Exhibit 10.9
FORM OF AMENDED AND RESTATED SENIOR 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) AND 18(a)
HEREOF.
THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND, ACCORDINGLY, THE
SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET
FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(c)(iii) OF THIS NOTE.
AMENDED AND RESTATED SENIOR CONVERTIBLE NOTE
Issuance Date: June 24, 2003
Principal: U.S. $
(1)
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 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 Original
Issuance Date (as defined herein) until the same
(1)
Insert half of the Principal outstanding under the initial Notes.
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, 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") shall reduce the
outstanding Principal of this Note.
This Senior Convertible Note (including all
Senior Convertible Notes issued in exchange, transfer or replacement hereof,
this "Note") is one of an issue of Senior Convertible Notes originally issued on
the Original Issuance Date pursuant to the Securities Purchase Agreement (as
defined below) and amended and restated pursuant to the Conversion and Amendment
Agreement, dated as of June
, 2003, by and between the Company and the