EXHIBIT 10.11
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/ Xxxxxx X. Hugin
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Xxxxxxx X. Xxxxxxx Xxxxxx X. Hugin
Chief Executive Officer SVP & Chief Financial Officer
Pharmion Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chief Executive Officer
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