Exhibit 10.2
[FORM OF SENIOR EXCHANGEABLE CONVERTIBLE NOTE]
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS.
THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE
STATE SECURITIES LAWS, OR (B) AN OPINION OF COUNSEL, IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR
RULE 144A UNDER SAID ACT.
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES.
ANY TRANSFEREE OF THIS NOTE SHOULD
CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTIONS 3(c)(iii), 4(c)(iii)
AND 21(a) HEREOF.
THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND,
ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION OR EXCHANGE HEREOF MAY BE
LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTIONS
3(c)(iii) AND 4(c)(iii) OF THIS NOTE.
SENIOR EXCHANGEABLE CONVERTIBLE NOTE
Issuance Date: February 26, 2003
Principal: U.S. $
FOR VALUE RECEIVED, SUPERGEN, INC., a Delaware corporation (the "Company"),
hereby promises to pay to the order of
or its
registered assigns ("Holder") the amount set out above as the Principal (as
reduced pursuant to the terms hereof pursuant to redemption, conversion,
exchange or otherwise, the "Principal") when due, whether upon the Maturity
Date, on any Installment Date with respect to the Installment Amount due on such
Installment Date (each, as defined herein), acceleration, redemption or
otherwise (in each case, in accordance with the terms hereof) and to pay
interest ("Interest") on any outstanding Principal at the rate of 4.00% per
annum, subject to periodic adjustment pursuant to Section 2 (the "Interest
Rate"), from the date set out above as the Issuance Date (the "Issuance Date")
until the same becomes due and payable, whether upon an Interest Date, any
Installment Date or the Maturity Date (each, as defined herein), acceleration,
conversion, exchange, redemption or otherwise (in each case in accordance with
the terms hereof).
For avoidance of doubt, (i) any Principal that comprises a
portion of the Conversion Amount pursuant to Section 3(b) in connection with any
conversion of this Note pursuant to Section 3(a) (a "Principal Conversion
Amount") and any Principal that comprises a portion of the Exchange Amount
pursuant to Section 4(b) in connection with any exchange of this Note pursuant
to Section 4(a) (a "Principal Exchange Amount") shall reduce the outstanding
Principal of this Note, (ii) any
Principal that is included as part of a Principal Conversion Amount shall not be
included also as part of a Principal Exchange Amount and (iii) any Principal
that is included as part of a Principal Exchange Amount shall not