials and information and take such
other actions as either party may reasonably request more effectively to carry
out the provisions of this Agreement. 
Should the Purchaser wish to sell the Shares pursuant to Rule 144
promulgated under the Securities Act, or under any other available exemption,
the Company shall remove any legends on the Shares and provide an opinion of
counsel should the Purchaser reasonably request.


 


SECTION 6



CONDITIONS TO CLOSING


 


6.1          Conditions to the
Purchaser’s Obligation to Acquire the Shares.  The obligation of
the Purchaser to purchase the Shares hereunder is subject to the satisfaction,
on or prior to the Closing Date, of the following conditions, any of which may
be waived by the Purchaser, in the Purchaser’s sole discretion, to the extent
permitted by law:


 


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(a)           Execution
and Delivery.  An authorized
signatory of the Company shall have executed and delivered to the Purchaser
this Agreement and the Research Agreement.


 


(b)           Representations
and Warranties True.  The representations and warranties
made by the Company in this Agreement shall be true and correct in all material
respects when made, and shall be true and correct in all material respects on
the Closing with the same force and effect as if they had been made on and as
of the Closing, except for (i) those representations and warranties that
are made as of a specific date (other than the Effective Date), which shall be
true and correct in all material respects as of such date and (ii) those
representations and warranties which are qualified by materiality, in which
case each such representation and warranty qualified by materiality shall be
true and correct in all respects as of the Closing.


 


(c)           Compliance.  The Company will
have materially performed and complied with each of its agreements, covenants
and obligations contained in this Agreement on or prior to the Closing.


 


(d)           No Violation.  No statute, rule,
regulation, order, or interpretation shall have been enacted, entered or deemed
applicable by any domestic or foreign government or governmental or
administrative agency or court which would make the transactions contemplated
by this Agreement illegal.


 


(e)           Deliveries
of the Company.  At the time
of the Closing, the Company shall deliver to the Purchaser a certificate, dated
the Closing Date, of the Secretary of the Company attaching:  (i) a true and complete copy of the
Certificate of Incorporation of the Company, with all amendments thereto,
certified as of a date not more than five days prior to the Closing Date by the
Secretary of State of the State of Delaware; (ii) true and complete copies
of the Company’s By-laws, as amended, in effect as of such date; (iii) a
certificate from the Secretary of State of the State of Delaware as to the good
standing of the Company certified as of a date not more than two (2) days
prior to the Closing Date; and (iv) a copy of those portions of the
resolutions of the Company’s board of directors authorizing the sale by the
Company of the Shares and the other transactions contemplated by this
Agreement.


 


6.2          Conditions to Company’s
Obligation to Issue the Shares.  The Company’s
obligation to sell the Shares to the Purchaser hereunder is subject to the
satisfaction, on or prior to the Closing Date, of the following conditions, any
of which may be waived by the Company, in its sole discretion, to the extent
permitted by law:


 


(a)           Execution
and Delivery.  An authorized
signatory of the Purchaser shall have executed and delivered to the Company
this Agreement and the Research Agreement.


 


(b)           Representations
and Warranties True.  The representations and warranties
made by the Purchaser in this Agreement shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had been
made on and as of the Closing Date, except for (i) those representations
and warranties that are made as of a specific date (other than the Effective
Date), which shall be true and correct in all material respects as of such date
and (ii) those representations and warranties which are qualified by
materiality, in which case each such representation and warranty qualified by
materiality shall be true and correct in all respects as of the Closing.


 


(c)           No Violation.
 No
statute, rule, regulation, order, or interpretation shall have been enacted,
entered or deemed applicable by any domestic or foreign government or
governmental or administrative agency or court which would make the
transactions contemplated by this Agreement illegal.


 


(d)           Compliance.  The Purchaser will
have materially performed and complied with each of its agreements and
obligations contained in this Agreement on or prior to the Closing.


 


9














 


(e)                                  Deliveries
of the Purchaser.  Within five
(5) business days of the Closing, the Purchaser shall deliver to the
Company payment in full of the Purchase Price.


 


SECTION 7


 


MISCELLANEOUS


 


7.1                               Amendment.  Except
as expressly provided herein, neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
referencing this Agreement and signed by the Company and the Purchaser.  Any such amendment, waiver, discharge or
termination effected in accordance with this paragraph shall be binding upon
each holder of any securities purchased under this Agreement at the time
outstanding (including securities into which such securities have been
converted or exchanged or for which such securities have been exercised) and
each future holder of all such securities.


 


7.2                               Notices.  All
notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by registered or certified mail, postage prepaid,
sent by facsimile or electronic mail or otherwise delivered by hand, messenger
or courier service addressed as follows:


 


If
to the Purchaser:


 


GlaxoSmithKline

709 Swedeland Road

P.O. Box 1539


King
of Prussia, PA 19406-0939

Attention: Senior Vice President of Worldwide Business Development

Telephone:  (610) 270- 5397

Facsimile:  (610) 270-5166


 


With
a copy to:


 


GlaxoSmithKline


2301 Renaissance Blvd.


King of Prussia, PA 1946-2772


Attention: 
Vice President, R&D Legal Operations Business Development
Transactions


Telephone: (610) 787-4093


Facsimile:
(610) 787-7084


 


Or
to such other address (including electronic mail address) as the Purchaser
shall have furnished to the Company in writing or by electronic mail; or


 


If
to the Company:


 


SuperGen, Inc.


4140 Dublin Road, Suite 200

Dublin, CA  94568

Attn:  Dr. James S.J. Manuso,
President and Chief Executive Officer

Telephone:  (925) 560-0100

Facsimile:  (925) 551-5695


Email
address: jmanuso@supergen.com


 


10

















 


With
a copy to:


 


Wilson Sonsini Goodrich & Rosati, P.C. 

650 Page Mill Road 

Palo Alto, CA 94304-1050

Attn: Page Mailliard, Esq.

Telephone:  (650) 493-9300

Facsimile:  (650) 493-6811


Email address: pmailliard@wsgr.com


 


Each
such notice or other communication shall for all purposes of this Agreement be
treated as effective or having been given (i) if delivered by hand,
messenger or courier service, when delivered (or if sent via a
nationally-recognized overnight courier service, freight prepaid, specifying
next-business-day delivery, one business day after deposit with the courier),
or (ii) if sent via mail, at the earlier of its receipt or five days after
the same has been deposited in a regularly-maintained receptacle for the
deposit of the United States mail, addressed and mailed as aforesaid, or (iii) if
sent via facsimile, upon confirmation of facsimile transfer or, if sent via
electronic mail, upon confirmation of delivery when directed to the relevant
electronic mail address, if sent during normal business hours of the recipient,
or if not sent during normal business hours of the recipient, then on the
recipient’s next business day.


 


7.3                               Governing
Law.  This Agreement shall be governed in all respects by the
internal laws of the State of Delaware as applied to agreements entered into among
Delaware residents to be performed entirely within Delaware, without regard to
principles of conflicts of law.


 


7.4                               Expenses.  The
Company and the Purchaser shall each pay their own expenses in connection with
the transactions contemplated by this Agreement.


 


7.5                               Survival.  The
representations, warranties, covenants and agreements made in this Agreement
shall survive any investigation made by any party hereto and the closing of the
transactions contemplated hereby.


 


7.6                               Successors
and Assigns.  This Agreement, and any and all rights,
duties and obligations hereunder, shall not be assigned, transferred or
delegated by the Purchaser without the prior written consent of the Company,
except as otherwise specifically stated in this Agreement and except that the
Purchaser shall be entitled to effect any assignment, transfer or delegation of
any and all rights, duties and obligations hereunder to any of its Affiliates
(as such term is defined in the Research Agreement), in both such cases without
the requirement of the Company’s consent. Any attempt by the Purchaser without
such permission to assign, transfer or delegate any rights, duties or
obligations that arise under this Agreement shall be void. Subject to the
foregoing and except as otherwise provided herein, the provisions of this
Agreement shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.


 


7.7                               Entire
Agreement.  This Agreement and the Confidentiality
Agreements constitute the full and entire understanding and agreement between
the parties with regard to the subjects hereof and thereof. No party shall be
liable or bound to any other party in any manner with regard to the subjects
hereof or thereof by any warranties, representations or covenants except as
specifically set forth herein or therein.


 


7.8                               Delays
or Omissions.  Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
to this Agreement upon any breach or default of any other party under this
Agreement shall impair any such right, power or remedy of such non-defaulting
party, nor


 


11

















 


shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring, nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party to this Agreement,
shall be cumulative and not alternative.


 


7.9                               Severability.  If any
provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, portions of such provision,
or such provision in its entirety, to the extent necessary, shall be severed
from this Agreement, and such court will replace such illegal, void or
unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the same economic,
business and other purposes of the illegal, void or unenforceable provision.
The balance of this Agreement shall be enforceable in accordance with its
terms.


 


7.10                        Counterparts.  This
Agreement may be executed in any number of counterparts, each of which shall be
enforceable against the parties actually executing such counterparts, and all
of which together shall constitute one instrument.


 


7.11                        Telecopy
Execution and Delivery.  A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto
and delivered by such party by facsimile or any similar electronic transmission
device pursuant to which the signature of or on behalf of such party can be
seen. Such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party hereto, all parties
hereto agree to execute and deliver an original of this Agreement as well as
any facsimile, telecopy or other reproduction hereof.


 


7.12                        Jurisdiction.  Each of parties irrevocably agrees that any legal action or
proceeding with respect to this Agreement or for recognition and enforcement of
any judgment in respect hereof brought by the other party hereto or its
successors or assigns shall be brought and determined in the Chancery or other
Courts of the State of Delaware, and each of parties hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of such
court.


 


7.13                        Jury
Trial.  THE PURCHASER AND THE COMPANY HEREBY IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE ACTIONS OF THE PURCHASER AND THE COMPANY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.


 


7.14                        Other Remedies.  Except
as otherwise provided herein, any and all remedies herein expressly conferred
upon a party will be deemed cumulative with and not exclusive of any other
remedy conferred hereby, or by law or equity upon such party, and the exercise
by a party of any one remedy will not preclude the exercise of any other
remedy.


 


(signature page follows)


 


12

















 


The parties are signing this
Common Stock Purchase Agreement as of the date stated in the introductory
clause.


 


 


	
   

  	
  SUPERGEN, INC.

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /S/ JAMES S.J. MANUSO

  
	
   

  	
   

  	
  James S.J. Manuso, Ph.D.

  
	
   

  	
   

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SMITHKLINE BEECHAM CORPORATION D/B/A
  GLAXOSMITHKLINE

  
	
   

  	
  a Pennsylvania corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /S/ WILLIAM J. MOSHER

  
	
   

  	
   

  	
  William J. Mosher

  
	
   

  	
   

  	
  Company Secretary