EX-4.4 Amendment dated as of April 8, 2003

EX-4.4 6 d08255exv4w4.txt EX-4.4 AMENDMENT DATED AS OF APRIL 8, 2003 EXHIBIT 4.4 PHARMION CORPORATION AMENDMENT This Amendment (the "Amendment") is made and entered into as of April 8, 2003 by and among Patrick Mahaffy and Judith Hemberger (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: 1 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. 2 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] 3 The parties have executed this Amendment as of the date first written above. PHARMION CORPORATION By: /s/ Patrick J. Mahaffy ----------------------------------- Patrick J. Mahaffy President and CEO CELGENE CORPORATION By: /s/ Robert J. Hugin ----------------------------------- Name: Robert J. Hugin Title: Senior Vice President & CFO PENN PHARMACEUTICALS HOLDINGS LIMITED By: /s/ Craig R. Rennie ----------------------------------- Name: Craig R. Rennie Title: Chief Executive By: /s/ D. G. Henderson ----------------------------------- Name: D. G. Henderson Title: Finance Director /s/ Patrick J. Mahaffy ----------------------------------------- Patrick J. Mahaffy Address: 2525 28th Street Boulder, CO 80301 /s/ Judith A. Hemberger ----------------------------------------- Judith A. Hemberger Address: 2525 28th Street Boulder, CO 80301 4 PREFERRED STOCKHOLDERS: VERSANT VENTURE CAPITAL I, L.P. By: Versant Ventures I, LLC By: /s/ Brian Atwood ------------------------------------ Name: Brian Atwood Title: Managing Director Address: 3000 Sand Hill Road BLDG. 1 - Suite 260 Menlo Park, CA 94025 VERSANT SIDE FUND I, L.P. By: Versant Ventures I, LLC By: /s/ Brian Atwood ------------------------------------ Name: Brian Atwood Title: Managing Director Address: 3000 Sand Hill Road BLDG. 1 - Suite 260 Menlo Park, CA 94025 VERSANT AFFILIATES FUND 1-A, L.P. By: Versant Ventures I, LLC By: /s/ Brian Atwood ------------------------------------ Name: Brian Atwood Title: Managing Director Address: 3000 Sand Hill Road BLDG. 1 - Suite 260 Menlo Park, CA 94025 5 VERSANT AFFILIATES FUND 1-B, L.P. By: Versant Ventures I, LLC By: /s/ Brian Atwood ------------------------------------ Name: Brian Atwood Title: Managing Director Address: 3000 Sand Hill Road BLDG. 1 - Suite 260 Menlo Park, CA 94025 ABERDARE VENTURES, L.P. By: Aberdare GP, L.L.C., its General Partner By: /s/ Paul H. Klingenstein ------------------------------------ Name: Paul H. Klingenstein Title: Managing Partner Address: One Embarcadero Center, #4000 San Francisco, CA 94111 ABINGWORTH BIOVENTURES II SICAV By: /s/ Genevieve Blauen Gerard Muller ------------------------------------ Name: Genevieve Blauen Gerard Muller Title: Company Secretary Mandatory Address: 231, Val des Bons-Malades L-2121 Luxembourg TECHNOGEN ENTERPRISES LLC By: /s/ Isaac Stein ------------------------------------ Name: Isaac Stein Title: Member Address: P.O. Box 2088 Menlo Park, CA 94026 6 DOMAIN PARTNERS IV, L.P. By: One Palmer Square Associates IV, L.L.C., its General Partner By: /s/ Kathleen Schoemaker ------------------------------------ Name: Kathleen Schoemaker Title: Managing Member Address: One Palmer Square Princeton, NJ 08542 DP IV ASSOCIATES, L.P. By: One Palmer Square Associates IV, L.L.C., its General Partner By: /s/ Kathleen Schoemaker ------------------------------------ Name: Kathleen Schoemaker Title: Managing Member Address: One Palmer Square Princeton, NJ 08542 DOMAIN ASSOCIATES, L.L.C. By: /s/ Kathleen Schoemaker ------------------------------------ Name: Kathleen Schoemaker Title: Managing Member Address: One Palmer Square Princeton, NJ 08542 7 ROGER G. KENNEDY _________________________________________ Address: 855 El Caminito Santa Fe, New Mexico 87501 JAMES C. YOUNG _________________________________________ Address: 118 East Platte Avenue Colorado Springs, CO 80903 ANN YOUNG _________________________________________ Address: 118 East Platte Avenue Colorado Springs, CO 80903 CAM GARNER /s/ Cam Garner ----------------------------------------- Address: 6363 Greenwich Dr. San Diego, CA 92122 PETER H. JAKES AND KAREN S. JAKES /s/ Peter H. Jakes /s/ Karen S. Jakes ----------------------------------------- Address: 520 East 86th Street, Apt. 13-C New York, NY 10028 NOMURA INTERNATIONAL PLC By: /s/ Denise Pollard-Knight ------------------------------------ Name: Denise Pollard-Knight Title: Head of Healthcare Private Equity Address: 1 St. Martin's-le-Grand London EC1A 4NP 8 ORRICK, HERRINGTON & SUTCLIFFE, LLP By: ____________________________________ Name: Peter Cohn Title: Member Address: 1020 Marsh Road Menlo Park, CA 94025 ORRICK INVESTMENTS 2002 LLC By: _____________________________________ Name: Peter Cohn Title: Member Address: 1020 Marsh Road Menlo Park, CA 94025 PETER COHN, AS TRUSTEE, OR THE SUCCESSOR TRUSTEE OR TRUSTEES, U/A/D, DATED AUGUST 29, 1995, AS AMENDED, CREATING THE PETER COHN REVOCABLE TRUST. By: _____________________________________ Name: Peter Cohn Title: Trustee Address: 1020 Marsh Road Menlo Park, CA 94025 9 PROQUEST INVESTMENTS II, L.P. By: /s/ Pasquale DeAngelis -------------------------------------- Name: Pasquale DeAngelis Title: Chief Financial Officer Address: 600 Alexander Park, Suite 204 Princeton, NJ 08540 PROQUEST INVESTMENTS II ADVISORS FUND, L.P. By: /s/ Pasquale DeAngelis -------------------------------------- Name: Pasquale DeAngelis Title: Chief Financial Officer Address: 600 Alexander Park, Suite 204 Princeton, NJ 08540 NEOMED INNOVATION III, L.P. By: Neomed Innovation III Limited, its General Partner By: /s/ Simon Young -------------------------------------- Name: Simon Young Title: Director Address: P.O. Box 539, No. 1 Wesley Street St. Helier, Jersey L.I. JE4 SUT MERLIN BIOMED PRIVATE EQUITY FUND, L.P. By: _____________________________________ Name Dominique Semon Title: Fund Manager Address: 230 Park Avenue, Suite 928 New York, NY 10169 10 THE BAY CITY CAPITAL FUND III, L.P. By: Bay City Capital Management III, LLC By: /s/ Carl Goldfischer ------------------------------------- Name: Carl Goldfischer Title: Manager and Managing Director General Partner of: The Bay City Capital Fund III, L.P. Address: 750 Battery St., Suite 600 San Francisco, CA 94111 THE BAY CITY CAPITAL FUND III CO-INVESTMENT FUND, L.P. By: Bay City Capital Management III, LLC By: /s/ Carl Goldfischer ------------------------------------- Name: Carl Goldfischer Title: Manager and Managing Director General Partner of: The Bay City Capital Fund III Co-Investment, L.P. Address: 750 Battery St., Suite 600 San Francisco, CA 94111 PAMINA S.A. By: _____________________________________ Name: Stephane Carnot Title: Chairman Address: 14 Willow Road London NW3 1TJ United Kingdom 11 NEW ENTERPRISE ASSOCIATES 10, LIMITED PARTNERSHIP By: NEA Partners 10, Limited Partnership, its General Partner By: /s/ Eugene Trainor, III ------------------------------------- Name: Eugene Trainor, III Title: Administrative General Partner & Chief Operating Officer Address: 1119 St. Paul Street Baltimore, MD 21202 NEA VENTURES 2001, L.P. By: /s/ Pamela J. Clark ------------------------------------- Name: Pamela J. Clark Title: General Partner Address: 1119 St. Paul Street Baltimore, MD 21202 MONTAGU NEWHALL GLOBAL PARTNERS, L.P. By: Montagu Newhall General Partner, LP By: /s/ C. Ashton Newhall ------------------------------------- Name: C. Ashton Newhall Title: General Partner Address: 4750 Owings Mills Blvd. Owings Mills, MD 21117 12 HFM CHARITABLE REMAINDER TRUST By: /s/ Roy Jones ------------------------------------- Name: Roy M. Jones Title: Authorized Agent Address: 3060 Peachtree Road NW, 19th Floor Atlanta, GA 30305 AEOW 2000 LP By: _____________________________________ Name: Bernard M. Osher Title: Address: 909 Montgomery Street, Suite 600 San Francisco, CA 94133 INVEMED FUND, L.P. By: /s/ John Baran ------------------------------------- Name: John Baran Title: Chief Financial Officer Address: 375 Park Avenue, Suite 2205 New York, NY 10152 13 HEALTHCAP 1999 KB By: HealthCap 1999 GP AB By: /s/ Per Samuelson /s/ A. Hulton Forsberg ------------------------------------- Name: Per Samuelson A. Hulton Forsberg (print) Title: Partner Partner Address: OFCO CLUB By: Odlander, Fredrikson & Co. AB By: /s/ Per Samuelson ------------------------------------- Name: Per Samuelton Title: Partner Address: HEALTHCAP 1999 GBR By: /s/ Jurgen Busch ------------------------------------- Name: Jurgen Busch Title: Managing Director Address: Kurfurstendamm 48-49 10707 Berlin, Germany 14 SCHWEIZERHALL INVESTMENT LIMITED By: /s/ P.A. Bolton ------------------------------------- Name: P.A. Bolton Title: Alternate Director to PGF Newbald Address: N(degree)1 Seaton Place PO Box 641 St. Helier Jersey JE4 8YJ Channel Islands GENERAL ELECTRIC PENSION TRUST By: GE Asset Management Incorporated, Its Investment Manager By: /s/ Patrick J. McNeel ------------------------------------- Name: Patrick J. McNeel Title: VP - Private Equity Address: 3003 Summer Street Stamford, CT 06905 MICHAEL AND DEANNE BORER FAMILY TRUST DATED DECEMBER 7, 2001 By: _____________________________________ Name: Michael Borer Title: Trustee Address: 806 North Rios Avenue Solana Beach, CA 92075 15 ERLE MAST /s/ Erle Mast ----------------------------------------- Address: 8417 Strawberry Lane Niwot, CO 80503 WEBB BURNS _________________________________________ Address: 16