As filed with the Securities and Exchange Commission on July 1, 1998
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUPERGEN, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 91-1841574
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(State of incorporation) (I.R.S. Employer Identification No.)
Two Annabel Lane, Suite 220
San Ramon, California 94583
(Address of principal executive offices)
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1993 STOCK OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
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Joseph Rubinfeld
SuperGen, Inc.
Two Annabel Lane, Suite 220
San Ramon, California 94583
(Name and address of agent for service)
(925) 327-0200
(Telephone number, including area code, of agent for service)
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Copies to:
JOHN V. ROOS, ESQ.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Offering Maximum Aggregate Registration
be Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
Common Stock,
$.001 par value 850,000 $10.4375 $8,871,875.00 $2,617.21
(1) Pursuant to Rule 429 of the Securities Act of 1933, as amended (the
"Securities Act"), the prospectus delivered to participants under the
Registrant's 1993 Stock Option Plan, as amended (the "1993 Plan"), also
relates to 2,500,000 shares previously registered under Form S-8
Registration No. 333-07295. The shares to be registered include 750,000
shares under the 1993 Plan and 100,000 shares under the Registrant's 1998
Employee Stock Purchase Plan.
(2) The Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(c) whereby the per share price was determined by reference to the
average between the high and low price reported in the Nasdaq National
Market on June 29, 1998, which average was $10.4375.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's latest annual report on Form 10-K for the fiscal year
ended December 31, 1997, pursuant to Section 13 of the Securities Exchange Act
of 1934 (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998, filed pursuant to Section 13 of the Exchange Act.
(c) The description of the Registrant's Common Stock to be offered hereby
is contained in the Registrant's Registration Statement on Form 8-A filed with
the Commission on January 18, 1996 pursuant to Section 12(g) of the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company has adopted provisions in its current Certificate of
Incorporation which (i) eliminate the personal liability of its directors to the
Company for monetary damages to the fullest extent permissible under Delaware
law; and (ii) authorize the company to indemnify its directors and officers to
the fullest extent permitted by law. Such limitation of liability does not
affect the availability of equitable remedies, such as injunctive relief or
rescission. The Company's Certificate of Incorporation also includes a
provision eliminating, to the fullest extent permitted by Delaware law, the
personal
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liability of its directors for monetary damages for breach of fiduciary duty as
a director. In addition, the Bylaws of the Company provide that it will be
required to indemnify its officers and directors to the maximum extent and in
the manner permitted by the Delaware General Corporation Law.
The Company has entered into separate indemnification agreements with each
of its officers, directors and key employees that contain provisions which are
in some respects broader than the specific indemnification provisions contained
in the Delaware General Corporation Law. The indemnification agreements may
require the Company, among other things, to indemnify such officers and
directors against certain liabilities that may arise by reason of their status
or service as directors or officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance their expenses incurred as a result
of any proceeding against them, as to which they could be indemnified, and to
obtain director's and officer's insurance, if available on reasonable terms.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
At present, the Company is not aware of any pending litigation involving a
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding which may result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
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4.1 1993 Stock Option Plan, as amended.
4.2* Form of Stock Option Agreement for use under the 1993 Stock Option
Plan.
4.3 1998 Employee Stock Purchase Plan with attached form of Subscription
Agreement and Notice of Withdrawal.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to legality of
securities being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-4)
* Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q filed with the Commission on
August 13, 1997.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Ramon, State of California, on July 1, 1998.
SUPERGEN, INC.
By: /s/ Joseph Rubinfeld
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Joseph Rubinfeld, Ph.D., Chief Executive
Officer, President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph Rubinfeld his true and lawful
attorney and agent, with full power of substitution, with power to act alone, to
sign and execute on behalf of the undersigned any amendment or amendments to
this Registration Statement on Form S-8 and to perform any acts necessary in
order to file such amendments, and each of the undersigned does hereby ratify
and confirm all that said attorney and agent, or his substitutes, shall do or
cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Joseph Rubinfeld
- ------------------------ Chief Executive Officer, July 1, 1998
(Joseph Rubinfeld) President and Director
(principal executive officer
and principal financial and
accounting officer)
/s/ Denis Burger
- ------------------------ Director July 1, 1998
(Denis Burger)
- ------------------------ Director ______, 1998
(Lawrence J. Ellison)
/s/ J. Gregory Swendsen
- ------------------------ Director July 1, 1998
(J. Gregory Swendsen)
/s/ Julius A. Vida
- ------------------------ Director July 1, 1998
(Julius A. Vida)
- ------------------------ Director ______, 1998
(Daniel Zurr)
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SUPERGEN, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
4.1 1993 Stock Option Plan, as amended.
4.2* Form of Stock Option Agreement for use under the 1993 Stock Option
Plan.
4.3 1998 Employee Stock Purchase Plan with attached form of Subscription
Agreement and Notice of Withdrawal.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.,
as to legality of securities being registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-4).
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* Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q filed with the Commission on
August 13, 1997.
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