Exhibit 10.1


 


SUPERGEN, INC.


 


EXECUTIVE
EMPLOYMENT AND CONFIDENTIAL INFORMATION


AND
INVENTION ASSIGNMENT AGREEMENT


 


This Executive Employment and Confidential Information
and Invention Assignment Agreement (the “2010 Agreement”) is made and entered
into effective as of October 1, 2010 (the “Effective Date”) by and between
SuperGen, Inc., a Delaware corporation (the “Company”), and James S. J.
Manuso (“Executive”).


 


1.     Term.  The Company hereby agrees to continue to
employ Executive and Executive hereby accepts continued employment, on the
terms and conditions set forth herein.  The term of this 2010 Agreement
shall commence upon the Effective Date and shall continue until and including
December 31, 2014.


 


2.     Positions and Duties.  Executive agrees to continue to
serve the Company as its President and Chief Executive Officer or in such other
executive capacity as the Board may from time to time request.  During the
term of this 2010 Agreement, Executive will have all duties and
responsibilities that are reasonably consistent with these titles and positions
and will devote all of his normal business time and attention to, and use his
best efforts to advance, the business of the Company.  Executive agrees
not to actively engage in any other employment, occupation or consulting
activity for any direct or indirect remuneration without the prior approval of
the Board of Directors (the “Board”), except that without the prior approval,
Executive may serve on the board of directors of other companies if in so doing
Executive does not violate the terms of this 2010 Agreement.


 


3.     Confidential Information.


 


3.1  Company Information.  Executive agrees at all times
during the term of his employment and thereafter, to hold in the strictest
confidence, and not to use, except for the benefit of the Company, or to
disclose to any person, firm or corporation without written authorization of
the Board, any confidential Information of the Company, except under a
non-disclosure agreement duly authorized and executed by the Company. 
Executive understands that “Confidential Information” means any non-public
information that relates to the actual or anticipated business or research and
development of the Company, technical data, trade secrets or know-how,
including, but not limited to, research, product plans or other information
regarding Company’s products or services and markets therefore, customer lists
and customers (including, but not limited to, customers of the Company on whom
Executive called with whom Executive became acquainted during the term of his
employment), software developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information.  Executive further
understands that Confidential Information does not include any of the foregoing
items that have become publicly known and made generally available through no
wrongful act of Executive’s or of others who were under confidentiality
obligations as to the item or items involved or improvements or new 


 

















 


versions thereof.


 


3.2  Former Employer Information.  Executive agrees that he will
not, during his employment with the Company, improperly use or disclose any
proprietary information or trade secrets of any former employer or other person
or entity and that he will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.


 


3.3  Third Party Information.  Executive recognizes that the
Company has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company’s part
to maintain the confidentiality of such information and to use it only for
certain limited purposes.  Executive agrees to hold all such confidential
or proprietary information in the strictest confidence and not to disclose it
to any person, firm or corporation or to use it except as necessary in carrying
out Executive’s work for the Company’s consistent with the Company’s agreement
with such third party.


 


4.     Inventions.


 


4.1  Inventions Retained and Licensed.  Except as listed on
Exhibit A, Executive does not have any inventions, original works of
authorship, developments, improvements, and trade secrets which were made by
him prior to his employment with the Company (collectively referred to as
“Prior Inventions”), which belong to him, which may relate to the Company’s proposed
business, products or research and development, and which were not previously
assigned to the Company.  If in the course of Executive’s employment with
the Company, Executive incorporates into a Company product, process or service
a Prior Invention owned by Executive or in which Executive has an interest,
Executive hereby grants to the Company a nonexclusive, royalty-free, fully
paid-up, irrevocable, perpetual, worldwide license to make, have made, modify,
use and sell such Prior Invention as part of or in connection with such
product, process or service, and to practice any method related thereto.


 


4.2  Assignment of Inventions.  Executive agrees that Executive
will promptly make full written disclosure to the Company, will hold in trust
for the sole right and benefit of the Company, and hereby assigns to the
Company, or its designee, all Executive’s right, title, and interest in and to
any and all inventions, original works of authorship, developments, concepts,
improvements, designs, discoveries, ideas, trademarks or trade secrets, whether
or not patentable or registrable under copyright or similar laws, which
Executive may solely or jointly conceive or develop or reduce to practice, or
cause to be conceived or developed or reduced to practice, during the period of
time Executive is in the employ of the Company (collectively referred to as
“Inventions”), except as provided in Section 4.6 below.  Executive
further acknowledges that all original works of authorship which are made by
him (solely or jointly with others) within the scope of and during the period
of his employment with the Company, and which are protectable by copyright, are
“works made for hire,” as that term is defined in 


 


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the United States Copyright Act.  Executive
understands and agrees that the decision whether or not to commercialize or
market any Invention developed by Executive solely or jointly with others is
within the Company’s sole discretion and for the Company’s sole benefit and
that no royalty will be due to Executive as a result of the Company’s efforts
to commercialize or market any such Invention.


 


4.3  Inventions Assigned To The United States.  Executive agrees to assign to the
United States government all his right, title, and interest in and to any and
all Inventions whenever such full title is required to be in the United States
by a contract between the Company and the United States or any of its agencies.


 


4.4  Maintenance of Records.  Executive agrees to keep and
maintain adequate and current written records of all Inventions made by
Executive (solely or jointly with others) during the period of his employment
with the Company.  The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by the Company.  The
records will be available to and remain the sole property of the Company at all
times.


 


4.5   Patent and Copyright Registrations. 
Executive agrees to assist the Company, or its designee, at the Company’s
expense, in every proper way to secure the intellectual property rights
relating thereto in any and all countries, including the disclosure to the
Company of all pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for and
obtain such rights and in order to assign and convey to the Company, its
successors, assigns, and nominees the sole and exclusive rights, title and interest
in and to such Inventions, and any copyrights, patents, mask work rights or
other intellectual property rights relating thereto.  Executive further
agrees that his obligation to execute or cause to be executed when it is in his
power to do so, any such instrument or papers shall continue after the
termination of this 2010 Agreement.  If the Company is unable because of
Executive’s mental or physical incapacity or for any other reason to secure
Executive’s signature to apply for or to pursue any application for any United
States or foreign patents or copyright registrations covering Inventions or
original works of authorship assigned to the Company as above, then Executive
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as his agent and attorney in fact, to act for and in
Executive’s behalf and stead to execute and file any such applications and to
do all other lawfully permitted acts to further the prosecution and issuance of
letters patent or copyright registrations thereon with the same legal force and
effect as if executed by Executive.


 


4.6   Exception to Assignments. 
Executive understands that the provision of this 2010 Agreement requiring
assignment of Inventions to the Company do not apply to any Invention which
qualifies fully under the provisions of California Labor Code section 2870
(attached as Exhibit B ).  Executive will advise the Company
promptly in writing of any Inventions that Executive believes meet the criteria
in California Labor Code Section 2870.


 


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5.     Office.  The Company shall provide Executive with an
office at the location of the Company’s primary business operations that is
consistent with his positions and titles.


 


6.     Compensation and Fringe Benefits.


 


6.1  Base Salary.  For all services rendered by
Executive pursuant to this 2010 Agreement, the Company shall pay Executive a
base salary (the “Base Salary”) at the annual rate of not less than Six Hundred
Twenty Five Thousand Dollars ($625,000.00) as of the Effective Date.    The Base Salary shall be paid in
periodic installments in accordance with the Company’s regular payroll
practices.  Executive’s annual salary shall be adjusted annually
thereafter on January 1 of each year during the term of the agreement to
compensate for changes in the cost of living.  The amount of each annual
cost of living increase shall be twice the rate determined for such annual
period by the “Consumer Price Index for Urban Wage Earners and Clerical Workers
(All Items) published by the bureau of Labor Statistics, U.S. Department of
Labor (1967 equals 100).”


 


6.2  Performance Bonus.


 


(a)                       For the calendar year 2010, the Executive
shall be eligible to receive an annual performance-based bonus of Six Hundred
Fifty Thousand Dollars ($650,000.00) based upon achievement of certain criteria
to be specified by the compensation committee of the Board (“Compensation
Committee”), including (without limitation) revenue and profitability targets
and/or other organizational and strategic milestones (the “2010 Performance
Bonus”).  The 2010 Performance Bonus shall be based upon achieving
performance objectives during 2010 and shall be payable in accordance with the
Company’s normal payroll practices and policies no later than March 15 of
the year following the year in which Executive’s right to such bonus vests.


 


(b)                      For the period January 1, 2011
through December 31, 2011 covered by the 2010 Agreement, the Executive
shall be eligible to receive an annual performance-based bonus of Six Hundred
Fifty Thousand Dollars ($650,000.00) based upon achievement of certain criteria
to be specified by the Compensation Committee, including (without limitation)
revenue and profitability targets and/or other organizational and strategic
milestones (the “2011 Performance Bonus”). 
For the remaining term of the 2010 Agreement, i.e., January 1, 2012
through December 31, 2014, the Executive shall be eligible to receive an
annual performance-based bonus of Six Hundred Seventy Five Thousand Dollars
($675,000.00) based upon achievement of certain criteria to be specified by the
Compensation Committee, including (without limitation) revenue and
profitability targets and/or other organizational and strategic milestones (the
“Annual Performance Bonus”).  The 2011
Performance Bonus and the Annual Performance Bonuses shall be based upon
achieving performance objectives during each applicable calendar year and shall
be payable in accordance with the Company’s normal payroll practices and
policies no later than March 15 of the year 


 


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following the year in which Executive’s right to such
bonus vests.


 


6.3  Stock Options.


 


(a)          
Annual Options.  Executive shall
be permitted to participate in any stock option and similar plans as adopted by
the Company from time to time for the grant of stock options and other equity
incentives to the Company’s employees.  On the first business day
occurring on or after April 1, 2011 of each year during the term of this
2010 Agreement (subject to Executive’s continuous employment with the Company
through each such anniversary), the Company shall grant Executive a stock
option with a vesting commencement date of April 1 of the year in which it
is granted, which will be, to the extent possible under the $100,000
rule of Section 422(d) of the Internal Revenue Code of 1986, as
amended (the “Code”), an “incentive stock option” (as defined in
Section 422 of the Code), under the Company’s 2003 Stock Plan (the “Plan”)
to purchase 360,000 shares of the Company’s common stock (as adjusted for stock
splits and stock combinations that may occur after the date of this 2010
Agreement), which each such option shall have a per share exercise price equal
to the fair market value of the Company’s common stock on the applicable date
of grant (each an “Annual Option” and collectively, the “Annual
Options”).  Subject to the accelerated vesting provisions set forth
herein, each Annual Option will vest as to 1/12th of the shares subject to such
option each month following its date of grant, so that each Annual Option will
be fully vested and exercisable one year from its grant date, subject to
Executive’s continuous service to the Company through each relevant vesting
date.  Notwithstanding the above, in the event of a Change in Control (as
defined in Section 7.4 below) of the Company prior to the granting of all
Annual Options, and that occurs while Executive remains employed hereunder,
then all Annual Options yet to be granted through the term of the 2010
Agreement will immediately be granted and 100% of the then-unvested shares
subject to all such Annual Options will vest and become exercisable.


 


(b)      Performance
Options.


 


(i) On the Effective Date, the Company shall
grant Executive a stock option, which is, to the extent possible under the
$100,000 rule of Section 422(d) of the Code, an “incentive stock
option” (as defined in Section 422 of the Code), under the Plan to
purchase 800,000 shares of the Company’s common stock, which such option shall
have a per share exercise price equal to the fair market value of the Company’s
common stock on the Effective Date (the “2010 Performance Option” and together
with the Annual Options, and other Performance Options, the “Options”). The
2010 Performance Option shall vest upon the Company’s achievement of the
performance milestones described on Attachment A-2, subject to
Executive’s continuous employment with the Company through the date any such
performance milestone is achieved.


 


(ii)  Executive is still eligible to achieve the
outstanding performance milestones described in Section 6.3(b) of
that certain Amended and Restated Executive Employment and Confidential
Information and Invention 


 


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Assignment Agreement by and between the Company and
Executive, dated as of April 1, 2009 (the “2009 Agreement”) with respect
to the performance option granted to Executive in connection with the 2009
Agreement (the “2009 Performance Option”), and subject to Executive’s
continuous employment with the Company through the date any such performance
milestone is achieved. The remaining unachieved performance milestones for the
2009 Performance Option are described on Attachment A-2, with certain
modifications, for the purpose of avoiding duplication with the performance
milestones for the 2010 Performance Option. 
For purposes of clarity, under no circumstances shall Executive vest in
both the 2010 Performance Option and the 2009 Performance Option
simultaneously, to the extent the performance milestones for each are
duplicative.


 


(iii)  Executive is still eligible to achieve the
outstanding performance milestones described in Section 6.3(b) of
that certain Amended and Restated Executive Employment and Confidential Information
and Invention Assignment Agreement by and between the Company and Executive,
dated as of October 28, 2008 (the “2008 Agreement”) with respect to the
performance option granted to Executive in connection with the 2008 Agreement
(the “2008 Performance Option”), and subject to Executive’s continuous
employment with the Company through the date any such performance milestone is
achieved.  The remaining unachieved
performance milestones for the 2008 Performance Option are described on Attachment
A-2, with certain modifications, for the purpose of avoiding duplication
with the performance milestones for the 2009 and 2010 Performance Options.  For purposes of clarity, under no
circumstances shall Executive vest in more than one of the 2010 Performance
Option, the 2009 Performance Option and the 2008 Performance Option
simultaneously, to the extent the performance milestones for each are
duplicative.


 


(iv) In addition, Executive is still eligible to
achieve the outstanding performance milestones described in Section 6.3(b) of
that certain Executive Employment and Confidential Information and Invention
Assignment Agreement by and between the Company and Executive, dated as of
January 1, 2004 (the “2004 Agreement”), as described on Attachment A-2.  The performance option granted pursuant to
the 2004 Agreement shall vest upon the Company’s achievement of the performance
milestones described on Attachment A-2, subject to Executive’s
continuous employment with the Company through the date any such performance
milestone is achieved.


 


(c)      Each Option
shall have a term of ten (10) years from its date of grant, subject to
earlier termination in connection with Executive’s termination of service to
the Company as provided in the Option Agreements.  The Options will be
subject to the terms, definitions and provisions of the Plan and the stock
option agreements to be executed by and between Executive and the Company (the
“Option Agreements”), all of which documents are incorporated herein by
reference. Notwithstanding the above, in the event of a Change in Control (as
defined in Section 7.4 below) of the Company prior to the vesting of the
2010 Performance Option,


 


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the 2009 Performance Option and the 2008 Performance
Option (if outstanding) and that occurs while Executive remains employed
hereunder, 100% of the then unvested shares subject to the 2010 Performance
Option, the 2009 Performance Option and the 2008 Performance Option (if
outstanding) shall immediately vest and become exercisable.


 


6.4  Life Insurance.  During the term of the 2010
Agreement, the Company will pay the full premium on a $4 million key person
life insurance policy covering Executive.  Executive will be entitled to
select personal beneficiaries for 50% of the proceeds of the insurance
policy.  The Company will provide Executive with additional cash
compensation at the end of each calendar year to fully offset taxes
attributable to Executive as a result of payment of the life insurance premiums
by the Company.


 


6.5  Other Benefits.  Executive shall be entitled to
participate in such group life, pension, disability, accident, hospital and
medical insurance plans, and such other plan or plans which may be instituted
by the Company for the benefit of its executive employees generally, upon such
terms as may be therein provided of general application to all executive
employees of the Company and such other benefits as are mutually deemed
appropriate by the Compensation Committee and Executive to the position held by
Executive and to the discharge of Executive’s duties.  Executive shall be
entitled to not less than twenty (20) business days’ vacation per year, with
remuneration, which shall be coordinated with the vacation periods of other
officers of the Company in a manner that will minimize disruption of the
Company’s management efforts.


 


6.6   Additional Compensation. 
Executive shall also be eligible to receive such additional salary or
other incentive compensations as the Compensation Committee may, in its sole
discretion, determine from time to time.


 


7.     Expenses.


 


7.1  Automobile Expense.


 


For the term of the 2010 Agreement, up to a maximum of
Thirty Thousand Dollars ($30,000.00) annually, the Company will lease and pay
for the maintenance of an automobile selected by Executive for his exclusive
use.  The Company will also pay for automobile insurance for the
Executive, up to a maximum of Five Thousand Dollars ($5,000.00) annually.


 


7.2  Business Expenses.  The Company will pay or reimburse
Executive for reasonable travel, entertainment or other expenses incurred by
Executive in the furtherance of or in connection with the performance of
Executive’s duties hereunder in accordance with the Company’s established
policies.  Executive shall furnish the Company with evidence of the
incurrence of such expenses within a reasonable period of time from the date
that they were incurred.


 


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7.3 Relocation Expenses.  In the event Executive undergoes an
“Involuntary Termination” (as defined below and to include the result of a
merger or acquisition in which Executive is not offered full-time employment as
Chairman, President and/or CEO of the surviving entity), the Company will pay
or reimburse Executive for all reasonable relocation expenses incurred by
Executive in connection with his and his family’s relocation from California to
New York, including, but not limited to short-term hotel costs or apartment
rental for Executive for a period not to exceed six (6) months,
house-hunting travel by Executive’s spouse and all household goods moving
costs.  The total of all such amounts will not exceed $100,000. 
Executive must submit a request for reimbursement of relocation expenses no
later than the December 31 of the second calendar year following the
calendar year in which Executive undergoes an Involuntary Termination and the
Company will not reimburse Executive for any expenses incurred after such
date.  The Company will reimburse Executive within ninety (90) days after
receipt of Executive’s request for reimbursement.  The Company will
provide Executive with additional cash compensation at the end of the calendar
year to fully offset taxes attributable to Executive as a result of payment of
such reasonable relocation expenses by the Company, which such amount will be
paid to Executive no later than the December 31 of the calendar year
following the calendar year in which Executive pays the tax on the relocation
expenses.


 


7.4  Termination Benefits.  If
Executive’s employment with the Company is terminated by the Company as a
result of an “Involuntary Termination” (as defined below) within
one (1) year following a “Change in Control” (as defined below),
Executive shall be entitled to receive the following severance benefits: 
(1) a lump sum payment equivalent to eighteen (18) months of
Executive’s then current Base Salary, which shall be paid no later than
fifty-three (53) days following the date of Executive’s termination of
employment; and (2) a lump sum payment equivalent to any unpaid amount of
the Bonuses referenced in Section 6.2, up to a maximum of One Million
Dollars ($1,000,000.00), which shall be paid no later no later than fifty-three
(53) days following the date of Executive’s termination of employment; and (3) full
acceleration of the vesting of any then unvested stock options held by
Executive.


 


If Executive’s employment with the Company is
terminated by the Company as a result of an Involuntary Termination prior to or
more than one year following the occurrence of a Change in Control, Executive
may be eligible for severance benefits under the Company’s Severance Benefit
Plan for Officers, to the extent determined by the Board.


 


For the purposes of this 2010 Agreement, “Involuntary
Termination” means (i) without Executive’s express written consent, a
material diminution of Executive’s duties, position or responsibilities
relative to Executive’s duties, position or responsibilities in effect
immediately prior to such reduction; (ii) without Executive’s express
written consent, a material diminution by the Company of Executive’s base
salary as in effect immediately prior to such reduction; (iii) any
material breach by the 


 


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Company of any of the terms of this 2010 Agreement;
(iv) without Executive’s express written consent, the relocation of
Executive to a facility or a location more than fifty (50) miles from the
current location of the Company, which the Company and Executive agree would
constitute a material change in the geographic location at which Executive must
perform services to the Company, or (v) any purported termination of
Executive other than for “Cause” (as defined below).  Executive will not
resign for an Involuntary Termination without first providing the Company
(x) with written notice within ninety (90) days of the event that
Executive believes constitutes an Involuntary Termination specifically
identifying the acts or omissions constituting the grounds for an Involuntary
Termination and (y) a reasonable cure period of not less than thirty (30)
days following the date of such notice.


 


For the purposes of this 2010 Agreement, “Change in
Control” means the occurrence of any of the following events: (i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of
the Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the total voting power represented
by the Company’s then outstanding voting securities; (ii) the consummation
of the sale or disposition by the Company of all or substantially all of the
Company’s assets; or (iii) the consummation of a merger or consolidation
of the Company with any other corporation, other than a merger consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity or its parent) at least outstanding or by being converted into voting
securities of the surviving entity or its parent) at least fifty percent (50%)
of the total voting power represented by the voting securities of the Company
or such surviving entity or its parent outstanding immediately after such
merger or consolidation.


 


For the purposes of this 2010 Agreement, “Cause” means
(i) any act of personal dishonesty taken by the Executive in connection
with his employment hereunder, which is intended to result in personal
enrichment of the Executive, (ii) the Executive’s conviction or plea of nolo
contendere to of a felony, (iii) any act by the Executive that
constitutes material misconduct and is injurious to the Company, or
(iv) continued violations by the Executive of the Executive’s obligations
to the Company.


 


Executive agrees that as a condition precedent to
receipt of any termination benefits described in this Section 7.4,
Executive (or Executive’s estate, in the event of Executives death) will
promptly execute and not revoke a general full release all claims against the
Company (or any person affiliated with the Company) in substantially the form
attached as Exhibit C.  Receipt of the severance payments and
benefits specified in this Section 7.4 shall be contingent on the receipt
of such executed release and the lapse of any statutory period for revocation,
and such release becoming effective in accordance with its terms within
fifty-two (52) days following the termination date.  Any severance payment to which Executive
otherwise would have been entitled during such fifty-two (52) day period shall
be paid by the Company in full on the fifty-third (53rd) day following
Executive’s employment termination date or such later date as is required to
avoid the imposition of additional taxes under Section 409A.


 


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7.5  Limitation on Payments.  In the
event that the severance and other benefits provided for in this 2010 Agreement
or otherwise payable to Executive, including but not limited to, the
accelerated vesting of any stock options previously or hereafter granted to
Executive, (i) constitute “parachute payments” within the meaning of
Section 280G of the Code, and (ii) would be subject to the excise tax
imposed by Section 4999 of the Code (the “Excise Tax”), then Executive’s
benefits under this 2010 Agreement shall be reduced to the extent necessary in
order to avoid such benefits being subject to the Excise Tax.  In the event of any such reduction, such
benefits shall be reduced in the following order: (i) cash,
(ii) equity award acceleration, (iii) option grants, and
(iv) employee benefits.


 


Unless the Company and Executive otherwise agree in
writing, any determination required under this Section shall be made in
writing by the Company’s independent public accountants (the “Accountants”),
whose determination shall be conclusive and binding upon Executive and the
Company for all purposes.  For purposes of making the calculations
required by this Section, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Section 280G and 4999
of the Code.  The Company and Executive shall furnish to the Accountants
such information and documents as the Accountants may reasonably request in
order to make a determination under this Section.  The Company shall bear
all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section.


 


7.6  Section 409A


 


(a)          
Notwithstanding anything to the contrary in the 2010 Agreement, if Executive is
a “specified employee” within the meaning of Section 409A at the time of
Executive’s termination of employment (other than due to death), and the
severance payable to Executive, if any, pursuant to the 2010 Agreement, when
considered together with any other severance payments or separation benefits
that are considered deferred compensation under Section 409A (together,
the “Deferred Compensation Separation Benefits”) that are payable within the
first six (6) months following Executive’s termination of employment, then
such severance will become payable on the first payroll date that occurs on or
after the date six (6) months and one (1) day following the date of
Executive’s termination of employment.  All subsequent Deferred
Compensation Separation Benefits, if any, will be payable in accordance with
the payment schedule applicable to each payment or benefit.  Notwithstanding
anything herein to the contrary, if Executive dies following Executive’s
termination of employment but prior to the six (6) month anniversary of
Executive’s termination of employment, then any payments delayed in accordance
with this paragraph will be payable in a lump sum as soon as administratively
practicable after the date of Executive’s death and all other Deferred
Compensation Separation Benefits will be payable in accordance with the payment
schedule applicable to each payment or benefit.  Each payment and benefit
payable under this 2010 Agreement is intended to constitute separate payments
for 


 


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purposes of Section 1.409A-2(b)(2) of the
Treasury Regulations.


 


(b)          
Any amount paid under the 2010 Agreement that satisfies the requirements of the
“short-term deferral” rule set forth in
Section 1.409A-1(b)(4) of the Treasury Regulations will not
constitute Deferred Compensation Separation Benefits for purposes of this 2010
Agreement.  Any amount paid under the 2010 Agreement that qualifies as a
payment made as a result of an involuntary separation from service pursuant to
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not
exceed the Section 409A Limit will not constitute Deferred Compensation
Separation Benefits for purposes of this 2010 Agreement.  For this
purpose, “Section 409A Limit” means the lesser of two (2) times:
(A) Executive’s annualized compensation based upon the annual rate of pay
paid to Executive during the Company’s taxable year preceding the Company’s
taxable year of Executive’s termination of employment as determined under
Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue
Service guidance issued with respect thereto; or (B) the maximum amount
that may be taken into account under a qualified plan pursuant to
Section 401(a)(17) of the Code for the year in which Executive’s
employment is terminated.


 


(c)          
The foregoing provisions are intended to comply with the requirements of
Section 409A so that none of the severance payments and benefits to be
provided hereunder will be subject to the additional tax imposed under
Section 409A, and any ambiguities herein will be interpreted to so
comply.  Executive and the Company agree to work together in good faith to
consider amendments to the 2010 Agreement and to take such reasonable actions
which are necessary, appropriate or desirable to avoid imposition of any
additional tax or income recognition prior to actual payment to Executive under
Section 409A.


 


8.    
Arbitration And Equitable Relief.


 


8.1  Arbitration.  In consideration of Executive’s
employment with the Company, the Company’s promise to arbitrate all
employment-related disputes and Executive’s employment with the Company, the
Company’s promise to arbitrate all employment-related disputes and Executive’s
receipt of the compensation and other benefits paid to Executive by the
Company, at present and in the future, Executive agrees that any and all
controversies claims or disputes with anyone (including the Company and any
employee, officer, director, shareholder or benefit pan of the Company in their
capacity as such or otherwise) arising out of, relating to, or resulting from
Executive’s employment with the Company, or the termination of Executive’s
employment with the Company, including any breach of this 2010 Agreement, shall
be subject to binding arbitration rules set forth in California Code of
Civil Procedure Section 1280 through 1294.2, including Section 1281.8
(the “Rules”) and pursuant to California law.  The Federal Arbitration Act
shall continue to apply with full force and effect notwithstanding the
application of procedural rules set forth in the Rules.  Disputes which Executive agrees to arbitrate,
and thereby agrees to waive any right to a trial by jury, include any statutory
claims under local,  state or federal
law, including, but not limited to, claims under title VII of the Civil Rights
Act of 1964, the Americans with 


 


11

















 


Disabilities Act of 1990, the Age Discrimination in
Employment Act of 1967, the Older Workers Benefit Protection Act, the
Sarbanes-Oxley Act, the Worker Adjustment and Retraining Notification Act, the
California Fair Employment and Housing Act, the Family and Medical Leave Act,
the California Family Rights Act, the California Labor Code, claims of
harassment, discrimination or wrongful termination and any statutory or common
law claims.  Executive further understands that this 2010 Agreement to
arbitrate also applies to any disputes that the Company may have with
Executive.


 


8.2  Procedure.  Executive agrees that any
arbitration will be administered by the American Arbitration Association
(“AAA”) and that the neutral arbitrator will be selected in a manner consistent
with its National rules for the Resolution of Employment Disputes. 
Executive agrees that the arbitrator shall have the power to decide any motions
brought by any party to the arbitration, including motions for summary judgment
and/or adjudication and motions to dismiss and demurrers, prior to any
arbitration hearing.  Executive also agrees that the arbitrator shall have
the power to award any remedies, including attorneys’ fees and costs, available
under applicable law.  Executive understands the Company will pay for any
administrative or hearing fees charged by the arbitrator or AAA, except that
Executive shall pay any filing fees associated with any arbitration he
initiates, but only so much of the filing fees as he would have instead paid
had he filed a complaint in a court of law.  Executive agrees that the
arbitrator shall administer and conduct any arbitration in accordance with
California law, including the California Code of Civil Procedure, and that the
arbitrator shall apply substantive and procedural California law to any dispute
or claim, without reference to rules of conflict of law. To the extent
that the AAA’s National Rules for the Resolution of Employment Disputes
conflict with California law, California law shall take precedence. 
Executive agrees that the decision of the arbitrator on the merits shall be in
writing.  Executive agrees that the
decree or award rendered by the arbitrator may be entered as a final and
binding judgment in any court having jurisdiction thereof.  Executive agrees that any arbitration under
this 2010 Agreement shall be conducted in Alameda County, California.


 


8.3  Remedy.  Except as provided by the
Rules and this 2010 Agreement, arbitration shall be the sole, exclusive
and final remedy for any dispute between Executive and the Company. 
Accordingly, except as provided for and by the Rules and this 2010
Agreement, neither Executive nor the Company will be permitted to pursue court
action regarding claims that are subject to arbitration.  Notwithstanding,
the arbitrator will not have the authority to disregard or refuse to enforce
any lawful Company policy, and the arbitrator shall not order or require the
Company to adopt a policy not otherwise required by law which the Company has
not adopted.


 


8.4  Administrative Relief.  Executive understands that this
2010 Agreement does not prohibit Executive from pursuing an administrative
claim with a local, state or federal administrative body such as the Department
of Fair Employment and Housing, the Equal Employment Opportunity Commission, or
the Workers’ Compensation Board.  This 2010 Agreement, however, does
preclude Executive from pursing court action regarding any such claim.


 


12
















 


8.5  Voluntary Nature Of This 2010 Agreement.  Executive acknowledges and agrees that Executive is
executing this 2010 Agreement voluntarily and without any duress or undue
influence by the Company or anyone else.  Executive further acknowledges
and agrees that Executive has carefully read this 2010  Agreement and has asked any questions needed
for Executive to understand the terms, consequences and binding effect of this
2010 Agreement and fully understand it, including that Executive is waiving his right to a
jury trial.   Finally, Executive agrees that he has been
provided an opportunity to seek the advice of an attorney of his choice before
signing this 2010 Agreement.


 


9.     Contract Renewal.  This 2010 Agreement is automatically renewed for a
successive three (3) year term from the Effective Date unless either party
gives the other party three (3) months notice prior to expiration of the
2010 Agreement of their intent not to renew the 2010 Agreement.


 


10.  Assignment. 
This 2010 Agreement shall be binding upon and inure to the benefit of
(a) the heirs, executors and legal representatives of Executive upon
Executive’s death and (b) any successor of the Company.  Any such
successor of the Company shall be deemed substituted for the Company under the
terms of this 2010 Agreement for all purposes.  As used herein, “successor”
shall include any person, firm, corporation or other business entity which at
any time, whether by purchase, merger or otherwise, directly or indirectly
acquires all or substantially all of the assets or business of the
Company.  None of the rights of executive to receive any form of
compensation payable pursuant to this 2010 Agreement shall be assignable or
transferable except through a testamentary disposition or by the laws of descent
and distribution upon the death of Executive.  Any attempted assignment,
transfer, conveyance or other disposition (other than as aforesaid) of any
interest in the rights of Executive to receive any form of compensation
hereunder shall be null and void.


 


11.  Notices. 
All notices, requests, demands and other communications called for hereunder
shall be in writing and shall be deemed given if delivered personally or three
(3) days after being mailed by registered or certified mail, return
receipt requested, prepaid and addressed to the parties or their successors in
interest at the following addresses, or at such other addresses as the parties
may designate by written notice in the manner aforesaid:


 


	
  If to the Company:

  	
  SuperGen, Inc.

  
	
   

  	
  4140 Dublin Blvd., Suite 200

  
	
   

  	
  Dublin, CA 94568

  
	
   

  	
   

  
	
   

  	
  Attn:

  	
  Chief Financial Officer and

  
	
   

  	
   

  	
  Chairman, Compensation

  
	
   

  	
   

  	
  Committee of the SuperGen

  
	
   

  	
   

  	
  Board of Directors

  



 


13

















 


	
  If to the Executive:

  	
   

  	
  James S.J. Manuso

  
	
   

  	
   

  	
  The current address listed

  
	
   

  	
   

  	
  for the Executive in the Company

  
	
   

  	
   

  	
  records.

  



 


12.  Severability. 
In the event that any provision hereof becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, this 2010
Agreement shall continue in full force and effect without said provision.


 


13.  Entire Agreement.  This 2010 Agreement, together with the Plan and the
related equity award agreements, represents the entire agreement and
understanding between the Company and Executive concerning Executive’s
employment relationship with the Company, and supersedes and replaces any and
all prior agreements and understandings, including, without limitation, the
2004 Agreement, the 2008 Agreement, and the 2009 Agreement, whether oral or
written, concerning Executive’s employment relationship with the Company.


 


14.  Waiver of Breach.  The waiver of a breach of any term or provision of
this 2010 Agreement, which must be in writing, will not operate as or be
construed to be a waiver of any other previous or subsequent breach of this
2010 Agreement.


 


15.  Headings. 
All captions and section headings used in this 2010 Agreement are for
convenient reference only and do not form a part of this 2010 Agreement.


 


16.  No Oral Modification, Cancellation Or Discharge.  This 2010 Agreement may only be amended, canceled or
discharged in writing signed by Executive and the Company.


 


17.  Tax Withholding.  All payments made pursuant to this 2010 Agreement
will be subject to withholding of applicable taxes.


 


18.  Governing Law. 
This 2010 Agreement shall be governed by the internal substantive laws, but not
the choice of law rules, of the State of California.


 


19.  Acknowledgement.  Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this 2010 Agreement, and is knowingly and
voluntarily entering into this 2010 Agreement.


 


20.  Counterparts. 
This 2010 Agreement may be executed in counterparts, and each counterpart will
have the same force and effect as an original and will constitute an effective,
binding agreement on the part of each of the undersigned.


 


14

















 


IN
WITNESS WHEREOF, the parties have executed this 2010 Agreement on the dates set
forth below.


 


	
  SUPERGEN, INC.

  	
   

  	
   

  	
  JAMES S.J. MANUSO

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Walter J. Lack

  	
   

  	
  By:

  	
  /s/ James S.J. Manuso

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Chairman, Compensation

  	
   

  	
   

  	
   

  
	
   

  	
  Committee of the SuperGen

  	
   

  	
   

  	
   

  
	
   

  	
  Board of Directors

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  09/30/10

  	
   

  	
  Date:

  	
  09/30/10

  



 


15

















 


EXHIBIT A


 


INVENTIONS RETAINED
AND LICENSED


 

















 


EXHIBIT B


 


CALIFORNIA LABOR
CODE SECTION 2870


INVENTION ON OWN
TIME — EXEMPTION FROM AGREEMENT


 


(a)          
Any provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer’s equipment,
supplies, facilities, or trade secret information except for those inventions
that either:


 


(1)  
Relate at the time of conception or reduction to practice of the invention to
the employer’s business, or actual or demonstrably anticipate research or
development of the employer; or


 


(2)  
Result from any work performed by the employee for the employer.


 


(b)          
To the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy of
this state and is unenforceable.


 

















 


EXHIBIT C


 


SUPERGEN, INC./JAMES S.J.
MANUSO


 


RELEASE OF CLAIMS


 


This
Release of Claims (“Agreement”) is made by and between SuperGen, Inc. (the
“Company”) and James S.J. Manuso
(“Employee”).


 


WHEREAS,
Employee has agreed to enter into a release of claims in favor of the Company
upon certain events specified in the employment agreement by and between
Company and Employee (the “Employment Agreement”).


 


NOW
THEREFORE, in consideration of the mutual promises made herein, the Parties
hereby agree as follows:


 


1.                                       Termination.  Employee’s employment from the Company
terminated on
                                
(the “Termination Date”).


 


2.                                       Confidential Information.  Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the
Company.  Employee shall return all the
Company property and confidential and proprietary information in his possession
to the Company on the Effective Date of this Agreement.


 


3.                                       Payment of Salary.  Employee acknowledges and represents that the
Company has paid all salary, wages, bonuses, accrued vacation, commissions and
any and all other benefits due to Employee.


 


4.                                       Release of Claims.  Employee agrees that the foregoing
consideration represents settlement in full of all outstanding obligations owed
to Employee by the Company.  Employee, on
behalf of himself, and his respective heirs, family members, executors and
assigns, hereby fully and forever releases the Company and its past, present
and future officers, agents, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, parents, predecessor and
successor corporations, and assigns, from, and agrees not to sue or otherwise
institute or cause to be instituted any legal or administrative proceedings
concerning any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or
unsuspected, that he may possess arising from any omissions, acts or facts that
have occurred up until and including the Effective Date of this Agreement including,
without limitation,


 


(a)                                  any and all claims relating to or arising from Employee’s
employment relationship with the Company and the termination of that
relationship;


 


(b)                                 any and all claims relating to, or arising from, Employee’s
right to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;


 

















 


(c)                                  any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;


 


(d)                                 any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967,  the Americans with Disabilities
Act of 1990, the Fair Labor Standards Act, the Employee Retirement Income
Security Act of 1974, The Worker Adjustment and Retraining Notification Act,
the California Fair Employment and Housing Act, and Labor Code section 201, et seq. and section 970, et seq. and all
amendments to each such Act as well as the regulations issued thereunder;


 


(e)                                  any and all claims for violation of the federal, or any
state, constitution;


 


(f)                                    any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and


 


(g)                                 any and all claims for attorneys’ fees and costs.


 


Employee agrees that the release set
forth in this section shall be and remain in effect in all respects as a
complete general release as to the matters released.  This release does not extend to any severance
obligations due Employee under the Employment Agreement.  Nothing in this Agreement waives Employee’s
rights to indemnification or any payments under any fiduciary insurance policy,
if any, provided by any act or agreement of the Company, state or federal law
or policy of insurance.


 


5.                                       Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges that he is waiving and releasing any
rights he may have under the Age Discrimination in Employment Act of 1967 (“ADEA”)
and that this waiver and release is knowing and voluntary. Employee and the
Company agree that this waiver and release does not apply to any rights or
claims that may arise under the ADEA after the Effective Date of this
Agreement.  Employee acknowledges that
the consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled.  Employee further acknowledges that he has
been advised by this writing that (a) he should consult with an attorney prior
to executing this Agreement; (b) he has at least twenty-one (21) days
within which to consider this Agreement; (c) he has seven (7) days
following the execution of this Agreement by the parties to revoke the
Agreement; (d) this Agreement shall not be effective until the revocation
period has expired; and (e) nothing in this Agreement prevents or
precludes Employee from challenging or seeking a determination in good faith of
the validity of this waiver under the ADEA, nor does it impose any condition
precedent, penalties or costs for doing so, unless specifically authorized by
federal law.  Any revocation should be in
writing and delivered to the Vice-President of Human Resources at the Company
by close of business on the seventh day from the date that Employee signs this
Agreement.


 

















 


6.                                       Civil Code Section 1542.  Employee represents that he is not aware of
any claims against the Company other than the claims that are released by this
Agreement.  Employee acknowledges that he
has been advised by legal counsel and is familiar with the provisions of
California Civil Code 1542, below, which provides as follows:


 


A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.


 


Employee,
being aware of said code section, agrees to expressly waive any rights he may
have thereunder, as well as under any statute or common law principles of
similar effect.


 


7.                                       No Pending or Future Lawsuits.  Employee represents that he has no lawsuits,
claims, or actions pending in his name, or on behalf of any other person or
entity, against the Company or any other person or entity referred to
herein.  Employee also represents that he
does not intend to bring any claims on his  own behalf or
on behalf of any other person or entity against the Company or any other person
or entity referred to herein.


 


8.                                       Application for Employment.  Employee understands and agrees that, as a
condition of this Agreement, he shall not be entitled to any employment with
the Company, its subsidiaries, or any successor, and he hereby waives any
right, or alleged right, of employment or re-employment with the Company.


 


9.                                       No Cooperation.  Employee agrees that he will not counsel or
assist any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless under a subpoena
or other court order to do so.


 


10.                                 No Admission of Liability.  Employee understands and acknowledges that
this Agreement constitutes a compromise and settlement of disputed claims.  No action taken by the Company, either
previously or in connection with this Agreement shall be deemed or construed to
be (a) an admission of the truth or falsity of any claims heretofore made
or (b) an acknowledgment or admission by the Company of any fault or
liability whatsoever to the Employee or to any third party.


 


11.                                 Costs.  The Parties shall each bear their own costs,
expert fees, attorneys’ fees and other fees incurred in connection with this
Agreement.


 


12.                                 Arbitration.  The Parties agree that any and all disputes
arising out of the terms of this Agreement, their interpretation, and any of the
matters herein released, including any potential claims of harassment,
discrimination or wrongful termination shall be subject to binding arbitration,
to the extent permitted by law, as specified in the Employment Agreement.


 

















 


13.                                 Authority.  Employee represents and warrants that he has
the capacity to act on his own behalf and on behalf of all who might claim
through him to bind them to the terms and conditions of this Agreement.


 


14.                                 No Representations.  Employee represents that he has had the opportunity
to consult with an attorney, and has carefully read and understands the scope
and effect of the provisions of this Agreement. 
Neither party has relied upon any representations or statements made by
the other party hereto which are not specifically set forth in this Agreement.


 


15.                                 Severability.  In the event that any provision hereof
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.


 


16.                                 Entire Agreement.  This Agreement along with Employee’s written
equity compensation agreements with the Company, represents the entire
agreement and understanding between the Company and Employee concerning
Employee’s separation from the Company.


 


17.                                 No Oral Modification.  This Agreement may only be amended in writing
signed by Employee and the Chairman of the Board of Directors of the Company.


 


18.                                 Governing Law.  This Agreement shall be governed by the
internal substantive laws, but not the choice of law rules, of the State of
California.


 


19.                                 Effective Date.  This Agreement is effective eight (8) days
after it has been signed by both Parties.


 


20.                                 Counterparts.  This Agreement may be executed in
counterparts, and each counterpart shall have the same force and effect as an
original and shall constitute an effective, binding agreement on the part of
each of the undersigned.


 


21.                                 Voluntary Execution of Agreement.  This Agreement is
executed voluntarily and without any duress or undue influence on the part or
behalf of the Parties hereto, with the full intent of releasing all
claims.  The Parties acknowledge that:


 


(a)                                  They have read this Agreement;


 


(b)                                 They have been represented in the preparation, negotiation,
and execution of this Agreement by legal counsel of their own choice or that
they have voluntarily declined to seek such counsel;


 


(c)                                  They understand the terms and consequences of this Agreement
and of the releases it contains;


 


(d)                                 They are fully aware of the legal and binding effect of this
Agreement.


 

















 


IN
WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.


 


 


	
   

  	
  SuperGen, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:                     ,
  20    

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  James S.
  J. Manuso, an individual

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:                     ,
  20    

  	
  By:

  	
   

  



 
















 


Attachment A-1


 


SuperGen, Inc.


 


Unvested Performance Based Options (by Milestone Category) for James S.
Manuso


 


Described
in the chart below are the unvested performance milestones for each of the 2010
Performance Option, the 2009 Performance Option, the 2008 Performance Option
and the 2004 Performance Option (as such terms are defined in Section 6.3(b) of
the Agreement), arranged by type of milestone vesting event.  Please see Attachment A-2 for a chart
of the performance based options presented by date of agreement between
SuperGen, Inc. (the “Company”) and Dr. Manuso.  Capitalized terms used in this Attachment
A-1 and in Attachment A-2 but not otherwise defined have the
meanings set forth in the 2010 Agreement.


 


	
  Milestone Vesting Events

  	
   

  	
  Number of

  Unvested Shares

  Underlying the

  Milestone

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Employment

  Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A.
  Filing of an Investigational New Drug Application(1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)
  100,000 shares will vest upon clearance by FDA of an IND submitted by the
  Company that will allow the Company to initiate a clinical study of the
  compound that is the subject of the IND.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  1.76

  	
   

  	
  2009 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)
  100,000 shares will vest upon clearance by the FDA of another IND submitted
  by the Company that will allow the 

  	
   

  	
  100,000

  	
   

  	
  $

  	
  1.76

  	
   

  	
  2009 Agreement

  



 






(1) 
The following shares subject to the performance-based options have previously
vested pursuant to filings of INDs and are not reflected in this chart:
(i) 100,000 shares from the 2008 Agreement (at an exercise price of $5.06
per share) vested in April 2007 upon the filing of an IND filed for MP
470; (ii) another 100,000 shares from the 2008 Agreement vested in
November 2008 upon the filing of an IND filed for SGI 1776; and
(iii) 100,000 shares from the 2009 Agreement (at an exercise price of
$1.76 per share) vested in June 2010 upon clearance by the FDA of an IND
filed for SGI-110.


 

















 


	
  Milestone Vesting Events

  	
   

  	
  Number of

  Unvested Shares

  Underlying the

  Milestone

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Employment

  Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Company
  to initiate a clinical study of the compound that is the subject of the IND
  (subsequent to the IND described in Milestone (A)(1) above).

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)
  100,000 shares will vest upon the clearance by the FDA of a third IND
  submitted by the Company that will allow the Company to initiate a clinical
  study of the compound that is the subject of the IND (subsequent to the
  clearance of the INDs described in Milestones (A)(1) and (A)(2) above).

  	
   

  	
  100,000

  	
   

  	
  $

  	
  2.12

  	
   

  	
  2010 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)
  — 100,000 shares will vest upon the filing of an IND for a drug acquired as a
  result of the Company’s acquisition of Montigen; provided, however, that this
  performance milestone can only be achieved if Milestones (A)(1), (A)(2) and
  (A)(3) above are already achieved.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  5.06

  	
   

  	
  2008 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.
  Achievement of a Cash-Flow Positive Year of Operations(2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)
  100,000 shares will vest upon the Company achieving a cash-flow positive year
  of operations during the term of the 2010 Agreement.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  1.76

  	
   

  	
  2009 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)
  100,000 shares will vest upon the Company achieving a 

  	
   

  	
  100,000

  	
   

  	
  $

  	
  2.12

  	
   

  	
  2010 Agreement

  



 






(2)   The following shares
subject to the performance-based options have previously vested pursuant to
cash-flow positive years of operations and are not reflected in this chart:
(i) 100,000 shares from the 2008 Agreement (at an exercise price of $5.06
per share) vested in March 2008 in connection with a cash-flow positive
year in 2007; and (ii) 100,000 shares from the 2009 Agreement (at an
exercise price of $1.76 per share) vested in March 2010 in connection with
a cash-flow positive year in 2009.


 


2

















 


	
  Milestone Vesting Events

  	
   

  	
  Number of

  Unvested Shares

  Underlying the

  Milestone

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Employment

  Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  second
  cash-flow positive year of operations during the term of the 2010 Agreement
  (that follows the cash-flow positive year referred to in Milestone (B)(1)
  above).

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)
  100,000 shares will vest upon the Company achieving the next cash-flow
  positive year of operations during the term of the 2010 Agreement that
  follows the cash-flow positive year of operations for which the performance
  milestone is achieved pursuant to Milestone (B)(2) above.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  2.12

  	
   

  	
  2010 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)
  100,000 shares will vest upon the Company achieving of a fourth cash-flow
  positive year of operations; provided, however, that this performance
  milestone can only be achieved for a cash-flow positive year of operations
  that follows the three cash-flow positive years described in Milestones
  (B)(1) through (B)(3) above.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  5.06

  	
   

  	
  2008 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.
  Commencement / Completion of Clinical Trials

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)
  100,000 shares will vest upon the Company’s commencement by the Company of an
  FDA-cleared Phase II clinical trial.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  1.76

  	
   

  	
  2009 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)
  100,000 shares will vest upon the Company’s commencement by the Company of an
  FDA-cleared Phase II clinical trial following the commencement of the first
  DFA-cleared Phase II clinical trial resulting in vesting under Milestone
  (C)(1) above.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  2.12

  	
   

  	
  2010 Agreement

  



 


3

















 


	
  Milestone Vesting Events

  	
   

  	
  Number of

  Unvested Shares

  Underlying the

  Milestone

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Employment

  Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)
  100,000 shares shall vest upon completion of Phase III of a compound acquired
  during Executive’s tenure as the Company’s Chief Executive Officer during the
  term of the 2004 Agreement.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  11.27

  	
   

  	
  2004 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.
  Agreements and Acquisitions involving Corporate Partners and/or Licensees;
  Financing Events(3)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)
  100,000 shares will vest upon the execution of a definitive agreement with a corporate
  partner or licensee for one or more of the drugs in the Company’s portfolio,
  or for a discovery collaboration, providing the value to the Company of any
  such deal is projected to exceed $10 million in combined up-front payments,
  R&D payments, milestones and royalties to the Company throughout its
  course.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  1.76

  	
   

  	
  2009 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)
  100,000 shares will vest upon execution of a definitive agreement with a
  corporate partner or licensee for one or more of the drugs in the Company’s
  portfolio, or for a discovery collaboration, providing the value to the
  Company of any such deal is projected to exceed $15 million in combined
  up-front payments, R&D payments, milestones and royalties to the Company
  throughout its course.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  1.76

  	
   

  	
  2009 Agreement

  



 






(3)  The following shares subject to performance based options
have previously vested pursuant to agreements involving corporate partners /
licensees or financing events, and are not reflected in this chart:
(i) 200,000 shares from the 2004 Agreement (at an exercise price of $11.27
per share) vested in March 2004 in connection with securing $25M of
additional financing and (ii) 250,000 shares from the 2009 Agreement (at
an exercise price of $1.76 per share) vested in October 2009 in connection
with the execution of the agreements with GlaxoSmithKline.


 


4

















 


	
  Milestone Vesting Events

  	
   

  	
  Number of

  Unvested Shares

  Underlying the

  Milestone

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Employment

  Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)
  250,000 shares will vest upon the securing of any one of the following: (a)
  execution of a definitive agreement with a corporate partner or licensee for
  one or more of the drugs in the Company’s portfolio, or for a discovery
  collaboration, providing the value to the Company of any such deal is
  projected to exceed $25 million in combined up-front payments, R&D
  payments, milestones and royalties to the Company throughout its course; (b)
  a transaction wherein the Company acquires another company, and the combined entity
  is valued at a premium of at least 10 percent above the market capitalization
  of the Company immediately before the transaction is closed for a period of
  thirty (30) consecutive days based on the closing price of the Company’s
  common stock traded on the Nasdaq stock market; or (c) $25 million in
  additional financing either through the sale of debt, equity or other
  securities of the Company. For the sake of clarity, 250,000 shares will vest
  upon the first of these that is secured — the securing of more than one of
  these shall not result in additional vesting.

  	
   

  	
  250,000

  	
   

  	
  $

  	
  2.12

  	
   

  	
  2010 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)
  100,000 shares will vest upon the acquisition of a corporate partner or
  licensee for one or more of the drugs in the Company’s portfolio, providing
  the value of such deal is projected to exceed $10 million in combined
  up-fronts, R&D payments, milestones and royalties to the Company
  throughout its course (provided that this Milestone can only be achieved if
  Milestone (D)(1) above is already achieved).

  	
   

  	
  100,000

  	
   

  	
  $

  	
  5.06

  	
   

  	
  2008 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (5)
  250,000 shares will vest upon the securing of (a) a significant 

  	
   

  	
  250,000

  	
   

  	
  $

  	
  5.06

  	
   

  	
  2008 Agreement

  



 


5

















 


	
  Milestone Vesting Events

  	
   

  	
  Number of

  Unvested Shares

  Underlying the

  Milestone

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Employment

  Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  corporate
  partner for one or more of the Company’s drugs or (b) $25 million in
  additional financing; provided however, (i) the milestone in clause (a) can
  only be achieved after Milestones (D)(1), (D)(2), (D)(3)(a) and (D)(4) above
  are achieved and (ii) the milestone in clause (b) can only be achieved after
  Milestone (D)(3)(c) is achieved.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.
  Drug Approvals

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)
  50,000 shares shall vest upon European approval of Decitabine.

  	
   

  	
  50,000

  	
   

  	
  $

  	
  11.27

  	
   

  	
  2004 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)
  50,000 shares shall vest upon European approval of Orathecin.

  	
   

  	
  50,000

  	
   

  	
  $

  	
  11.27

  	
   

  	
  2004 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)
  100,000 shall vest upon FDA approval of a compound acquired by the Company
  during the term of the 2004 Agreement.

  	
   

  	
  100,000

  	
   

  	
  $

  	
  11.27

  	
   

  	
  2004 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F.
  Other Events

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)
  50,000 shares shall vest upon the acquisition from a third party of at least
  one Phase II or more advanced compound.

  	
   

  	
  50,000

  	
   

  	
  $

  	
  11.27

  	
   

  	
  2004 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)
  200,000 shares shall vest upon the Company achieving of annual gross sales of
  $30,000,000 or more.

  	
   

  	
  200,000

  	
   

  	
  $

  	
  11.27

  	
   

  	
  2004 Agreement

  



 


6

















 


	
  Milestone Vesting Events

  	
   

  	
  Number of

  Unvested Shares

  Underlying the

  Milestone

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Employment

  Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.
  Milestones Determined by the Board of Directors(4)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)
  150,000 shares will vest upon achievement of additional milestone(s) to be
  determined by the Board, including, but not limited to, acquisition of a
  company or drug that is assessed to be value-enhancing by the Board.

  	
   

  	
  150,000

  	
   

  	
  $

  	
  1.76

  	
   

  	
  2009 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)
  150,000 shares will vest upon achievement of additional milestone(s) to be
  determined by the Board, including, but not limited to, acquisition of a
  company or drug that is assessed to be value-enhancing by the Board (provided
  that the milestone is different from Milestone (G)(1) above).

  	
   

  	
  150,000

  	
   

  	
  $

  	
  2.12

  	
   

  	
  2010 Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)
  50,000 shares will vest upon achievement of an additional milestone(s) to be
  agreed upon with the Board, including, but not limited to, acquisition of a
  company or drug that is assessed to be value-enhancing by the Board (other
  than the achievement of milestone(s) resulting in vesting under Milestones
  (G)(1) and (G)(2) above).

  	
   

  	
  50,000

  	
   

  	
  $

  	
  5.06

  	
   

  	
  2008 Agreement

  



 






(4)  The following shares subject to performance based options
have previously vested pursuant to milestones determined by the Board of
Directors and are not reflected in the this chart: (i) 250,000 shares from
the 2004 Agreement (at an exercise price of $11.27 per share) vested in May 2006;
and (ii) 100,000 shares from the 2008 Agreement (at an exercise price of
$5.06 per share) vested in February 2009.


 


7
















 


Attachment A-2


 


SuperGen, Inc.


 


Unvested Performance Based Options (by date of Agreement) for James S.
Manuso


 


Described
in the chart below are the performance milestones for each of the 2010
Performance Option, the 2009 Performance Option, the 2008 Performance Option
and the 2004 Performance Option (as such terms are defined in Section 6.3(b) of
the Agreement), in order of the agreements described in subsections (i) — (iv) of
Section 6.3(b) of the Agreement. 
Please see Attachment A-1 for a chart of the performance unvested
milestones presented by category.


 


	
  Employment

  Agreement /

  Term

  	
   

  	
  Option Grant

  Date and

  Number of

  Shares

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Number

  of

  Unvested

  Shares

  	
   

  	
  Milestone Vesting Events

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Employment Agreement dated as of October 1, 2010, terminates as of
  December 31, 2014

  

  (“the 2010 Agreement”)

  	
   

  	
  October 1, 2010

  

  800,000 shares

  	
   

  	
  $

  	
  2.12

  	
   

  	
  100,000

  	
   

  	
  (A)(1)
  Clearance by the U.S. Food and Drug Administration (“FDA”) of a third
  Investigational New Drug Application (“IND”) submitted by the Company that
  will allow the Company to initiate a clinical study of the compound that is
  the subject of the IND (following the achievement of Milestones (B)(1) and
  (B)(2) in the 2009 Agreement).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  250,000

  	
   

  	
  (A)(2)
  Securing of any one of the following: (a) execution of a definitive agreement
  with a corporate partner or licensee for one or more of the drugs in the
  Company’s portfolio, or for a discovery collaboration, providing the value to
  the Company of any such deal is projected to exceed $25 million in combined
  up-front payments, R&D payments, milestones and royalties to the Company
  throughout its course; (b) a transaction wherein the Company acquires another
  company, and the combined entity is valued at a premium of at least 10 percent
  above the market capitalization of the Company immediately before the
  transaction is closed for a period of thirty (30) consecutive days 

  
										



 

















 


	
  Employment

  Agreement /

  Term

  	
   

  	
  Option Grant

  Date and

  Number of

  Shares

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Number

  of

  Unvested

  Shares

  	
   

  	
  Milestone Vesting Events

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  based
  on the closing price of the Company’s common stock traded on the Nasdaq stock
  market; or (c) $25 million in additional financing either through the sale of
  debt, equity or other securities of the Company. For the sake of clarity,
  250,000 shares will vest upon the first of these that is secured — the
  securing of more than one of these shall not result in additional vesting.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (A)(3)
  Achievement by the Company of a second cash-flow positive year of operations
  during the term of the 2010 Agreement (following the achievement of Milestone
  (B)(5) in the 2009 Agreement).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (A)(4)
  Achievement by the Company of the next cash-flow positive year of operations
  during the term of the 2010 Agreement that follows the cash-flow positive
  year of operations for which the Milestone (A)(3) in the 2010 Agreement is
  achieved, above.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (A)(5)
  Commencement by the Company of an FDA-cleared Phase II clinical trial (following
  the achievement of Milestone (B)(6) in the 2009 Agreement).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  150,000

  	
   

  	
  (A)(6)
  Achievement of additional milestone(s) to be determined by the Board of
  Directors (the “Board”), including, but not limited to, acquisition of a
  company or drug that is assessed to be value-enhancing by the Board (provided
  that the milestone is different from Milestone (B)(7) in the 2009 Agreement).

  



 


2

















 


	
  Employment

  Agreement /

  Term

  	
   

  	
  Option Grant

  Date and

  Number of

  Shares

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Number

  of

  Unvested

  Shares

  	
   

  	
  Milestone Vesting Events

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amended and Restated Employment Agreement dated as of April 1, 2009,
  terminated as of September   , 2010(1)

  

  (the “2009 Agreement”)

  	
   

  	
  April 1, 2009

  

  1,200,000 shares

  	
   

  	
  $

  	
  1.76

  	
   

  	
  100,000

  	
   

  	
  (B)(1)
  Clearance by FDA of an IND submitted by the Company that will allow the
  Company to initiate a clinical study of the compound that is the subject of
  the IND.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (B)(2)
  Clearance by the FDA of another IND submitted by the Company that will allow
  the Company to initiate a clinical study of the compound that is the subject
  of the IND (subsequent to the IND described in Milestone (B)(1) in the 2009
  Agreement, above).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (B)(3)
  Execution of a definitive agreement with a corporate partner or licensee for
  one or more of the drugs in the Company’s portfolio, or for a discovery
  collaboration, providing the value to the Company of any such deal is
  projected to exceed $10 million in combined up-front payments, R&D
  payments, milestones and royalties to the Company throughout its course.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (B)(4)
  Execution of a definitive agreement with a corporate partner or licensee for
  one or more of the drugs in the Company’s portfolio, or for a discovery
  collaboration, providing the value to the Company of any such deal is
  projected to exceed $15 million in combined up-front payments, R&D
  payments, 

  
										



 






(1)  The following shares subject to the performance-based options
have previously vested pursuant to the 2009 Agreement and are not reflected in
this chart: (i) 250,000 shares vested in October 2009 in connection
with the execution of the agreements with GlaxoSmithKline; (ii) 100,000
shares vested in March 2010 in connection with a cash-flow positive year
in 2009; and (iii) 100,000 shares vested in June 2010 upon clearance
by the FDA of an IND filed for SGI-110.


 


3

















 


	
  Employment

  Agreement /

  Term

  	
   

  	
  Option Grant

  Date and

  Number of

  Shares

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Number

  of

  Unvested

  Shares

  	
   

  	
  Milestone Vesting Events

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  milestones
  and royalties to the Company throughout its course.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (B)(5)
  Achievement of a cash-flow positive year of operations during the term of the
  2010 Agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (B)(6)
  Commencement by the Company of an FDA-cleared Phase II clinical trial.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  150,000

  	
   

  	
  (B)(7)
  Achievement of additional milestone(s) to be determined by the Board,
  including, but not limited to, acquisition of a company or drug that is
  assessed to be value-enhancing by the Board.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Employment Agreement effective January 1, 2007, amended by the
  Amended and Restated Agreement dated as of October 28, 2008, terminated as of
  April 1, 2009(2)

  	
   

  	
  January 3, 2007

  

  1,000,000 shares

  	
   

  	
  $

  	
  5.06

  	
   

  	
  100,000

  	
   

  	
  (C)(1)
  IND filing for a drug acquired as a result of the Company’s acquisition of
  Montigen; provided, however, that this performance milestone can only be
  achieved if Milestones (B)(1) and (B)(2) in the 2009 Agreement and Milestone
  (A)(1) in the 2010 are already achieved.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (C)(2)
  Acquisition of a corporate partner or licensee for one or more of the drugs
  in the Company’s portfolio, providing the value of such deal is projected to
  exceed $10 million in combined up-fronts, R&D payments, milestones and
  royalties to the Company throughout its course; provided, however, that this 

  
										



 






(2)  The following shares subject to the performance-based options
have previously vested pursuant to the 2008 Agreement and are not reflected in
this chart: (i) 100,000 shares vested in April 2007 upon the filing
of an IND filed for MP 470; (ii) 100,000 shares vested in March 2008
in connection with a cash-flow positive year in 2007; (iii) another 100,000
shares vested in November 2008 upon the filing of an IND filed for SGI
1776; and (iv) 100,000 shares vested in February 2009 upon
achievement of additional milestones as determined by the Board.


 


4

















 


	
  Employment

  Agreement /

  Term

  	
   

  	
  Option Grant

  Date and

  Number of

  Shares

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Number

  of

  Unvested

  Shares

  	
   

  	
  Milestone Vesting Events

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (the “2008 Agreement”)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  performance
  milestone can only be achieved if Milestone (B)(3) in the 2009 Agreement is already
  achieved.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  250,000

  	
   

  	
  (C)(3)
  Securing of (a) a significant corporate partner for one or more of the
  Company’s drugs or (b) $25 million in additional financing; provided however,
  that the performance milestone described in clause (a) hereof can only be
  achieved if Milestone (A)(2)(a) in the 2010 Agreement is achieved; Milestones
  (B)(3) and (B)(4) in the 2009 Agreement are achieved; and Milestone (C)(2) in
  the 2008 Agreement is achieved and that the performance milestone described
  in clause (b) hereof can only be achieved after Milestone (A)(2)(c) in the
  2010 Agreement is achieved.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (C)(4)
  Achievement of a fourth cash-flow positive year of operations; provided,
  however, that this performance milestone can only be achieved for a cash-flow
  positive year of operations that follows the three cash-flow positive years
  described in Milestone (B)(5) in the 2009 Agreement and Milestones (A)(3) and
  (A)(4) in the 2010 Agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (C)(5)
  Achievement of an additional milestone(s) to be agreed upon with the Board,
  including, but not limited to, acquisition of a company or drug that is
  assessed to be value-enhancing by the Board (other than the achievement of
  milestone(s) resulting in 

  



 


5

















 


	
  Employment

  Agreement /

  Term

  	
   

  	
  Option Grant

  Date and

  Number of

  Shares

  	
   

  	
  Option

  Exercise

  Price

  	
   

  	
  Number

  of

  Unvested

  Shares

  	
   

  	
  Milestone Vesting Events

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  50,000

  	
   

  	
  vesting
  under Milestone (B)(7) in the 2009 Agreement and Milestone (A)(6) in the 2010
  Agreement).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Employment Agreement dated as of January 1, 2004, terminated as of
  December 31, 2006(3)

  

  (the “2004 Agreement”)

  	
   

  	
  1,000,000

  	
   

  	
  $

  	
  11.27

  	
   

  	
  50,000

  	
   

  	
  (D)(1)
  European approval of Decitabine.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  50,000

  	
   

  	
  (D)(2)
  Acquisition from a third party of at least one Phase II or more advanced
  compound.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (D)(3)
  Completion of Phase III of a compound acquired during Executive’s tenure as
  the Company’s Chief Executive Officer during the term of the 2004 Agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  (D)(4)
  FDA approval of a compound acquired by the Company during the term of the
  2004 Agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  50,000

  	
   

  	
  (D)(5)
  European approval of Orathecin.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  200,000

  	
   

  	
  (D)(6)
  Company achievement of annual gross sales of $30,000,000 or more.

  
										



 






(3)  The following shares subject to the performance-based options
have previously vested pursuant to the 2004 Agreement and are not reflected in
this chart: (i) 200,000 shares vested in March 2004 in connection
with securing $25M of additional financing; and (ii) 250,000 shares vested
in May 2006 upon achievement of additional milestones as determined by the
Board.


 


6