Exhibit 10.40
CONFIDENTIAL TREATMENT
REQUESTED
[Note: Certain portions
of this document have been marked to indicate that Confidential
Treatment has been requested for such portions by ImClone Systems
Incorporated. These portions have been marked with one asterisk
enclosed in brackets (i.e. [*]). The confidential portions have
been omitted and filed separately with the Securities and Exchange
Commission.]
Letter Agreement
From:
ImClone Systems
Incorporated
180 Varick Street
New York, NY 10014
USA
To:
UCB Pharma S.A..
Allée de la Recherche
60 1070 Brussels
Belgium
Attn: General Counsel
Re:
Collaboration and License
Agreement dated 15 th
August 2005
Among UCB, S.A. (“UCB”) and ImClone Systems
Incorporated
(“ImClone”), and any and all amendments thereto (the
“Agreement”)
Dear
Sirs
All capitalised
terms not otherwise defined herein shall have the meaning given
such terms in the Agreement. This letter agreement (the
“Letter Agreement”) shall memorialise the settlement
and compromise reached between UCB and ImClone (each a
“Party”, and together the “Parties”) with
respect to the Agreement.
WHEREAS , UCB and ImClone are parties to the
Agreement;
WHEREAS
, on 20th December 2006, the
business of UCB S.A. was transferred to UCB Pharma S.A. As a
result of such transfer, the Agreement was assigned to UCB Pharma
S.A.;
WHEREAS , ImClone desires to voluntarily
terminate the Agreement at this time; and
WHEREAS , the Parties have agreed to settle
and fully resolve UCB’s claims against ImClone for
reimbursement of certain costs in connection with the
Agreement.
NOW THEREFORE
, in consideration of the
mutual covenants and obligations set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be bound hereby, the
Parties agree as follows:
1.
When used in this Letter
Agreement, the following terms shall have the meanings set out in
this paragraph 1:
Dispute means the dispute between the Parties
concerning the payment of, and their respective responsibility for,
any and all costs under the Agreement, including development costs
incurred prior to the Effective Date, Development Costs for Agreed
Indications, Development Costs for Independent Indications,
Manufacturing costs with respect to Antibody Products and the costs
of Commercialisation of the Antibody Products.
2.
ImClone hereby gives UCB
notice that it is terminating the Agreement under Article 12.2
thereof. UCB acknowledges and agrees that such termination
notice is valid, timely and binding upon UCB. Upon
termination, UCB shall be designated as the Remaining Party under
Article 12 of the Agreement.
3.
Notwithstanding the terms
of paragraph 2 above and subject to paragraph 4 below, the Parties
agree that the articles of the Agreement listed in Article 12.11(b)
of the Agreement shall survive termination of the
Agreement.
4.
The Parties agree that the
words “(with consent not to be unreasonably withheld or
delayed)” shall be deleted from Article 12.8(c)(ii) of the
Agreement. UCB shall however provide written notice to
ImClone of the identity of any such sublicense within five (5)
business days of any such sublicense having been entered into
pursuant to Article 12.8(c)(ii), together with confirmation that
such sublicense contains all of the restrictions that apply to UCB,
including without limitation those under Article 11 of the
Agreement (Confidentiality and Non-Use).
5.
The Parties each
acknowledge and agree that neither Party owes to the other Party
any monetary consideration with respect to the Agreement nor any
other amount relating to costs under the Agreement, including
development costs incurred prior to the Effective
