Exhibit 10.36
Celgene Corporation
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December 3, 2004
Pharmion Corporation
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Pharmion GmbH
Aeschenvorstadt 71
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Gentlemen:
Reference is made to that certain License Agreement, dated as of November 16,
2001, as amended by Amendment No. 1, dated March 3, 2003, as further amended by
Amendment No. 2, dated April 8, 2003, and as further amended by that letter
agreement, dated August 18, 2003, by and among Pharmion GmbH, Pharmion
Corporation ("Pharmion") and Celgene Corporation ("Celgene") (the "License
Agreement"). Except as otherwise indicated, capitalized terms used herein have
the meaning ascribed to them in the License Agreement.
Since the date of the License Agreement, Celgene has continued, and continues,
to make a substantial investment in the development of world-wide intellectual
property rights to the use of Thalidomide in oncology.
Against that background, Pharmion GmbH, Pharmion and Celgene hereby agree as
follows:
1. The Territory is hereby expanded to include Hong Kong, Korea and Taiwan.
Accordingly, the term "Territory" under the definitions set forth in Article I
of the License Agreement is hereby amended in its entirety to read as follows:
"TERRITORY" shall mean all the countries of the world, except the
United States, Canada, Mexico, Japan, and all provinces of China other
than Hong Kong)."
In addition, Section 3.10 of the License Agreement is hereby deleted in its
entirety.
2. In consideration of the parties' mutual interest in extending and expanding
their relationship as a result of Pharmion's substantial investment in building
a distribution infrastructure for Thalidomide sales in key markets in the
Territory, its substantial investment seeking regulatory approval in such
markets, and Pharmion's demonstrated success in
distributing Thalidomide in certain major markets in the Territory, and in view
of the unanticipated delay in obtaining UK Regulatory Approval, (i) Section
9.3(b) of the License Agreement is hereby amended to eliminate clause (i) in its
entirety, with the subsequent clauses of Section 9.3(b) being appropriately
renumbered and cross-references thereto being appropriately revised, and (ii)
Section 9.4 of the License Agreement is hereby amended to eliminate clause (a)
in its entirety, with the subsequent clauses of Section 9.4 being appropriately
renumbered and cross-references thereto being appropriately revised.
3. In consideration of the amendments set forth in Sections 1 and 2 above,
contemporaneously with the execution and delivery of this letter agreement,
Pharmion shall pay to Celgene U.S. $3,000,000 by wire transfer of immediately
available funds.
4. In the interest of accurately reflecting the agreement of the parties to the
License Agreement with respect to royalties thereunder, Section 3.5 of the
License Agreement is amended in its entirety to read as follows:
"3.5 Royalties. In consideration of the license and rights granted by
Celgene to Pharmion pursuant to this Article 3, Pharmion shall pay to
Celgene a royalty with respect to each country in the Territory, equal
to eight percent (8%) of Net Sales following the First Commercial Sale
in such country, payable as provided below."
5. Except as expressly modified by this letter agreement, all terms and
conditions of the License Agreement shall remain in full force and effect.
6. This letter agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which, together, shall
constitute one and the same agreement.
Sincerely,
Celgene Corporation
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President and Chief Operating Officer
Agreed:
Pharmion Corporation
Pharmion GmbH
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President and Chief Executive Officer
