As filed with the Securities and Exchange Commission on September 17, 1999
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
SUPERGEN, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 91-1841574
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
TWO ANNABEL LANE, SUITE 220
SAN RAMON, CA 94583
(Address of principal executive offices)
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1993 STOCK OPTION PLAN
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JOSEPH RUBINFELD, PH.D.
CHIEF EXECUTIVE OFFICER
SUPERGEN, INC.
TWO ANNABEL LANE, SUITE 220
SAN RAMON, CALIFORNIA 94583
(925) 327-0200
(Name, address and telephone number of agent for service)
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COPY TO:
JOHN V. ROOS, ESQ.
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered (1) Per Share (2) Offering Price (2) Fee
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Common Stock, $.001 par value 600,000 $ 15.09 $9,053,472.15 $ 2,516.87
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(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 an aggregate of 3,250,000 shares previously registered under
Form S-8 Registration Nos. 333-07295 and 333-58303.
(2) The Proposed Maximum Offering Price Per Share was estimated in part
pursuant to Rule 457(h) under the Securities Act, and, in part, pursuant to
Rule 457(c) under the Securities Act. With respect to (i) 437,662 shares
which are subject to outstanding options to purchase Common Stock under the
1993 Plan, the Proposed Maximum Offering Price Per Share was estimated
pursuant to Rule 457(h) under which Rule the per share price of options to
purchase stock under an employee stock option plan may be estimated by
reference to the exercise price of such options. The weighted average
exercise price of the 437,662 subject to outstanding options under the 1993
Plan to be registered is $12.433. With respect to 162,338 shares of Common
Stock available for future grant under the 1993 Plan, 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 September 14, 1999,
which average was $22.25. The number referenced above in the table entitled
"Proposed Maximum Offering Price per Share" represents a weighted average
of the foregoing estimates calculated in accordance with Rules 457(h) and
457(c).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
SuperGen, Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and Form 10-K/A filed with the
Securities and Exchange Commission (the "Commission") on May 14, 1999.
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999 and June 30, 1999, filed pursuant to Section 13
of the Exchange Act.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
(d) The description of the Company's Common Stock to be offered
hereby is contained in the Company'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 Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
in this registration statement and to be a part hereof from the date of
filing of 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
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eliminating, to the fullest extent permitted by Delaware law, the personal
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, as amended (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
4.1 1993 Stock Option Plan, as amended.
4.2* Form of Stock Option Agreement for use under the 1993 Stock
Option Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the
legality of securities being registered.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-5).
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* Incorporated by reference to the exhibit filed with the Company's Quarterly
Report on Form 10-Q filed with the Securities and Exchange Commission on
August 13, 1997.
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING 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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE
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.
(h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8
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 Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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 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 September 17,
1999.
SUPERGEN, INC.
By: /S/ JOSEPH RUBINFELD
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Joseph Rubinfeld, Ph.D.
Chief Executive Officer, President and Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph Rubinfeld, his
attorney-in-fact, for him in any and all capacities, to sign any amendments
to this Registration Statement on Form S-8, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ JOSEPH RUBINFELD Chief Executive Officer, President and September 17, 1999
- ---------------------------------------- Director (PRINCIPAL EXECUTIVE OFFICER)
(Joseph Rubinfeld)
/s/ RONALD H. SPAIR Chief Financial Officer (PRINCIPAL September 17, 1999
- ---------------------------------------- FINANCIAL AND ACCOUNTING OFFICER)
(Ronald H. Spair)
/s/ DENIS BURGER Director September 17, 1999
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(Denis Burger)
/s/ LAWRENCE J. ELLISON Director September 17, 1999
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(Lawrence J. Ellison)
/s/ JULIUS A. VIDA Director September 17, 1999
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(Julius A. Vida)
/s/ DANIEL ZURR Director September 17, 1999
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(Daniel Zurr)
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SUPERGEN, INC.
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
Exhibit
Number Description
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4.1 1993 Stock Option Plan.
4.2* Form of Stock Option Agreement for use under the 1993 Stock Option Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the
legality of securities being registered.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-5).
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* Incorporated by reference to the exhibit filed with the Company's Quarterly
Report on form 10-Q filed with the Securities and Exchange Commission on
August 13, 1997.
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