EXHIBIT 4.3
PHARMION CORPORATION
SERIES C OMNIBUS AMENDMENT AGREEMENT
This Series C Omnibus Amendment Agreement (the "Omnibus Agreement") is
made and entered into as of October 11, 2002 by and among Xxxxxxx Xxxxxxx and
Xxxxxx Xxxxxxxxx (the "Founders"), Pharmion Corporation, a Delaware corporation
(the "Company"), the investors listed on Exhibit A hereto, each of which is
herein referred to as a "Series A Investor," the investors listed on Exhibit B
hereto, each of which is herein referred to as a "Series B Investor," the
investors listed on Exhibit C hereto, each of which is herein referred to as a
"Series C Investor" (together with the Series B Investors, the "Senior Preferred
Investors" and each such Series A Investor, Series B Investor and Series C
Investor further collectively being referred to as an "Investor"), who become
parties to this Agreement by executing and delivering a Financing Signature Page
(as defined in the Series C Purchase Agreement referred to below) and, solely
for the purposes of amending the Co-Sale Agreement (as defined below), the
individuals and entities listed on Exhibit C-1 hereto (each, an "Other
Stockholder" and collectively the "Other Stockholders").
RECITALS
In connection with the sale of the Series B Preferred Stock of the
Company (the "Series B Preferred Stock"), the Founders, the Company, the Series
A Investors and the Series B Investors entered into: (i) the Amended and
Restated Investors' Rights Agreement, dated as November 30, 2001 (the
"Investors' Rights Agreement"), (ii) the Amended and Restated Right of First
Refusal and Co-Sale Agreement, dated as of November 30, 2001 (the "Co-Sale
Agreement"), to which the Other Stockholders are additional parties thereto and
(iii) the Amended and Restated Voting Agreement, dated as of November 30, 2001
(the "Voting Agreement") (together, the "Series B Ancillary Agreements").
The Company and the Series C Investors have entered into a Series C
Preferred Stock Purchase Agreement (the "Series C Purchase Agreement") of even
date herewith pursuant to which the Company desires to sell to the Series C
Investors, and the Series C Investors desire to purchase from the Company,
shares of the Company's Series C Preferred Stock (the "Series C Preferred Stock"
and, together with the Series B Preferred Stock, the "Senior Preferred Stock").
A condition to the Series C Investors' obligations under the Series C Purchase
Agreement is that the Founders, the Company, the Series A Investors, the Series
B Investors and the Series C Investors (and the Other Stockholders solely with
respect to amending the Co-Sale Agreement) enter into this Omnibus Agreement to
amend certain terms and conditions of each of the Series B Ancillary Agreements
in order to provide the Series C Investors with certain rights which are held by
the Series B Investors. The Founders, the Company, the Series A Investors and
the Series B Investors (and the Other Stockholders solely with respect to
amending the Co-Sale Agreement) each desire to induce the Series C Investors to
purchase shares of Series C Preferred Stock pursuant to the Series C Purchase
Agreement by entering into this Omnibus Agreement which amends each of the
Series B Ancillary Agreements as set forth herein.
AGREEMENT
1. AMENDMENT AND WAIVER OF THE INVESTORS' RIGHTS AGREEMENT.
Pursuant to the amendment and waiver provisions of the Investors' Rights
Agreement, the Company, the Founders, the holders of a majority of the Founders'
Stock, the holders of a majority of the Series A Registrable Securities and 55%
of the Series B Registrable Securities outstanding (as such terms are defined in
the Investors' Rights Agreement) hereby agree to amend the Investors' Rights
Agreement and waive certain rights as follows:
1.1. DEFINITIONS. Section 1.1 of the Investors' Rights
Agreement is hereby amended as follows:
(a) By adding two new subclauses to the
beginning of such section (further adjusting the lettering of the
subsequent subclauses of such section accordingly) which will be and
read as follows:
"(a) The term "Series C Preferred Stock"
means the Company's Series C Preferred
Stock; the term "Senior Preferred Stock"
shall refer collectively to the Company's
Series B Preferred Stock and Series C
Preferred Stock; the term "Series C
Investors" means investors in the Series C
Preferred Stock, each of whom is listed on
Exhibit C hereto; the term "Senior Preferred
Investors" shall refer collectively to the
Series B Investors and the Series C
Investors; and the term "Series C Purchase
Agreement" means the Series C Preferred
Stock Purchase Agreement, dated October 11,
2002, by and among the Company and the
Series C Investors;
(b) Notwithstanding the definitions
ascribed to such terms in the preamble and
recitals to this Agreement, the following
terms shall have the following meanings:
"Preferred Stock" shall refer collectively
to the Series A Preferred Stock, the Series
B Preferred Stock and the Series C Preferred
Stock; "Investor" shall refer to each of:
(i) the Series A Investors, (ii) the Series
B Investors and (iii) the Series C
Investors;"
(b) By amending and restating subclause (d)
(formerly subclause (b)) of such section in its entirety as follows:
"The term "Registrable Securities" means (i)
the shares of Common Stock issuable or
issued upon conversion of the Series A
Preferred Stock and the Senior Preferred
Stock, including any shares of Common Stock
issuable or issued upon conversion of the
Series B Preferred Stock issuable or issued
to Celgene Corporation (together with its
permitted successors and assigns, "Celgene")
upon exercise of that certain Warrant to
purchase shares of Series B Preferred Stock,
(ii) the shares of Common Stock issued to
the Founders (the "Founders' Stock"),
provided, however, that for the
2
purposes of Section 1.2, 1.4 or 1.13 the
Founders' Stock (other than any shares of
Common Stock issued upon conversion of their
shares of Series A Preferred Stock and
Senior Preferred Stock held by them), shall
not be deemed Registrable Securities and the
Founders shall not be deemed Holders, and
(iii) any other shares of Common Stock of
the Company issued as (or issuable upon the
conversion or exercise of any warrant, right
or other security which is issued as) a
dividend or other distribution with respect
to, or in exchange for or in replacement of,
the shares listed in (i) and (ii); provided,
however, that the foregoing definition shall
exclude in all cases any Registrable
Securities sold by a person in a transaction
in which his or her rights under this
Agreement are not assigned. Notwithstanding
the foregoing, Common Stock or other
securities shall only be treated as
Registrable Securities if and so long as
they have not been (A) sold to or through a
broker or dealer or underwriter in a public
distribution or a public securities
transaction, or (B) sold in a transaction
exempt from the registration and prospectus
delivery requirements of the Securities Act
under Section 4(1) thereof so that all
transfer restrictions, and restrictive
legends with respect thereto, if any, are
removed upon the consummation of such sale;"
(c) By amending and restating subclause (e)
(formerly subclause (c)) of such section in its entirety as follows:
"The term "Series A Registrable Securities"
means Registrable Securities consisting of
Common Stock issuable or issued upon
conversion of the Series A Preferred Stock,
and the term "Senior Preferred Registrable
Securities" means Registrable Securities
consisting of Common Stock issuable or
issued upon conversion of shares of Senior
Preferred Stock;"
1.2. AMENDMENT OF CERTAIN REFERENCES.
(a) All references to the term "Series B
Registrable Securities" in the Investors' Rights Agreement are hereby
amended to be references to "Senior Preferred Registrable Securities."
(b) The references in Sections 1.13 and 2.3(d)
of the Investors' Rights Agreement to "Series B Preferred Stock" and
"Purchase Agreement" are hereby amended to be references to "Series C
Preferred Stock" and "Series C Purchase Agreement" respectively.
(c) The reference in Section 3.3 of the
Investors' Rights Agreement to "Series B Preferred Stock" is hereby
amended to be a reference to "Senior Preferred Stock."
3
1.3. SELECTION OF UNDERWRITER. Section 1.5 of the
Investors' Rights Agreement is hereby amended by adding a new subclause
to the end of such section, which will be and read as follows:
"(j) In the case of any public offering of equity
of the Company in which existing shareholders of the
Company are permitted to sell equity, the Company
will refrain from using a particular underwriter if
General Electric Pension Trust ("GEPT") provides the
Company with a written legal opinion, in form and
substance reasonably satisfactory to the Company,
concluding that the use of such underwriter in the
public offering would reasonably be expected to
result in a non-exempt prohibited transaction under
Section 406 of ERISA with respect to GEPT."
1.4. WAIVER OF RIGHT OF FIRST OFFER UNDER THE INVESTORS'
RIGHTS AGREEMENT. Section 2.3 of the Investors' Rights Agreement as to
the right of first offer with respect to the sale of the shares of the
Series C Preferred Stock pursuant to the Series C Purchase Agreement is
hereby waived in its entirety, such waiver to be effective as of the
date hereof and only with respect to such sale of Series C Preferred
Stock.
1.5. FIRPTA COVENANT. The Investors' Rights Agreement is
hereby amended by adding a new clause after Section 2.4, identified as
Section 2.5, which will be and read as follows:
"2.5 FIRPTA COVENANT. The Company shall provide
prompt notice to each Investor following any
"determination date" (as defined in Treasury
Regulation Section 1.897-2(c)(1)) on which the
Company becomes a United States real property holding
corporation. In addition, upon a written request by
any Investor, the Company shall provide such Investor
with a written statement informing such Investor
whether its interest in the Company constitutes a
United States real property interest. The Company's
determination shall comply with the requirements of
Treasury Regulation Section 1.897-2(h)(1) or any
successor regulation, and the Company shall provide
timely notice to the Internal Revenue Service, in
accordance with and to the extent required by
Treasury Regulation Section 1.897-2(h)(2) or any
successor regulation, that such statement has been
made. The Company's written statement to any request
by an Investor pursuant to this Section 2.5 shall be
delivered to such Investor within 10 days of such
Investor's written request therefor. The Company's
obligation to furnish such written statement shall
continue notwithstanding the fact that a class of the
Company's stock may be regularly traded on an
established securities market or the fact that there
is no preferred stock then outstanding."
4
1.6. SUBORDINATION OF CLAIMS. Section 3.2 of the
Investors' Rights Agreement is hereby amended and restated in its
entirety as follows:
"Series A Investors hereby agree that to the extent
they may have any claim against the Company for
breach of a representation or warranty in connection
with the purchase by them of the shares of Series A
Preferred Stock from the Company which is based on
facts similar to facts underlying a claim that the
Series B Investors and/or Series C Investors may have
against the Company for breach of a representation or
warranty by the Company in connection with the
purchase by the Series B Investors of the shares of
Series B Preferred Stock and/or the purchase by the
Series C Investors of the shares of Series C
Preferred Stock from the Company, all such rights
they may have with respect to any such claim shall be
subordinated to the rights of the Series B Investors
and/or Series C Investors."
1.7. AMENDMENTS AND WAIVERS. Section 3.4 of the Investors'
Rights Agreement is hereby amended and restated in its entirety as
follows:
"Any term of this Agreement may be amended or waived
only with the written consent of the Company and the
holders of a majority of the Series A Registrable
Securities and 55% of the Senior Preferred
Registrable Securities then outstanding, not
including the Founders' Stock; provided that (a) if
such amendment has the effect of affecting the
Founders' Stock (i) in a manner different than
securities issued to the Investors and (ii) in a
manner adverse to the interests of the holders of the
Founders' Stock, then such amendment shall require
the consent of the holder or holders of a majority of
the Founders' Stock; or (b) if such amendment has the
effect of affecting holders of the Series C Preferred
Stock (i) in a manner different than the holders of
the Series B Preferred Stock and (ii) in a manner
adverse to the interests of the holders of the Series
C Preferred Stock, then such amendment shall require
the consent of the holders of at least eighty percent
(80%) of the then outstanding shares of the Series C
Preferred Stock. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon
each party to the Agreement, whether or not such
party has signed such amendment or waiver, each
future holder of all such Registrable Securities, and
the Company. Notwithstanding the foregoing, this
Agreement may be further amended for Celgene to join
in, and be bound by, this Agreement as a holder of
Senior Preferred Registrable Securities hereunder,
whereupon the Company shall amend Exhibit B to
include Celgene and deliver the amended Exhibit B to
each Investor no later than ten (10) days after
Celgene becomes a party."
1.8. ADDITION OF EXHIBIT. The Investors' Rights Agreement
is hereby amended by adding thereto a new exhibit, identified as
Exhibit C, which shall be the same as Exhibit C to this Omnibus
Agreement.
5
1.9. ADDITION OF SERIES C INVESTORS AS PARTIES TO THE
INVESTORS' RIGHTS AGREEMENT. By their signature to this Omnibus
Agreement, each of the Series C Investors is hereby added as a party to
the Investors' Rights Agreement, effective as of the date hereof.
2. AMENDMENT AND WAIVER OF THE CO-SALE AGREEMENT. Pursuant to the
amendment and waiver provisions of the Co-Sale Agreement, the Company, the
Founders (who are the Key Employees and holders of a majority of the Shares held
by the Key Employees), holders of a majority of the Series A Preferred Stock,
holders of 55% of the Series B Preferred Stock held by the Series B Investors
and a majority (by number of Shares held) of the Other Stockholders (as such
terms are defined in the Co-Sale Agreement) hereby agree to amend the Co-Sale
Agreement as follows:
2.1. PREAMBLE AND RECITALS. The Preamble and Recitals to
the Co-Sale Agreement are hereby amended and restated in their entirety
as follows:
"This Amended and Restated Right of First Refusal and
Co-Sale Agreement (the "Agreement") is made and
entered into as of October 11, 2002 by and among
Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxx (the
"Founders"), Pharmion Corporation, a Delaware
corporation (the "Company"), the investors listed on
Exhibit A hereto, each of which is herein referred to
as a "Series A Investor," the investors listed on
Exhibit B hereto, each of which is herein referred to
as a "Series B Investor," the investors listed on
Exhibit D hereto, each of which is herein referred to
as a "Series C Investor" (together with the Series B
Investors, the "Senior Preferred Investors" and each
such Series A Investor, Series B Investor and Series
C Investor further collectively being referred to as
an "Investor"), who become parties to this Agreement
by executing and delivering a Financing Signature
Page (as defined in the Purchase Agreement referred
to below); and the individuals or entities listed on
Exhibit C-1 hereto who become parties to this
Agreement by executing and delivering a signature
page substantially in the form of Exhibit C-2 hereto
(each, an "Other Stockholder" and collectively the
"Other Stockholders"); and the individuals listed on
Exhibit C-3 who become parties to this Agreement by
executing and delivering a signature page
substantially in the form of Exhibit C-4 hereto
(each, a "Key Employee" and collectively, with the
Founders, the "Key Employees"). The terms
"Stockholder" and "Stockholders" shall include,
individually or collectively, as the case may be, the
Investors, Other Stockholders and Key Employees.
RECITALS
The Founders, the Company and the Series A Investors
entered into a Right of First Refusal and Co-Sale
Agreement, dated January 5, 2000, in connection with
the sale of Series A-1 Preferred Stock and Series A-2
Preferred Stock of the Company (collectively, the
"Series A Preferred
6
Stock") to the Series A Investors (the "Original
Agreement"). Pursuant to the Original Agreement, the
Founders granted to the Company, first, and then to
the Series A Investors, a right of first refusal on
any transfers of shares by either Founder. In the
event neither the Company nor the Series A Investors
exercised that right of first refusal, each of the
Series A Investors had the right to participate, on a
pro rata basis, with the Founder transferring his or
her shares.
The Founders, the Company, the Series A Investors,
the Series B Investors, the Other Stockholders and
the Key Employees entered into an Amended and
Restated Right of First Refusal and Co-Sale Agreement
(the "Amended Agreement"), dated as of November 30,
2001, in connection with the sale of Series B
Preferred Stock of the Company (the "Series B
Preferred Stock") to the Series B Investors, which
granted the Series B Investors certain "co-sale"
rights and provided the Series A Investors and Series
B Investors certain participation rights in
subsequent sales by all of the parties thereto of
shares of the Company's capital stock.
The Company and the Series C Investors have entered
into a Series C Preferred Stock Purchase Agreement
(the "Purchase Agreement") of even date herewith
pursuant to which the Company desires to sell to the
Series C Investors, and the Series C Investors desire
to purchase from the Company, shares of the Company's
Series C Preferred Stock (the "Series C Preferred
Stock" and, together with the Series B Preferred
Stock, the "Senior Preferred Stock"). A condition to
the Series C Investors' obligations under the Series
C Purchase Agreement is that the Company and the
Stockholders enter into this Agreement in order to
provide the Series C Investors with certain "co-sale"
rights and to provide all of the Investors the
opportunity to purchase and/or participate, upon the
terms and conditions set forth in this Agreement, in
subsequent sales by all of the parties hereto of
shares of the Company's capital stock.
Additionally, each of the parties to the Amended
Agreement desires to induce the Series C Investors to
purchase shares of Series C Preferred Stock pursuant
to the Purchase Agreement by entering into this
Agreement."
2.2. NOTICE OF SALES; RIGHT OF FIRST REFUSAL.
(a) All references to the term "Series B
Preferred Stock" in Section 1.1 of the Co-Sale Agreement are hereby
amended to be references to "Senior Preferred Stock."
(b) The reference in the final sentence of
Section 1.1 of the Co-Sale Agreement to the "Series B Investors" is
hereby amended to be a reference to "Senior Preferred Investors."
7
2.3. CO-SALE RIGHTS. Section 1.2 of the Co-Sale Agreement
is hereby amended and restated in its entirety as follows:
"If the Investor Rights of First Refusal are not
exercised in full by the Investors, each Senior
Preferred Investor shall have the right (the "Co-Sale
Right"), exercisable upon written notice to the
Company within fifteen (15) business days after the
Determination Notice Date to participate in such
Selling Stockholder's sale of Shares pursuant to the
specified terms and conditions of such Purchase
Offer. To the extent a Senior Preferred Investor
exercises such Co-Sale Right in accordance with the
terms and conditions set forth below, the number of
Offered Shares which such Selling Stockholder may
sell pursuant to such Purchase Offer shall be
correspondingly reduced. The Co-Sale Right of each
Senior Preferred Investor shall be subject to the
following terms and conditions:
(a) CALCULATION OF SHARES. Each Senior
Preferred Investor may sell all or any part of that
number of shares of Common Stock of the Company
issued or issuable upon conversion of shares of the
Senior Preferred Stock held by such Senior Preferred
Investor, or Common Stock received in connection with
any stock dividend, stock split or other
reclassification of shares of Senior Preferred Stock
and Common Stock issued upon conversion of shares of
Senior Preferred Stock (the "Senior Preferred
Conversion Shares") equal to the product obtained by
multiplying (i) the aggregate number of Offered
Shares covered by the Purchase Offer by (ii) a
fraction, the numerator of which is the number of
Senior Preferred Conversion Shares at the time owned
by such Senior Preferred Investor and the denominator
of which is the sum of (A) the total number of Senior
Preferred Conversion Shares at the time owned by all
Senior Preferred Investors participating in such sale
plus (B) the total number of Shares at the time owned
by such Selling Stockholder, including shares
transferred by such Selling Stockholder to Permitted
Transferees (as defined below) in accordance with
this Agreement.
(b) DELIVERY OF CERTIFICATES. Each
Senior Preferred Investor may effect its
participation in the sale by delivering to the
Selling Stockholder for transfer to the prospective
purchaser one or more certificates, properly endorsed
for transfer, which represent the Senior Preferred
Conversion Shares which such Senior Preferred
Investor elects to sell."
2.4. TRANSFER. Section 1.3 of the Co-Sale Agreement is
hereby amended and restated in its entirety as follows:
"The stock certificate or certificates which a Senior
Preferred Investor delivers to the Selling
Stockholder pursuant to Section 1.2 shall be
delivered by such Selling Stockholder to the
prospective purchaser in consummation of the sale
pursuant to the terms and conditions specified in
8
the Notice, and such Selling Stockholder shall
promptly thereafter remit to such Senior Preferred
Investor that portion of the sale proceeds to which
such Senior Preferred Investor is entitled by reason
of its participation in such sale. To the extent that
any prospective purchaser or purchasers prohibits
such assignment or otherwise refuses to purchase
Senior Preferred Conversion Shares from a Senior
Preferred Investor exercising its Co-Sale Right
hereunder, the Selling Stockholder shall not sell to
such prospective purchaser or purchasers any Shares
unless and until, simultaneously with such sale, the
Selling Stockholder shall purchase such Senior
Preferred Conversion Shares from such Senior
Preferred Investor for the same consideration and on
the same terms and conditions as the proposed
transfer described in the Notice (which terms and
conditions shall be no less favorable than those
governing the sale to the purchaser by the Selling
Stockholder)."
2.5. PERMITTED TRANSACTIONS. Section 1.5 of the Co-Sale
Agreement is hereby amended and restated in its entirety as follows:
"The provisions of Section 1 of this Agreement shall
not pertain or apply to any transfer (i) to a
Stockholder's ancestors, descendants or spouse or to
a trust for their benefit; (ii) to an affiliate (as
such term is defined under the Securities Act of
1933, as amended (the "Securities Act")) of a
Stockholder (in the case of a Stockholder that is an
entity) or, if such investor is an investment fund,
to an investment fund under common management; (iii)
to a successor trustee or successor fiduciary (in the
case of a Stockholder that is an employee benefit
plan); or (iv) to a partner, a retired partner,
member or retired member or shareholder of a
Stockholder, or to the estate of any such partner or
member or shareholder (in the case of a Stockholder
that is a partnership or limited liability company or
corporation), provided, that (i) the Stockholder(s)
shall inform the Company and the Investors of any
such transfer prior to effecting it, and (ii) the
transferee (each a "Permitted Transferee") shall
furnish the Company and the Investors with a written
agreement to be bound by and comply with all
provisions of this Agreement applicable to the
transferring Stockholder."
2.6. DRAG-ALONG RIGHT. Section 1.7 of the Co-Sale
Agreement is hereby amended as follows:
(a) By deleting the last sentence of Section
1.7(a) and replacing it with the following:
"For purposes of this Agreement, "Drag-Along Holders"
shall mean (i) from the date of this Agreement
through the second anniversary of this Agreement (the
"Second Anniversary"), Investors holding a majority
of the then outstanding shares of Series A Preferred
Stock and 55% of the Senior Preferred Stock (treating
them on an as converted basis and as
9
separate classes) and (ii) after the Second
Anniversary, shall mean Investors holding a majority
of the then outstanding shares of Series A Preferred
Stock and Senior Preferred Stock (treating them on an
as converted basis and as a single class)."
(b) By adding a new subclause to the end of such
section, which will be and read as follows:
"(e) Notwithstanding anything to the contrary
herein, no Stockholder that is subject to Title I of
the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), shall be required to sell his
or its Shares if there is a reasonable likelihood
that such sale would constitute a non-exempt
prohibited transaction under Section 406 of ERISA,
provided that such stockholder shall have availed
itself of any applicable prohibited transaction class
exemptions."
2.7. AMENDMENT OF CERTAIN REFERENCES. The references in
Section 2.1 of the Co-Sale Agreement to "Series B Preferred Stock" are
hereby amended to be references to "Senior Preferred Stock."
2.8. AMENDMENTS AND WAIVERS. Section 4.2 of the Co-Sale
Agreement is hereby amended and restated in its entirety as follows:
"Any term of this Agreement may be amended or waived
only with the written consent of the Company, the Key
Employees holding at least a majority of the Shares
held by all Key Employees, holders of at least a
majority of the Series A Preferred Stock and holders
of at least 55% of the Senior Preferred Stock held by
the Senior Preferred Investors. Any amendment or
waiver effected in accordance with this Section 4.2
shall be binding upon the Company and the
Stockholders and each of their respective successors
and assigns; provided that no such amendment shall be
effective (a) with respect to the Other Stockholders
that purports to alter any obligations of the Other
Stockholders hereunder without the written consent of
a majority (by number of Shares held) of the Other
Stockholders, or (b) with respect to the holders of
the Series C Preferred Stock if such amendment has
the effect of affecting the holders of the Series C
Preferred Stock (i) in a manner different than the
holders of the Series B Preferred Stock and (ii) in a
manner adverse to the interests of the holders of the
Series C Preferred Stock without the written consent
of the holders of at least eighty percent (80%) of
the then outstanding shares of the Series C Preferred
Stock. Notwithstanding the foregoing, Exhibit C-1 and
Exhibit C-3 may be amended by the Company solely to
add new parties as Other Stockholders and/or Key
Employees, as the case may be, without the consent of
any other party hereto, and in each such case, the
Company shall promptly notify each other party hereto
with respect to the addition of such new party or
parties and the number and types of Shares held by
such new party or parties."
10
2.9. OTHER STOCKHOLDER AND KEY EMPLOYEE SIGNATURE PAGES.
The first sentence of the first paragraph of the "Other Stockholder"
Signature Page and the "Key Employee" Signature Page, as set forth on
Exhibit C-2 and Exhibit C-4, respectively, to the Co-Sale Agreement, is
hereby amended in its entirety to read as follows:
"By execution and delivery of this signature page,
the undersigned hereby agrees to become an [Other
Stockholder/Key Employee (as applicable)], as defined
in that certain Amended and Restated Right of First
Refusal and Co-Sale Agreement by and among Pharmion
Corporation, a Delaware corporation (the "Company"),
the Founders, the Investors, the Other Stockholders
and the Key Employees (as defined therein), dated as
of October 11, 2002, and as may have otherwise been
amended prior to the date hereof (as amended, the
"Co-Sale Agreement")."
2.10. ADDITION OF EXHIBIT. The Co-Sale Agreement is hereby
amended by adding thereto a new exhibit, identified as Exhibit D, which
shall be the same as Exhibit C to this Omnibus Agreement.
2.11. ADDITION OF SERIES C INVESTORS AS PARTIES TO THE
CO-SALE AGREEMENT. By their signature to this Omnibus Agreement, each
of the Series C Investors is hereby added as a party to the Co-Sale
Agreement, effective as of the date hereof.
3. AMENDMENT AND WAIVER OF THE VOTING AGREEMENT. Pursuant to the
amendment and waiver provisions of the Voting Agreement, the Company, the
Founders, holders of a majority of the Series A Preferred Stock, holders of 55%
of the Series B Preferred Stock, Nomura International plc ("Nomura"), ProQuest
Investments II, L.P. ("ProQuest") and New Enterprise Associates 10, Limited
Partnership ("NEA") hereby agree to amend the Voting Agreement as follows:
3.1. PREAMBLE AND RECITALS. The Preamble and Recitals to
the Voting Agreement are hereby amended and restated in their entirety
as follows:
"This Amended and Restated Voting Agreement (the
"Agreement") is made as of the 11th day of October
2002, by and among Pharmion Corporation, a Delaware
corporation (the "Company"), Xxxxxxx Xxxxxxx and
Xxxxxx Xxxxxxxxx (the "Founders"), the investors
listed on Exhibit A hereto, each of which is herein
referred to as a "Series A Investor," the investors
listed on Exhibit B hereto, each of which is herein
referred to as a "Series B Investor," the investors
listed on Exhibit C hereto, each of which is herein
referred to as a "Series C Investor" (together with
the Series B Investors, the "Senior Preferred
Investors" and each such Series A Investor, Series B
Investor and Series C Investor further collectively
being referred to as an "Investor"), who become
parties to this Agreement by executing and delivering
a Financing Signature Page (as defined in the
Purchase Agreement referred to below).
11
RECITALS
The Company, the Founders and the Series A Investors
entered into a Voting Agreement, dated January 5,
2000, in connection with the sale of Series A-1
Preferred Stock and Series A-2 Preferred Stock of the
Company (collectively, the "Series A Preferred
Stock") to the Series A Investors (the "Original
Agreement").
The Company, the Founders, the Series A Investors and
the Series B Investors entered into an Amended and
Restated Voting Agreement (the "Amended Agreement"),
dated as of November 30, 2001, in connection with the
sale of Series B Preferred Stock of the Company (the
"Series B Preferred Stock") to the Series B
Investors. In accordance with the Amended Agreement,
the Board of Directors of the Company presently
consists of two (2) Directors designated by the
Series A Investors, two (2) Directors designated by
the Founders, three (3) Directors designated by the
Series B Investors and one (1) non-employee Director.
The Company and the Series C Investors have entered
into a Series C Preferred Stock Purchase Agreement
(the "Purchase Agreement") dated as of even date
hereof pursuant to which the Company desires to sell
to the Series C Investors, and the Series C Investors
desire to purchase from the Company, shares of the
Company's Series C Preferred Stock (the "Series C
Preferred Stock" and, together with the Series B
Preferred Stock, the "Senior Preferred Stock"). A
condition to the Series C Investors' obligations
under the Purchase Agreement is that the Company, the
Founders and the Investors enter into this Agreement
for the purpose of maintaining the present structure
of the Board of Directors of the Company. The
Company, the Series A Investors and the Series B
Investors each desire to induce the Series C
Investors to purchase shares of Series C Preferred
Stock pursuant to the Purchase Agreement by agreeing
to enter into this Agreement."
3.2. DEFINITION OF PARTIES. The definition of the
"Parties" in Section 1.1 of the Voting Agreement is hereby amended to
further include the Series C Investors.
3.3. AMENDMENT OF CERTAIN REFERENCES. The references in
Sections 1.2, 3.1(c) and 4.2 of the Voting Agreement to the "Series B
Preferred Stock" are hereby amended to be references to "Senior
Preferred Stock."
3.4. ADDITION OF EXHIBIT. The Voting Agreement is hereby
amended by adding thereto a new exhibit, identified as Exhibit C, which
shall be the same as Exhibit C to this Omnibus Agreement.
3.5. ADDITION OF SERIES C INVESTORS AS PARTIES TO THE
VOTING AGREEMENT. By their signature to this Omnibus Agreement, each of
the Series C Investors is hereby added as a party to the Voting
Agreement, effective as of the date hereof.
12
4. MISCELLANEOUS.
4.1. SEVERABILITY. If one or more provisions of this
Omnibus Agreement are held to be unenforceable under applicable law,
the parties agree to renegotiate such provision in good faith. In the
event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (a) such provision
shall be excluded from this Omnibus Agreement, (b) the balance of the
Omnibus Agreement shall be interpreted as if such provision were so
excluded and (c) the balance of the Omnibus Agreement shall be
enforceable in accordance with its terms.
4.2. GOVERNING LAW. This Omnibus Agreement and all acts
and transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving
effect to principles of conflicts of law.
4.3. COUNTERPARTS. This Omnibus Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument. The signature by a stockholder of the Company executing
this Omnibus Agreement shall be deemed the signature of such person in
his, her or its capacity as the holder of all such shares of capital
stock of the Company held by such person on the date hereof. This
Omnibus Agreement may be signed by facsimile signatures.
4.4. TITLES AND SUBTITLES. The titles and subtitles used
in this Omnibus Agreement are used for convenience only and are not to
be considered in construing or interpreting this Omnibus Agreement.
4.5. EFFECTIVENESS OF AGREEMENT. This Omnibus Agreement
shall become effective when signed by the Company, the Founders, the
holders of a majority of the Series A Preferred Stock, the holders of
55% of the Series B Preferred Stock, Nomura, ProQuest, NEA and the
Series C Investors holding shares of Series C Preferred Stock on the
date first recited above.
[Signature Pages Follow]
13
The parties have executed this Omnibus Agreement as of the date first
written above.
COMPANY:
PHARMION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: /s? Xxxxxxx X. Xxxxxxx
----------------------------
Title: President & CEO
Address: 0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
FOUNDERS:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
Address: 0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
INVESTORS:
VERSANT VENTURE CAPITAL I, L.P.
By: Versant Ventures I, LLC
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
(print)
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
XXXX. 0 - Xxxxx 000
Xxxxx Xxxx, XX 00000
VERSANT SIDE FUND I, L.P.
By: Versant Ventures I, LLC
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
(print)
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
XXXX. 0 - Xxxxx 000
Xxxxx Xxxx, XX 00000
VERSANT AFFILIATES FUND 1-A, L.P.
By: /s/ Xxxxx Xxxxxx
------------------------------------
By: ____________________________________
Name: Xxxxx Xxxxxx
(print)
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
XXXX. 0 - Xxxxx 000
Xxxxx Xxxx, XX 00000
VERSANT AFFILIATES FUND 1-B, L.P.
By: /s/ Xxxxx Xxxxxx
------------------------------------
By: ____________________________________
Name: Xxxxx Xxxxxx
(print)
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
XXXX. 0 - Xxxxx 000
Xxxxx Xxxx, XX 00000
DOMAIN PARTNERS IV, L.P.
By: One Xxxxxx Square Associates IV,
L.L.C., its General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
Title: Managing Member
Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
XX XX ASSOCIATES, L.P.
By: One Xxxxxx Square Associates IV,
L.L.C., its General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
Title: Managing Member
Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
DOMAIN ASSOCIATES, L.L.C.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
By: ____________________________________
Name: Xxxxx X. Xxxxx
(print)
Title: Managing Member
Address:
ABERDARE VENTURES, L.P.
By: Aberdare GP, L.L.C., its General
Partner
By: /s/ Xxxx X. Xxxxxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxxxxx
Title: Managing Partner
Address: Xxx Xxxxxxxxxxx Xxxxxx, #0000
Xxx Xxxxxxxxx, XX
00000
ABINGWORTH BIOVENTURES II
SICAV
By: /s/ Xxxxxxxxx XXXXXX
------------------------------------
By: /s/ Xxxxxx XXXXXX
------------------------------------
Name: Xxxxxxxxx XXXXXX
-----------------
/s/ Xxxxxx XXXXXX
(print)
Title: Company Secretary Mandatory
Address: 000 Xxx Xxx Xxxx Xxxxxx
Xxxxxxxxx - 0000
XXXXXXXXXX
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Address: 000 Xx Xxxxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
TECHNOGEN ENTERPRISES LLC
By: /s/ Xxxxx Xxxxx
------------------------------------
By: ____________________________________
Name: Xxxxx Xxxxx
(print)
Title: Member
Address: X.X. Xxx 0000
Xxxxx Xxxx, XX 00000
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
XXX XXXXX
/s/ Xxx X. Xxxxx
----------------------------------------
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
CAM XXXXXX
/s/ Cam Xxxxxx
----------------------------------------
Address: 0000 Xxxxxxxxx Xx.
Xxx Xxxxx, XX 00000
XXXXX X. XXXXX and XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
----------------------------------------
Address: 000 Xxxx 00xx Xxxxxx, Xxx 00-X
00-X Xxx Xxxx, Xxx Xxxx 00000
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
By: /s/ Xxxxx Xxxx
------------------------------------
By: ____________________________________
Name: Xxxxx Xxxx
(print)
Title: Partner
Address: 0000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXX XXXX, AS TRUSTEE, OR THE
SUCCESSOR TRUSTEE OR TRUSTEES,
U/A/D, DATED AUGUST 29, 1995, AS
AMENDED, CREATING THE XXXXX XXXX
REVOCABLE TRUST.
/s/ Xxxxx Xxxx
----------------------------------------
Xxxxx Xxxx, Trustee
NOMURA INTERNATIONAL PLC
By: /s/ Xxxxxx Xxxxxxx-Xxxxxx
------------------------------------
By: ____________________________________
Name: Xxxxxx Xxxxxxx-Xxxxxx
(print)
Title: Head of Healthcare Private
Equity
Address:
PROQUEST INVESTMENTS II, L.P.
By: /s/ Xxxxxxxx XxXxxxxxx
------------------------------------
By: ____________________________________
Name: Xxxxxxxx XxXxxxxxx
(print)
Title: Chief Financial Officer
Address: 000 Xxxxxxxxx Xxxx, Xxxxx
000 Xxxxxxxxx, XX 00000
PROQUEST INVESTMENTS II
ADVISORS FUND, L.P.
By: /s/ Xxxxxxxx XxXxxxxxx
------------------------------------
By: ____________________________________
Name: Xxxxxxxx XxXxxxxxx
(print)
Title: Chief Financial Officer
Address: 000 Xxxxxxxxx Xxxx, Xxxxx
000 Xxxxxxxxx, XX 00000
BAY CITY CAPITAL FUND III, L.P.
By: Bay City Capital Management III,
LLC
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
(print)
Title: Manager & Managing Director
Address: 000 Xxxxxxx Xx., Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
NEOMED INNOVATION III, L.P.
By: Neomed Innovation III Limited,
its General Partner
By: /s/ Simon Xxxxxxxxxxx Xxxxx
------------------------------------
Name: Simon Xxxxxxxxxxx Xxxxx
(print)
Title: Director
Address: X.X. Xxx 000, Xx. 0
XxxxxxXxxxxx Xx. Helier,
Jersey L.I. JE4 SUT
NEW ENTERPRISE ASSOCIATES 10,
LIMITED PARTNERSHIP
By: NEA Partners 10, Limited
Partnership, its General Partner
By: /s/ Xxxxxx X. Trainer, III
------------------------------------
Name: Xxxxxx X. Trainer, III
(print)
Title: Administrative General Partner
Address: 0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
NEA VENTURES 2001, L.P.
By:
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
(print)
Title: General Partner
Address: 0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
PAMINA S.a.
By: PAMINA S.a.
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
(print)
Title:
Address: 00 Xxxxxx Xxxx
Xxxxxx
XX0 0XX
Xxxxxx Xxxxxxx
MONTAGU NEWHALL GLOBAL
PARTNERS, L.P.
By: Montagu Newhall General
Partners, LP
By: /s/ C. Xxxxxx Xxxxxxx
------------------------------------
Name: C. Xxxxxx Xxxxxxx
(print)
Title: General Partner
Address: 0000 Xxxxxx Xxxxx Xxxx.
Xxxxxx Xxxxx, XX 00000
HFM CHARITABLE REMAINDER
TRUST
By:
By: /s/ Xxx X. Xxxxx
------------------------------------
Name: Xxx X. Xxxxx
(print)
Title: Authorized Agent
Address: 0000 Xxxxxxxxx Xxxx XX,
00xx Xxxxx Xxxxxxx, XX
00000
AEOW 2000 LP
By:
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
(print)
Title: Member Manager
Address: 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000 Xxx Xxxxxxxxx,
XX 00000
MERLIN BIOMED PRIVATE EQUITY FUND, L.P.
By: /s/ Xxxxxxxxx Xxxxx
------------------------------------
By: ____________________________________
Name: Xxxxxxxxx Xxxxx
(print)
Title: Fund Manager
Address: 000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
INVEMED FUND, L.P.
By: /s/ Xxxx Xxxxx
------------------------------------
By: ____________________________________
Name: Xxxx Xxxxx
(print)
Title: CFO
Address: 000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
HEALTHCAP 1999 KB
By: Healthcap 1999 GP AB
------------------------------------
By: /s/ Per Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Name: Per Xxxxxxxxx Xxxxxxx Xxxxxxxxxx
(print)
Title: Partner Partner
Address:
OFCO CLUB
By: Odlander, Xxxxxxxxxx & Co. AB
By: /s/ Per Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Name: Per Xxxxxxxxx Xxxxxxx Xxxxxxxxxx
(print)
Title: Partner Partner
Address:
HEALTHCAP 0000 XXX
By: /s/ Xxxxxx Xxxxx
------------------------------------
By: ____________________________________
Name: Xxxxxx Xxxxx
(print)
Title: Managing Director of the General
Partner Healthcap 0000 XXX
Address: Xxxxxxxxxxxxxx 00-00
00000 Xxxxxx, XXXXXXX
OTHER STOCKHOLDERS:
XXXXX X. XXXXXXX
________________________________________
Address: 0000 XX Xxxxxxxx Xxxx
Xxx'x Xxxxxx, XX 00000
FMR CORPORATION
By: ____________________________________
By: ____________________________________
Name:___________________________________
(print)
Title:
Address:
XXXXXX X. XXXXXXX
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Address:
XXXXXX XXXXXX
/s/ Barrie Xxx Xxxxxx
----------------------------------------
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xx 00000
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
----------------------------------------
Address: 0000 Xxxxx Xxxx Xxxxx
Xxxx, XX 00000
XXXXXXX XXXXX
/s/ Xxxx Xxxxx
----------------------------------------
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
XXXX XXXXXXXXXXXXX
/s/ Xxxx Xxxxxxxxxxxxx
----------------------------------------
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
----------------------------------------
Address: 0000 Xxxxxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
XXXXX XXXXXXXXX
/s/ Xxxxx Xxxxxxxxx
----------------------------------------
Address:
XXXXXXXX XXXXXXXXX
________________________________________
Address:
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
----------------------------------------
Address:
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Address: 0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
XXXXXX XXXXXXXX MERILEES
/s/ Xxxxxx Xxxxxxxx Merilees
----------------------------------------
Address: 0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
XXX XXXXXXXX
________________________________________
Address:
EXHIBIT C-1
OTHER STOCKHOLDERS
Domain Associates, L.L.C.
FMR Corporation
HealthCap 0000 XXX
Aberdare Ventures, L.P.
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxxx Merilees
Xxx Xxxxxxxx
