AMENDMENT
EXHIBIT 4.4
PHARMION CORPORATION
AMENDMENT
This Amendment (the "Amendment") is made and entered into as
of April 8, 2003 by and among Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxx (the
"Founders"), Pharmion Corporation, a Delaware corporation (the "Company"),
Celgene Corporation, a Delaware corporation ("Celgene"), Penn Pharmaceuticals
Holdings Limited, a corporation organized under the laws of England and Wales
("Penn"), and the preferred stockholders of the Company listed on the signature
pages that follow this Amendment.
RECITALS
WHEREAS, the Company, the Founders and the holders of the
Company's Series A Preferred Stock and Series B Preferred Stock entered into an
Amended and Restated Investors' Rights Agreement, dated as of November 30, 2001
(the "Agreement"), which provided such holders with certain registration rights;
WHEREAS, in connection with the issuance of a warrant to
Celgene to purchase shares of the Company's Series B Preferred Stock, the
Company and Celgene entered into a letter agreement, dated September 20, 2002,
pursuant to which Celgene became a party to the Agreement;
WHEREAS, in connection with the sale of the Company's Series C
Preferred Stock, the Agreement was further amended by the Series C Omnibus
Amendment Agreement, dated as of October 11, 2002, by and among the Company, the
Founders and the stockholders of the Company (the Agreement as so amended, the
"Investors' Rights Agreement");
WHEREAS, the Company wishes to sell to each of Celgene and
Penn a promissory note convertible into shares of the Company's common stock and
a warrant to purchase shares of the Company's common stock; and
WHEREAS, to induce Celgene and Penn to purchase such notes and
warrants, the Company, the Founders and the preferred stockholders of the
Company wish to provide Celgene and Penn with the registration rights under the
Investors' Rights Agreement with respect to the shares of the Company's common
stock issuable upon conversion or exercise of such notes and warrants;
NOW, THEREFORE, pursuant to the amendment and waiver
provisions of the Investors' Rights Agreement, the Company, the Founders,
Celgene, Penn and the holders of a majority of the Series A Registrable
Securities and 55% of the Senior Preferred Registrable Securities outstanding
(not including the Founders' Stock) (as such terms are defined in the Investors'
Rights Agreement) hereby agree to amend the Investors' Rights Agreement as
follows:
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AGREEMENT
1. DEFINITIONS. Section 1.1 of the Investors' Rights
Agreement is hereby amended as follows:
(a) By amending and restating clause (i) of
subsection (d) of such section in its entirety as follows:
"(i) the shares of Common Stock issuable or
issued upon (A) 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,
or (B) conversion or exercise of the New
Securities (as defined below),"
(b) By amending and restating the definition of
"Senior Preferred Registrable Securities" in subsection (e) of such section in
its entirety as follows:
"Senior Preferred Registrable Securities"
means Registrable Securities consisting of
Common Stock issuable or issued upon
conversion or exercise of shares of Senior
Preferred Stock or New Securities;
(c) By adding a new subsection to the end of
such section, which will be and read as follows:
"(k) The term "New Securities" means that
certain (i) five year senior convertible
promissory note issued to Celgene in the
principal amount of $12,000,000, convertible
into shares of Common Stock at an initial
conversion price of $2.75 per share, (ii)
five year warrant issued to Celgene to
purchase 1,454,545 shares of Common Stock at
an initial exercise price of $2.75 per
share, (iii) five year convertible
promissory note issued to Penn
Pharmaceuticals Holdings Limited (together
with its permitted successors and assigns,
"Penn") in the principal amount of
$2,000,000, convertible into shares of
Common Stock at an initial conversion price
of $2.75 per share, (iv) five year warrant
issued to Penn to purchase 242,424 shares of
Common Stock at an initial exercise price of
$2.75 per share and (v) any and all
continuations, extensions, modifications,
refinancings, replacements and renewals
thereof."
2. ADDITION OF PENN AS A PARTY TO THE INVESTORS' RIGHTS
AGREEMENT. By its signature to this Amendment, Penn is hereby added as a party
to the Investors' Rights Agreement, effective as of the date hereof.
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3. AMENDMENT OF EXHIBIT B TO THE INVESTORS' RIGHTS
AGREEMENT. Pursuant to Section 3.4 of the Investors' Rights Agreement, Exhibit B
to the Investors' Rights Agreement is hereby amended, as set forth on the
Exhibit hereto, to reflect the addition of Celgene as a party to the Investors'
Rights Agreement as a Series B Investor, and that such amendment shall satisfy
the requirement of the last sentence of such Section 3.4.
4. ACKNOWLEDGEMENT OF CELGENE AND PENN AS PARTIES TO THE
INVESTORS' RIGHTS AGREEMENT. By its signature to this Amendment, each preferred
stockholder agrees and acknowledges that each of Celgene and Penn is a party to
the Investors' Rights Agreement.
5. GOVERNING LAW. This Amendment 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.
6. COUNTERPARTS. This Amendment 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 Amendment 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 Amendment may be signed by facsimile sig natures.
7. TITLES AND SUBTITLES. The titles and subtitles used
in this Amendment are used for convenience only and are not to be considered in
construing or interpreting this Amendment.
[Signature Pages Follow]
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The parties have executed this Amendment as of the date first written above.
PHARMION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
President and CEO
CELGENE CORPORATION
By: /s/ Xxxxxx X. Hugin
-----------------------------------
Name: Xxxxxx X. Hugin
Title: Senior Vice President & CFO
PENN PHARMACEUTICALS HOLDINGS LIMITED
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive
By: /s/ X. X. Xxxxxxxxx
-----------------------------------
Name: X. X. Xxxxxxxxx
Title: Finance Director
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 00xx Xxxxxx
Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
Address: 0000 00xx Xxxxxx
Xxxxxxx, XX 00000
4
PREFERRED STOCKHOLDERS:
VERSANT VENTURE CAPITAL I, L.P.
By: Versant Ventures I, LLC
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
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
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
XXXX. 0 - Xxxxx 000
Xxxxx Xxxx, XX 00000
VERSANT AFFILIATES FUND 1-A, L.P.
By: Versant Ventures I, LLC
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
XXXX. 0 - Xxxxx 000
Xxxxx Xxxx, XX 00000
5
VERSANT AFFILIATES FUND 1-B, L.P.
By: Versant Ventures I, LLC
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 0000 Xxxx Xxxx Xxxx
XXXX. 0 - Xxxxx 000
Menlo Park, CA 94025
ABERDARE VENTURES, L.P.
By: Aberdare GP, L.L.C., its
General Partner
By: /s/ Xxxx X. Xxxxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxxxx
Title: Managing Partner
Address: Xxx Xxxxxxxxxxx Xxxxxx, #0000
Xxx Xxxxxxxxx, XX 00000
ABINGWORTH BIOVENTURES II
SICAV
By: /s/ Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx
Title: Company Secretary Mandatory
Address: 000, Xxx xxx Xxxx-Xxxxxxx
X-0000 Xxxxxxxxxx
XXXXXXXXX ENTERPRISES LLC
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Member
Address: X.X. Xxx 0000
Xxxxx Xxxx, XX 00000
6
DOMAIN PARTNERS IV, L.P.
By: One Xxxxxx Square Associates IV,
L.L.C., its General Partner
By: /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
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/ Xxxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Managing Member
Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
DOMAIN ASSOCIATES, L.L.C.
By: /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Managing Member
Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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XXXXX X. XXXXXXX
_________________________________________
Address: 000 Xx Xxxxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
XXXXX X. XXXXX
_________________________________________
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
XXX 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
Xxx Xxxx, XX 00000
NOMURA INTERNATIONAL PLC
By: /s/ Xxxxxx Xxxxxxx-Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx-Xxxxxx
Title: Head of Healthcare Private
Equity
Address: 0 Xx. Xxxxxx'x-xx-Xxxxx
Xxxxxx XX0X 0XX
8
XXXXXX, XXXXXXXXXX & XXXXXXXXX, LLP
By: ____________________________________
Name: Xxxxx Xxxx
Title: Member
Address: 0000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXXX INVESTMENTS 2002 LLC
By: _____________________________________
Name: Xxxxx Xxxx
Title: Member
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.
By: _____________________________________
Name: Xxxxx Xxxx
Title: Trustee
Address: 0000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
9
PROQUEST INVESTMENTS II, L.P.
By: /s/ Xxxxxxxx XxXxxxxxx
--------------------------------------
Name: Xxxxxxxx XxXxxxxxx
Title: Chief Financial Officer
Address: 000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
PROQUEST INVESTMENTS II ADVISORS FUND,
L.P.
By: /s/ Xxxxxxxx XxXxxxxxx
--------------------------------------
Name: Xxxxxxxx XxXxxxxxx
Title: Chief Financial Officer
Address: 000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
NEOMED INNOVATION III, L.P.
By: Neomed Innovation III Limited, its
General Partner
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Director
Address: X.X. Xxx 000, Xx. 0 Xxxxxx Xxxxxx
St. Helier, Jersey L.I. JE4 SUT
MERLIN BIOMED PRIVATE EQUITY FUND, L.P.
By: _____________________________________
Name Xxxxxxxxx Xxxxx
Title: Fund Manager
Address: 000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
00
XXX XXX XXXX XXXXXXX XXXX XXX, L.P.
By: Bay City Capital Management III, LLC
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Manager and Managing Director
General Partner of: The Bay City Capital
Fund III, L.P.
Address: 000 Xxxxxxx Xx., Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
THE BAY CITY CAPITAL FUND III
CO-INVESTMENT FUND, L.P.
By: Bay City Capital Management III, LLC
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Manager and Managing Director
General Partner of: The Bay City Capital
Fund III Co-Investment, L.P.
Address: 000 Xxxxxxx Xx., Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
PAMINA S.A.
By: _____________________________________
Name: Xxxxxxxx Xxxxxx
Title: Chairman
Address: 00 Xxxxxx Xxxx
Xxxxxx
XX0 0XX
Xxxxxx Xxxxxxx
11
NEW ENTERPRISE ASSOCIATES 10, LIMITED
PARTNERSHIP
By: NEA Partners 10, Limited Partnership,
its General Partner
By: /s/ Xxxxxx Xxxxxxx, III
-------------------------------------
Name: Xxxxxx Xxxxxxx, III
Title: Administrative General Partner &
Chief Operating Officer
Address: 0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
NEA VENTURES 2001, L.P.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
Address: 0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
MONTAGU NEWHALL GLOBAL PARTNERS, L.P.
By: Montagu Newhall General Partner, LP
By: /s/ C. Xxxxxx Xxxxxxx
-------------------------------------
Name: C. Xxxxxx Xxxxxxx
Title: General Partner
Address: 0000 Xxxxxx Xxxxx Xxxx.
Xxxxxx Xxxxx, XX 00000
12
HFM CHARITABLE REMAINDER TRUST
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
Title: Authorized Agent
Address: 0000 Xxxxxxxxx Xxxx XX, 00xx
Xxxxx Xxxxxxx, XX 00000
AEOW 2000 LP
By: _____________________________________
Name: Xxxxxxx X. Xxxxx
Title:
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx
000 Xxx Xxxxxxxxx, XX 00000
INVEMED FUND, L.P.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Chief Financial Officer
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
13
HEALTHCAP 1999 KB
By: HealthCap 0000 XX XX
By: /s/ Per Xxxxxxxxx
/s/ X. Xxxxxx Xxxxxxxx
-------------------------------------
Name: Per Xxxxxxxxx X. Xxxxxx Xxxxxxxx
(print)
Title: Partner Partner
Address:
OFCO CLUB
By: Odlander, Xxxxxxxxxx & Co. AB
By: /s/ Per Xxxxxxxxx
-------------------------------------
Name: Per Samuelton
Title: Partner
Address:
HEALTHCAP 0000 XXX
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
Address: Xxxxxxxxxxxxxx 00-00
00000 Xxxxxx, Xxxxxxx
14
SCHWEIZERHALL INVESTMENT LIMITED
By: /s/ P.A. Xxxxxx
-------------------------------------
Name: P.A. Xxxxxx
Title: Alternate Director to PGF Newbald
Address: N(degree)1 Xxxxxx Place
XX Xxx 000
Xx. Xxxxxx
Xxxxxx XX0 0XX
Channel Islands
GENERAL ELECTRIC PENSION TRUST
By: GE Asset Management Incorporated,
Its Investment Manager
By: /s/ Xxxxxxx X. XxXxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: VP - Private Equity
Address: 0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXXXXXX AND XXXXXX XXXXX
FAMILY TRUST DATED
DECEMBER 7, 2001
By: _____________________________________
Name: Xxxxxxx Xxxxx
Title: Trustee
Address: 000 Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
15
XXXX XXXX
/s/ Xxxx Xxxx
-----------------------------------------
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
XXXX XXXXX
_________________________________________
Address:
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