Exhibit 10.8


 


CONVERSION AND AMENDMENT AGREEMENT


 


CONVERSION AND AMENDMENT AGREEMENT
(the “Agreement”),
dated as of June 24, 2003, by and between SuperGen, Inc., a Delaware
corporation, with headquarters located at 4140 Dublin Boulevard, Suite 200,
Dublin, California 94568 (the “Company”), and (the “Investor”).


 


WHEREAS:


 


A.    The Company, the Investor and certain other
investors (the “Other Investors”; and collectively with the Investor, the “Investors”)
have entered into that certain Securities Purchase Agreement, dated as of
February 26, 2003 (the “Securities Purchase Agreement”), pursuant
to which, among other things, the Investors purchased from the Company an
aggregate of $21,250,000 principal amount of senior convertible exchangeable
notes of the Company (the “Notes”);


 


B.    Contemporaneously with the execution and
delivery of the Securities Purchase Agreement, the Company and the Investors
entered into a Registration Rights Agreement, dated as of February 26, 2003
(the “Registration
Rights Agreement”), pursuant to which the Company agreed to provide
certain registration rights with respect to the Registrable Securities (as
defined in the Registration Rights Agreement) under the Securities Act of 1933,
as amended (the “1933 Act”), and the rules and regulations promulgated
thereunder, and applicable state securities laws;


 


C.    The Company and the Investor desire to enter
into this Agreement, pursuant to which, among other things, (i) the Investor
will convert principal amount of the Investor’s Note plus accrued and unpaid
interest thereon (collectively, the “Investor Conversion Amount”) into [       (1)
shares of Common Stock (the “Investor Conversion Shares”) and (ii) the
Company and the Investor will amend the Investor’s Note by exchanging the
Investor’s Note for  an amended and
restated senior convertible note in the form attached hereto as Exhibit A
(the “Amended
and Restated Note” and together with any convertible notes issued in
replacement thereof in accordance with the terms thereof and any amended and
restated convertible notes issued to any Other Investor in exchange for their
Notes, the “Amended and Restated Notes”);


 


D.    The parties hereto desire to amend certain
provisions of the Securities Purchase Agreement and the Registration Rights
Agreement;


 


E.     The conversion of the Notes into the
Conversion Shares and the exchange of the Note for the Amended and Restated
Note is being made in reliance upon the exemption from registration provided by
Section 3(a)(9) of the 1933 Act; and


 












(1)                                  Insert
a number of shares of Common Stock equal to the applicable Investor Conversion
Amount divided by the Fixed Conversion Price of $4.25.


 

















 


F.     Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings ascribed to them in
the Securities Purchase Agreement.


 


NOW, THEREFORE, the
Company and the Investor hereby agree as follows:


 


1.                                 CONVERSION AND
AMENDMENT OF NOTES.


 


(a)           Conversion and Amendment of Notes.
Subject to satisfaction (or waiver) of the conditions set forth in Sections 5
and 6, the Investor shall surrender to the Company its Note and the Company
shall (i) deliver to the Investor the Investor Conversion Shares and (ii) issue
an Amended and Restated Note for the remaining outstanding principal amount of
such Investor’s Note (the “Closing”).


 


(b)           Closing Date.  The date and time of the Closing (the “Closing Date”)
shall be 10:00 a.m., New York Time, on the date hereof, subject to notification
of satisfaction (or waiver) of the conditions to the Closing set forth in
Sections 5 and 6 below (or such later date as is mutually agreed to by the
Company and the Investor).  The Closing
shall occur on the Closing Date at the offices of Schulte Roth & Zabel LLP,
919 Third Avenue, New York, New York 10022.


 


(c)           Deliveries.  On the Closing Date, (i) the Company
(A) shall issue (without valid delivery by the Investor of the applicable
Conversion Notice as required pursuant to the Notes) the Investor Conversion
Shares by causing its transfer agent to credit the aggregate number of the
Investor Conversion Shares to the Investor’s or its designee’s balance account
with The Depository Trust Company through its Deposit Withdrawal Agent
Commission system and designated in writing by the Investor to the Company
concurrently herewith (the “Investor DTC Account”) and (B) shall
issue and deliver to the Investor (in the principal amounts as the Investor
shall request), the Investor’s Amended and Restated Note, duly executed on
behalf of the Company and registered in the name of the Investor or its
designee, and (ii) the Investor shall take such action as is necessary to
cause to be delivered to the Company the Investor’s Note for cancellation.


 


2.                                 AMENDMENTS  TO TRANSACTION DOCUMENTS.


 


(a)           Securities Purchase Agreement.  The Securities Purchase Agreement is hereby
amended as follows:


 


(i)            All references to “Notes” are hereby
replaced with “Amended and Restated Notes”; and


 


(ii)           The defined term “Transaction
Documents” is hereby amended to include this Agreement.


 


(b)           Registration Rights Agreement.  The Registration Rights Agreement is hereby
amended as follows:


 


(i)            The term “Registrable Securities” is
hereby replaced by the following:


 


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(a)           “Registrable Securities” means (i) the
Conversion Shares issued or issuable upon conversion of the Notes and the
Amended and Restated Notes, (ii) the Interest Shares (as defined in the Amended
and Restated Notes) issued or issuable under the Amended and Restated Notes,
(iii) the Warrant Shares issued or issuable upon exercise of the Warrants, (iv)
the shares issuable upon exercise of the warrant granted to Rodman &
Renshaw, Inc. in connection with the execution of the Securities Purchase
Agreement and (v) any shares of capital stock issued or issuable with respect
to the Conversion Shares, the Interest Shares, the Notes, the Amended and
Restated Notes, the Warrant Shares or the Warrants as a result of any stock
split, stock dividend, recapitalization, exchange or similar event or otherwise,
without regard to any limitations on conversions of the Notes or the Amended
and Restated Notes or exercise of the Warrants.


 


(ii)           The defined term “Notes” is hereby
amended to replace the term “Notes” with the term “Notes and Amended and
Restated Notes”.


 


3.                                 REPRESENTATIONS AND
WARRANTIES


 


(a)           Investor Bring Down.  The Investor hereby represents and warrants
as to itself only as set forth in Section 2 of the Securities Purchase
Agreement as if such representations and warranties were made as of the date
hereof and set forth in their entirety in this Agreement.


 


(b)           Company Bring Down.  The Company represents and warrants to the
Investor as set forth in Section 3 of the Securities Purchase Agreement as if
such representations and warranties were made as of the date hereof and set
forth in their entirety in this Agreement; provided that the Schedules to the
Securities Purchase Agreement are replaced in their entirety by the Schedules
attached to this Agreement (the “New Schedules”) and the representations and
warranties in the Securities Purchase Agreement are qualified in their entirety
by the New Schedules (regardless of whether such representations and warranties
provide for a Schedule).


 


4.                                 CERTAIN COVENANTS


 


(a)           Disclosure of Transactions and Other
Material Information.  On or before
8:30 a.m., New York Time, on  the first Trading Day following the date
hereof, the Company shall file a Current Report on Form 8-K describing the
terms of the transactions contemplated by this Agreement and by the documents
relating to the conversion and amendment of Other Investor’s Notes on the
Closing Date (the “Other Investor Documents”) in the form
required by the 1934 Act, and attaching the material transaction documents
(including, without limitation, this Agreement, the form of the Amended and
Restated Notes and the Other Investor Documents) as exhibits to such filing
(including all attachments, the “8-K Filing”, and the description and
attachments, the “8-K Materials”).  The 8-K Materials shall be subject to the Investor’s prior
approval, not to be unreasonably withheld or delayed.  From and after the filing of the 8-K Filing with the SEC, the
Investor shall not be in possession of any material, nonpublic information
received from the Company, any of its Subsidiaries or any of its respective
officers,


 


3

















 


directors, employees or agents, that is not disclosed in the 8-K
Filing.  The Company shall not, and
shall cause each of its Subsidiaries and its and each of their respective
officers, directors, employees and agents, not to, provide the Investor with
any material nonpublic information regarding the Company or any of its
Subsidiaries from and after the filing of the 8-K Filing with the SEC without
the express written consent of the Investor. 
In the event of a breach of the foregoing covenant by the Company, any
of its Subsidiaries, or any of its or their respective officers, directors,
employees and agents, in addition to any other remedy provided herein or in the
Transaction Documents, the Investor shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise,
of the 8-K Materials without the prior approval by the Company, its
Subsidiaries, or any of its or their respective officers, directors, employees
or agents.  The Investor shall not have
any liability to the Company, its Subsidiaries, or any of its or their
respective officers, directors, employees, shareholders or agents for any such
disclosure.  Subject to the foregoing,
neither the Company nor the Investor shall issue any press releases or any
other public statements with respect to the transactions contemplated hereby; provided,
however, that the Company shall be entitled, with the prior approval of
the Investor (not to be unreasonably withheld or delayed), to make any press
release or other public disclosure with respect to such transactions (i) in
substantial conformity with the 8-K Filing and contemporaneously therewith and
(ii) as is required by applicable law and regulations, including the applicable
rules and regulations of the Principal Market (provided that in the case of
clause (i) the Investor shall be consulted by the Company (although the
consent of the Investor shall not be required) in connection with any such
press release or other public disclosure prior to its release).


 


(b)           Registration Statement.  If required pursuant to the rules and
regulations of the 1933 Act, the Company shall prepare, and, as soon as
practicable but in no event later than two (2) Business Days after the date
hereof, file with the SEC a prospectus supplement pursuant to Section 424(b) of
the 1933 Act reflecting the changes set forth in this Agreement.


 


5.                                 CONDITIONS TO
COMPANY’S OBLIGATIONS HEREUNDER.


 


The obligations of the Company hereunder are subject
to the satisfaction of each of the following conditions, provided that these
conditions are for the Company’s sole benefit and may be waived by the Company
at any time in its sole discretion by providing the Investor with prior written
notice thereof:


 


(a)           The Investor shall have executed this
Agreement and delivered the same to the Company.


 


(b)           The Investor shall have delivered to the
Company the Investor’s Notes.


 


(c)           The representations and warranties of
the Investor shall be true and correct as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date), and such Investor shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and 


 


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conditions
required by this Agreement to be performed, satisfied or complied with by such
Investor at or prior to the Closing Date.


 


(d)           The Company shall have entered into
separate but substantially identical conversion and amendment agreements with
each of the Other Investors and all conditions to the closings contemplated by
such agreements shall have been satisfied or waived.


 


6.                                 CONDITIONS TO
INVESTOR’S OBLIGATIONS HEREUNDER.


 


The obligations of the Investor hereunder are subject
to the satisfaction of each of the following conditions, provided that these
conditions are for the Investor’s sole benefit and may be waived by the
Investor at any time in its sole discretion by providing the Company with prior
written notice thereof:


 


(a)           The Company shall have executed and
delivered to the Investor (i) this Agreement and (ii) the Amended and Restated
Notes (in such principal amounts as such Investor shall request).


 


(b)           The Company shall have credited the
Investor Conversion Shares to the Investor DTC Account.


 


(c)           The Investor shall have received the
opinion of Wilson Sonsini Goodrich & Rosati, PC, the Company’s outside counsel,
in substantially the form of Exhibit B attached hereto.


 


(d)           The Company shall have delivered to the
Investor a certificate, executed by the Secretary of the Company and dated as
of the date hereof, as to the resolutions authorizing the transactions set
forth herein as adopted by the Company’s Board of Directors in a form
reasonably acceptable to the Investor (the “Resolutions”).


 


(e)           The Conversion Shares and the Investor
Conversion Shares shall be listed upon the Principal Market.


 


(f)            The representations and warranties of
the Company shall be true and correct as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by the Company at or prior to the Closing
Date.  The Investor shall have received
a certificate, executed by the Chief Executive Officer of the Company, dated as
of the Closing Date, to the foregoing effect and as to such other matters as
may be reasonably requested by the Investor in the form attached hereto as Exhibit
C.


 


(g)           The Company shall have obtained all
governmental, regulatory or third party consents and approvals, if any,
necessary for the issuance of the Conversion Shares and the Amended and
Restated Notes.


 


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(h)           The Company shall have delivered to the
Investor such other documents relating to the transactions contemplated by this
Agreement as the Investor or its counsel may reasonably request.


 


7.                                 MISCELLANEOUS.


 


(a)           Governing Law; Jurisdiction; Jury
Trial.  All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of New
York.  Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. 
Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law.  EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.


 


(b)           Counterparts.  This Agreement may be executed in one or
more identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original,
not a facsimile signature.


 


(c)           Headings.  The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.


 


(d)           Severability.  If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.


 


(e)           Entire Agreement; Effect on Prior
Agreements; Amendments.  Except for
the Transaction Documents (to the extent any such Transaction Document is not
amended by this Agreement), this Agreement supersedes all other prior oral or
written agreements between the Investor, the Company, their affiliates and
Persons acting on their behalf


 


6

















 


with respect to the matters discussed herein, and this Agreement and
the instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Investor
makes any representation, warranty, covenant or undertaking with respect to
such matters.  No provision of this
Agreement may be amended other than by an instrument in writing signed by the
Company and the Investor and to the extent that Other Investors may be affected
thereby, by holders of Notes representing at least two-thirds of the aggregate
principal amount of the Notes then outstanding.  No provision hereof may be waived other than by an instrument in
writing signed by the party against whom enforcement is sought.  No consideration shall be offered or paid to
any Person to amend or consent to a waiver or modification of any provision of
any of the Transaction Documents unless the same consideration also is offered
to all of the parties to the Transaction Documents, holders of Notes or holders
of the Warrants, as the case may be. 
The Company has not, directly or indirectly, made any agreements with
any of the Investors relating to the terms or conditions of the transactions
contemplated by the Transaction Documents except as set forth in the
Transaction Documents.


 


(f)            Notices.  Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered:  (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of transmission
is mechanically or electronically generated and kept on file by the sending
party); or (iii) one Business Day after deposit with an overnight courier
service, in each case properly addressed to the party to receive the same.  The addresses and facsimile numbers for such
communications shall be:


 


	
   

  	
  If to the Company:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SuperGen, Inc.

  
	
   

  	
   

  	
  4140 Dublin Boulevard

  
	
   

  	
   

  	
  Suite 200

  
	
   

  	
   

  	
  Dublin, California 94568

  
	
   

  	
   

  	
  Telephone:   (925) 560-0100

  
	
   

  	
   

  	
  Facsimile:  (925) 560-0101

  
	
   

  	
   

  	
  Attention:  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
   

  	
  Wilson Sonsini Goodrich & Rosati, PC

  
	
   

  	
   

  	
  650 Page Mill Road

  
	
   

  	
   

  	
  Palo Alto, California 93404

  
	
   

  	
   

  	
  Telephone:  (650) 493-9300

  
	
   

  	
   

  	
  Facsimile:  (650) 493-6811

  
	
   

  	
   

  	
  Attention:  John V. Roos, Esq.

  



 


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  If to the Investor:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


or to such other address and/or facsimile number and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness of
such change.  Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver or other
communication, (B) mechanically or electronically generated by the sender’s
facsimile machine containing the time, date, recipient facsimile number and an
image of the first page of such transmission or (C) provided by an overnight
courier service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from an overnight courier service in accordance with
clause (i), (ii) or (iii) above, respectively.


 


(g)           Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns, including any purchasers of the Amended and Restated Notes.  The Company shall not assign this Agreement
or any rights or obligations hereunder without the prior written consent of the
holders of Amended and Restated Notes representing at least two-thirds of the
aggregate principal amount of the Amended and Restated Notes then outstanding,
including by merger or consolidation, except pursuant to a Change of Control
(as defined in Section 4 of the Amended and Restated Notes) with respect to
which the Company is in compliance with Section 4 of the Amended and Restated
Notes.  The Investor may assign some or
all of its rights hereunder without the consent of the Company, in which event
such assignee shall be deemed to be a Investor hereunder with respect to such
assigned rights.


 


(h)           No Third Party Beneficiaries.  This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns,
and is not for the benefit of, nor may any provision hereof be enforced by, any
other Person.


 


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(i)            Survival.  The representations and warranties of the
Company and the Investor contained herein, and the agreements and covenants set
forth herein, shall survive the Closing.


 


(j)            Further Assurances.  Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.


 


(k)           No Strict Construction.  The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.


 


(l)            Remedies.  The Investor and each holder of the
Securities shall have all rights and remedies set forth in the Transaction
Documents and all rights and remedies which such holders have been granted at
any time under any other agreement or contract and all of the rights which such
holders have under any law.  Any Person
having any rights under any provision of this Agreement shall be entitled to
enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law. 
Furthermore, the Company recognizes that in the event that it fails to
perform, observe, or discharge any or all of its obligations under this
Agreement, any remedy at law may prove to be inadequate relief to the
Investor.  The Company therefore agrees
that the Investor shall be entitled to seek temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages and
without posting a bond or other security.


 


[Signature Page Follows]


 


9

















 


IN WITNESS WHEREOF,
the Investor and the Company have caused this Conversion and Amendment
Agreement to be duly executed as of the date first written above.


 


	
  COMPANY:

  	
   

  	
  INVESTOR:

  
	
   

  	
   

  	
   

  
	
  SUPERGEN,
  INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Joseph Rubinfeld 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President/Chief Executive Officer

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


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EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Form of Amended and Restated Note

  
	
  Exhibit B

  	
   

  	
  Opinion of Wilson Sonsini Goodrich & Rosati, PC

  
	
  Exhibit C

  	
   

  	
  Form of Officer’s Certificate

  



 


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