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