Consent to Sublease



 Exhibit 4.40 
 CONSENT TO SUBLEASE 
 As of this 31st day of August, 2005, HIGHWOODS REALTY LIMITED PARTNERSHIP (the
“Landlord”), BIOSTRATUM, INC. (the “Tenant”) and ADHEREX, INC. (the “Subtenant”) do hereby enter into this Consent to Sublease and Agreement (the “Agreement”). 
 RECITALS 
 WHEREAS, Landlord and Tenant
entered into that certain amended Office Lease dated September 8, 2000 (the “Lease”) for approximately 35,600 rentable square feet of office space in the building commonly known as the Maplewood Building (the “Building”),
located at 4620 Creekstone Drive, Durham County, North Carolina (the “Premises); 
 AND WHEREAS, Tenant and Subtenant have agreed to
that a portion of the Premises (approximately 18,272 rentable square feet) will be assigned to Subtenant effective on January 1, 2006; 
 AND WHEREAS, Tenant and Subtenant have agreed that, as a condition of the assignment, that portion of the Premises being assigned to Subtenant shall be sublet to Subtenant prior to January 1, 2006, and effective on September 1,
2005 and have agreed to enter into a sublease of the Premises in the form attached hereto as Exhibit A (the “Sublease”) for the period from September 1, 2005 through December 31, 2005 (the “Sublease Term”); 

NOW THEREFORE, Landlord does hereby consent to the Sublease in the form attached hereto, conditioned upon the agreement by Tenant and Subtenant of
Paragraphs 1 through 12 hereof: 
  

	1.	Tenant shall not be released in any manner from any of its obligations under the Lease. 

  

	2.	During the Sublease Term, Tenant shall continue to pay to Landlord the rent payable by Tenant to Landlord under the Lease. 

  

	3.	The Sublease shall be subject to all the terms and provisions of the Lease and no use or occupancy of the Subleased Premises (as defined in the Sublease) shall be permitted by
Tenant or undertaken by Subtenant that is in any way inconsistent with the terms and provisions of the Lease. Subtenant agrees to comply with all provisions of the Lease, including Section 13 of the Lease, entitled “Insurance
Requirements”, and the requirement that Landlord be named as an additional insured. 

  

	4.	Landlord shall not be obligated to Subtenant under any of the provisions of the Sublease. 

  

	5.	Subtenant shall indemnify and hold Landlord harmless from and against any and all claims arising out of (a) Subtenant’s use of the Subleased Premises or any part thereof;
(b) any activity, work, or other thing done, permitted or suffered by Subtenant in or about the Subleased Premises or the building, or any part thereof; (c) any breach or default by Subtenant in the performance of any of its obligations
under the Sublease; or (d) any act or negligence of Subtenant, or any officer, agent, employee contractor, servant, invitee or guest of Subtenant; and in each case from and against any and all damages, losses, liabilities, lawsuits, costs and
expenses (including attorneys’ fees at all tribunal levels) arising in connection with any such claim or claims as described in (a) through (d) above or any action brought thereon. If such action is brought against Landlord, Subtenant
upon notice from Landlord 

  

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 shall defend the same through counsel selected by Subtenant’s insurer or other counsel, in each case
acceptable to Landlord. Subtenant assumes all risk of damage or loss to its property or injuries or death to persons in, on, or about the Subleased Premises, from all causes except those for which the law imposes liability on Landlord regardless of
any attempted waiver thereof, and Subtenant hereby waives such claims in respect thereof against Landlord. The provisions of this paragraph shall survive the termination of the Sublease. 
  

	6.	This Agreement shall not be deemed to constitute a consent to any future amendment to the Sublease or sublease (or any future assignment) and each and every such proposed amendment
or future sublease (and any proposed future assignment) shall require the prior written consent of Landlord, which Landlord may not arbitrarily refuse to give. 

  

	7.	If Landlord so elects, the termination of the Lease by lapse of time or as otherwise provided in the Lease shall immediately cause the Sublease to be terminated and have no further
force or effect. 

  

	8.	Landlord is not a party to the Sublease. Therefore, Landlord’s consent to the Sublease shall not constitute its consent to the particular terms and conditions of the Sublease
and Landlord shall not be bound by or obligated to perform any of the terms and conditions of the Sublease. 

  

	9.	Any options provided to Tenant in the Lease shall not be extended to or exercised by Subtenant, except as provided in the Partial Assignment of Lease and Lease Amendment Number Two
entered between Landlord, Tenant and Subtenant as of the even date herewith. 

  

	10.	Effective September 1, 2005 and pursuant to Section 24 of the Lease, the addresses for notice to Tenant and Subtenant are as follows: 

  

			
	 TENANT:
	  	BIOSTRATUM, INC.
		  	 2300 Englert Drive, Suite G

		  	 Durham, North Carolina 27713

		  	 Phone #: 919/433-1000

		  	 Facsimile #: 919/433-1010

		
	 SUBTENANT:
	  	 ADHEREX, INC.

		  	 4620 Creekstone Drive, Suite 200

		  	 Durham, North Carolina 27703

		  	 Attn: Scott Murray, General Counsel

	 Facsimile #:
	  	 919/484-8001


  

	11.	Landlord shall have the right, if Tenant defaults under its obligations to Landlord, to collect all rents directly from Subtenant and apply the net amount collected to rent owed,
but no action by Landlord to collect rent owed from Subtenant shall be deemed a release by Tenant of its obligations under the Lease, nor shall it create a contractual relationship between Subtenant and Landlord or give Subtenant any greater estate
or right to the Premises other than provided by the Sublease. 

  

	12.	To the extent that there may be conflict between the terms of this Consent and the terms of the Sublease, the terms of this Consent shall control. 

  

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 IN WITNESS WHEREOF, Landlord, Tenant and Subtenant have caused this instrument to be executed as of the
date first above written, by their respective officers or parties thereunto duly authorized. 
  

									
	 Landlord: HIGHWOODS REALTY LIMITED PARTNERSHIP
 a North Carolina Limited Partnership
  
 By: Highwoods Properties, Inc., its general partner
 a Maryland corporation
	 	
				
		 	 By:
	 	 /s/ Robert G. Cutlip
  
	 	
		 		 	 Robert G. Cutlip,
 Senior Vice
President
 and Regional Manager
	 	
				
		 	 Date:
	 	 August 31, 2005
	 	
				
		 	 Attest:
	 	 /s/ Cynthia A. Morgan
  
	 	Corporate Seal:
				
		 		 	Cynthia A. Morgan, Assistant Secretary	 	
		 		 		 		 	
			
	 Tenant:BIOSTRATUM, INC.
 a Delaware corporation
	 		 	
				
		 	 By:
	 	 /s/ Gary M. Gordon
  
	 	
					
		 	 Name:
	 	 Gary Gordon, M.D.
	 		 	
					
		 	 Title:
	 	 Vice President and Chief Financial Officer
	 		 	
					
		 	 Date:
	 	 August 5, 2005
	 		 	
				
		 	 Attest:
	 	  
	 	Corporate Seal:
					
		 		 	  
	 	Secretary	 	
			
	 Subtenant: ADHEREX, INC.
 a Delaware corporation
	 		 	
				
		 	By:	 	 /s/ James A. Klein, Jr.
  
	 	
					
		 	 Name:
	 	 James A. Klein, Jr.
	 		 	
					
		 	 Title:
	 	 Chief Financial Officer
	 		 	
					
		 	 Date:
	 	 August 17, 2005
	 		 	
				
		 	 Attest:
	 	  
	 	Corporate Seal:
					
		 		 	  
	 	Secretary	 	

  

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 EXHIBIT A 
 SUBLEASE 
  

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