EXHIBIT 10.39
Amendment No. 2 to
License Agreement
This Amendment No. 2, dated April 8, 2003, to the License Agreement, dated
as of November 16, 2001, as amended by Amendment No. 1 dated as of March 3,
2003, by and among Pharmion GmbH, a Swiss limited liability company
("Pharmion"), Pharmion Corporation, a Delaware corporation ("Guarantor") and
Celgene Corporation, a Delaware corporation ("Celgene").
WHEREAS, Pharmion, Guarantor and Celgene are parties to the License
Agreement, dated as of November 16, 2001, as amended by Amendment No. 1 dated as
of March 3, 2003 (the "Agreement"); and
WHEREAS, Guarantor and Celgene have entered into a Securities Purchase
Agreement (the "Securities Purchase Agreement") whereby Guarantor will sell and
issue to Celgene a senior convertible promissory note in the principal amount of
$12,000,000 and a warrant to purchase shares of Celgene's common stock for an
aggregate purchase price of $12,000,000 (the "Securities Transaction"); and
WHEREAS, pursuant to Section 5.4 of the Securities Purchase Agreement, the
obligation of Celgene to complete the Securities Transaction is subject to the
execution and delivery of this Amendment No. 2 to the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, Pharmion, Guarantor and Celgene hereby agree that the
Agreement be amended as follows:
1. DEFINITIONS. All terms not otherwise expressly defined in this
Amendment shall have the meanings ascribed to such terms in the Agreement.
2. TERMINATION BY EITHER PARTY IN THE EVENT OF BANKRUPTCY. Section 9.3(a)
of the Agreement is hereby amended to read in its entirety as follows:
"(a) Celgene may terminate this Agreement on 60 days prior
written notice to Pharmion following (i) a material breach by Pharmion
of any covenant, duty or undertaking herein, or in the letter agreement
of even date entered into among Pharmion, Guarantor and Celgene (the
"Letter Agreement"), which is not cured within 60 days of written
notice thereof; or (ii) if any of Pharmion, Guarantor or Pharmion BV, a
wholly owned subsidiary of Guarantor, shall become insolvent or shall
file or have filed by its creditors a petition in bankruptcy or similar
proceeding, if a court of competent jurisdiction appoints a receiver
over the business or assets of the other party, or the making by the
party of a general assignment for the benefit of creditors. Pharmion
may terminate this Agreement on 60 days prior written notice to Celgene
following (i) a material breach by Celgene of any covenant, duty or
undertaking herein, or in the Letter Agreement, which is not cured
within 60 days of written notice thereof; or (ii) if
Celgene shall become insolvent or shall file or have filed by its
creditors a petition in bankruptcy or similar proceeding, if a court of
competent jurisdiction appoints a receiver over the business or assets
of the other party, or the making by the party of a general assignment
for the benefit of creditors."
3. CONSEQUENCES OF TERMINATION BY CELGENE. Section 9.5(d) of the Agreement
is hereby amended to read in its entirety as follows:
"(d) Pharmion shall, to the extent legally permissible, take all
additional action reasonably necessary to assign all of its right,
title and interest in and transfer possession and control to Celgene of
the regulatory filings prepared by Pharmion, and regulatory approvals
received by Pharmion, and all clinical and other research data related
to such regulatory filings or approvals, to the extent that such
filings and approvals relate to the Product."
4. UNMODIFIED PROVISIONS. The provisions of this Amendment No. 2 shall be
deemed to be incorporated in the Agreement and, except as expressly modified by
this Amendment, all terms and conditions of the Agreement shall remain in full
force and effect.
5. GOVERNING LAW. The parties agree that this Amendment shall be governed
by and construed in accordance with the laws of the State of New York.
6. CAPTIONS. All captions herein are for convenience only and shall not be
interpreted as having any substantive meaning.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be
duly executed by their authorized representatives, in duplicate as of the date
first written above.
Pharmion GmbH Celgene Corporation
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxx X. Xxxxx
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Xxxxxxx X. Xxxxxxx Xxx X. Xxxxx
Chief Executive Officer President and Chief Operating Officer
Pharmion Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chief Executive Officer
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