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 let
