Exhibit
10.2


 


SUPERGEN, INC.


 


SEVERANCE
BENEFIT PLAN FOR OFFICERS


 


(EFFECTIVE OCTOBER 28, 2008)


 


Section 1.              INTRODUCTION.


 


The SuperGen, Inc. Severance Benefit Plan for
Officers (the “Plan”) is amended and restated effective October 28, 2008,
to comply with the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”). 
The purpose of the Plan is to provide for the payment of severance
benefits to certain eligible employees of SuperGen, Inc. (the “Company”) or an affiliate of the Company whose
employment with the Company or an affiliate of the Company is involuntarily
terminated.  With the exception of
the SuperGen, Inc. Severance Benefit Plan, this Plan shall supersede any severance benefit plan, policy or practice
previously maintained by the Company or any affiliate of the Company; provided, however, that an Eligible
Employee under this Plan shall not be entitled to receive any benefits under
the SuperGen, Inc. Severance Benefit Plan.  This Plan document also is the Summary Plan
Description for the Plan.


 


Section 2.              ELIGIBILITY FOR
BENEFITS.


 


(a)           General Rules.  Subject to the requirements set forth in this
Section, the Company will grant severance benefits under the Plan to Eligible
Employees.


 


(1)           Definition of “Eligible
Employee.”  For purposes of this
Plan, an Eligible Employee is a full-time or a part-time regular hire employee
of the Company or any affiliate of the
Company (i) who is based in the United States, (ii) who is
employed as an officer of the Company or
any affiliate of the Company, (iii) whose employment is
involuntarily terminated by the Company or
an affiliate of the Company as a result of the elimination of his or her
job position, and (iv) who is notified by the Company in writing that he
or she is eligible for participation in the Plan.  The determination of whether an employee is
an Eligible Employee shall be made by the Company, in its sole discretion, and
such determination shall be binding and conclusive on all persons.  For purposes of this Plan, part-time
employees are those regular hire employees who are regularly scheduled to work
more than twenty (20) hours per week but less than a full-time work
schedule.  Regular hire employees working
twenty (20) hours per week or less and temporary employees are not eligible for
severance benefits under the Plan.


 


(2)           In order to be
eligible to receive benefits under the Plan, an Eligible Employee must remain
on the job until his or her date of termination as scheduled by the Company.


 


(3)           In order to be
eligible to receive benefits under the Plan, an Eligible Employee also must
execute a general waiver and release in substantially the form attached hereto
as Exhibit A, Exhibit B or Exhibit C, as appropriate, and such
release must become effective in accordance with its terms.  The Company, in its sole discretion, may
modify the form of the required release to comply with applicable law and shall
determine the form of 


 


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the required release,
which may be incorporated into a termination agreement or other agreement with
the Eligible Employee.


 


(b)           Exceptions to Benefit
Entitlement.  An employee, including
an employee who otherwise is an Eligible Employee, will not receive benefits
under the Plan (or will receive reduced benefits under the Plan) in the
following circumstances, as determined by the Company in its sole discretion:


 


(1)           The employee has
executed an individually negotiated employment contract or agreement with the
Company or an affiliate of the Company  relating
to severance benefits that is in effect on his or her termination date, in
which case such employee’s severance benefit, if any, shall be governed by the
terms of such individually negotiated employment contract or agreement and
shall be governed by this Plan only to the extent that the reduction pursuant
to Section 3(f) below does not entirely eliminate benefits under this
Plan.


 


(2)           The employee is
involuntarily terminated for any reason other than the elimination of the
employee’s job position.


 


(3)           The employee
voluntarily terminates employment with the Company or an affiliate of the Company. 
Voluntary terminations include, but are not limited to, resignation,
retirement or failure to return from a leave of absence on the scheduled date.


 


(4)           The employee
voluntarily terminates employment with the Company or an affiliate of the Company in order to accept employment with
another entity that is wholly or partly owned (directly or indirectly) by the
Company or an affiliate of the Company.


 


(5)           The employee is
involuntarily terminated for reasons related to job performance or misconduct.


 


(6)           The employee is
offered immediate reemployment by a successor to the Company or an affiliate of
the Company or by a purchaser of its assets, as the case may be, following a
change in ownership of the Company or an affiliate of the Company or a sale of
substantially all of the assets of a division or business unit of the Company
or an affiliate of the Company.  For
purposes of the foregoing, “immediate reemployment” means that the employee’s
employment with the successor to the Company or an affiliate of the Company or
the purchaser of its assets, as the case may be, results in uninterrupted
employment such that the employee does not incur a lapse in pay as a result of
the change in ownership of the Company or an affiliate of the Company or the
sale of its assets.


 


(7)           The employee is
rehired by the Company or an affiliate
of the Company prior to the date benefits under the Plan are scheduled to
commence.


 


(8)           The employee
engages in misconduct, violates a Company policy, or acts in a manner deemed
harmful to the Company or an affiliate of the Company prior to his or her
scheduled date of termination.


 


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Section 3.              AMOUNT OF BENEFIT.


 


(a)           Cash Severance
Benefit.  Each Eligible Employee
shall receive a cash severance benefit in an amount equal to the sum of the
following:


 


(i)            Two (2) weeks
of such Eligible Employee’s Base Salary, which shall be paid in lieu of notice
of termination of employment;


 


(ii)           An additional
thirty-nine (39) weeks of such Eligible Employee’s Base Salary;


 


(iii)         An additional two (2) weeks
of such Eligible Employee’s Base Salary for each full year of service such Eligible Employee has completed with
the Company or an affiliate of the Company; and


 


(iv)          An additional one (1) week
of such Eligible Employee’s Base Salary for any partial year of service such Eligible Employee has completed with the
Company or an affiliate of the Company, provided that such partial year of
service is greater than six (6) months in length.


 


(b)           Definition of “Base
Salary.”  For purposes of calculating
Plan benefits, “Base Salary” shall mean the Eligible Employee’s base pay
(excluding incentive pay, premium pay, commissions, overtime, bonuses and other
forms of variable compensation), at the rate in effect during the last
regularly scheduled payroll period immediately preceding the Eligible Employee’s
termination date.


 


(c)           Career Transition
Assistance.  Following an Eligible
Employee’s termination of employment by the Company or an affiliate of the
Company, the Company or its affiliate shall provide the Eligible Employee with
career transition services through an outplacement service provider for a
duration of nine (9) months or such longer period as determined by the
Board of Directors of the Company or its delegate (the “Board”) in its sole
discretion, up to a maximum of twenty-four (24) months.


 


(d)           COBRA Continuation Coverage.  Each
Eligible Employee who is enrolled in a health, dental, or vision  plan sponsored by the Company or an affiliate of the
Company may be eligible to continue coverage under such health, dental, or
vision plan (or to convert to an individual policy), at the time of the
Eligible Employee’s termination of employment, under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA” and, for purposes of this Plan, the
term “COBRA” shall also include any state law providing for similar
continuation coverage in addition to COBRA). 
The Company will notify the Eligible Employee of any such right to
continue such coverage at the time of termination pursuant to COBRA.  No provision of this Plan will affect the
continuation coverage rules under COBRA, except that the Company’s
payment, if any, of applicable insurance premiums will be credited as payment
by the Eligible Employee for purposes of the Eligible Employee’s payment
required under COBRA.  Therefore, the
period during which an Eligible Employee may elect to continue the Company’s or
its affiliate’s health, dental, or vision plan coverage at his or her own
expense under COBRA, the length of time during which COBRA coverage will be
made available to the Eligible Employee, and all other rights and obligations
of the Eligible Employee under COBRA 


 


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(except the obligation to
pay insurance premiums that the Company pays, if any) will be applied in the
same manner that such rules would apply in the absence of this Plan.


 


If COBRA is elected by an Eligible Employee, the
Company shall pay COBRA premiums on behalf of the Eligible Employee during the
number of weeks of Base Salary in respect of which the amount paid to the
Eligible Employee under Section 3(a) was calculated or for such
longer period as determined by the Board in its sole discretion; however, in no
event will the Company pay COBRA premiums for longer than the maximum coverage
continuation period under COBRA.  Upon
the conclusion of such period of insurance premium payments made by the
Company, the Eligible Employee will be responsible for the entire payment of
premiums required under COBRA for the duration of the COBRA period.  For purposes of this Section 3(d), (i) references
to COBRA shall be deemed to refer also to analogous provisions of state law and
(ii) any applicable insurance premiums that are paid by the Company shall
not include any amounts payable by the Eligible Employee under an Internal
Revenue Code Section 125 health care reimbursement plan, which amounts, if
any, are the sole responsibility of the Eligible Employee.


 


(e)           Additional Benefits.  Notwithstanding
the foregoing, the Company may, in its sole discretion, provide benefits in
addition to those pursuant to Sections 3(a), 3(c) and 3(d) to
Eligible Employees or employees who are not Eligible Employees (“Non-Eligible
Employees”) chosen by the Company, in its sole discretion, and the provision of
any such benefits to an Eligible Employee or a Non-Eligible Employee shall in
no way obligate the Company to provide such benefits to any other Eligible
Employee or to any other Non-Eligible Employee, even if similarly
situated.  If benefits under the Plan are
provided to a Non-Eligible Employee, references in the Plan to “Eligible
Employee” (with the exception of Sections 3(a), 3(c) and 3(d)) shall be
deemed to refer to such Non-Eligible Employee.


 


(f)            Certain
Reductions.  The Company, in its sole
discretion, shall have the authority to reduce an Eligible Employee’s severance
benefits, in whole or in part, by any other severance benefits, pay in lieu of
notice, or other similar benefits payable to the Eligible Employee by the
Company or an affiliate of the Company  that
become payable in connection with the Eligible Employee’s termination of
employment pursuant to (i) any applicable legal requirement, including,
without limitation, the Worker Adjustment and Retraining Notification Act (the “WARN
Act”), (ii) a written employment or severance agreement with the Company,
or (iii) any Company policy or practice providing for the Eligible
Employee to remain on the payroll for a limited period of time after being
given notice of the termination of the Eligible Employee’s employment.  The benefits provided under this Plan are
intended to satisfy, in whole or in part, any and all statutory obligations
that may arise out of an Eligible Employee’s termination of employment, and the
Plan Administrator shall so construe and implement the terms of the Plan.  The Company’s decision to apply such
reductions to the severance benefits of one Eligible Employee and the amount of
such reductions shall in no way obligate the Company to apply the same
reductions in the same amounts to the severance benefits of any other Eligible
Employee, even if similarly situated.  In
the Company’s sole discretion, such reductions may be applied on a retroactive
basis, with severance benefits previously paid being recharacterized as
payments pursuant to the Company’s statutory obligation.


 


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(g)           Other Employee
Benefits.  All other benefits (such
as life insurance, disability coverage, and 401(k) plan coverage)
terminate as of the Eligible Employee’s termination date (except to the extent
that a conversion privilege may be available thereunder).


 


Section 4.              TIME OF PAYMENT AND FORM OF
BENEFIT.


 


The severance benefits set forth under Section 3(a) above,
if any, shall be paid in a single sum as soon as administratively practical
following an Eligible Employee’s “separation from service” (as such term is
defined for purposes of Code Section 409A and any regulations or other
guidance promulgated thereunder (“Section 409A”)) The benefits described
in Sections 3(b) and (c) above, if any, will be paid
directly by the Company in accordance with the Company’s policies and
procedures.  All such payments under the
Plan will be subject to applicable withholding for federal, state and local
taxes.  If an Eligible Employee is
indebted to the Company at his or her termination date, the Company reserves
the right to offset any severance payments under the Plan by the amount of such
indebtedness.  In no event shall payment
of any Plan benefit be made prior to the Eligible Employee’s termination date
or prior to the effective date of the release described in Section 2(a)(3).


 


Section 5.              REEMPLOYMENT.


 


In the event of an
Eligible Employee’s reemployment by the Company or an affiliate of the Company during the period of time in respect of
which a cash severance benefit pursuant to Section 3(a) or 3(e) has
been paid, the Company, in its sole and absolute discretion, may require such
Eligible Employee to repay to the Company all or a portion of such severance
benefits as a condition of reemployment.


 


Section 6.              SECTION 409A


 


(a)           Notwithstanding
anything to the contrary in the Plan, if an Eligible Employee is a “specified
employee” within the meaning of Section 409A at the time of the Eligible
Employee’s termination of employment (other than due to death), and the
severance payable to the Eligible Employee, if any, pursuant to the Plan, 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 the Eligible Employee’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 the Eligible Employee’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 the Eligible
Employee dies following the Eligible Employee’s termination of employment but
prior to the six (6) month anniversary of the Eligible Employee’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 the Eligible Employee’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.


 


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(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) the Eligible
Employee’s annualized compensation based upon the annual rate of pay paid to
the Eligible Employee during the Company’s taxable year preceding the Company’s
taxable year of the Eligible Employee’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 the Eligible Employee’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.  The Eligible Employee 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 the Eligible Employee under Section 409A.


 


Section 7.              RIGHT TO INTERPRET
PLAN; AMENDMENT AND TERMINATION.


 


(a)           Exclusive Discretion.  The Plan Administrator shall have the
exclusive discretion and authority to establish rules, forms, and procedures
for the administration of the Plan and to construe and interpret the Plan and
to decide any and all questions of fact, interpretation, definition,
computation or administration arising in connection with the operation of the
Plan, including, but not limited to, the eligibility to participate in the Plan
and amount of benefits paid under the Plan. 
The rules, interpretations, computations and other actions of the Plan
Administrator shall be binding and conclusive on all persons.


 


(b)           Amendment or
Termination.  The Company reserves
the right to amend or terminate this Plan or the benefits provided hereunder at
any time; provided, however, that no such
amendment or termination shall affect the right to any unpaid benefit of any
Eligible Employee whose termination date has occurred prior to amendment or
termination of the Plan.  Any action
amending or terminating the Plan shall be in writing and executed by the Chief
Executive Officer or Chief Financial Officer of the Company.


 


Section 8.              NO IMPLIED
EMPLOYMENT CONTRACT.


 


The Plan shall not be deemed (i) to give any
employee or other person any right to be retained in the employ of the Company or an affiliate of the Company or (ii) to
interfere with the right of the Company or an affiliate of the Company
to discharge any employee or other person at any time, with or without cause,
which right is hereby reserved.


 


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Section 9.              LEGAL CONSTRUCTION.


 


This Plan is intended to be governed by and shall be
construed in accordance with the Employee Retirement Income Security Act of
1974 (“ERISA”) and, to the extent not preempted by ERISA, the laws of the State
of California.


 


Section 10.            CLAIMS, INQUIRIES AND
APPEALS.


 


(a)           Applications for
Benefits and Inquiries.  Any
application for benefits, inquiries about the Plan or inquiries about present
or future rights under the Plan must be submitted to the Plan Administrator in
writing by an applicant (or his or her authorized representative).  The Plan Administrator is:


 


SuperGen, Inc.


4140 Dublin Blvd., Suite 200

Dublin, CA 94568


 


(b)           Denial of Claims.  In the event that any application for
benefits is denied in whole or in part, the Plan Administrator must provide the
applicant with written or electronic notice of the denial of the application,
and of the applicant’s right to review the denial.  Any electronic notice will comply with the
regulations of the U.S. Department of Labor. 
The notice of denial will be set forth in a manner designed to be
understood by the applicant and will include the following:


 


(1)           the specific reason
or reasons for the denial;


 


(2)           references to the
specific Plan provisions upon which the denial is based;


 


(3)           a description of
any additional information or material that the Plan Administrator needs to
complete the review and an explanation of why such information or material is necessary;
and


 


(4)           an explanation of
the Plan’s review procedures and the time limits applicable to such procedures,
including a statement of the applicant’s right to bring a civil action under
section 502(a) of ERISA following a denial on review of the claim, as
described in Section 9(d) below.


 


This notice of denial
will be given to the applicant within ninety (90) days after the Plan
Administrator receives the application, unless special circumstances require an
extension of time, in which case, the Plan Administrator has up to an
additional ninety (90) days for processing the application.  If an extension of time for processing is
required, written notice of the extension will be furnished to the applicant
before the end of the initial ninety (90) day period.


 


This notice of extension
will describe the special circumstances necessitating the additional time and
the date by which the Plan Administrator is to render its decision on the
application.


 


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(c)           Request for a Review.  Any person (or that person’s authorized
representative) for whom an application for benefits is denied, in whole or in
part, may appeal the denial by submitting a request for a review to the Plan
Administrator within sixty (60) days after the application is denied.  A request for a review shall be in writing
and shall be addressed to:


 


SuperGen, Inc.


4140 Dublin Blvd., Suite 200

Dublin, CA 94568


 


A request for review must set forth all of the grounds
on which it is based, all facts in support of the request and any other matters
that the applicant feels are pertinent. 
The applicant (or his or her representative) shall have the opportunity
to submit (or the Plan Administrator may require the applicant to submit)
written comments, documents, records, and other information relating to his or
her claim.  The applicant (or his or her
representative) shall be provided, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information relevant
to his or her claim.  The review shall
take into account all comments, documents, records and other information
submitted by the applicant (or his or her representative) relating to the
claim, without regard to whether such information was submitted or considered
in the initial benefit determination.


 


(d)           Decision on Review.  The Plan Administrator will act on each
request for review within sixty (60) days after receipt of the request, unless
special circumstances require an extension of time (not to exceed an additional
sixty (60) days), for processing the request for a review.  If an extension for review is required,
written notice of the extension will be furnished to the applicant within the
initial sixty (60) day period.  This
notice of extension will describe the special circumstances necessitating the
additional time and the date by which the Plan Administrator is to render its
decision on the review.  The Plan
Administrator will give prompt, written or electronic notice of its decision to
the applicant. Any electronic notice will comply with the regulations of the
U.S. Department of Labor.  In the event
that the Plan Administrator confirms the denial of the application for benefits
in whole or in part, the notice will set forth, in a manner calculated to be
understood by the applicant, the following:


 


(1)           the specific reason
or reasons for the denial;


 


(2)           references to the
specific Plan provisions upon which the denial is based;


 


(3)           a statement that
the applicant is entitled to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other
information relevant to his or her claim; and


 


(4)           a statement of the
applicant’s right to bring a civil action under section 502(a) of ERISA.


 


(e)           Rules and
Procedures.  The Plan Administrator
will establish rules and procedures, consistent with the Plan and with
ERISA, as necessary and appropriate in carrying 


 


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out its responsibilities
in reviewing benefit claims.  The Plan
Administrator may require an applicant who wishes to submit additional
information in connection with an appeal from the denial of benefits to do so
at the applicant’s own expense.


 


(f)            Exhaustion of
Remedies.  No legal action for
benefits under the Plan may be brought until the applicant (i) has
submitted a written application for benefits in accordance with the procedures
described by Section 9(a) above, (ii) has been notified by the
Plan Administrator that the application is denied, (iii) has filed a
written request for a review of the application in accordance with the appeal
procedure described in Section 9(c) above, and (iv) has been
notified that the Plan Administrator has denied the appeal.  Notwithstanding the foregoing, if the Plan
Administrator does not respond to a Participant’s claim or appeal within the
relevant time limits specified in this Section 9, the Participant may
bring legal action for benefits under the Plan pursuant to Section 502(a) of
ERISA.


 


Section 11.            BASIS OF PAYMENTS TO
AND FROM PLAN.


 


The Plan shall be unfunded, and all cash payments
under the Plan shall be paid only from the general assets of the Company.


 


Section 12.            OTHER PLAN
INFORMATION.


 


(a)           Employer and Plan
Identification Numbers.  The Employer
Identification Number assigned to the Company (which is the “Plan Sponsor” as
that term is used in ERISA) by the Internal Revenue Service is 91-1841574.  The Plan Number assigned to the Plan by the
Plan Sponsor pursuant to the instructions of the Internal Revenue Service is  511.


 


(b)           Ending Date for Plan’s
Fiscal Year.  The date of the end of
the fiscal year for the purpose of maintaining the Plan’s records is December 31.


 


(c)           Agent for the Service
of Legal Process.  The agent for the
service of legal process with respect to the Plan is:


 


SuperGen, Inc.


4140 Dublin Blvd., Suite 200

Dublin, CA 94568


 


(d)           Plan Sponsor and
Administrator.  The “Plan Sponsor”
and the “Plan Administrator” of the Plan is:


 


SuperGen, Inc.


4140 Dublin Blvd., Suite 200

Dublin, CA 94568


 


The Plan Sponsor’s and
Plan Administrator’s telephone number is (925) 560-0100.  The Plan Administrator is the named fiduciary
charged with the responsibility for administering the Plan.


 


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Section 13.            STATEMENT OF ERISA
RIGHTS.


 


Participants in this Plan (which is a welfare benefit plan sponsored by  SuperGen, Inc.) are entitled to
certain rights and protections under ERISA. 
If you are an Eligible Employee, you are considered a participant in the
Plan and, under ERISA, you are entitled to:


 


(a)           Receive Information
About Your Plan and Benefits


 


(1)           Examine, without
charge, at the Plan Administrator’s office and at other specified locations,
such as worksites, all documents governing the Plan and a copy of the latest
annual report (Form 5500 Series), if applicable, filed by the Plan with
the U.S. Department of Labor and available at the Public Disclosure Room of
the Employee Benefits Security Administration;


 


(2)           Obtain, upon
written request to the Plan Administrator, copies of documents governing the
operation of the Plan and copies of the latest annual report (Form 5500
Series), if applicable, and an updated (as necessary) Summary Plan
Description.  The Administrator may make
a reasonable charge for the copies; and


 


(3)           Receive a summary
of the Plan’s annual financial report, if applicable.  The Plan Administrator is required by law to
furnish each participant with a copy of this summary annual report.


 


(b)           Prudent Actions by Plan Fiduciaries.  In addition to creating rights for Plan
participants, ERISA imposes duties upon the people who are responsible for the
operation of the employee benefit plan. 
The people who operate the Plan, called “fiduciaries” of the Plan, have
a duty to do so prudently and in the interest of you and other Plan
participants and beneficiaries.  No one,
including your employer, your union or any other person, may fire you or
otherwise discriminate against you in any way to prevent you from obtaining a
Plan benefit or exercising your rights under ERISA.


 


(c)           Enforce Your Rights.  If
your claim for a Plan benefit is denied or ignored, in whole or in part, you
have a right to know why this was done, to obtain copies of documents relating
to the decision without charge, and to appeal any denial, all within certain
time schedules.


 


Under ERISA, there are steps you can take to enforce the above
rights.  For instance, if you request a
copy of Plan documents or the latest annual report from the Plan, if
applicable, and do not receive them within 30 days, you may file suit in a
Federal court.  In such a case, the court
may require the Plan Administrator to provide the materials and pay you up to
$110 a day until you receive the materials, unless the materials were not sent
because of reasons beyond the control of the Plan Administrator.


 


If you have a claim for benefits which is denied or ignored, in whole
or in part, you may file suit in a state or Federal court.


 


If you are discriminated against for asserting your rights, you may seek
assistance from the U.S. Department of Labor, or you may file suit in a Federal
court.  The court 


 


10

















 


will decide who
should pay court costs and legal fees. 
If you are successful, the court may order the person you have sued to
pay these costs and fees.  If you lose,
the court may order you to pay these costs and fees, for example, if it finds
your claim is frivolous.


 


(d)           Assistance with Your Questions.  If
you have any questions about the Plan, you should contact the Plan
Administrator.  If you have any questions
about this statement or about your rights under ERISA, or if you need
assistance in obtaining documents from the Plan Administrator, you should contact
the nearest office of the Employee Benefits Security Administration, U.S.
Department of Labor, listed in your telephone directory or the Division of
Technical Assistance and Inquiries, Employee Benefits Security Administration,
U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C.
20210.  You may also obtain certain
publications about your rights and responsibilities under ERISA by calling the
publications hotline of the Employee Benefits Security Administration.


 


Section 14.            EXECUTION.


 


To record the adoption of the Plan as set forth
herein, effective as of  October 28,
2008, SuperGen, Inc.  has
caused its duly authorized officer to execute the same this 28th day of
October, 2008.


 


 


	
   

  	
  SUPERGEN,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James S.
  Manuso

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
    President/CEO

  



 


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For Employees Age
40 or Older


Individual Termination


 


EXHIBIT A


 


RELEASE AGREEMENT


 


I understand and agree completely to the terms set
forth in the SuperGen, Inc. Severance Benefit Plan for Officers (the “Plan”).


 


I understand that this Release, together with the
Plan, constitutes the complete, final and exclusive embodiment of the entire
agreement between the Company and me with regard to the subject matter
hereof.  I am not relying on any promise
or representation by the Company that is not expressly stated therein.  Certain capitalized terms used in this
Release are defined in the Plan.


 


I hereby confirm my obligations under the Company’s
proprietary information and inventions agreement.


 


Except as otherwise set forth in this Release, I
hereby generally and completely release the Company and its directors,
officers, employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent and subsidiary entities, insurers, affiliates, and assigns
from any and all claims, liabilities and obligations, both known and unknown,
that arise out of or are in any way related to events, acts, conduct, or
omissions occurring prior to and including the date I sign this Release.  This general release includes, but is not
limited to: (a) all claims arising out of or in any way related to my
employment with the Company or the termination of that employment; (b) all
claims related to my compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
pay, fringe benefits, stock, stock options, or any other ownership interests in
the Company; (c) all claims for breach of contract, wrongful termination,
and breach of the implied covenant of good faith and fair dealing; (d) all
tort claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (e) all federal, state, and
local statutory claims, including claims for discrimination, harassment,
retaliation, attorneys’ fees, or other claims arising under the federal Civil
Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of
1990 (as amended), the federal Age Discrimination in Employment Act (as
amended) (“ADEA”), the federal Employee Retirement Income Security Act of 1974
(as amended), and the California Fair Employment and Housing Act (as amended).


 


I acknowledge that I am knowingly and voluntarily
waiving and releasing any rights I may have under the ADEA, and that the
consideration given under the Plan for the waiver and release in the preceding
paragraph hereof is in addition to anything of value to which I was already
entitled.  I further acknowledge that I
have been advised by this writing, as required by the ADEA, that: 
(a) my waiver and release do not apply to any rights
or claims that may arise after the date I sign this Release; (b) I should
consult with an attorney prior to signing this Release (although I may choose
voluntarily not do so); (c) I
have twenty-one (21) days to consider this Release (although I may choose
voluntarily to sign this Release earlier); (d) I have seven (7) days
following the date I sign this Release to revoke the Release by providing
written notice to an officer of the Company; and (e) this Release shall not be
effective until the date upon which the revocation period has expired, which
shall be the eighth day after I sign this Release.


 


1

















 


For Employees Age
40 or Older


Individual Termination


 


I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF
ALL KNOWN AND UNKNOWN CLAIMS.  I
acknowledge that I have read and understand Section 1542 of the California
Civil Code which reads 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.”  I hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any claims hereunder.


 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
				



 


2

















 


For Employees Age
40 or Older


 Group Termination


 


EXHIBIT B


 


RELEASE AGREEMENT


 


I understand and agree completely to the terms set
forth in the SuperGen, Inc. Severance Benefit Plan for Officers (the “Plan”).


 


                I understand that this Release,
together with the Plan, constitutes the complete, final and exclusive
embodiment of the entire agreement between the Company and me with regard to
the subject matter hereof.  I am not
relying on any promise or representation by the Company that is not expressly
stated therein.  Certain capitalized
terms used in this Release are defined in the Plan.


 


I hereby confirm my obligations under the Company’s
proprietary information and inventions agreement.


 


Except as otherwise set forth in this Release, I
hereby generally and completely release the Company and its directors,
officers, employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent and subsidiary entities, insurers, affiliates, and assigns
from any and all claims, liabilities and obligations, both known and unknown,
that arise out of or are in any way related to events, acts, conduct, or
omissions occurring prior to and including the date I sign this Release.  This general release includes, but is not
limited to: (a) all claims arising out of or in any way related to my
employment with the Company or the termination of that employment; (b) all
claims related to my compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
pay, fringe benefits, stock, stock options, or any other ownership interests in
the Company; (c) all claims for breach of contract, wrongful termination,
and breach of the implied covenant of good faith and fair dealing; (d) all
tort claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (e) all federal, state, and
local statutory claims, including claims for discrimination, harassment,
retaliation, attorneys’ fees, or other claims arising under the federal Civil
Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of
1990 (as amended), the federal Age Discrimination in Employment Act (as
amended) (“ADEA”), the federal Employee Retirement Income Security Act of 1974
(as amended), and the California Fair Employment and Housing Act (as amended).


 


I acknowledge that I am knowingly and voluntarily
waiving and releasing any rights I may have under the ADEA, and that the
consideration given under the Plan for the waiver and release in the preceding
paragraph hereof is in addition to anything of value to which I was already
entitled.  I further acknowledge that I
have been advised by this writing, as required by the ADEA, that: 
(a) my waiver and release do not apply to any rights
or claims that may arise after the date I sign this Release; (b) I should
consult with an attorney prior to signing this Release (although I may choose
voluntarily not to do so); (c) I
have forty-five (45) days to consider this Release (although I may choose
voluntarily to sign this Release earlier); (d) I have seven (7) days
following the date I sign this Release to revoke the Release by providing
written notice to an office of the Company; (e) this Release shall not be
effective until the date upon which the revocation period has expired, which
shall be the eighth day after I sign this Release; 


 


1

















 


For Employees Age
40 or Older


 Group Termination


 


and (f) I have received with this Release a detailed list of the
job titles and ages of all employees who were terminated in this group
termination and the ages of all employees of the Company in the same job
classification or organizational unit who were not terminated.


 


I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF
ALL KNOWN AND UNKNOWN CLAIMS.  I
acknowledge that I have read and understand Section 1542 of the California
Civil Code which reads 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.”  I hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any claims hereunder.


 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
				



 


2

















 


For Employees
Under Age 40


Individual and Group Termination


 


EXHIBIT C


 


RELEASE AGREEMENT


 


I understand and agree completely to the terms set
forth in the SuperGen, Inc. Severance Benefit Plan for Officers (the “Plan”).


 


I understand that this Release, together with the
Plan, constitutes the complete, final and exclusive embodiment of the entire
agreement between the Company and me with regard to the subject matter hereof.  I am not relying on any promise or
representation by the Company that is not expressly stated therein.  Certain capitalized terms used in this
Release are defined in the Plan.


 


I hereby confirm my obligations under the Company’s
proprietary information and inventions agreement.


 


Except as otherwise set forth in this Release, I
hereby generally and completely release the Company and its directors,
officers, employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent and subsidiary entities, insurers, affiliates, and assigns
from any and all claims, liabilities and obligations, both known and unknown,
that arise out of or are in any way related to events, acts, conduct, or
omissions occurring prior to and including the date I sign this Release.  This general release includes, but is not
limited to: (a) all claims arising out of or in any way related to my
employment with the Company or the termination of that employment; (b) all
claims related to my compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
pay, fringe benefits, stock, stock options, or any other ownership interests in
the Company; (c) all claims for breach of contract, wrongful termination,
and breach of the implied covenant of good faith and fair dealing; (d) all
tort claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (e) all federal, state, and
local statutory claims, including claims for discrimination, harassment,
retaliation, attorneys’ fees, or other claims arising under the federal Civil
Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of
1990 (as amended), the federal Age Discrimination in Employment Act (as
amended) (“ADEA”), the federal Employee Retirement Income Security Act of 1974
(as amended), and the California Fair Employment and Housing Act (as amended).


 


I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF
ALL KNOWN AND UNKNOWN CLAIMS.  I
acknowledge that I have read and understand Section 1542 of the California
Civil Code which reads 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.”  I hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any claims hereunder.


 


1

















 


For Employees
Under Age 40


Individual and Group Termination


 


I acknowledge that to become effective, I must sign
and return this Release to the Company so that it is received not later than
fifteen (15) days following the date of my employment termination.


 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
				



 


2