OTHER TRANSACTION
DOCUMENTS OR THE BUYERS ENFORCE OR EXERCISE THEIR RIGHTS HEREUNDER OR
THEREUNDER, AND SUCH PAYMENT OR PAYMENTS OR THE PROCEEDS OF SUCH ENFORCEMENT OR
EXERCISE OR ANY PART THEREOF ARE SUBSEQUENTLY INVALIDATED, DECLARED TO BE
FRAUDULENT OR PREFERENTIAL, SET ASIDE, RECOVERED FROM, DISGORGED BY OR ARE
REQUIRED TO BE REFUNDED, REPAID OR OTHERWISE RESTORED TO THE COMPANY, A TRUSTEE,
RECEIVER OR ANY OTHER PERSON UNDER ANY LAW (INCLUDING, WITHOUT LIMITATION, ANY
BANKRUPTCY LAW, STATE OR FEDERAL LAW, COMMON LAW OR EQUITABLE CAUSE OF ACTION),
THEN TO THE EXTENT OF ANY SUCH RESTORATION THE OBLIGATION OR PART THEREOF
ORIGINALLY INTENDED TO BE SATISFIED SHALL BE REVIVED AND CONTINUED IN FULL FORCE
AND EFFECT AS IF SUCH PAYMENT HAD NOT BEEN MADE OR SUCH ENFORCEMENT OR SETOFF
HAD NOT OCCURRED.
(O)
INDEPENDENT NATURE OF BUYERS' OBLIGATIONS AND RIGHTS.
THE OBLIGATIONS OF
EACH BUYER UNDER ANY TRANSACTION DOCUMENT ARE SEVERAL AND NOT JOINT WITH THE
OBLIGATIONS OF ANY OTHER BUYER, AND NO BUYER SHALL BE RESPONSIBLE IN ANY WAY FOR
THE PERFORMANCE OF THE OBLIGATIONS OF ANY OTHER BUYER UNDER ANY TRANSACTION
DOCUMENT.
NOTHING CONTAINED HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT, AND NO
ACTION TAKEN BY ANY BUYER PURSUANT HERETO OR THERETO, SHALL BE DEEMED TO
CONSTITUTE THE BUYERS AS A PARTNERSHIP, AN ASSOCIATION, A JOINT VENTURE OR ANY
OTHER KIND OF ENTITY, OR CREATE A PRESUMPTION THAT THE BUYERS ARE IN ANY WAY
ACTING IN CONCERT OR AS A GROUP
27
WITH RESPECT TO SUCH OBLIGATIONS OR THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS.
EACH BUYER CONFIRMS THAT IT HAS INDEPENDENTLY
PARTICIPATED IN THE NEGOTIATION OF THE TRANSACTION CONTEMPLATED HEREBY WITH THE
ADVICE OF ITS OWN COUNSEL AND ADVISORS.
EACH BUYER SHALL BE ENTITLED TO
INDEPENDENTLY PROTECT AND ENFORCE ITS RIGHTS, INCLUDING, WITHOUT LIMITATIONS,
THE RIGHTS ARISING OUT OF THIS AGREEMENT OR OUT OF ANY OTHER TRANSACTION
DOCUMENTS, AND IT SHALL NOT BE NECESSARY FOR ANY OTHER BUYER TO BE JOINED AS AN
ADDITIONAL PARTY IN ANY PROCEEDING FOR SUCH PURPOSE.
[Signature Page Follows]
28
IN WITNESS WHEREOF, each Buyer and the Company have caused this Securities
Purchase Agreement to be duly executed as of the date first written above.
COMPANY:
BUYERS:
SUPERGEN, INC.
SMITHFIELD FIDUCIARY LLC
By:
/s/ JOSEPH RUBINFELD
By:
/s/ Adam J. Chill
Name:
Joseph Rubinfeld
Name:
Adam J. Chill
Title:
President/Chief Executive Officer
Title:
Authorized Signatory
OMICRON MASTER TRUST
By:
Omicron Capital L.P., as advisor
By:
Omicron Capital Inc., its general partner
By:
/s/ OLIVIER MORALI
Name:
Olivier Morali
Title:
President
MAINFIELD ENTERPRISES INC.
By:
/s/ AVI VIGDER
Name:
Avi Vigder
Title:
Director
CRANSHIRE CAPITAL L.P.
By:
/s/ MITCHELL P. KOPIN
Name:
Mitchell P. Kopin
Title:
President-Downsview Capital, Inc.,
The General Partner
OTAPE LLC
By:
/s/ RICHARD CAYNE
Name:
Richard Cayne
Title:
General Counsel
SCHEDULE OF BUYERS
(1)
(2)
(3)
(4)
(5)
Buyer
Address and Facsimile Number
Aggregate
Principal
Amount of
Notes
Aggregate
Number of
Warrants
Legal Representative's
Address and Facsimile Number
Smithfield Fiduciary LLC
c/o Highbridge Capital Management, LLC
9 West