Exhibit 10.1


 


SUPERGEN, INC.


 


AMENDED AND RESTATED 

EXECUTIVE EMPLOYMENT AND CONFIDENTIAL INFORMATION AND INVENTION

ASSIGNMENT AGREEMENT


 


This Amended and Restated Executive Employment and Confidential
Information and Invention Assignment Agreement (the “Agreement”) is made and
entered into as of October 28, 2008 (the “Effective Date”) by and
between SuperGen, Inc., a Delaware corporation (the “Company”), and James
S. Manuso (“Executive”).


 


RECITALS


 


WHEREAS, the Company and Executive previously entered into an Executive
Employment and Confidential Information and Invention Assignment Agreement (the
“Original Agreement”) dated January 1, 2007 (the “Original Effective Date”)
establishing the terms on which the Company will employ Executive as its
President and Chief Executive Officer; and


 


WHEREAS, the Company and Executive desire to amend and restate the
Original Agreement to bring it into compliance with Section 409A of the
Internal Revenue Code of 1986, as amended, and any regulations or other
guidance promulgated thereunder (“Section 409A”).


 


NOW, THEREFORE, in consideration of the premises and mutual promises,
covenants, and conditions contained herein, the Company and Executive agree on
the terms and conditions set forth herein as follows:


 


AGREEMENT


 


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 Agreement shall commence upon the Effective Date and
shall continue until and including December 31, 2009.


 


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 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 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 


 


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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 protectible by copyright, are
“works made for hire,” as that term is defined in 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 


 


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executed when it is in his power to do so, any such instrument or
papers shall continue after the termination of this 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 an 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 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.


 


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 Agreement, the Company shall pay Executive a base salary (the “Base
Salary”) at the annual rate of not less than Five Hundred Sixty Two Thousand
Three Hundred Eighty Dollars ($562,380.00) 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 on January 1 of each year 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  Bonuses.


 


(a)           Executive shall be
entitled to a guaranteed bonus of One Hundred Fifty Thousand Dollars
($150,000.00) on January 1 of each year during the term of this Agreement,
provided that he remains continuously employed by the Company through each
applicable date (the “Guaranteed Bonus”), which shall be paid 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)           Executive shall be
eligible to receive an annual performance-based bonus of Three Hundred and
Fifty Thousand Dollars ($350,000.00) based upon 


 


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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 “Performance Bonus”; and together with the Guaranteed
Bonus, the “Bonuses”).  The Performance
Bonus shall be based upon achieving performance objectives during each 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 following the
year in which Executive’s right to such bonus vests.


 


6.3  Stock Options.


 


(a)           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 January 1 of each
year during the term of this 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 January 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 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 8.1
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 Agreement will immediately be granted and
100% of the then-unvested shares subject to all such Annual Options will vest
and become exercisable.


 


(b)           On the Original
Effective Date, the Company granted 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 1,000,000 shares of the Company’s common stock,
which such option has a per share exercise price equal to the fair market value
of the Company’s common stock on the Original Effective Date (the “Performance
Option” and together with the Annual Options, the “Options”).  The Performance Option shall vest upon the
Company’s achievement of the following performance milestones, subject to
Executive’s continuous employment with the Company through the date any such
performance milestone is achieved:


 


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·                  100,000 shares
subject to the Performance Option will vest upon the filing of the first IND of
a drug derived from the “Montigen acquisition;”


 


·                  100,000 shares
subject to the Performance Option will vest upon the filing of the second IND
of a drug derived from the “Montigen acquisition;”


 


·                  100,000 shares
subject to the Performance Option will vest upon the filing of the third IND of
a drug derived from the “Montigen acquisition;”


 


·                  100,000 shares
subject to the Performance Option 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 any such deal is projected to exceed $10MM in combined
up-fronts, R&D payments, milestones and royalties to the Company throughout
its course ;


 


·                  250,000 shares
subject to the Performance Option will vest upon the securing of a significant
corporate partner for one or more of the Company’s drugs or $25,000,000 in
additional financing;


 


·                  100,000 shares
subject to the Performance Option will vest upon the Company achieving a
cash-flow positive first year of operations;


 


·                  100,000 shares
subject to the Performance Option will vest upon the Company achieving a
cash-flow positive second year of operations;


 


·                  150,000 shares
subject to the Performance Option will vest upon achievement of 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.


 


(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 8.1 below) of the Company prior
to the vesting of the Performance Option and that occurs while Executive
remains employed hereunder, 100% of the then unvested 


 


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shares subject to the Performance Option shall immediately vest and
become exercisable.


 


6.4  Life Insurance.  During the term of the 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.   Up to a maximum of Twenty Five Thousand
Dollars ($25,000.00) 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 Four Thousand Dollars
($4,000.00) 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.


 


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



 


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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 $75,000.00.  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 no later than seventy (70) 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 Seven Hundred Fifty Thousand Dollars ($750,000), which shall
be paid no later no later than seventy (70) 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 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 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 Company of any of the terms of this 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 


 


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and
(y) a reasonable cure period of not less than thirty (30) days following
the date of such notice.


 


For the purposes of this 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 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 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.


 


7.5  Limitation On Payments.  In the event that the severance and other
benefits provided for in this 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 Agreement shall be reduced to the
extent necessary in order to avoid such benefits being subject to the Excise
Tax.


 


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.


 


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7.6  Section 409A


 


(a)           Notwithstanding
anything to the contrary in the 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 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 Agreement is intended to constitute separate payments for
purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.


 


(b)           Any
amount paid under the 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 Agreement. 
Any amount paid under the 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
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 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.


 


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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
Agreement, shall be subject to binding arbitration rules set forth in
California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05
(the “Rules”) and pursuant to California law. 
Disputes which Executive agrees to arbitrate, and thereby agrees to
waive any right to a trial by jury, include any statutory claims under the
state or federal law, including, but not limited to, claims under title VII of
the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the
Age Discrimination in Employment Act of 1967, the Older Workers Benefit
Protection Act, the California Fair Employment and Housing Act, the California
Labor Code, claims of harassment, discrimination or wrongful termination and
any statutory claims.  Executive further
understands that this 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 to 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 the first $125.00 of any filing fees associated with
any arbitration he initiates.  Executive
agrees that the arbitrator shall administer and conduct any arbitration in a
manner consistent with the rules and that to the extent that the AAA’s
National Rules for the Resolution of Employment Disputes conflict with the
Rules, the Rules shall take precedence. 
Executive agrees that the decision of the arbitrator shall be in
writing.


 


8.3  Remedy.  Except as
provided by the Rules and this 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 Agreement, neither Executive nor the Company
will be permitted to pursue court action regarding claims that are subject to
arbitration.  Notwithstanding, the
arbitrator 


 


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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  Availability Of Injunctive Relief.  In addition to the right under the Rules to
petition to the court for provisional relief, Executive agrees that any party
may also petition the court for injunctive relief whether either party alleges
or claims a violation of this Agreement or any other agreement regarding trade
secrets, confidential information, nonsolicitation of Labor Code 2870.  Executive understands that any breach or
threatened breach of such an agreement will cause irreparable injury and that
money damages will not provide an adequate remedy therefor and both parties
hereby consent to the issuance of an injunction.  In the event either party seeks injunctive
relief, the prevailing party shall be entitled to recover reasonable costs and
attorney fees.


 


8.5  Administrative Relief. 
Executive understands that this 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 Agreement, however, does
preclude Executive from pursing court action regarding any such claim.


 


8.6  Voluntary Nature Of This Agreement.  Executive acknowledges and agrees that Executive
is executing this 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 Agreement and has asked any questions needed for Executive to
understand the terms, consequences and binding effect of this 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 Agreement.


 


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


 


10.  Assignment.  This
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 Agreement for all purposes. 
As used herein, “successor” shall include any person, firm, corporation
or other business entity which at ant 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 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 


 


12

















 


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 of the Governance

  
	
   

  	
   

  	
  and Nominating Committee of

  
	
   

  	
   

  	
  the SuperGen Board of Directors

  
	
   

  	
   

  	
   

  
	
  If to the Executive:

  	
  James S. Manuso

  
	
   

  	
  8 Glen Alpine Drive

  
	
   

  	
  Piedmont, CA 94611

  



 


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 Agreement
shall continue in full force and effect without said provision.


 


13.  Entire Agreement. 
This Agreement, together with the Plan and Option 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 Original 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 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 Agreement.


 


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


 


16.  No Oral Modification, Cancellation Or Discharge.  This 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 Agreement
will be subject to withholding of applicable taxes.


 


13

















 


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.  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 Agreement, and is knowingly and voluntarily entering into this Agreement.


 


20.  Counterparts.  This
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.


 


IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.


 


 


	
  SUPERGEN, INC.

  	
   

  	
  JAMES S. MANUSO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ WALTER
  LACK

  	
   

  	
  /s/ JAMES S.
  MANUSO

  
	
   

  	
  Walter Lack

  	
   

  	
   

  
	
   

  	
  Chairman,
  Governance &

  	
   

  	
   

  
	
   

  	
  Nominating
  Committee of the

  	
   

  	
   

  
	
   

  	
  SuperGen
  Board of Directors

  	
   

  	
   

  



 


14

















 


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.