Exhibit
10.6


 


SECURITIES ACCOUNT CONTROL AGREEMENT


 


SECURITIES ACCOUNT CONTROL AGREEMENT (the “Agreement”),
dated as of February 26, 2003, among SuperGen, Inc., a Delaware company (the “Company”),
the secured parties set forth on the signature pages hereof (each, a “Secured
Party”, and collectively, the “Secured Parties”), and Mellon Investor
Services LLC, a New Jersey limited liability company, as Custodian.


 


WHEREAS:


 


A.            The
Company and the Secured Parties are parties to a Securities Purchase Agreement,
dated as of the date hereof (as amended or otherwise modified from time to
time, the “Securities Purchase Agreement”);


 


B.            Pursuant
to the Securities Purchase Agreement, the Secured Parties, severally but not
jointly, have agreed to purchase certain senior exchangeable convertible notes
(the “Notes”)
from the Company, which, among other things, are exchangeable by each Secured
Party for up to an aggregate number of shares (collectively, the “AVII Shares”)
of the common stock, par value $.0001 per share, of AVI BioPharma, Inc. (“AVII”),
set forth opposite such Secured Party’s name on Exhibit A attached hereto;


 


C.            Pursuant
to the terms of that certain Pledge Agreement, dated as of the date hereof,
made by the Company in favor of the Secured Parties (as the same may hereafter
be amended, supplemented or otherwise modified from time to time, the “Pledge
Agreement”), the Company has granted each Secured Party a security
interest (the “Security Interest”) in such Secured Party’s AVII Shares
(collectively, the “Pledged Shares”) and the certificates
representing such Pledged Shares, all options and other rights, contractual or
otherwise, in respect of the Pledged Shares and all dividends, distributions,
cash, instruments, investment property and other property (including but not
limited to, any stock dividend and any distribution in connection with a stock
split) from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares and all security
entitlements in respect of the Pledged Shares and all proceeds of any of the
foregoing, whether now owned or existing or hereafter acquired or arising and
wherever located (collectively, the “Pledged Collateral”).  In order to perfect the Secured Parties’
interest in the Pledged Collateral, the Company has established a securities
account with the Custodian into which the Pledged Collateral shall be
deposited.  The Company acknowledges
having received value for such pledge of the Pledged Collateral.


 


D.            Terms
defined in Article 8 or 9 of the Uniform Commercial Code as in effect in the
State of New York (the “UCC”) are used in this Agreement
(including, without limitation, paragraph (A) above) as such terms are defined
in such Article 8 or 9.


 


E.             The
Company and the Secured Parties hereto are entering into this Agreement
pursuant to the terms of the Pledge Agreement.


 

















 


NOW,
THEREFORE, in consideration of the premises and mutual
agreements contained herein, the parties hereto hereby agree as follows:


 


Section 1.              Appointment
of Custodian.  The Custodian,
Mellon Investor Services LLC, with an address at 235 Montgomery Street, 23rd
Floor, San Francisco, CA  94104 (in such
capacity, together with its successors in such capacity, the “Custodian”)
agrees that it is a “securities intermediary” (as such term is defined in
Section 8-102(a)(14) of the UCC).


 


Section 2.              Notation
of Security Interest. 
The Company and the Secured Parties are entering into this Agreement to
perfect, and confirm the first priority lien of, the Secured Parties’ security
interest in the Pledged Collateral.


 


Section 3.              The
Accounts.


 


(a)           Establishment
of Accounts.  The Custodian
acknowledges and agrees that it has established and is maintaining on its books
and records the following account: account number 002346SUPERINC designated the
SuperGen, Inc., Securities Account (such account, together with any
replacements thereof or substitutions therefor, and together with any
additional Accounts, if any, established in the future pursuant hereto,
collectively the “Accounts”) into which shall be deposited
the Pledged Shares and all other property constituting Pledged Collateral under
the Pledge Agreement.  The Custodian
represents that as of the date hereof this Agreement is the only agreement
between the Custodian and the Company governing the Accounts.


 


(b)           Status of
Accounts; Treatment of Property as Financial Assets; Relationship of Parties.  Each of the parties hereto agrees that:  (i) each of the Accounts is a
“securities account” (within the meaning of Section 8-501(a) of the UCC) in
respect of which the Custodian is a “securities intermediary” (within the
meaning of Section 8-102(a)(14) of the UCC); (ii) each item of property
(whether cash, a security, an instrument or any other property) credited to any
of the Accounts shall be treated as a “financial asset” (within the meaning of
Section 8-102(a)(9) of the UCC); (iii) the Custodian will treat each
Secured Party as the person entitled to exercise the rights that comprise such
Secured Party’s pro rata interest in each such item of property credited to any
of the Accounts; (iv) each Secured Party is an “entitlement holder”
(within the meaning of Section 8-102(a)(7) of the UCC); and (v) the Pledged
Collateral and any rights or proceeds derived therefrom are subject to the
liens and other security interests in favor of the Secured Parties and the
rights of the Company in respect of the Pledged Collateral are also subject to
such liens and such other security interests.


(c)           The
Custodian will, by book-entry notation, promptly credit to the appropriate
account all property delivered to it constituting Pledged Collateral and such
property shall be held by the Custodian and treated as “financial assets”.


 


(d)           Form of
Securities, Instruments, etc. 
All securities and other financial assets credited to any of the
Accounts that are in registered form or that are payable to or to the order of
shall be (i) registered in the name of, or payable to or to the order of, the
Custodian or (ii) endorsed to the order of the Custodian or in blank, in each
case with signatures guaranteed by a member of a medallion signature guarantee
program approved by the Securities


 

















 


Transfer Association and in no case will any financial asset credited
to any of the Accounts be registered in the name of, or payable to or to the
order of, the Company or indorsed to or to the order of the Company, except to
the extent the foregoing have been specially indorsed to or to the order of the
Custodian or in blank.


 


(e)           Securities
Intermediary’s Jurisdiction. 
The Custodian agrees that, for the purposes of the UCC, its “securities
intermediary’s jurisdiction” (within the meaning of Section 8–110(e)
of the UCC) shall be the State of New York.


 


(f)            Conflicts
with other Agreements.  The
Custodian agrees that, if there is any conflict between this Agreement (or any
portion thereof) and any other agreement relating to any of the Accounts, the
provisions of this Agreement shall prevail.


 


(g)           No Other
Agreements.  The Custodian
hereby confirms and agrees that:


 


(i)            there are no other agreements
entered into between the Custodian and the Company with respect to the
Accounts;


 


(ii)           it has not entered into, and until
the termination of this Agreement will not enter into, any agreement with any
other person relating to the Accounts and/or any financial assets credited
thereto pursuant to which it has agreed or will agree to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of such other
person; and


 


(iii)          it has not entered into, and until the
termination of this Agreement will not enter into, any agreement with the
Company or any Secured Party purporting to limit or condition the obligation of
the Custodian to comply with entitlement orders as set forth in Section 4
hereof.


 


(h)           Entitlement
Orders, Standing Instructions. 
The Company, each Secured Party and the Custodian each agree that if at
any time the Custodian shall receive any “entitlement order” (within the
meaning of Section 8–102(a)(8) of the New York UCC), or any other
order, originated by a Secured Party (so long as such order shall not relate to
Pledged Shares exceeding such Secured Party’s AVII Exchange Cap Allocation) and
relating to the Accounts, the Custodian shall comply with such entitlement
order or other order without further consent by the Company or any other
Person.  Subject to the following
paragraph, the Custodian shall accept instructions or entitlement orders only
from a Secured Party with respect to any Pledged Collateral pledged to it
pursuant to the Pledge Agreement and held by the Custodian or otherwise
credited to or held in the Accounts. 
The Secured Parties hereby instruct and order the Custodian to deposit,
and to direct and otherwise cause each issuer, obligor, guarantor, clearing
corporation or other applicable Person to pay and deposit into the Accounts
under and in accordance with the Pledge Agreement all cash distributions and
all other Cash payments and proceeds in respect of the Pledged Collateral
(including any stock or securities issued with respect to the Pledged
Collateral and (i) if issued in certificated form, the relevant certificate(s) 


 

















 


shall be delivered to the Custodian upon receipt, duly endorsed in
blank or accompanied by blank stock powers, in each case with signatures
guaranteed by a member of a medallion signature guaranteed program approved by
the Securities Transfer Association and (ii) if issued in book entry form,
shall be registered in the name of the Custodian or its nominee), until such
time as the Secured Parties may otherwise direct the Custodian in accordance
with this Agreement.


 


Without limiting the foregoing, the Custodian agrees
to comply with an exchange notice from a Secured Party or the Company which
exchange notice shall request delivery to such Secured Party of a number of
Pledged Shares that together with all previously delivered Pledged Shares to
such Secured Party shall not exceed in the aggregate such Secured Party’s AVII
Exchange Cap Allocation.  For purposes
hereof, “AVII
Exchange Cap Allocation” means for each Secured Party, initially the
amount set forth opposite such Secured Party’s name on Exhibit A
hereto.  In the event that any Secured
Party shall sell or otherwise transfer any of its rights to any of the Pledged
Shares in accordance with the Pledge Agreement, then such Secured Party shall
inform the Custodian in writing and the transferee shall be allocated a pro
rata portion of such Secured Party’s AVII Exchange Cap Allocation.  In the event that any Secured Party shall no
longer have any rights to any Pledged Collateral and such Secured Party shall
have received a number of Pledged Shares which, in the aggregate, is less than
such Secured Party’s AVII Exchange Cap Allocation, then the Company and the
remaining Secured Parties shall so inform the Custodian in writing and the
difference between such Secured Party’s AVII Exchange Cap Allocation and the
number of Pledged Shares actually delivered to such Secured Party shall be
allocated to the respective AVII Exchange Cap Allocations of the remaining
Secured Party’s on a pro rata basis in accordance with such notice.  In addition to the foregoing, upon receipt
of written instructions from a Secured Party, the Custodian shall take all
actions necessary to deliver to the Secured Parties unrestricted shares,
provided that the Custodian shall have received, if reasonably requested, a
legal opinion from the Company that such actions will be in compliance with all
applicable securities laws.


 


Section 4.              The
Custodian.


 


(a)           No Change to
Accounts.  Without prior
written consent of the Secured Parties, the Custodian will not change the
account number or designation of any Account.


 


(b)           Certain
Information.  The Custodian
shall promptly notify the Secured Parties if any Person asserts or seeks to
assert a lien, encumbrance or adverse claim against any portion or all of the
property credited to any of the Accounts. 
The Custodian will send copies of all statements, confirmations and
other correspondence relating to each of the Accounts (and/or any financial
assets credited thereto)  simultaneously
to the Company and the Secured Parties.


 


(c)           Subordination.  In the event that the Custodian has or
subsequently obtains by agreement, by operation of law or otherwise a security
interest in any securities account or any security entitlement credited
thereto, the Custodian hereby subordinates any such security interest therein
to the security interest of the Secured Parties in the Accounts, in all
property credited thereto and in all security entitlements with respect to such
property, any


 

















 


and all statutory, regulatory, contractual or other rights now or
hereafter existing in favor of the Custodian over or with respect to the
Accounts, all property credited thereto and all security entitlements to such
property (including (i) any and all contractual rights of set-off, lien or
compensation, (ii) any and all statutory or regulatory rights of pledge, lien,
set-off or compensation (except that the Custodian may set-off the face amount
of any checks which have been credited to the Accounts but are subsequently
returned unpaid because of uncollected or insufficient funds), (iii) any and
all statutory, regulatory, contractual or other rights to put on hold, block
transfers from or fail to honor instructions of the Secured Parties with respect
to the Accounts or (iv) any and all statutory or other rights to prohibit or
otherwise limit the pledge, assignment, collateral assignment or granting of
any type of security interest of the Custodian in the Accounts).


 


(e)           Limitation
on Liability.  The Custodian
shall not have any duties or obligations except those expressly set forth
herein.  Without limiting the generality
of the foregoing, the Custodian shall not be subject to any fiduciary or other
implied duties, and the Custodian shall not have any duty to take any
discretionary action or exercise any discretionary powers.  None of the Custodian, any Affiliate of the
Custodian, or any officer, agent, stockholder, partner, member, director or
employee of the Custodian or any Affiliate of the Custodian shall have any
liability, whether direct or indirect and whether in contract, tort or
otherwise, other than for its gross negligence or willful misconduct.  The Custodian:


 


(i) shall act hereunder
as custodian only and shall not be responsible or liable in any matter whatever
for the sufficiency, collection, correctness, genuineness or validity of any
revenues, cash, payments, securities, property, funds, investments, dividends,
distributions, interest, income, earnings or other amounts deposited with or held
by it or for the identity, authority or rights of any person or entity
executing and delivering or purporting to execute or deliver any thereof to the
Custodian;


 


(ii) shall be fully
protected in acting upon any written notice, instruction, direction, request or
other communication, paper or document which the Custodian believes to be
genuine, and shall have no duty to inquire into or investigate the validity,
accuracy or content of any thereof;


 


(iii) shall not be liable
for any error of judgment or for any action taken, suffered or omitted to be
taken except in the case of its own gross negligence or bad faith, as
determined by a final non-appealable order, judgment, decree or ruling of a
court of competent jurisdiction.  In no
event shall the Custodian be (A) liable for acting in accordance with a notice,
instruction, direction, request or other communication, paper or document from
a Secured Party or (B) liable or responsible for special, punitive, indirect,
consequential or incidental loss or damages of any kind whatsoever to any
person or entity (including without limitation lost profits).  Any liability of the Custodian under this
Agreement will be limited to the amount of fees paid to the Custodian;


 

















 


(iv) may consult with and
obtain advice from counsel (who may be an employee of the Custodian) and shall
be fully protected in taking, suffering or omitting to take any action in
reliance on said advice;


 


(v) shall have no duties,
responsibilities or obligations as the Custodian except those which are
expressly set forth herein, and in any modification or amendment hereof to
which the Custodian has consented in writing, and no duties, responsibilities
or obligations shall be implied or inferred. 
Without limiting the foregoing, the Custodian shall not be subject to,
nor be required to comply with, or determine if any person or entity has
complied with, the Pledge Agreement or any other agreement between or among the
parties hereto, even though reference thereto may be made in this Agreement, or
to comply with any notice, instruction, direction, request or other
communication, paper or document other than as expressly set forth in this
Agreement;


 


(vi) may execute or
perform any duty, responsibility or obligation hereunder either directly or
through agents, attorneys, accountants or other experts;


 


(vii) may engage or be
interested in any financial or other transaction with any party hereto or
affiliate thereof, and may act on, or as depositary, trustee or agent for, any
committee or body of holders of obligations of such party or affiliate, as
freely as if it were not the Custodian hereunder;


 


(viii) shall not be
obligated to expend or risk its own funds or to take any action which it
believes would expose it to expense or liability or to a risk of incurring
expense or liability, unless it has been furnished with assurances of repayment
or indemnity satisfactory to it;


 


(ix) shall not take
instructions or directions except those given in accordance with this
Agreement;


 


(x) shall not incur any
liability for not performing any act, duty, obligation or responsibility by
reason of any occurrence beyond the control of the Custodian (including without
limitation any act or provision of any present or future law or regulation or
governmental authority, any act of God, war, civil disorder or failure of any
means of communication); and


 


(xi) shall not be called
upon to advise any person or entity as to any investments with respect to any
security, property or funds held in escrow hereunder or the dividends, distributions,
income, interest or earnings thereon for any action taken or omitted to be
taken by any of them hereunder or in connection herewith unless there has been
a final judicial determination that such act or omission was performed or
omitted in bad faith or constituted gross negligence or willful misconduct.


 

















 


Section 5.              Indemnity;
Limitation on Damages; Expenses; Fees.


 


(a)           Indemnity.  The Company agrees to indemnify, defend,
protect, save and keep harmless the Custodian and its affiliates and their respective
successors, assigns, directors, officers, managers, employees, agents,
attorneys, accountants and experts (collectively the “Indemnitees”), from and
against any and all losses, damages, claims, liabilities, penalties, judgments,
settlements, actions, suits, proceedings, litigation, investigations, costs or
expenses, including without limitation reasonable fees and disbursements of
counsel (collectively “Losses”), that may be imposed on, incurred
by, or asserted against any Indemnitee, at any time, and in any way relating to
or arising out of the execution, delivery or performance of this Agreement, the
enforcement of any rights or remedies under or in connection with this
Agreement, the establishment of the Accounts, the acceptance or administration
of the Accounts and any payment, transfer or other application of securities,
property or funds pursuant to this Agreement, or as may arise by reason of any
act, omission or error of the Indemnitee; provided, however, that
no Indemnitee shall be entitled to be so indemnified, defended, protected,
saved and kept harmless to the extent such Loss was proximately caused by its
own gross negligence or bad faith, as determined by a final, non-appealable
order, judgment, decree or ruling of a court of competent jurisdiction.  The obligations contained in this
Section 5(a) shall survive the termination of this Agreement and the
resignation or removal of the Custodian.


 


(b)           Expenses and
Fees.  The Company shall be
responsible for, and hereby agrees to pay, all reasonable costs and expenses
incurred by the Custodian and the Secured Parties in connection with the
establishment and maintenance of the Accounts, including the Custodian’s
customary fees and expenses, any costs or expenses incurred by the Custodian as
a result of conflicting claims or notices involving the parties hereto,
including the reasonable fees and expenses of its internal and external legal
counsel, and all other reasonable costs and expenses incurred in connection
with the execution, administration or enforcement of this Agreement including
reasonable attorneys’ fees and costs, whether or not such enforcement includes
the filing of a lawsuit.  The
authorization herein granted to the Custodian to pay such reasonable costs and
expenses shall be irrevocable and no further authorization or instruction shall
be required.


 


Section 6.              Representations
and Warranties.


 


Each of the parties, severally and not jointly,
represents and warrants that:


 


(a)           Status.  It is duly organized and validly existing
under the laws of the jurisdiction of its organization or incorporation and, if
relevant under such laws, in good standing.


 


(b)           Powers.  It has the power to execute this Agreement
and any other documentation relating to this Agreement to which it is a party,
to deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform its
obligations under this Agreement and has taken all necessary action to
authorize such execution, delivery and performance; and this Agreement has
been, and each other such document will be, duly executed and delivered by it.


 

















 


(c)           No Violation
or Conflict.  Such execution,
delivery and performance do not violate or conflict with any law applicable to
it, any provision of its constitutional documents, any order or judgment of any
court or other agency of government applicable to it or any of its assets or
any contractual restriction binding on or affecting it or any of its assets.


 


(d)           Obligations
Binding.  Its obligations
under this Agreement constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors’ rights generally and subject, as to enforceability, to equitable
principles of general application (regardless of whether enforcement is sought
in a proceeding in equity or at law)).


 


Section 7.              Adverse
Claims.  Except for the
claims and interests of the Secured Parties and of the Company in the Accounts,
the Custodian does not know of any claim to, or interest in, any Account or in
any “financial asset” (as defined in Section 8-102(a) of the UCC) credited
thereto.  If any person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against any Account or in
any financial asset carried therein, the Custodian will promptly notify the
Secured Parties and the Company thereof.


 


Section 8.              Transfer.  Neither this Agreement nor
any interest or obligation in or under this Agreement may be transferred
(whether by way of security or otherwise) by any party without the prior
written consent of each other party, except that:


 


(a)           the
Custodian may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another Person (but without prejudice to
any other right or remedy under any other agreement); and


 


(b)           a
Secured Party may transfer all of its interests and obligations in and under
this Agreement to a successor under the Pledge Agreement; provided that
the Custodian shall have no obligation to comply with any notice, request,
certificate, consent, statement, instrument, document or other writing
delivered by successor until the Custodian receives evidence of such transfer
as the Custodian may reasonably require.


 


Except as provided above, the transfer of this
Agreement shall not terminate any Account or alter the obligations of the
parties hereto with respect to any Account. 
The Secured Parties shall notify the Company of any transfer under this
Section 8.


 


Any purported transfer that is not in compliance with
this Section 8 will be void.


 


Section 9.              Termination.  The rights and powers
granted herein to the Secured Parties have been granted in order to perfect its
security interest in the Accounts and the financial assets contained therein,
are powers coupled with an interest and will be affected neither by the
bankruptcy of the Company nor by the lapse of time.  The obligations of the Custodian shall continue in effect until
the security interests of each Secured Party in the Accounts have been
terminated pursuant to the terms of the Pledge Agreement and the Secured


 

















 


Parties have notified the Custodian of such termination in
writing.  Upon the written instruction
of the Secured Parties, the Custodian shall close the Account or Accounts
specified in such instruction and disburse to the Company the balance of any
assets therein.  Any of the parties may
terminate this Agreement upon 30 days’ prior written notice to all of the other
parties hereto; provided, however, that any Pledged Collateral which has not
been released by the Secured Parties at or prior to such time of termination of
this Agreement shall be transferred to a substitute securities intermediary
designated by the Company and acceptable to Secured Parties with rights to a
majority of the Pledged Collateral (or, if the Company does not so designate an
acceptable substitute bank within 10 days of receiving a termination notice,
designated by Secured Parties with rights to a majority of the Pledged
Collateral).


 


Except as provided above, the termination of this
Agreement shall not terminate any Account or alter the obligations of the
Custodian to the Company or the Secured Parties pursuant to any other agreement
with respect to any Account.


 


Section 10.            Miscellaneous.


 


(a)           Governing
Law; Jurisdiction; Jury Trial. 
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of the
State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York.  Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in The City of New York,
Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding
is improper.  Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and
notice thereof.  Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law.  EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


(b)           Counterparts.  This Agreement may be executed in two or
more identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original,
not a facsimile signature.


 

















 


(c)           Headings.  The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.


 


(d)           Severability.  If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.


 


(e)           Entire
Agreement; Amendments.  This
Agreement supersedes all other prior oral or written agreements among the parties
hereto, their affiliates and Persons acting on their behalf with respect to the
matters discussed herein, and this Agreement contains the entire understanding
common to all of the parties hereto with respect to the matters covered herein
and, except as specifically set forth herein, no party makes any
representation, warranty, covenant or undertaking with respect to such common
matters.  No provision of this Agreement
may be amended other than by an instrument in writing signed by the Company,
the Custodian and the Secured Parties with rights to a majority of the Pledged
Collateral.


 


(f)            Notices.  Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered:  (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by
the sending party); or (iii) one business day after deposit with an overnight
courier service, in each case properly addressed to the party to receive the
same.  The addresses and facsimile
numbers for such communications shall be:


If to the Company:


 


SuperGen, Inc.


4140 Dublin Boulevard


Suite 200


Dublin, California 94568


Telephone:            (925) 560-0100


Facsimile:               (925) 560-0101


Attention:              Chief Executive Officer


 


with a copy to:


 


Wilson Sonsini Goodrich & Rosati, PC


650 Page Mill Road


Palo Alto, California 93404


Telephone:            (650) 493-9300


Facsimile:               (650) 493-6811


Attention:              John V. Roos, Esq.


 

















 


If to the Custodian:


 


Mellon Investor Services LLC


235 Montgomery Street


23rd Floor


San Francisco, California  94104


Telephone:            (415) 743-1422


Facsimile:               (415) 989-8251


Attention:              Sharon Magidson


 


with a copy to:


 


Mellon Investor Services LLC


85 Challenger Road


Ridgefield Park, New Jersey  07660


Attention:              Legal Department


 


If to a Secured Party, to its address and facsimile number set forth on
Schedule I, with copies to such Secured Party’s representatives as set forth on
Schedule I, or to such other address and/or facsimile number and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness of
such change.  Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver or other
communication, (B) mechanically or electronically generated by the sender’s
facsimile machine containing the time, date, recipient facsimile number and an
image of the first page of such transmission or (C) provided by an overnight
courier service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from an overnight courier service in accordance with
clause (i), (ii) or (iii) above, respectively.


 


(g)           Successors
and Assigns.  This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns.  The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Secured Parties with rights to a
majority of the Pledged Collateral.  A
Secured Party may assign some or all of its rights hereunder without the
consent of the Company, in which event such assignee shall be deemed to be a
Secured Party hereunder with respect to such assigned rights.


 


(h)           No Third
Party Beneficiaries.  This
Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person.


 


(i)            Survival.  All representations and warranties made in
this Agreement or in any certificate or other document delivered pursuant to or
in connection with this Agreement shall survive the execution and delivery of
this Agreement or such certificate or other document (as the case may be) or
any deemed repetition of any such representation or warranty.  In addition, the rights of the Custodian
under Sections 4 and 5, and the obligations of the Company under
Section 5, shall survive the termination of this Agreement.


 


(j)            Further
Assurances.  Each party shall
do and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such


 

















 


other agreements, certificates, instruments and documents, as any other
party may reasonably request in order to carry out the intent and accomplish
the purposes of this Agreement and the consummation of the transactions
contemplated hereby.


 


(k)           No Strict
Construction.  The language
used in this Agreement will be deemed to be the language chosen by the parties
to express their mutual intent, and no rules of strict construction will be
applied against any party.


 


(l)            Cumulative
Remedies.  The rights and
remedies of the Parties set forth in this Agreement shall be cumulative, and
not exclusive, of any rights and remedies available to it at law or equity or
otherwise.


 


(m)          Benefit of
Agreement.  Subject to
Section 8, this Agreement shall be binding upon and inure to the benefit
of the Company, the Secured Parties and the Custodian and their respective
successors and permitted assigns.


 


(n)           No Waiver of
Rights.  A failure or delay
in exercising any right, power or privilege in respect of this Agreement will
not be presumed to operate as a waiver, and a single or partial exercise of any
right, power or privilege will not be presumed to preclude any subsequent or
further exercise, of that right, power or privilege or the exercise of any
other right, power or privilege.


Section 11.            Definitions.   As used in this Agreement:


 


“Affiliate” means, in relation to any
specified Person, any other Person controlled, directly or indirectly, by the
specified Person, any other Person that controls, directly or indirectly, the
specified Person or any other Person directly or indirectly under common
control with the specified Person.  For
this purpose, control of any Person means ownership of a majority of the voting
power of the Person.


 


“consent” includes a consent, approval,
action, authorization, exemption, notice, filing, registration or exchange
control consent.


 


“law” includes any treaty, law, rule or
regulation (as modified, in the case of tax matters, by the practice of any
relevant governmental revenue authority) and “lawful” and “unlawful”
will be construed accordingly.


 


“Person” means an individual, a limited
liability company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or agency
thereof.


 

















 


IN WITNESS WHEREOF, the parties have caused
this Securities Account Control Agreement to be duly executed as of the date
first written above.


 


	
  COMPANY:

  	
   

  	
  SECURED
  PARTIES:

  
	
   

  	
   

  	
   

  
	
  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

  
	
   

  	
   

  	
   

  
	
  CUSTODIAN:

  	
   

  	
  MAINFIELD
  ENTERPRISES INC.

  
	
   

  	
   

  	
   

  
	
  MELLON
  INVESTOR SERVICES LLC

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ AVI VIGDER

  
	
   

  	
   

  	
   

  	
  Name: Avi Vigder

  
	
   

  	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ SHARON MAGIDSON

  	
   

  	
   

  
	
   

  	
  Name: Sharon Magidson

  	
   

  	
   

  
	
   

  	
  Title: Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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

  



 

















 


Exhibit A


 


Pledged Shares


 




	
  Name of
  Secured Party

  	
   

  	
  AVII Exchange Cap Allocation

  
	
   

  	
   

  	
   

  
	
  Smithfield Fiduciary LLC

  	
   

  	
  1,332,601

  
	
   

  	
   

  	
   

  
	
  Omicron Master Trust

  	
   

  	
  526,841

  
	
   

  	
   

  	
   

  
	
  Mainfield Enterprises Inc.

  	
   

  	
  495,851

  
	
   

  	
   

  	
   

  
	
  Cranshire Capital L.P.

  	
   

  	
  154,954

  
	
   

  	
   

  	
   

  
	
  Otato L.P.

  	
   

  	
  123,964

  






 

















 


SCHEDULE I


Secured
Parties:


 


Smithfield Fiduciary LLC


C/o Highbridge Capital Management, LLC


9 West 57th Street, 27th Floor


New York, New York 
10019


Facsimile:  (212) 751-0755


Telephone:  (212) 287-4720


Attention:   Ari J. Storch


Adam J. Chill


 


with copy to:


Schulte Roth & Zabel LLP


919 Third Avenue


New York, New York 
10022


Facsimile:  (212) 593-5955


Telephone:  (212) 756-2376


Attention:  Eleazer Klein, Esq.


 


Omicron Master Trust


c/o Omicron Capital L.P.


153 E. 53rd Street


48th Floor


New York, New York 
10022


Facsimile:  (212) 508-7028


Telephone:  (212) 508-7027


Attention:  Olivier Morali


 


with copy to:


The Law Offices of Brian Pusch


29 West 57th Street


New York, NY 10019 


Attention:  Brian Pusch, Esq.


Facsimile:  (212) 980-7055


Telephone:  (212) 980-0408


 

















 


Mainfield Enterprises Inc.


c/o Cavallo Capital Corp.


660 Madison Avenue, 

18th Floor 

New York, New York  10021 

Facsimile:  (212) 651-9010


Telephone: 
(212) 651-9005

Attention:  Mor Sagi


 


with copy to:


 


Bryan Cave LLP

1290 Ave of the Americas

New York, NY 10104 

Attention:  Ken Henderson, Esq.

Facsimile:  (212) 541-1357

Telephone:  (212) 541-2275


 


Cranshire Capital L.P.


 


c/o Downsview Capital, Inc.

The General Partner

666 Dundee Road, Suite 1901

Northbrook, IL  60062

Facsimile:  (847) 562-9031

Telephone:  (847) 562-9030 

Attention:  Mitchell P. Kopin


 


 


Otape LLC

c/o OTA LLC

1 Manhattanville Rd.


Purchase, NY 
10577


Facsimile: 
(914) 694-6335

Telephone:  (914) 694-5857


Attention:  Paul
Masters


 


with copy to:


 


Piper Rudnick LLP

1251 Avenue of the Americas

New York, NY  10020

Attention:  Theodore Altman, Esq.

Facsimile:  (212) 835-6001

Telephone:  (212) 835-6000