Exhibit 10.4


 


FORM OF WARRANT


 


NEITHER THE ISSUANCE AND SALE OF THE SECURITY
REPRESENTED BY THIS WARRANT NOR THE SECURITIES INTO WHICH THIS WARRANT IS
EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. 
THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS, OR (B) AN OPINION OF COUNSEL, IN A FORM REASONABLY ACCEPTABLE
TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND APPLICABLE
STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT.  NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 


SUPERGEN, INC.


 


WARRANT TO PURCHASE COMMON STOCK


 


Number of
Shares: 

Date of Issuance: February 26, 2003 (“Issuance Date”)


 


SuperGen,
Inc., a Delaware corporation (the “Company”), hereby certifies that, for Ten
United States Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
                              ,
the registered holder hereof or its permitted assigns, is entitled, subject to
the terms set forth below, to purchase from the Company, at the Exercise Price
(as defined below) then in effect, upon surrender of this Warrant to Purchase
Common Stock (including all Warrants to Purchase Common Stock issued in
exchange, transfer or replacement hereof, the “Warrant”), at any time or
times on or after the date hereof, but not after 11:59 P.M., New York City
Time, on the Expiration Date (as defined below),
                             
(                    )(1)
fully paid nonassessable shares of Common Stock (as defined below)  (the
“Warrant
Shares”).  Except as
otherwise defined herein, capitalized terms in this Warrant shall have the
meanings set forth in Section 15.  This
Warrant is one of the Warrants to Purchase Common Stock (the “SPA Warrants”)
issued pursuant to Section 1 of that certain Securities Purchase Agreement,
dated as of February 26, 2003 (the “Initial Issuance Date”), among the Company
and the purchasers (the “Purchasers”) referred to therein (the “Securities
Purchase Agreement”).


 












(1)           Number of shares of Common Stock for each $1,000 of
principal amount of Notes purchased on the Closing Date equal to the quotient
of (a) $329 divided by (b) $3.50.


 

















 


1.             EXERCISE OF WARRANT.


 


(a)           Mechanics of Exercise.  Subject to the terms and conditions hereof
(including, without limitation, the limitations set forth in Section 1(f)),
this Warrant may be exercised by the holder hereof on any day, in whole or in
part, by (i) delivery of a written notice, in the form attached hereto as Exhibit
A (the “Exercise Notice”), of such holder’s election to exercise this
Warrant, (ii) (A) payment to the Company of an amount equal to the
applicable Exercise Price multiplied by the number of Warrant Shares as to
which this Warrant is being exercised (the “Aggregate Exercise Price”) in
cash by wire transfer of immediately available funds, (B) cashier’s check drawn
on a United States bank or (C) by notifying the Company that this Warrant is
being exercised pursuant to a Cashless Exercise (as defined in Section 1(d))
and (iii) the surrender to a common carrier for overnight delivery to the
Company, or as soon as practicable following the date the holder of this Warrant
delivers the Exercise Notice to the Company, of this Warrant (or an
indemnification undertaking with respect to this Warrant in the case of its
loss, theft or destruction).  On or
before the third Business Day following the date on which the Company has
received each of the Exercise Notice, the Aggregate Exercise Price (or notice
of a Cashless Exercise) and this Warrant (or an indemnification undertaking
with respect to this Warrant in the case of its loss, theft or destruction)
(the “Exercise
Delivery Documents”), the Company shall (X) issue and deliver to the
address as specified in the Exercise Notice, a certificate, registered in the
name of the holder of this Warrant or its designee, for the number of shares of
Common Stock to which the holder of this Warrant is entitled pursuant to such
exercise, or (Y) provided that the Company’s transfer agent (the “Transfer
Agent”) is participating in The Depository Trust Company (“DTC”)
Fast Automated Securities Transfer Program, upon the request of the holder, credit
such aggregate number of shares of Common Stock to which the holder of this
Warrant is entitled pursuant to such exercise to the holder’s or its designee’s
balance account with DTC through its Deposit Withdrawal Agent Commission
system.  Upon delivery of the Exercise
Notice, this Warrant and the Aggregate Exercise Price referred to in clause
(ii)(A) above or notification to the Company of a Cashless Exercise referred to
in Section 1(d), the holder of this Warrant shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares with respect
to which this Warrant has been exercised, irrespective of the date of delivery
of this Warrant as required by clause (iii) above or the certificates
evidencing such Warrant Shares.  If the
number of Warrant Shares represented by this Warrant submitted for exercise
pursuant to this Section 1(a) is greater than the number of Warrant Shares
being acquired upon an exercise, then the Company shall as soon as practicable
and in no event later than five Business Days after any exercise and at its own
expense, issue a new Warrant (in accordance with Section 7(d)) representing the
right to purchase the number of Warrant Shares purchasable immediately prior to
such exercise under this Warrant, less the number of Warrant Shares with
respect to which this Warrant is exercised. 
No fractional shares of Common Stock are to be issued upon the exercise
of this Warrant, but rather the number of shares of Common Stock to be issued
shall be rounded up to the nearest whole number.  The Company shall pay any and all taxes, including without
limitation, all documentary stamp, transfer or similar taxes, or other
incidental expense that may be payable with respect to the issuance and
delivery of Warrant Shares upon exercise of this Warrant.


 


(b)           Exercise Price.  For purposes of this Warrant, “Exercise
Price” means $5.00 subject to adjustment as provided herein.


 


(c)           Company’s Failure to Timely Deliver
Securities.  Subject to Section
1(f), if the Company shall fail for any reason or for no reason to issue to the
holder within three


 


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Business Days of receipt of the Exercise Delivery Documents, a
certificate for the number of shares of Common Stock to which the holder is
entitled or to credit the holder’s balance account with DTC for such number of
shares of Common Stock to which the holder is entitled upon the holder’s
exercise of this Warrant, the Company shall pay as additional damages in cash
to such holder on each day after such third  Business Day that the issuance of such
Common Stock is not timely effected an amount equal to 1.0% of the product of
(A) the sum of the number of shares of Common Stock not issued to the holder on
a timely basis and to which the holder is entitled and (B) the Closing Sale
Price of the Common Stock on the trading day immediately preceding the last
possible date which the Company could have issued such Common Stock to the
holder without violating Section 1(a).


 


(d)           Cashless Exercise.  Notwithstanding anything contained
herein to the contrary, the holder of this Warrant may, in its sole discretion,
exercise this Warrant in whole or in part and, in lieu of making the cash
payment otherwise contemplated to be made to the Company upon such exercise in
payment of the Aggregate Exercise Price, elect instead to receive upon such
exercise the “Net Number” of shares of Common Stock determined according to the
following formula (a “Cashless Exercise”):


 


	
  Net Number =
  

  	
  (A x B) - (A
  x C)

  	
   

  	
   

  
	
   

  	
  B

  	
   

  	
   

  



 


For purposes
of the foregoing formula:


 


A= the total number of shares with respect to which this Warrant is
then being exercised.


 


B= the Closing Sale Price of the Common Stock (as reported by
Bloomberg) on the date immediately preceding the date of the Exercise Notice.


 


C= the Exercise Price then in effect for the applicable Warrant Shares
at the time of such exercise.


 


(e)           Disputes.  In the case of a dispute as to the
determination of the Exercise Price or the arithmetic calculation of the Warrant
Shares, the Company shall promptly issue to the holder the number of Warrant
Shares that are not disputed and resolve such dispute in accordance with
Section 12.


 


(f)            Limitations
on Exercises.


 


(i)            Beneficial
Ownership.  The Company shall not
effect the exercise of this Warrant, and no Person (as defined below) who is a
holder of this Warrant shall have the right to exercise this Warrant, to the
extent that after giving effect to such exercise, such Person (together with
such Person’s affiliates) would beneficially own in excess of 4.99% of the
shares of the Common Stock outstanding immediately after giving effect to such
exercise.  For purposes of the foregoing
sentence, the aggregate number of shares of Common Stock beneficially owned by
such Person and its affiliates shall include the


 


3

















 


number of shares of Common Stock issuable
upon exercise of this Warrant with respect to which the determination of such
sentence is being made, but shall exclude shares of Common Stock which would be
issuable upon (i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by such Person and its affiliates and (ii) exercise
or conversion of the unexercised or unconverted portion of any other securities
of the Company beneficially owned by such Person and its affiliates (including,
without limitation, any debentures, convertible notes or convertible preferred
stock or warrants) subject to a limitation on conversion or exercise analogous
to the limitation contained herein. 
Except as set forth in the preceding sentence, for purposes of this
paragraph, beneficial ownership shall be calculated in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended.  For purposes of this Warrant, in determining
the number of outstanding shares of Common Stock, a holder may rely on the
number of outstanding shares of Common Stock as reflected in (1) the Company’s
most recent Form 10-Q, Form 10-K or other public filing with the Securities and
Exchange Commission, as the case may be, (2) a more recent public announcement
by the Company or (3) any other notice by the Company or its Transfer Agent
setting forth the number of shares of Common Stock outstanding.  For any reason at any time, upon the written
or oral request of the holder of this Warrant, the Company shall within two
Business Days confirm orally and in writing to the holder of this Warrant the
number of shares of Common Stock then outstanding.  In any case, the number of outstanding shares of Common Stock
shall be determined after giving effect to the conversion or exercise of
securities of the Company, including the SPA Securities and the SPA Warrants,
by the holder of this Warrant and its affiliates since the date as of which
such number of outstanding shares of Common Stock was reported.


 


(ii)           Principal Market Regulation.  The Company shall not be obligated to issue
any shares of Common Stock upon exercise of this Warrant if the issuance of
such shares of Common Stock would exceed that number of shares of Common Stock
which the Company may issue upon exercise of this Warrant (including, as
applicable, any shares of Common Stock issued upon conversion of or as payment
of any interest under the SPA Securities) without breaching the Company’s
obligations under the rules or regulations of the Principal Market (the “Exchange Cap”),
except that such limitation shall not apply in the event that the Company (A)
obtains the approval of its stockholders as required by the applicable rules of
the Principal Market for issuances of Common Stock in excess of such amount or
(B) obtains a written opinion from outside counsel to the Company that such
approval is not required, which opinion shall be reasonably satisfactory to the
holders of the SPA Warrants representing at least a majority of the shares of
Common Stock underlying the SPA Warrants then outstanding.  Until such approval or written opinion is
obtained, no holder shall be issued, upon exercise of any SPA Warrants, shares
of Common Stock in an amount greater than the product of the Exchange Cap
multiplied by a fraction, the numerator of which is the total number of shares
of Common Stock underlying the SPA Warrants issued to such Purchaser pursuant
to the Securities Purchase Agreement on the Initial Issuance Date and the
denominator of which is the aggregate number of shares of Common Stock
underlying all the SPA Warrants issued to the Purchasers pursuant to the
Securities Purchase Agreement on the Initial Issuance Date (with respect to
each Purchaser, the “Exchange Cap Allocation”).  In the event that any Purchaser shall sell
or otherwise transfer any of such Purchaser’s SPA Warrants, the


 


4

















 


transferee shall be allocated a pro rata
portion of such Purchaser’s Exchange Cap Allocation, and the restrictions of
the prior sentence shall apply to such transferee with respect to the portion
of the Exchange Cap Allocation allocated to such transferee.  In the event that any holder of SPA Warrants
shall exercise all of such holder’s SPA Warrants into a number of shares of
Common Stock which, in the aggregate, is less than such holder’s Exchange Cap
Allocation, then the difference between such holder’s Exchange Cap Allocation
and the number of shares of Common Stock actually issued to such holder shall
be allocated to the respective Exchange Cap Allocations of the remaining
holders of SPA Warrants on a pro rata basis in proportion to the shares of
Common Stock underlying the SPA Warrants then held by each such holder.  In the event that the Company is prohibited
from issuing any Warrant Shares for which an Exercise Notice has been received
as a result of the operation of this Section 1(f)(ii), the Company shall pay
cash in exchange for cancellation of such Warrant Shares, at a price per
Warrant Share equal to the difference between the Closing Sale Price and the
Exercise Price as of the date of the attempted exercise.


 


2.             ADJUSTMENT OF EXERCISE PRICE AND
NUMBER OF WARRANT SHARES.  The
Exercise Price and the number of Warrant Shares shall be adjusted from time to
time as follows:


 


(a)           Adjustment
upon Subdivision or Combination of Common Stock.  If the Company at any time after the date of issuance of this
Warrant subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Exercise Price in effect immediately prior to
such subdivision will be proportionately reduced and the number of Warrant
Shares will be proportionately increased. 
If the Company at any time after the date of issuance of this Warrant
combines (by combination, reverse stock split or otherwise) one or more classes
of its outstanding shares of Common Stock into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares will be
proportionately decreased.  Any
adjustment under this Section 2(a) shall become effective at the close of business
on the date the subdivision or combination becomes effective.


 


(b)           Other
Considerations.  All calculations
under this Section 2 shall be made by the Company in good faith.


 


3.             RIGHTS UPON DISTRIBUTION OF
ASSETS.  If the Company shall
declare or make any dividend or other distribution of its assets (or rights to
acquire its assets) to holders of Common Stock, by way of return of capital or
otherwise (including, without limitation, any distribution of cash, stock or
other securities, property or options by way of a dividend, spin off,
reclassification, corporate rearrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case:


 


(a)           any
Exercise Price in effect immediately prior to the close of business on the
record date fixed for the determination of holders of Common Stock entitled to
receive the Distribution shall be reduced, effective as of the close of
business on such record date, to a price determined by multiplying such Exercise
Price by a fraction of which (i) the numerator shall be


 


5

















 


the Closing Bid Price of the Common Stock on the trading day
immediately preceding such record date minus the value of the Distribution (as
determined in good faith by the Company’s Board of Directors) applicable to one
share of Common Stock, and (ii) the denominator shall be the Closing Bid Price
of the Common Stock on the trading day immediately preceding such record date;
and


 


(b)           the
number of Warrant Shares shall be increased to a number of shares equal to the
number of shares of Common Stock obtainable immediately prior to the close of
business on the record date fixed for the determination of holders of Common
Stock entitled to receive the Distribution multiplied by the reciprocal of the
fraction set forth in the immediately preceding paragraph (a); provided that in
the event that the Distribution is of common stock (“Other Common Stock”) of a
company whose common stock is traded on a national securities exchange or a
national automated quotation system, then the holder of this Warrant may elect
to receive a warrant to purchase Other Common Stock in lieu of an increase in
the number of Warrant Shares, the terms of which shall be identical to those of
this Warrant, except that such warrant shall be exercisable into the number of
shares of Other Common Stock that would have been payable to the holder of this
Warrant pursuant to the Distribution had the holder exercised this Warrant
immediately prior to such record date and with an aggregate exercise price
equal to the product of the amount by which the exercise price of this Warrant
was decreased with respect to the Distribution pursuant to the terms of the
immediately preceding paragraph (a) and the number of Warrant Shares calculated
in accordance with the first part of this paragraph (b).


 


4.             PURCHASE RIGHTS; ORGANIC CHANGE.


 


(a)           Purchase
Rights.  If at any time the Company
grants, issues or sells any Options, Convertible Securities or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of
any class of Common Stock (the “Purchase Rights”), then the holder of this
Warrant will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such holder could have acquired if
such holder had held the number of shares of Common Stock acquirable upon
complete exercise of this Warrant (without regard to any limitations on the
exercise of this Warrant) immediately before the date on which a record is
taken for the grant, issuance or sale of such Purchase Rights, or, if no such
record is taken, the date as of which the record holders of Common Stock are to
be determined for the grant, issue or sale of such Purchase Rights.


 


(b)           Organic
Change.  Any recapitalization,
reorganization, reclassification, consolidation, merger, sale of all or
substantially all of the Company’s assets to another Person or other
transaction, in each case which is effected in such a way that holders of
Common Stock are entitled to receive securities or assets with respect to or in
exchange for Common Stock is referred to herein as an “Organic Change.”  Subject to Section 4(c) of the Securities
Purchase Agreement, prior to the consummation of any (i) sale of all or
substantially all of the Company’s assets to an acquiring Person or (ii) other
Organic Change following which the Company is not a surviving entity, the
Company will secure from the Person purchasing such assets or the Person
issuing the securities or providing the assets in such Organic Change (in each
case, the “Acquiring Entity”) a reasonably satisfactory written agreement
to deliver to the holder of this Warrant in exchange for this Warrant, (A) a
security of the Acquiring Entity evidenced by a written instrument
substantially similar in form and substance to this Warrant (including an


 


6

















 


adjusted exercise price equal
to the value for the Common Stock reflected by the terms of such consolidation,
merger or sale, and exercisable for a corresponding number of shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard
to any limitations on the exercise of this Warrant), if the value so reflected
is less than the Exercise Price in effect immediately prior to such
consolidation, merger or sale) and (B) if the Acquiring Entity does not have
its common stock listed and traded on the Principal Market or The New York
Stock Exchange, Inc., if so requested by the holder of this Warrant by notice
delivered on or before the 90th day after the consummation of such
Organic Change, cash payable within five Business Days after such request (or,
if later, on the effective date of such Organic Change) equal to the value of
the remaining unexercised portion of this Warrant as determined in accordance
with the Black-Sholes option pricing formula which payment, to the extent
permitted by applicable law, shall have priority to payments by the Company or
the Acquiring Entity, as applicable, to the stockholders of the Company in
connection with such Organic Change. 
Prior to the consummation of any other Organic Change, the Company shall
make appropriate provision (in form and substance reasonably satisfactory to
the holders of SPA Warrants representing at least a majority of the shares of
Common Stock obtainable upon exercise of the SPA Warrants then outstanding) to
insure that the holder of this Warrant thereafter will have the right to
acquire and receive in lieu of or in addition to (as the case may be) the
shares of Common Stock immediately theretofore acquirable and receivable upon
the exercise of this Warrant (without regard to any limitations on the exercise
of this Warrant), such shares of stock, securities or assets that would have
been issued or payable in such Organic Change with respect to or in exchange
for the number of shares of Common Stock which would have been acquirable and
receivable upon the exercise of this Warrant as of the date of such Organic
Change (without regard to any limitations on the exercise of this Warrant).


 


5.             NONCIRCUMVENTION.  The Company hereby covenants and agrees that
the Company will not, by amendment of its Certificate of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities, or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant, and will at all times in good faith carry out all the provisions of
this Warrant and take all action as may be required to protect the rights of
the holder of this Warrant.  Without
limiting the generality of the foregoing, the Company (i) will not
increase the par value of any shares of Common Stock receivable upon the
exercise of this Warrant above the Exercise Price then in effect,
(ii) will take all such actions as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant, and
(iii) will, so long as any of the SPA Warrants are outstanding, take all action
necessary to reserve and keep available out of its authorized and unissued
Common Stock, solely for the purpose of effecting the exercise of the SPA
Warrants, 100% of the number of shares of Common Stock as shall from time to
time be necessary to effect the exercise of the SPA Warrants then outstanding
(without regard to any limitations on exercise).


 


6.             WARRANT HOLDER NOT DEEMED A
STOCKHOLDER.  Except as otherwise
specifically provided herein, no holder, solely in such Person’s capacity as a
holder of this Warrant, shall be entitled to vote or receive dividends or be
deemed the holder of shares of the Company for any purpose, nor shall anything
contained in this Warrant be construed to confer upon the holder hereof, solely
in such Person’s capacity as a holder of this Warrant, any of


 


7

















 


the rights of
a shareholder of the Company or any right to vote, give or withhold consent to
any corporate action (whether any reorganization, issue of stock,
reclassification of stock, consolidation, merger, conveyance or otherwise),
receive notice of meetings, receive dividends or subscription rights, or
otherwise, prior to the issuance to the holder of this Warrant of the Warrant
Shares which such Person is then entitled to receive upon the due exercise of
this Warrant.  In addition, nothing
contained in this Warrant shall be construed as imposing any liabilities on
such holder to purchase any securities (upon exercise of this Warrant or
otherwise) or as a stockholder of the Company, whether such liabilities are
asserted by the Company or by creditors of the Company.  Notwithstanding this Section 6, the Company
will provide the holder of this Warrant with copies of the same notices and
other information given to the stockholders of the Company generally,
contemporaneously with the giving thereof to the stockholders.


 


7.             REISSUANCE OF WARRANTS.


 


(a)           Transfer of Warrant.  If this Warrant is to be transferred, the
holder shall surrender this Warrant to the Company, whereupon the Company will
forthwith issue and deliver upon the order of the holder of this Warrant a new
Warrant (in accordance with Section 7(d)), registered as the holder of this
Warrant may request, representing the right to purchase the number of Warrant
Shares being transferred by the Holder and, if less then the total number of
Warrant Shares then underlying this Warrant is being transferred, a new Warrant
(in accordance with Section 7(d)) to the holder of this Warrant representing
the right to purchase the number of Warrant Shares not being transferred.


 


(b)           Lost, Stolen or Mutilated Warrant.  Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant, and, in the case of loss, theft or destruction, of
any indemnification undertaking by the holder of this Warrant to the Company in
customary form and, in the case of mutilation, upon surrender and cancellation
of this Warrant, the Company shall execute and deliver to the Holder a new
Warrant (in accordance with Section 7(d)) representing the right to purchase
the Warrant Shares then underlying this Warrant.


 


(c)           Warrant Exchangeable for Multiple
Warrants.  This Warrant is
exchangeable, upon the surrender hereof by the holder of this Warrant at the
principal office of the Company, for a new Warrant or Warrants (in accordance
with Section 7(d)) representing in the aggregate the right to purchase the
number of Warrant Shares then underlying this Warrant, and each such new
Warrant will represent the right to purchase such portion of such Warrant
Shares as is designated by the holder of this Warrant at the time of such
surrender; provided, however, that no Warrants for fractional shares of Common
Stock shall be given.


 


(d)           Issuance of New Warrants.  Whenever the Company is required to issue a
new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall
be of like tenor with this Warrant, (ii) shall represent, as indicated on the
face of such new Warrant, the right to purchase the Warrant Shares then
underlying this Warrant (or in the case of a new Warrant being issued pursuant
to Section 7(a) or Section 7(c), the Warrant Shares designated by the holder of
this Warrant which, when added to the number of shares of Common Stock
underlying the other new Warrants issued in connection with such issuance, does
not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall
have an issuance date, as indicated on the face of


 


8

















 


such new Warrant, which is the same as the Issuance Date, and (iv)
shall have the same rights and conditions as this Warrant.


 


8.             NOTICES.  Whenever notice is required to be given
under this Warrant, unless otherwise provided herein, such notice shall be
given in accordance with Section 9(f) of the Securities Purchase
Agreement.  The Company shall provide
the holder of this Warrant with prompt written notice of all actions taken
pursuant to this Warrant, including in reasonable detail a description of such
action and the reason therefore. 
Without limiting the generality of the foregoing, the Company will give
written notice to the holder of this Warrant (i) immediately upon any
adjustment of the Exercise Price or number of Warrant Shares or number or kind
of securities purchasable upon exercise of this Warrant, setting forth in
reasonable detail, and certifying, the facts requiring such adjustment and the
calculation of such adjustment and (ii) at least ten days prior to the date on
which the Company closes its books or takes a record, or in the event that the
Company does not so close its books or take a record, at least ten days prior
to the date of any such event, (A) with respect to any dividend or distribution
upon the Common Stock, (B) with respect to any grants, issues or sales of any
Options, Convertible Securities or rights to purchase stock, warrants,
securities or other property to holders of Common Stock or (C) for determining
rights to vote with respect to any Change of Control (as defined in the SPA
Securities), dissolution or liquidation, provided in each case that such
information shall be made known to the public prior to or in conjunction with
such notice being provided to such holder. 
Notwithstanding the foregoing, Section 4(i) of the Securities Purchase
Agreement shall apply to all notices given pursuant to this Warrant.


 


9.             AMENDMENT AND WAIVER.  Except as otherwise provided herein, the
provisions of this Warrant may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed
by it, only if the Company has obtained the written consent of the holders of
SPA Warrants representing at least a majority of the shares of Common Stock
obtainable upon exercise of the SPA Warrants then outstanding; provided that no
such action may increase the exercise price of any SPA Warrant or decrease the
number of shares or class of stock obtainable upon exercise of any SPA Warrant
without the written consent of the holder of this Warrant.  No such amendment shall be effective to the
extent that it applies to less than all of the holders of the SPA Warrants then
outstanding, and any amendment made in conformity with the provisions of this
Section 9 shall be biding on all holders of the SPA Warrants then outstanding.


 


10.           GOVERNING LAW.  This Warrant shall be construed and enforced
in accor­dance with, and all questions concerning the construction, validity,
interpretation and performance of this Warrant shall be governed by, the
internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York.


 


11.           CONSTRUCTION; HEADINGS.  This Warrant shall be deemed to be jointly
drafted by the Company and all the holders of SPA Warrants and shall not be
construed against any person as the drafter hereof.  The headings of this Warrant are for convenience of reference and
shall not form part of, or affect the interpretation of, this Warrant.


 


9

















 


12.           DISPUTE RESOLUTION.  In the case of a dispute as to the
determination of the Exercise Price or the arithmetic calculation of the
Warrant Shares, the Company shall submit the disputed determinations or
arithmetic calculations via facsimile within two Business Days of receipt of
the Exercise Notice giving rise to such dispute, as the case may be, to the
holder of this Warrant.  If the holder
of this Warrant and the Company are unable to agree upon such determination or
calculation of the Exercise Price or the Warrant Shares within three Business
Days of such disputed determination or arithmetic calculation being submitted
to the holder of this Warrant, then the Company shall, within two Business Days
submit via facsimile (a) the disputed determination of the Exercise Price to an
independent, reputable investment bank selected by the Company and approved by
the holder of this Warrant or (b) the disputed arithmetic calculation of the
Warrant Shares to the Company’s independent, outside accountant.  The Company shall cause the investment bank
or the accountant, as the case may be, to perform the determinations or
calculations and notify the Company and the holder of this Warrant of the
results no later than ten Business Days from the time it receives the disputed
determinations or calculations.  Such
investment bank’s or accountant’s determination or calculation, as the case may
be, shall be binding upon all parties absent demonstrable error.


 


13.           REMEDIES, OTHER OBLIGATIONS,
BREACHES AND INJUNCTIVE RELIEF.  The
remedies provided in this Warrant shall be cumulative and in addition to all
other remedies available under this Warrant, the Securities Purchase Agreement,
the Pledge Agreement (as defined in the Securities Purchase Agreement), the SPA
Securities and the Registration Rights Agreement, at law or in equity
(including a decree of specific performance and/or other injunctive relief),
and nothing herein shall limit the right of the holder of this Warrant right to
pursue actual damages for any failure by the Company to comply with the terms
of this Warrant. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the holder of this Warrant
and that the remedy at law for any such breach may be inadequate.  The Company therefore agrees that, in the
event of any such breach or threatened breach, the holder of this Warrant shall
be entitled, in addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing economic loss and without
any bond or other security being required.


 


14.           TRANSFER.          This Warrant may be offered for sale,
sold, transferred or assigned without the consent of the Company, except to
“accredited investors” as that term is defined in Rule 501(a) of Regulation D
as promulgated under the Securities Act of 1933, as amended, and as may
otherwise be required by Section 2(i) of the Securities Purchase Agreement.


 


15.           CERTAIN DEFINITIONS.  For purposes of this Warrant, the following
terms shall have the following meanings:


 


(a)           “Bloomberg” means Bloomberg Financial
Markets.


 


(b)           “Business Day” means any day other than
Saturday, Sunday or other day on which commercial banks in The City of New York
are authorized or required by law to remain closed.


 


(c)           “Closing Bid Price” and “Closing
Sale Price” means, for any security as of any date, the last closing
bid price and last closing trade price, respectively, for such security on the
Principal Market, as reported by Bloomberg, or, if the Principal Market begins
to operate


 


10

















 


on an extended hours basis and does not designate the closing bid price
or the closing trade price, as the case may be, then the last bid price or last
trade price, respectively, of such security prior to 4:00:00 p.m., New York
City Time, as reported by Bloomberg, or, if the Principal Market is not the
principal securities exchange or trading market for such security, the last
closing bid price or last trade price, respectively, of such security on the
principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, the last
closing bid price or last trade price, respectively, of such security in the
over-the-counter market on the electronic bulletin board for such security as
reported by Bloomberg, or, if no closing bid price or last trade price,
respectively, is reported for such security by Bloomberg, the average of the
bid prices, or the ask prices, respectively, of any market makers for such
security as reported in the “pink sheets” by Pink Sheets LLC (formerly the
National Quotation Bureau, Inc.).  If
the Closing Bid Price or the Closing Sale Price cannot be calculated for a
security on a particular date on any of the foregoing bases, the Closing Bid
Price or the Closing Sale Price, as the case may be, of such security on such
date shall be the fair market value as mutually determined by the Company and
the Holder.  If the Company and the
Holder are unable to agree upon the fair market value of such security, then
such dispute shall be resolved pursuant to Section 12.  All such determinations to be appropriately
adjusted for any stock dividend, stock split, stock combination or other
similar transaction during the applicable calculation period.


 


(d)           “Common Stock”
means (i) the Company’s common stock, par value $.001 per share, and
(ii) any capital stock into which such Common Stock shall have been
changed or any capital stock resulting from a reclassification of such Common
Stock.


 


(e)           “Convertible
Securities” means any stock or securities (other than Options)
directly or indirectly convertible into or exercisable or exchangeable for
Common Stock.


 


(f)            “Expiration
Date” means February 26, 2008, or, if such date falls on a day other
than a Business Day or on which trading does not take place on the Principal
Market (a “Holiday”), the next date that is not a Holiday.


 


(g)           “Options”
means any rights, warrants or options to subscribe for or purchase Common Stock
or Convertible Securities.


 


(h)           “Person”
means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization, any other
entity and a government or any department or agency thereof.


 


(i)            “Principal Market”
means the NASDAQ National Market.


 


(j)            “Registration
Rights Agreement” means that certain registration rights agreement
between the Company and the Purchasers.


 


(k)           “SPA
Securities” means the senior exchangeable convertible notes issued
pursuant to the Securities Purchase Agreement.


 


11

















 


[Signature
Page Follows]


 


12

















 


IN
WITNESS WHEREOF, the Company has caused this Warrant
to Purchase Common Stock to be duly executed as of the Issuance Date set out
above.


 


	
   

  	
  SUPERGEN, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ JOSEPH RUBINFELD

  	
   

  
	
   

  	
   

  	
  Name: 
  Joseph Rubinfeld

  
	
   

  	
   

  	
  Title: 
  President/Chief Executive Officer

  



 

















 


EXHIBIT A-1


 


EXERCISE NOTICE


 


TO BE EXECUTED BY THE REGISTERED HOLDER TO
EXERCISE THIS

WARRANT TO PURCHASE COMMON STOCK


 


SUPERGEN, INC.


 


The undersigned holder hereby exercises the right to purchase                         
of the shares of Common Stock (“Warrant Shares”) of SuperGen, Inc., a
Delaware corporation (the “Company”), evidenced by the attached
Warrant to Purchase Common Stock (the “Warrant”), and tenders herewith payment to
the Company of the aggregate exercise price in full, equal to $                       ,
together with all applicable transfer taxes, if any.


 


Please issue the Warrant Shares in the following name and to the
following address:


 


	
  Issue to:

  	
   

  
	
   

  
	
  Facsimile Number:

  	
   

  
	
   

  
	
  Authorization:

  	
   

  
	
   

  
	
  Account
  Number:                

  	
   

  
	
    (if
  electronic book entry transfer)

  
	
   

  
	
  Transaction Code Number:

  	
   

  
	
    (if
  electronic book entry transfer)

  
					



 


To the extent the foregoing exercise is for less than
the full number of Warrant Shares issuable pursuant to the Warrant, a
replacement Warrant representing the remainder of the Warrant Shares issuable
(and otherwise of like form, tenor and effect) shall be delivered to holder.


 


The undersigned confirms the continuing validity of, and reaffirms as
of the date hereof, the representations and warranties set forth in Section 2
of the Securities Purchase Agreement, dated as of February 26, 2003, by and
among the Company and the Buyers named therein.


 


The undersigned agrees to comply with the prospectus delivery
requirements (to the extent applicable) under the applicable securities laws in
connection with any transfer of the aforesaid Warrant Shares.


 


	
  Date:                          
          ,                 

  
	
   

  
	
   

  	
   

  	
   

  
	
  Name of Registered Holder

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


EXHIBIT A-2


 


EXERCISE NOTICE


 


TO BE EXECUTED BY THE REGISTERED HOLDER TO
EXERCISE THIS WARRANT TO PURCHASE COMMON STOCK PURSUANT TO CASHLESS EXERCISE
PROVISIONS


 


SUPERGEN, INC.


Gentlemen:


 


The undersigned, registered holder of the Warrant to
Purchase Common Stock delivered herewith, hereby irrevocably exercises such
Warrant for, and purchases thereunder, shares of the Common Stock (“Warrant
Shares”) of SuperGen, Inc., a Delaware corporation, as provided
below.  Capitalized terms used herein,
unless otherwise defined herein, shall have the meanings given in the
Warrant.  The portion of the Exercise
Price to be applied toward the purchase of the Warrant Shares pursuant to this
Exercise Notice is $           .  Such exercise shall be pursuant to the
cashless exercise provisions of Section 1 of the Warrant; therefore,
holder makes no payment with respect to this Exercise Notice.  The number of shares to be issued pursuant
to this exercise shall be determined by reference to the formula in
Section 1 of the Warrant which, by reference to Section 1, requires
the use of the Closing Sale Price of the Company’s Common Stock on the day
immediately preceding the date of this Exercise Notice.  The Closing Sale Price of the Company’s
Common Stock has been determined by holder to be $             ,
which figure is acceptable to holder for calculations of the number of Warrant
Shares issuable pursuant to this Exercise Notice.


 


Please issue the Warrant Shares in the following name and to the
following address:


 


 


	
  Issue to:

  	
   

  
	
   

  
	
  Facsimile Number:

  	
   

  
	
   

  
	
  Authorization:

  	
   

  
	
   

  
	
  Account
  Number:                

  	
   

  
	
    (if
  electronic book entry transfer)

  
	
   

  
	
  Transaction Code Number:

  	
   

  
	
    (if
  electronic book entry transfer)

  
					



 


To the extent the foregoing exercise is for less than
the full number of Warrant Shares issuable pursuant to the Warrant, a
replacement Warrant representing the remainder of the 


 

















 


Warrant Shares issuable (and otherwise of like form, tenor and effect)
shall be delivered to holder.


 


The undersigned confirms the continuing validity of, and reaffirms as
of the date hereof, the representations and warranties set forth in Section 2
of the Securities Purchase Agreement, dated as of February 26, 2003, by and
among the Company and the Buyers named therein.


 


The undersigned agrees to comply with the prospectus
delivery requirements (to the extent applicable) under the applicable
securities laws in connection with any transfer of the aforesaid Warrant
Shares.


 


	
  Date:                          
          ,                      

  
	
   

  
	
   

  	
   

  	
   

  
	
  Name of Registered Holder

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


ACKNOWLEDGMENT


 


The Company hereby acknowledges this Exercise Notice and hereby directs
Mellon Investor Services LLC to issue the above indicated number of shares of
Common Stock in accordance with the Transfer Agent Instructions dated February
26, 2003 from the Company and acknowledged and agreed to by Mellon Investor
Services LLC.


 


	
   

  	
  SUPERGEN, INC.

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: