EMPLOYMENT AGREEMENT-PATRICK J MAHAFFY

                                                                   

 

                              EMPLOYMENT AGREEMENT

                               PATRICK J. MAHAFFY

                                  FEBRUARY 2004

 

         THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as of this 23rd day

of February 2004 by and between PHARMION CORPORATION, with principal offices at

2525 28th Street, Boulder, Colorado (the "COMPANY"), and PATRICK J. MAHAFFY of

845 5th Street, Boulder, Colorado ("EXECUTIVE," and together with the Company,

the "PARTIES").

 

         WHEREAS, the Executive is currently in the employ of the Company on the

terms and subject to the conditions as originally set forth between them;

 

         WHEREAS, the parties intend that this Employment Agreement shall

supersede and replace the original verbal or written agreements;

 

         NOW, THEREFORE, in consideration of the promises, mutual covenants, the

above recitals, and the agreements herein set forth, and for other good and

valuable consideration, the sufficiency of which is hereby acknowledged, the

Parties agree to the following terms and conditions of Executive's employment:

 

         1. EMPLOYMENT. The Company hereby agrees to employ Executive as Chief

Executive Officer, and Executive hereby accepts such employment upon the terms

and conditions set forth herein and agrees to perform duties as assigned by the

Company. Executive's employment as provided herein, shall be deemed to have

commenced, January 1, 2000 ("EFFECTIVE DATE"), and shall continue until

terminated pursuant to the provisions of Section 10 below ("TERMINATION").

 

         2. AT-WILL EMPLOYMENT. IT IS UNDERSTOOD AND AGREED BY THE COMPANY AND

EXECUTIVE THAT THIS AGREEMENT DOES NOT CONTAIN ANY PROMISE OR REPRESENTATION

CONCERNING THE DURATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY. EXECUTIVE

SPECIFICALLY ACKNOWLEDGES THAT HIS EMPLOYMENT WITH THE COMPANY IS AT-WILL AND

MAY BE ALTERED OR TERMINATED BY EITHER EXECUTIVE OR THE COMPANY AT ANY TIME,

WITH OR WITHOUT CAUSE AND/OR WITH OR WITHOUT NOTICE. EXECUTIVE ACKNOWLEDGES THAT

THE COMPANY'S ONLY OBLIGATIONS, IF ANY, UPON TERMINATION OF EXECUTIVE'S

EMPLOYMENT ARE SET FORTH IN SECTION 10 BELOW, WHICH SECTION DOES NOT ALTER THE

AT-WILL NATURE OF EXECUTIVE'S EMPLOYMENT. THE NATURE, TERMS OR CONDITIONS OF

EXECUTIVE'S EMPLOYMENT WITH THE COMPANY CANNOT BE CHANGED BY ANY ORAL

REPRESENTATION, CUSTOM, HABIT OR PRACTICE, OR ANY OTHER EXCEPT AS PROVIDED FOR

IN THE FINAL SENTENCE OF THIS SECTION 2. IN ADDITION, THAT THE RATE OF SALARY OR

OTHER COMPENSATION IS STATED IN UNITS OF YEARS OR MONTHS DOES NOT ALTER THE

AT-WILL NATURE OF THE EMPLOYMENT, AND DOES NOT MEAN AND SHOULD NOT BE

INTERPRETED TO MEAN THAT EXECUTIVE IS GUARANTEED EMPLOYMENT TO THE END OF ANY

PERIOD OF TIME OR FOR ANY PERIOD OF TIME. IN THE EVENT OF CONFLICT BETWEEN THIS

DISCLAIMER AND

 

 

 

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ANY OTHER STATEMENT, ORAL OR WRITTEN, PRESENT OR FUTURE, CONCERNING TERMS AND

CONDITIONS OF EMPLOYMENT, THE AT-WILL RELATIONSHIP CONFIRMED BY THIS DISCLAIMER

SHALL CONTROL. THIS AT-WILL STATUS CANNOT BE ALTERED EXCEPT IN WRITING SIGNED BY

EXECUTIVE AND THE COMPANY, WITH EXPLICIT APPROVAL OF THE BOARD OF DIRECTORS.

 

         3. DUTIES. Executive shall render exclusive, full-time services (except

if/as agreed to in advance by the Company Board of Directors) to the Company as

its Chief Executive Officer. He shall render such services diligently. Executive

shall perform services under this Agreement at the Boulder, Colorado office of

the Company, from such other locations as directed by the Company, and from

locations necessary to perform the duties of Chief Executive Officer under this

Agreement. Executive's responsibilities, title, working conditions, location,

duties and/or any other aspect of Executive's employment may be changed, added

to or eliminated during employment at the sole discretion of the Company. During

the Term of this Agreement, Executive shall devote his time, skill and attention

to the performance of his duties on behalf of the Company.

 

         4. POLICIES AND PROCEDURES. Executive agrees that he is subject to and

will comply with the policies and procedures of the Company, as such policies

and procedures may be modified, added to or eliminated from time to time at the

sole discretion of the Company, except to the extent any such policy or

procedure specifically conflicts with the express terms of this Agreement.

Executive further agrees and acknowledges that any written or oral policies and

procedures of the Company do not constitute contracts between the Company and

Executive.

 

         5. COMPENSATION.

 

                  (a) BASE SALARY. For services rendered under this Agreement,

the Company agrees to pay to Executive, and Executive agrees to accept a salary

of $350,000 per annum ("Base Salary"). Such Base Salary shall be payable in

installments in accordance with the Company's normal payroll practices and shall

be subject to such deductions or withholdings as the Company is required to make

pursuant to law, or by further agreement with Executive. Executive's Base Salary

will be reviewed annually by the Company's Board of Directors and may be

adjusted from time to time as the Board, in its sole discretion, deems

appropriate.

 

                  (b) BONUS. Executive will be eligible to participate in a

bonus plan pursuant to which he may be entitled to receive an annual bonus of

his Base Salary based upon the achievement by Executive and the Company of

certain milestones as determined solely in the discretion of the Company's Board

of Directors.

 

         6. RELOCATION EXPENSES. N/A

 

         7. OTHER BENEFITS. While employed by the Company as provided herein:

 

                  (a) EMPLOYEE BENEFITS. Executive shall be entitled to

participate in the Company's various employee benefit plans as such plans are

established pursuant to the terms and conditions of such plans. Currently, the

Company has adopted the following plans: Group health,

 

 

 

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vision and dental insurance plan; short and long term disability plan, life

insurance plan; and 401(k) plan. The Company reserves the right to alter, amend

and to terminate the benefits received by Executive from time to time at the

Company's discretion, and nothing in this Section shall require that the Company

adopt, amend, maintain or terminate any employee benefit plan.

 

                  (b) EXPENSE REIMBURSEMENT. Executive shall receive, against

presentation of proper receipts and vouchers, reimbursement for direct and

reasonable out-of-pocket expenses incurred in connection with the performance of

his duties hereunder, according to the policies of the Company.

 

                  (c) PAID VACATION TIME. Executive shall be entitled to 4 weeks

paid vacation time per year in accordance with the Company's vacation time

policy.

 

         8. PROPRIETARY AND OTHER OBLIGATIONS. Executive acknowledges that

signing and complying with the Confidential Information and Invention Assignment

Agreement ("Confidentiality Agreement") attached as Attachment A, is a condition

of his employment by the Company. Executive therefore agrees to sign and comply

with the Confidentiality Agreement and acknowledges that by beginning employment

with the Company, he will be deemed to have signed and agreed to all provisions

of the Confidentiality Agreement.

 

         9. TERMINATION. Executive's employment hereunder may be terminated

without any breach of this Agreement under the following circumstances (each, a

"Termination"):

 

                  (a) TERMINATION UPON EXECUTIVE'S DEATH. This Agreement shall

terminate upon the death of Executive.

 

                  (b) TERMINATION UPON EXECUTIVE'S DISABILITY. Subject to any

state or federal law or regulation governing employees with disabilities, the

Company may terminate this Agreement upon the Disability of Executive. For

purposes of this Agreement, "Disability" shall mean that Executive, due to

illness, accident, or other physical or mental incapacity, has been

substantially unable to perform the duties required of him under this Agreement,

either with or without reasonable assistance, for a continuous period of more

than three months.

 

                  (c) TERMINATION BY THE COMPANY FOR JUST CAUSE. The Company may

terminate Executive's employment under this Agreement for Just Cause. For

purposes of this Agreement, "Just Cause" for termination shall mean that the

Company, acting in good faith based upon the information then known to it,

determines that:

 

                           (i) Executive has committed or engaged in negligent

or willful conduct that is likely to be detrimental to the Company;

 

                           (ii) Executive has engaged in acts which constitute

theft, fraud, or other illegal or dishonest conduct which are considered to be

harmful to the Company as determined by the majority vote of its Board of

Directors;

 

 

 

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                           (iii) Executive has willfully disobeyed the

reasonable and lawful directives of the Company's Board of Directors;

 

                           (iv) Executive has refused or is unwilling to perform

his job duties;

 

                           (v) Executive has failed adequately to perform his

job duties (provided, however, that the Company shall provide Executive with

written notice of the deficiencies in his performance and Executive shall be

given 45 days to remedy such deficiencies);

 

                           (vi) Executive has demonstrated habitual absenteeism;

 

                           (vii) Executive is substantially dependent on alcohol

or any controlled substance or violates any general Company policy with regard

to alcohol or controlled substances;

 

                           (viii) Executive has engaged in acts which constitute

sexual or other forms of illegal harassment or discrimination;

 

                           (ix) Executive makes public remarks that disparage

the Company, its Board of Directors, officers, directors, advisors, executives,

affiliates or subsidiaries;

 

                           (x) Executive violates his fiduciary duty to the

Company, or his duty of loyalty to the Company; or

 

                           (xi) Executive breaches any term of this Agreement,

including the Confidentiality Agreement attached hereto as Attachment A.

 

         The Parties acknowledge that this definition of "Just Cause" in not

intended and does not apply to any aspect of the relationship between the

Company and any of its employees, including Executive, beyond determining

Executive's eligibility for severance pay pursuant to Section 10 below.

 

                  (d) TERMINATION BY THE COMPANY WITHOUT JUST CAUSE. The Company

may terminate Executive's employment without Just Cause upon 30 days' advance

written notice to Executive.

 

                  (e) TERMINATION BY EXECUTIVE FOR GOOD REASON. Upon written

notice to the Company, Executive may terminate his employment under this

Agreement for Good Reason. For purposes of this Agreement, "Good Reason" shall

mean:

 

                           (i) The Company becoming insolvent, as evidenced by

its inability to meet its obligations in the ordinary course of business;

 

                           (ii) A reduction in Executive's Base Salary of more

than 10% per year, without Executive's consent;

 

 

 

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                           (iii) Executive being required to relocate his

residence further than 45 miles from the Company's office located at 2525 28th

Street, Boulder, Colorado, without Executive's consent; or

 

                           (iv) A material reduction in the scope of Executive's

duties, or a material change in the content of Executive's duties.

 

         Executive must provide the Company with written notice of his decision

to terminate his employment for Good Reason pursuant to this Section 9(e) no

later than 90 days following the receipt of a notice from the company than an

act or event constituting Good Reason has occurred.

 

                  (f) TERMINATION BY EXECUTIVE FOR OTHER THAN GOOD REASON.

Executive may terminate his employment under this Agreement other than for Good

Reason upon 30 days' advance written notice to the Company.

 

         10. COMPENSATION AND OTHER BENEFITS UPON TERMINATION. Executive shall

be entitled to the following compensation and benefits upon Termination:

 

                  (a) TERMINATION AS A RESULT OF EXECUTIVE'S DEATH OR

DISABILITY. Upon Termination pursuant to Section 9(a) [termination as a result

of Executive's death], or Section 9(b) [termination as a result of Executive's

Disability], Executive shall be entitled to receive any Base Salary and prorated

bonus earned but unpaid as of the date of Termination, all accrued but unused

vacation benefits as of the date of Termination, and any business expenses that

were incurred but not reimbursed as of the date of Termination.

 

                  (b) TERMINATION BY THE COMPANY FOR JUST CAUSE; TERMINATION BY

EXECUTIVE FOR OTHER THAN GOOD REASON. Upon Termination pursuant Section 9(c)

[termination by The Company for Just Cause] or Section 9(f) [termination by

Executive for other than Good Reason], Executive shall be entitled to receive

any Base Salary earned but unpaid as of the date of Termination, all accrued but

unused vacation benefits as of the date of Termination, and any business

expenses that were incurred but not reimbursed as of the date of Termination.

 

                  (c) TERMINATION BY THE COMPANY WITHOUT JUST CAUSE, TERMINATION

BY EXECUTIVE FOR GOOD REASON. Upon Termination pursuant to Section 9(d)

[termination by the Company without Just Cause] or Section 9(e) [termination by

Executive for Good Reason], Executive shall be entitled to receive any Base

Salary earned but unpaid as of the date of Termination, all accrued but unused

vacation benefits as of the date of Termination, and any business expenses that

were incurred but not reimbursed as of the date of Termination. In addition,

upon the execution by Executive and delivery to the Company of a Request for

Severance Pay and Release of Claims in the form attached hereto as Attachment B

(the "RELEASE") releasing all claims that Executive may have against Company as

of the date Executive signs such Release, Executive shall be entitled to receive

severance pay ("SEVERANCE PAY") made either in a lump sum or in twenty-four

equal monthly installments, in the Company's sole discretion, equal to

twenty-four (24) months' of Executive's Base Salary (calculated at the same rate

of Base Salary most recently applicable to Executive immediately prior to the

date of

 

 

 

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termination), and 24 months COBRA benefit coverage for health, dental and vision

insurance (at a coverage level equal to or below coverage on the day before the

date of termination). The Severance Pay shall be subject to such deductions or

withholdings as the Company is required to make pursuant to law. Executive shall

not be entitled to receive any Severance Pay from the Company until the Release

has become effective pursuant to its terms.

 

                  (d) TERMINATION AFTER CHANGE IN CONTROL. Upon a Termination

pursuant to Section 9(d) [termination by the Company without Just Cause] or

Section 9(e) [termination by Executive for Good Reason] occurring on or within

twenty-four (24) months after a Change in Control (as defined below), (i) the

vesting and exercisability of all of Executive's stock options and other

equity-based awards will be accelerated in full so that all such stock options

will be immediately exercisable for fully vested stock and any other stock

awards will be fully vested as of the date of such Termination, and (ii)

Executive's stock options will remain exercisable until the first anniversary of

Executive's date of Termination. For purposes of this Agreement, "Change of

Control" shall mean (1) a sale of all or substantially all the assets of the

Company; (2) a merger into or consolidation of the Company with any other

corporation, except any such merger or consolidation involving the Company or a

subsidiary of the Company in which the holders of capital stock of the Company

immediately prior to such merger or consolidation continue to hold immediately

following such merger or consolidation at least 50% by voting power of the

capital stock of (a) the surviving or resulting corporation or (b) if the

surviving or resulting corporation is a wholly owned subsidiary of another

corporation immediately following such merger or consolidation, the parent

corporation of such surviving or resulting corporation, (3) the acquisition by

any person, entity or group within the meaning of Section 13(d) or 14(d)(2) of

the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any

comparable successor provisions (excluding any employee benefit plan, or related

trust, sponsored or maintained by the Company or any parent or subsidiary

corporation of the Company) of the beneficial ownership (within the meaning of

Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of

securities of the Company representing at least fifty percent (50%) of the

combined voting power entitled to vote in the election of directors, or (4)

individuals who, on the date of execution of this Amended and Restated

Agreement, are members of the Company's Board of Directors (the "Incumbent

Board") cease for any reason to constitute at least a majority of the members of

the Board of Directors; provided, however, that if the appointment or election

(or nomination for election) of any new Board of Directors member was approved

or recommended by a majority vote of the members of the Incumbent Board then

still in office, such new member shall, for purposes of this Agreement, be

considered as a member of the Incumbent Board.

 

                  (e) PARACHUTE PAYMENT GROSS-UP. If any payment or benefit

Executive would receive from the Company or otherwise would constitute a

parachute payment that would subject Executive to an excise tax ("Excise Tax")

under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code")

(or any successor provision), Executive shall be entitled to receive an

additional lump sum payment in cash (the "Tax Gross-Up"), subject to mandatory

tax withholding, which, when added to all payments and benefits allocable to

Executive that constitute parachute payments, provides Executive with the same

after-tax compensation that he would have received from such parachute payments

had none of such compensation constituted a parachute payment. The amount of any

such Tax Gross-Up to which Executive becomes entitled under this paragraph will

be determined pursuant to the following formula:

 

 

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                  X = Y divided by (1 - (A + B + C)), where

 

                  X is the total dollar amount of the Tax Gross-Up payable to

                  Executive;

 

                  Y is the total Excise Tax imposed on Executive;

 

                  A is the Excise Tax rate applicable to Executive's parachute

                  payments;

 

                  B is the highest combined marginal federal income and

                  applicable state income tax rate in effect for Executive,

                  after taking into account the deductibility of state income

                  taxes against federal income taxes to the extent allowable,

                  for the calendar year in which the Tax Gross-Up is paid; and

 

                  C is the applicable Hospital Insurance (Medicare) Tax Rate in

                  effect for Executive with respect to the Tax Gross-Up payment

                  for the calendar year in which the Tax Gross-Up is paid;

 

provided if there is a change in the tax laws after the date hereof that would

render the amount determined above insufficient to fully reimburse Executive on

an after-tax basis for the amount of any Excise Tax, Executive shall be entitled

to such additional amount as may be necessary to provide him with such

reimbursement.

 

Within ninety (90) days after a determination is made by the Internal Revenue

Service or Executive's tax advisor that an item of compensation or benefit

payable hereunder constitutes a parachute payment under Code Section 280G for

which Executive is liable for an Excise Tax, Executive shall identify the nature

of the payment to the Company and submit to the Company the calculation of the

Excise Tax attributable to that payment and the Tax Gross-Up to which Executive

is entitled with respect to such tax liability. The Company will pay such Tax

Gross-Up to Executive (net of all applicable withholding taxes, including any

taxes required to be withheld under Code Section 4999) within ten (10) business

days after Executive's submission of the calculation of such Excise Tax and the

resulting Tax Gross-Up, provided such calculations represent a reasonable

interpretation of the applicable law and regulations.

 

In the event that Executive's actual Excise Tax liability is determined by a

Final Determination to be greater than the Excise Tax liability previously taken

into account for purposes of the Tax Gross-Up paid to Executive pursuant to this

paragraph, then within ninety (90) days following the Final Determination,

Executive shall submit to the Company a new Excise Tax calculation based upon

the Final Determination. Within ten (10) business days after receipt of such

calculation, the Company shall pay Executive the additional Tax Gross-Up

attributable to such excess Excise Tax liability.

 

In the event that Executive's actual Excise Tax liability is determined by a

Final Determination to be less than the Excise Tax liability previously taken

into account for purposes of the Tax Gross-Up paid to Executive pursuant to this

paragraph, then Executive shall refund to the Company, promptly upon receipt,

any federal or state tax refund attributable to the Excise Tax overpayment.

 

 

 

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For purposes of this paragraph 10(e), a "Final Determination" means an audit

adjustment by the Internal Revenue Service that is either (i) agreed to by both

Executive (or his estate) and the Company (such agreement by the Company to be

not unreasonably withheld) or (ii) sustained by a court of competent

jurisdiction in a decision with which Executive and the Company concur (such

concurrence by the Company to be not unreasonably withheld) or with respect to

which the period within which an appeal may be filed has lapsed without a notice

of appeal being filed.

 

         11. RESTRICTIVE COVENANT; NON-COMPETE. Executive acknowledges and

agrees that the agreements and covenants contained in this Section 11 are (i)

reasonable and valid in geographical and temporal scope and in all other

respects, and (ii) essential to protect the value of the Company's business and

assets, and by his employment with the Company, Executive will obtain knowledge,

contacts, know-how, training and experience and there is a substantial

probability that such knowledge, know-how, contacts, training and experience

could be used to the substantial advantage of a competitor of the Company and to

the Company's substantial detriment. For purposes of this Section 11, references

to the Company shall be deemed to include its subsidiaries.

 

                  (a) NON-COMPETE. Executive covenants and agrees that during

Executive's employment with the Company (the "Employment Period") and for a

period extending to the first anniversary of Executive's Termination for any

reason or for no reason (the "Restricted Period"), with respect to any state or

foreign country in which the Company is engaged in business at the time of such

Termination, Executive shall not, directly or indirectly, individually or

jointly, own any interest in, operate, join, control or participate as a

partner, director, principal, officer, or agent of, enter into the employment

of, act as a consultant to, or perform any services for any entity which

competes to a material extent with the business activities in which the Company

is engaged at the time of such termination or in which business activities the

Company has documented plans to become engaged in and as to which Executive has

knowledge at the time of Termination, or any entity in which any such

relationship with Executive would result in the inevitable use or disclosure of

Confidential Information. Notwithstanding anything herein to the contrary, this

Section 11(a) shall not prevent Executive from acquiring as an investment

securities representing not more than one percent (1%) of the outstanding voting

securities of any publicly-held corporation.

 

                  (b) EXTENSION. If Executive violates the provisions of Section

11(a) above, Executive shall continue to be bound by the restrictions set forth

in Section 11(a) until a period of one year has expired without any violation of

such provisions.

 

                  (c) BLUE PENCIL. If any court of competent jurisdiction shall

at any time deem the duration or the geographic scope of any of the provisions

of this Section 11 unenforceable, the other provisions of this Section 11 shall

nevertheless stand and the duration and/or geographic scope set forth herein

shall be deemed to be the longest period and/or greatest size permissible by law

under the circumstances, and the parties hereto agree that such court shall

reduce the time period and/or geographic scope to permissible duration or size.

 

 

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         12. MISCELLANEOUS.

 

                  (a) TAXES. Executive acknowledges that the Company will

withhold all taxes required by law with respect to any and all compensation or

benefits provided by the Company pursuant to this Agreement. Executive

acknowledges that the Company has not made, nor herein makes, any representation

about the tax consequences of any consideration provided by the Company to

Executive pursuant to this Agreement, except as expressly provided herein.

 

                  (b) MODIFICATION/WAIVER. This Agreement may not be amended,

modified, superseded, canceled, renewed or expanded, or any terms or covenants

hereof waived, except by a writing executed by each of the parties hereto or, in

the case of a waiver, by the party waiving compliance. Failure of any party at

any time or times to require performance of any provision hereof shall in no

manner affect their or its right at a later time to enforce the same. No waiver

by a party of a breach of any term or covenant contained in this Agreement,

whether by conduct or otherwise, in any one or more instances shall be deemed to

be or construed as a further or continuing waiver of agreement contained in the

Agreement.

 

                  (c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding

upon and shall inure to the benefit of any successor or assignee of the business

of the Company. This Agreement shall not be assignable by the Executive.

 

                  (d) NOTICES. All notices given hereunder shall be given by

certified mail, addressed, or delivered by hand, to the other party at his or

its address as set forth herein, or at any other address hereafter furnished by

notice given in like manner. Executive promptly shall notify Company of any

change in Executive's address. Each notice shall be dated the date of its

mailing or delivery and shall be deemed given, delivered or completed on such

date.

 

                  (e) GOVERNING LAW; PERSONAL JURISDICTION AND VENUE. This

Agreement and all disputes relating to this Agreement shall be governed in all

respects by the laws of the State of Colorado. The Parties acknowledge that this

Agreement constitutes the minimum contacts to establish personal jurisdiction in

Colorado and agree to Colorado courts' exercise of personal jurisdiction. The

Parties further agree that if they are unable to reach an agreement concerning

the nature and terms of alternative dispute resolution, any disputes relating to

this Agreement shall be brought in the District Court of the 20th Judicial

District, Boulder, Colorado, and they hereby consent to the jurisdiction of such

Court.

 

                  (f) ENTIRE AGREEMENT. This Agreement together with Attachment

A and B hereto set forth the entire agreement and understanding of the parties

hereto with regard to the employment of Executive by the Company and supersedes

any and all prior agreements, arrangements and understandings, written or oral,

pertaining to the subject matter hereof. No representation, promise or

inducement relating to the subject matter hereof has been made to a party that

is not embodied in these Agreements, and no party shall be bound by or liable

for any alleged representation, promise or inducement not so set forth.

 

                            [Signature Page Follows]

 

 

 

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          IN WITNESS WHEREOF, the Parties have each duly executed this

Employment Agreement as of the day and year first above written.

 

                                    PHARMION CORPORATION

 

 

                                    -----------------------------

                                    By:

                                    Its:

 

                                    EXECUTIVE

 

 

                                    -----------------------------

                                    PATRICK MAHAFFY

 

 

 

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