Exhibit 10.6


 


AMENDED AND RESTATED SECURITIES ACCOUNT
CONTROL AGREEMENT


 


AMENDED AND RESTATED SECURITIES ACCOUNT
CONTROL AGREEMENT (the “Agreement”), dated as of June 24, 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 were parties to a Securities Purchase
Agreement, dated as of February 26, 2003 (as amended or otherwise modified from
time to time, the “February Securities
Purchase Agreement”);


 


B.                                     Pursuant
to the February Securities Purchase Agreement, the Secured Parties, severally
but not jointly, agreed to purchase certain senior exchangeable convertible
notes (the “February Notes”) from
the Company, which, among other things, were exchangeable (the “AVII Exchange Right”) 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 the
Collateral Schedule attached thereto;


 


C.                                     Pursuant
to the terms of that certain Pledge Agreement, dated as of February 26, 2003,
made by the Company in favor of the Secured Parties, as amended and restated
pursuant to that certain Amended and Restated Pledge Agreement, dated as of the
date hereof (as the same may be hereafter 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 was deposited.  The Company
acknowledges having received value for such pledge of the Pledged Collateral.


 


D.                                    Each
Secured Party has entered into a Conversion and Amendment Agreement with the
Company, each dated as of the date hereof, pursuant to which, among other
things, the AVII Exchange Right is being eliminated;


 

















 


E.                                      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”)
pursuant to which the Secured Parties, severally but not jointly, have agreed
to purchase (i) certain senior convertible notes (the “Notes”) from the Company and (ii) warrants
to purchase up to an aggregate number of AVII Shares, set forth opposite such
Secured Party’s name on Exhibit A attached hereto (the “Warrants”);


 


F.                                      It
is a condition precedent to the purchase of the Notes and the Warrants by the
Secured Parties pursuant to the Securities Purchase Agreement that the Company
shall have executed and delivered to the Secured Parties an amended and
restated pledge agreement providing for, among other things, the pledge to the
Secured Parties of, and the grant to the Secured Parties of a Security Interest
in, the Pledged Shares to each Secured Party to secure such Secured Party’s
right to exercise its Warrants as specified in the Collateral Schedule attached
to such pledge agreement and the Schedule of Buyers attached to the Securities
Purchase Agreement.


 


G.                                     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.


 


H.                                    The
Company and the Secured Parties hereto are entering into this Agreement
pursuant to the terms of the Amended and Restated 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 there was 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.


 


2

















 


(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


 


3

















 


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 Exercise
Cap Allocation (as defined below)) 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 exercise notice
from a Secured Party or the Company which exercise 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 Exercise Cap Allocation.  For purposes hereof, “AVII Exercise 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 Exercise 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 Exercise
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 Exercise Cap Allocation and the number of Pledged Shares actually
delivered to such Secured Party shall be allocated to the respective AVII
Exercise Cap Allocations of the remaining Secured Party’s on a


 


4

















 


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).


 


(d)                                 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,


 


5

















 


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


 


6

















 


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.


 


7

















 


(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.


 


8

















 


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


 


9

















 


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


 


10

















 


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) 743-1426


Facsimile:                                            (415)
989-5241


Attention:                                         David Altschul


 


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


 


11

















 


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.


 


(o)                                 Continued Effectiveness.  The parties hereto intend to maintain the
validity, effectiveness, enforceability, perfection and priority of the
Security Account Control


 


12

















 


Agreement, dated as of February
26, 2003, by and among the parties hereto (the “Original Securities Account Control Agreement”) and this
Agreement is intended, inter  alia, to continue, increase and
modify the obligations and indebtedness secured by the security interests and
pledges created under the Original Securities Account Control Agreement.   Except as specifically provided herein,
this Agreement shall not have the effect of terminating, limiting, modifying or
otherwise affecting the validity, effectiveness, enforceability, perfection and
priority of the security interests or the pledges created under the Original
Securities Account Control Agreement. 
Nothing herein contained shall be construed as a substitution or
novation of the obligations outstanding under, and as defined in, the Original
Securities Account Control Agreement, which shall remain in full force and
effect, except as modified hereby or by instruments executed concurrently
herewith.  All references in the
Securities Purchase Agreement, and all documents related thereto, except as
otherwise expressly provided in such documents, to “the Securities Account
Control Agreement,” “thereto,” “thereof,” “thereunder” or words of like import
referring to the Original Securities Account Control Agreement shall mean the
Original Securities Account Control Agreement as amended and restated by this
Agreement.


 


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.


 


13

















 


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


 


	
  COMPANY:

  	
   

  	
   

  	
   

  	
  SECURED PARTIES:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SUPERGEN, INC.

  	
   

  	
   

  	
   

  	
  SMITHFIELD FIDUCIARY LLC

  
	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Joseph
  Rubinfeld

  	
   

  	
  Name: Adam
  J. Chill

  
	
   

  	
  Title:

  	
  President/Chief
  Executive Officer

  	
   

  	
  Title:   Authorized
  Signatory

  
	
   

  
	
   

  	
   

  	
   

  	
   

  	
  OMICRON MASTER TRUST

  
	
   

  	
   

  	
   

  	
   

  	
  By:  Omicron
  Capital L.P., as investment advisor

  
	
   

  	
   

  	
   

  	
   

  	
  By:  Omicron
  Capital Inc., its general partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name: Olivier
  Morali

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CUSTODIAN:

  	
   

  	
   

  	
   

  	
  MAINFIELD ENTERPRISES INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MELLON INVESTOR SERVICES LLC

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Avi
  Vigder

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
  Title:   Director

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  CRANSHIRE CAPITAL L.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name: Mitchell
  P. Kopin

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:   President-Downsview
  Capital, Inc.,

              The
  General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  OTAPE LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:Richard
  Cayne

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:General
  Counsel

  
																				



 


14

















 


Exhibit A


 


Pledged Shares


 


 


	
  Name of
  Secured Party

  	
   

  	
  AVII Exercise 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

  



 


15

















 


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.


810 Seventh
Avenue


39th
Floor


New York, New
York  10019


Facsimile:                                            (212)
803-5269


Telephone:                                    (212)
803-5262


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.


 


16

















 


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


 


17