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