EXHIBIT 10.37
EMPLOYMENT AGREEMENT
(QLT INC. LOGO)
This Employment Agreement made effective as of November 8, 2005 (the
"EFFECTIVE DATE").
BETWEEN:
QLT INC., having an address of 000 Xxxxx Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0, Xxxxxx.
("QLT" or the "COMPANY")
AND:
XXXXXXX XXXXXX, having an address of [Redacted], Vancouver, British
Columbia, [Redacted], Canada.
("XX. XXXXXX")
WHEREAS:
A. Xx. Xxxxxx has been employed by QLT since May 23, 2000 and currently serves
as Vice President, Finance and Chief Financial Officer of QLT.
B. QLT has offered to Xx. Xxxxxx, and Xx. Xxxxxx has accepted, a salary
increase retroactive to the date of his appointment as Chief Financial
Officer of QLT.
C. QLT and Xx. Xxxxxx wish to replace the employment agreement entered into on
April 12, 2000 with this Agreement to set out the new terms and conditions
of Xx. Xxxxxx'x employment with QLT in the position as Vice President,
Finance and Chief Financial Officer.
NOW THEREFORE in consideration of the increase in compensation to be paid under
this Agreement by QLT to Xx. Xxxxxx, the promises made by each party to the
other as set out in this Agreement and other good and valuable consideration,
the receipt and sufficiency of which the parties acknowledge and agree, QLT and
Xx. Xxxxxx agree as follows:
1. POSITION AND DUTIES
1.1 POSITION -- Xx. Xxxxxx will continue to be employed by QLT in the position
of Vice President, Finance and Chief Financial Officer and Xx. Xxxxxx
agrees to be employed by QLT in that position, subject to the terms and
conditions of this Agreement.
1.2 DUTIES, REPORTING AND EFFORTS -- In the performance of his duties as Vice
President, Finance and Chief Financial Officer, Xx. Xxxxxx will:
(a) OVERALL RESPONSIBILITIES -- Have overall responsibility for building
the financial resources and financial infrastructure of QLT and its
affiliates and subsidiaries, for building positive relationships with
the financial analyst community and for generally overseeing the
Finance groups within QLT and its affiliates and subsidiaries.
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(b) REPORT -- Report, as and when required, to the Chief Executive Officer
of QLT or such person appointed by the Board of Directors of QLT (the
"BOARD") to act in that capacity.
(c) BEST EFFORTS -- Use his best efforts, industry and knowledge to
improve and increase QLT's business, to comply with all of QLT's
rules, regulations, policies (including QLT's Code of Ethics and Code
of Exemplary Conduct) and procedures, as established from time to time
and to ensure that QLT is at all times in compliance with applicable
provincial, state, federal and other governing statutes, policies and
regulations.
(d) WORKING DAY -- Devote the whole of his working day attention and
energies to the business and affairs of QLT.
2. COMPENSATION
2.1 ANNUAL COMPENSATION -- In return for his services under this Agreement,
effective immediately, QLT agrees to pay or otherwise provide the following
total annual compensation to Xx. Xxxxxx:
(a) BASE SALARY -- A base salary in the amount of Cdn.$325,000 in 24 equal
installments payable semi-monthly in arrears, subject to periodic
annual reviews at the discretion of QLT. QLT will make such increase in
base salary retroactive to August 8, 2005, the date of Xx. Xxxxxx'x
appointment to the position of Chief Financial Officer.
(b) BENEFIT PLANS -- Coverage for Xx. Xxxxxx and his eligible dependents
under any employee benefit plans provided by/through QLT to its
employees, subject to:
I. Each plan's terms for eligibility,
II. Xx. Xxxxxx taking the necessary steps to ensure effective
enrollment or registration under each plan, and
III. Customary deductions of employee contributions for the premiums
of each plan.
As at the date of this Agreement, the employee benefit plans provided
by/through QLT to its employees include life insurance, accidental
death and dismemberment insurance, dependent life insurance,
vision-care insurance, health insurance, dental insurance and short and
long term disability insurance. QLT and Xx. Xxxxxx agree that employee
benefit plans provided by/through QLT to its employees may change from
time to time.
(c) EXPENSE REIMBURSEMENT -- Reimbursement, in accordance with QLT's Policy
and Procedures Manual (as amended from time to time), of all reasonable
business related promotion, entertainment and/or travel expenses
incurred by Xx. Xxxxxx, subject to him maintaining proper accounts and
providing documentation for these expenses upon request.
(d) VACATION -- That number of weeks of paid vacation per year as
determined in accordance with QLT's standard vacation policy for
executive level employees. As per QLT's Policy and Procedures Manual
(as amended from time to time), unless agreed to in writing by QLT:
I. All vacation must be taken within one year of the year in which
it is earned by Xx. Xxxxxx, and
II. Vacation entitlement will not be cumulative from year to year.
(e) RRSP CONTRIBUTIONS -- Provided the conditions set out below have been
satisfied, in January or February of the year following the year in
which the income is earned by Xx. Xxxxxx (the "INCOME YEAR"), QLT will
make a contribution of up to 7% of Xx. Xxxxxx'x annual base salary for
the Income Year to Xx. Xxxxxx'x Registered Retired Savings Plan
("RRSP"). The contribution to Mr.
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Xxxxxx'x RRSP as set out above is subject the following conditions:
I. The maximum contribution to be made by QLT to Xx. Xxxxxx'x RRSP
is 50% of the annual limit for Registered Retirement Savings
Plans as established by Canada Customs and Revenue Agency for the
Income Year,
II. Xx. Xxxxxx must have contributed an equal amount into his RRSP,
and
III. Xx. Xxxxxx is still actively employed by QLT when the matching
contribution would otherwise be made.
(f) CASH INCENTIVE COMPENSATION PLAN -- Participation in the Cash Incentive
Compensation Plan offered by QLT to its senior executives in accordance
with the terms of such Plan, as amended from time to time by the Board.
The amount of that payment each year will be determined at the sole
discretion of the Board and will be based on the performance of QLT
relative to pre-set individual and corporate objectives and milestones
for the immediately preceding fiscal year.
(g) STOCK OPTION PLAN -- Participation in any stock option plan offered by
QLT to its employees, in accordance with the terms of the plan in
effect at the time of the stock option offer(s).
3. RESIGNATION
3.1 RESIGNATION -- Xx. Xxxxxx may resign from his employment with QLT by giving
QLT 60 days prior written notice (the "RESIGNATION NOTICE") of the
effective date of his resignation. On receiving a Resignation Notice, QLT
may elect to provide the following payments in lieu of notice to Xx. Xxxxxx
and require him to leave the premises forthwith:
(a) BASE SALARY -- Base salary owing to Xx. Xxxxxx for the 60-day notice
period.
(b) BENEFITS -- Except as set out below in this subparagraph 3.1(b), for
the 60-day notice period, all employee benefit plan coverage enjoyed by
Xx. Xxxxxx and his eligible dependents prior to the date of his
Resignation Notice. Xx. Xxxxxx acknowledges and agrees that any pension
and short and long term disability plans provided through QLT will not
be continued beyond the last day that Xx. Xxxxxx works at QLT's
premises (the "LAST ACTIVE DAY").
(c) EXPENSE REIMBURSEMENT -- Reimbursement (in accordance with QLT's Policy
and Procedures Manual, as amended from time to time) of all reasonable
business related promotion, entertainment and/or travel expenses
incurred by Xx. Xxxxxx prior to his Last Active Day, subject to the
expense reimbursement provisions set out in subparagraph 2.1(c).
(d) VACATION PAY -- Payment in respect of accrued but unpaid vacation pay
owing to Xx. Xxxxxx as at the expiry of the 60-day notice period.
(e) PRORATED RRSP CONTRIBUTION -- A prorated contribution to Xx. Xxxxxx'x
RRSP, the pro-ration to be with respect to the portion of the current
calendar year worked by Xx. Xxxxxx, up to and including the 60-day
notice period, and the contribution to be subject to the conditions set
out in subparagraph 2.1(e), except condition III.
3.2 OTHERS -- In the event of resignation of Xx. Xxxxxx as set out in paragraph
3.1, the parties agree:
(a) NO BONUS -- Xx. Xxxxxx will have no entitlement to participate in
QLT's Cash Incentive Compensation Plan for the year in which he
resigns his employment with QLT; and
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(b) STOCK OPTION PLAN -- Xx. Xxxxxx'x participation in any stock option
plan offered by QLT to its employees will be in accordance with the
terms of the plan in effect at the time of the stock option offer(s)
to Xx. Xxxxxx.
4. RETIREMENT
4.1 RETIREMENT -- Effective the date of retirement (as defined in QLT's Policy
and Procedures Manual, as amended from time to time) of Xx. Xxxxxx from
active employment with QLT, the parties agree that:
(a) THIS AGREEMENT -- Subject to the provisions of paragraph 10.6, both
parties' rights and obligations under this Agreement will terminate
without further notice or action by either party.
(b) STOCK OPTIONS -- Xx. Xxxxxx'x participation in any stock option plan
offered by QLT to its employees will be in accordance with the terms
of the plan in effect at the time of the stock option offer(s) to Xx.
Xxxxxx.
5. TERMINATION
5.1 TERMINATION FOR CAUSE -- QLT reserves the right to terminate Xx. Xxxxxx'x
employment at any time for any reason. Should Xx. Xxxxxx be terminated for
cause, he will not be entitled to any advance notice of termination or pay
in lieu thereof.
5.2 TERMINATION OTHER THAN FOR CAUSE -- QLT reserves the right to terminate Xx.
Xxxxxx'x employment at any time without reason. However, if QLT terminates
Xx. Xxxxxx'x employment for any reason other than for cause, then, except
in the case of Xx. Xxxxxx becoming completely disabled (which is provided
for in paragraph 5.6) and subject to the provisions set forth below, Xx.
Xxxxxx will be entitled to receive notice, pay and/or benefits (or any
combination of notice, pay and/or benefits) as more particularly set out in
paragraph 5.3.
5.3 SEVERANCE NOTICE AND PAY -- In the event QLT terminates Xx. Xxxxxx'x
employment as set out in paragraph 5.2, Xx. Xxxxxx will be entitled to:
(a) NOTICE -- Advance written notice of termination ("SEVERANCE NOTICE"),
or pay in lieu thereof ("SEVERANCE PAY"), or any combination of
Severance Notice and Severance Pay, as more particularly set out below:
I. A minimum of six months Severance Notice, or Severance Pay in
lieu thereof, and
II. One additional month's Severance Notice, or Severance Pay in lieu
thereof, for each complete year of continuous employment with QLT
(which, for greater certainty commenced on May 23, 2000,
up to a maximum total of 24 months' Severance Notice, or Severance Pay
in lieu of Severance Notice. XX. XXXXXX ACKNOWLEDGES AND AGREES THAT
SEVERANCE PAY IS IN RESPECT OF BASE SALARY ONLY AND WILL BE MADE ON A
BI-WEEKLY OR MONTHLY BASIS, AT QLT'S DISCRETION.
(b) BENEFITS -- Except as set out below, for 30 days after Xx. Xxxxxx'x
Last Active Day, all employee benefit plan coverage enjoyed by Xx.
Xxxxxx and his dependents prior to the date of termination. Thereafter,
and in lieu of employee benefit plan coverage, Xx. Xxxxxx will receive
compensation ("BENEFITS COMPENSATION") in the amount of 10% of his base
salary for the balance of his Severance Notice period. Xx. Xxxxxx
acknowledges and agrees that pension and short and long term disability
plans provided through QLT will not be continued beyond Xx. Xxxxxx'x
Last Active Day.
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(c) OUT PLACEMENT COUNSELING -- QLT will pay to an out placement counseling
service (to be agreed to by Xx. Xxxxxx and QLT, each acting reasonably)
a maximum of Cdn$5,000 for assistance rendered to Xx. Xxxxxx in seeking
alternative employment.
(d) OTHER COMPENSATION -- QLT will provide the following additional
compensation:
I. QLT will reimburse (in accordance with QLT's Policy and Procedures
Manual, as amended from time to time) Xx. Xxxxxx for all
reasonable business related promotion, entertainment and/or travel
expenses incurred by Xx. Xxxxxx on or prior to his Last Active
Day, subject to the expense reimbursement provisions set out in
subparagraph 2.1(c).
II. QLT will make a payment to Xx. Xxxxxx in respect of his accrued
but unpaid vacation pay to the date of termination of his
employment with QLT.
III. QLT will make a prorated contribution to Xx. Xxxxxx'x RRSP, the
pro-ration to be with respect to the portion of the current
calendar year worked by Xx. Xxxxxx and the contribution to be
subject to the conditions set out in subparagraph 2.1(e), except
condition III.
IV. QLT will make a prorated payment to Xx. Xxxxxx in respect of his
entitlement to participate in QLT's Cash Incentive Compensation
Plan, the pro-ration to be with respect to the portion of the
current calendar year worked by Xx. Xxxxxx and the entitlement to
be at the target level Xx. Xxxxxx would have otherwise been
eligible to receive in the current calendar year if all corporate,
and, if applicable, individual goals were met but not exceeded.
V. Xx. Xxxxxx'x participation in any stock option plan offered by
QLT to its employees will be in accordance with the terms of the
plan in effect at the time of the stock option offer(s) to Xx.
Xxxxxx.
5.4 ACKNOWLEDGEMENT AND RELEASE -- Xx. Xxxxxx acknowledges and agrees that in
the event QLT terminates Xx. Xxxxxx'x employment as set out in paragraph
5.2, in providing:
(a) The Severance Notice or Severance Pay, or any combination thereof;
(b) The Benefits Compensation;
(c) Out placement counseling service as more particularly set out in
subparagraph 5.3(c); and
(d) The other compensation set out in subparagraph 5.3(d);
QLT will have no further obligations, statutory or otherwise, to Xx. Xxxxxx
in respect of this Agreement and Xx. Xxxxxx'x employment under this
Agreement.
5.5 DUTY TO MITIGATE
(a) DUTY TO MITIGATE -- Xx. Xxxxxx acknowledges and agrees that if his
employment is terminated without cause as set out in paragraph 5.2, his
entitlement to Severance Pay, Benefits Compensation and other
compensation as set out in paragraph 5.3 is subject to his duty to
mitigate such payments by looking for and accepting suitable
alternative employment or contract(s) for services. If Xx. Xxxxxx
obtains new employment or contract(s) for services of four weeks or
longer, Xx. Xxxxxx agrees that he will notify QLT of this fact in
writing (the "NEW EMPLOYMENT NOTICE") within five working days of such
an occurrence and in this event the following provisions apply:
I. Xx. Xxxxxx acknowledges and agrees that his entitlement to
Severance Pay and Benefits Compensation will cease as of the date
on which his new employment or contract for services commences.
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II. Within 10 working days of receipt of the New Employment Notice
from Xx. Xxxxxx, QLT agrees that it will pay Xx. Xxxxxx a lump
sum amount equivalent to 50% of the Severance Pay and Benefits
Compensation as set out in paragraph 5.3 otherwise owing to Xx.
Xxxxxx for the balance of the Severance Notice period.
(b) WAIVER OF DUTY TO MITIGATE ON DELIVERY OF RELEASE -- In the event that,
either on or before the date of termination of Xx. Xxxxxx'x employment
with QLT or within 30 days after termination of his employment, Xx.
Xxxxxx executes and delivers to QLT a release in the form set out in
Appendix "A" to this Agreement, the provisions of paragraph 5.5(a)
shall be deemed to not apply and Xx. Xxxxxx shall have no duty to
mitigate nor any reduction in the Severance Pay or Benefits
Compensation in the event that he obtains alternative employment or
contract(s) for service.
5.6 TERMINATION DUE TO INABILITY TO ACT
(a) TERMINATION -- QLT may immediately terminate this Agreement by giving
written notice to Xx. Xxxxxx if he becomes completely disabled (defined
below) to the extent that he cannot perform his duties under this
Agreement either:
I. For a period exceeding six consecutive months, or
II. For a period of 180 days (not necessarily consecutive) occurring
during any period of 365 consecutive days,
and no other reasonable accommodation can be reached between QLT and
Xx. Xxxxxx. Notwithstanding the foregoing, QLT agrees that it will not
terminate Xx. Xxxxxx pursuant to this provision unless and until Xx.
Xxxxxx has been accepted by the insurer for ongoing long-term
disability payments or, alternatively, has been ruled definitively
ineligible for such payments.
(b) PAYMENTS -- In the event of termination of Xx. Xxxxxx'x employment with
QLT pursuant to the provisions of this paragraph 5.6, QLT agrees to pay
to Xx. Xxxxxx Xxxxxxxxx Pay and Benefits Compensation as set out in
paragraph 5.3 and if Xx. Xxxxxx ceases to be completely disabled, then
the provisions of paragraph 5.3(c) (out placement counseling) will
apply.
(c) DEFINITION -- The term "completely disabled" as used in this paragraph
5.6 will mean the inability of Xx. Xxxxxx to perform the essential
functions of his position under this Agreement by reason of any
incapacity, physical or mental, which the Board, based upon medical
advice or an opinion provided by a licensed physician acceptable to the
Board, determines to keep Xx. Xxxxxx from satisfactorily performing any
and all essential functions of his position for QLT during the
foreseeable future.
5.7 DEATH -- Except as set out below, effective the date of death (the "DATE OF
DEATH") of Xx. Xxxxxx, this Agreement and both parties' rights and
obligations under this Agreement will terminate without further notice or
action by either party. Within 30 days after the Date of Death (and the
automatic concurrent termination of this Agreement), QLT will pay the
following amounts to Xx. Xxxxxx'x estate:
(a) BASE SALARY -- Base salary owing to Xx. Xxxxxx up to his Date of
Death.
(b) PAYMENT IN LIEU OF BENEFITS -- In lieu of employee benefit coverage for
his eligible dependents after his Date of Death, a payment in the
amount of 10% of his annual base salary in effect at his Date of Death.
(c) EXPENSE REIMBURSEMENT -- Reimbursement (in accordance with QLT's Policy
and Procedures Manual, as amended from time to time) of all reasonable
business related promotion, entertainment
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and/or travel expenses incurred by Xx. Xxxxxx prior to his Date of
Death, subject to the expense reimbursement provisions set out in
subparagraph 2.1(c).
(d) VACATION PAY -- Payment in respect of accrued but unpaid vacation pay
owing to Xx. Xxxxxx as at his Date of Death.
(e) RRSP CONTRIBUTION -- A prorated contribution to Xx. Xxxxxx'x RRSP, the
pro-ration to be with respect to the portion of the current calendar
year worked by Xx. Xxxxxx and the contribution to be subject to the
conditions set out in subparagraph 2.1(e), except condition III.
(f) BONUS -- A prorated payment to Xx. Xxxxxx in respect of his entitlement
to participate in QLT's Cash Incentive Compensation Plan, the
pro-ration to be with respect to the portion of the current calendar
year worked by Xx. Xxxxxx and the entitlement to be at the target level
Xx. Xxxxxx would have otherwise been eligible to receive in the current
calendar year if all corporate, and, if applicable, individual goals
were met but not exceeded.
After his Date of Death, Xx. Xxxxxx'x participation and/or entitlement
under any stock option plan offered by QLT to its employees will be in
accordance with the terms of the plan in effect at the time of the stock
option offer(s) to Xx. Xxxxxx.
5.8 NO DUPLICATION -- In the event that the Severance Pay provisions of this
Agreement and the payment provisions of any other agreement that have been
or may be entered into between QLT and Xx. Xxxxxx with respect to a change
of control of QLT are both applicable, Xx. Xxxxxx agrees that he will give
written notice to QLT with respect to which agreement he wishes to be paid
out under and that he is not entitled to severance pay under both
agreements.
6. CONFLICT OF INTEREST
6.1 AVOID CONFLICT OF INTEREST -- Except as set out below, during the term of
his employment with QLT, Xx. Xxxxxx agrees to conduct himself at all times
so as to avoid any real or apparent conflict of interest with the
activities, policies, operations and interests of QLT. To avoid improper
appearances, Xx. Xxxxxx agrees that he will not accept any financial
compensation of any kind, nor any special discount or loan from persons,
corporations or organizations having dealings or potential dealings with
QLT, either as a customer or a supplier or a co-venturer. QLT and Xx.
Xxxxxx acknowledge and agree that from time to time the Chief Executive
Officer of QLT may consent in writing to activities by Xx. Xxxxxx which
might otherwise appear to be a real or apparent conflict of interest.
6.2 NO FINANCIAL ADVANTAGE -- During the term of his employment with QLT, Xx.
Xxxxxx agrees that neither he nor any members of his immediate family will
take financial advantage of or benefit financially from information that is
obtained in the course of his employment related duties and
responsibilities unless the information is generally available to the
public.
6.3 COMPLY WITH POLICIES -- During the term of his employment with QLT, Xx.
Xxxxxx agrees to comply with all written policies issued by QLT dealing
with conflicts of interest.
6.4 BREACH EQUALS CAUSE -- Xx. Xxxxxx acknowledges and agrees that breach by
him of the provisions of this Section 6 will be cause for immediate
termination by QLT of his employment with QLT.
7. CONFIDENTIALITY
7.1 INFORMATION HELD IN TRUST -- Xx. Xxxxxx acknowledges and agrees that all
business and trade secrets, confidential information and knowledge which
Xx. Xxxxxx acquires during his employment with QLT relating to the business
and affairs of QLT, its affiliates or subsidiaries or to technology,
systems,
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programs, ideas, products or services which have been or are being
developed or utilized by QLT, its affiliates or subsidiaries or in which
QLT, its affiliates or subsidiaries are or may become interested
(collectively, "CONFIDENTIAL INFORMATION"), will for all purposes and at
all times, both during the term of Xx. Xxxxxx'x employment with QLT and at
all times thereafter, be held by Xx. Xxxxxx in trust for the exclusive
benefit of QLT.
7.2 NON DISCLOSURE -- Xx. Xxxxxx acknowledges and agrees that both during the
term of his employment with QLT and at all times thereafter, without the
express or implied consent of QLT, Xx. Xxxxxx will not:
(a) DISCLOSE -- Disclose to any company, firm or person, other than QLT and
its directors and officers, any of the private affairs of QLT or any
Confidential Information; or
(b) USE -- Use any Confidential Information that he may acquire for his own
purposes or for any purposes, other than those of QLT.
7.3 INTELLECTUAL PROPERTY RIGHTS
(a) DISCLOSE INVENTIONS -- Xx. Xxxxxx agrees to promptly disclose to QLT
any and all ideas, developments, designs, articles, inventions,
improvements, discoveries, machines, appliances, processes, methods,
products or the like (collectively, "INVENTIONS") that Xx. Xxxxxx may
invent, conceive, create, design, develop, prepare, author, produce or
reduce to practice, either solely or jointly with others, in the course
of his employment with QLT.
(b) INVENTIONS ARE QLT PROPERTY -- All Inventions and all other work of Xx.
Xxxxxx in the course of his employment with QLT will at all times and
for all purposes be the property of QLT for QLT to use, alter, vary,
adapt and exploit as it will see fit, and will be acquired or held by
Xx. Xxxxxx in a fiduciary capacity solely for the benefit of QLT.
(c) ADDITIONAL REQUIREMENTS -- Xx. Xxxxxx agrees to:
I. Treat all information with respect to Inventions as Confidential
Information.
II. Keep complete and accurate records of Inventions, which records
will be the property of QLT and copies of which records will be
maintained at the premises of QLT.
III. Execute all assignments and other documents required to assign and
transfer to QLT (or such other persons as QLT may direct) all
right, title and interest in and to the Inventions and all other
work of Xx. Xxxxxx in the course of his employment with QLT, and
all writings, drawings, diagrams, photographs, pictures, plans,
manuals, software and other materials, goodwill and ideas relating
thereto, including, but not limited to, all rights to acquire in
the name of QLT or its nominee(s) patents, registration of
copyrights, design patents and registrations, trade marks and
other forms of protection that may be available.
IV. Execute all documents and do all acts reasonably requested by QLT
to give effect to this provision.
7.4 RECORDS -- Xx. Xxxxxx agrees that all records or copies of records
concerning QLT's activities, business interests or investigations made or
received by him during his employment with QLT are and will remain the
property of QLT. He further agrees to keep such records or copies in the
custody of QLT and subject to its control, and to surrender the same at the
termination of his employment or at any time during his employment at QLT's
request.
7.5 NO USE OF FORMER EMPLOYER'S MATERIALS -- Xx. Xxxxxx certifies that he has
not brought to QLT and will not use while performing his employment duties
for QLT any materials or documents of any former employer which are not
generally available to the public, except if the right to use the materials
or documents has been duly licensed to QLT by the former employer.
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8. POST-EMPLOYMENT RESTRICTIONS
8.1 NON-COMPETE -- Xx. Xxxxxx agrees that, by virtue of his senior position
with QLT, he possesses strategic sensitive information concerning the
business of QLT, its affiliates and subsidiaries. As a result, and in
consideration of the payments to be made by QLT to Xx. Xxxxxx under this
Agreement, without the prior written consent of QLT, for a period of one
year following termination of his employment with QLT for any reason (by
resignation or otherwise), as measured from his Last Active Day, Xx. Xxxxxx
will not:
(a) PARTICIPATE IN A COMPETITIVE BUSINESS -- Directly or indirectly, own,
manage, operate, join, control or participate in the ownership,
management, operation or control of, or be a director or an employee
of, or a consultant to, any business, firm or corporation that, as a
part of conducting its business, is in any way competitive with QLT or
any of its affiliates or subsidiaries (including, without limitation,
QLT USA, Inc.) with respect to:
I. The development and/or commercialization and/or marketing of
pharmaceutical products that are directly competitive with QLT's
then current commercial products, Visudyne or Eligard or any other
products then being commercialized by or on behalf of QLT or its
affiliates or subsidiaries which individually have worldwide
annual net sales of U.S.$50 million or more in the calendar year
preceding Xx. Xxxxxx'x Last Active Day,
II. The development and/or commercialization and/or marketing of
light-activated pharmaceutical products for photodynamic therapy
in the treatment of cancer, ophthalmic, dermatology, urology and
auto-immune disease, or
III. the development and/or commercialization and/or marketing of
pharmaceutical products that are based on a polymer based drug
delivery technology platform and are used in the treatment of
substantially the same medical indications as products which have
become a significant component of QLT's core business or the core
business of any affiliate or subsidiary of QLT,
anywhere in Canada, the United States or Europe.
(b) SOLICIT ON BEHALF OF A COMPETITIVE BUSINESS -- Directly or indirectly
call upon or solicit any QLT employee or QLT customer or known
prospective customer of QLT on behalf of any business, firm or
corporation that, as part of conducting its business, is in any way
competitive with QLT with respect to:
I. The development and/or commercialization and/or marketing of
pharmaceutical products that are directly competitive with QLT's
then current commercial products, Visudyne or Eligard or any
other products then being commercialized by or on behalf of QLT
or its affiliates or subsidiaries which individually have
worldwide annual net sales of U.S.$50 million or more in the
calendar year preceding Xx. Xxxxxx'x Last Active Day,
II. The development and/or commercialization and/or marketing of
light-activated pharmaceutical products for photodynamic therapy
in the treatment of cancer, ophthalmic, dermatology, urology and
auto-immune disease, or
III. the development and/or commercialization and/or marketing of
pharmaceutical products that are based on a polymer based drug
delivery technology platform and are used in the treatment of
substantially the same medical indications as products which have
become a significant component of QLT's core business or the core
business of any affiliate or subsidiary of QLT,
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anywhere in Canada, the United States or Europe.
(c) SOLICIT EMPLOYEES -- Directly or indirectly solicit any individual to
leave the employment of QLT or any of its affiliates or subsidiaries
for any reason or interfere in any other manner with the employment
relationship existing between QLT, its affiliates or subsidiaries and
its current or prospective employees.
(d) SOLICIT CUSTOMERS -- Directly or indirectly induce or attempt to induce
any customer, supplier, distributor, licensee or other business
relation of QLT or its affiliates or subsidiaries to cease doing
business with them or in any way interfere with the existing business
relationship between any such customer, supplier, distributor, licensee
or other business relation and QLT or its affiliates or subsidiaries.
8.2 MINORITY SHARE INTERESTS ALLOWED -- The parties agree that nothing
contained in paragraph 8.1 is intended to prohibit Xx. Xxxxxx from owning
less than 5% of the issued and outstanding stock of any company whose stock
or shares are traded publicly on a recognized exchange.
9. REMEDIES
9.1 IRREPARABLE DAMAGE -- Xx. Xxxxxx acknowledges and agrees that:
(a) BREACH -- Any breach of any provision of this Agreement could cause
irreparable damage to QLT; and
(b) CONSEQUENCES OF BREACH -- In the event of a breach of any provision of
this Agreement by him, QLT will have, in addition to any and all other
remedies at law or in equity, the right to an injunction, specific
performance or other equitable relief to prevent any violation by him
of any of the provisions of this Agreement including, without
limitation, the provisions of Sections 7 and 8.
9.2 INJUNCTION -- In the event of any dispute under Sections 7 and/or 8, Xx.
Xxxxxx agrees that QLT will be entitled, without showing actual damages, to
a temporary or permanent injunction restraining his conduct, pending a
determination of such dispute and that no bond or other security will be
required from QLT in connection therewith.
9.3 ADDITIONAL REMEDIES -- Xx. Xxxxxx acknowledges and agrees that the remedies
of QLT specified in this Agreement are in addition to, and not in
substitution for, any other rights and remedies of QLT at law or in equity
and that all such rights and remedies are cumulative and not alternative or
exclusive of any other rights or remedies and that QLT may have recourse to
any one or more of its available rights and remedies as it will see fit.
10. GENERAL MATTERS
10.1 TAX WITHHELD -- The parties acknowledge and agree that all payments to be
made by QLT to Xx. Xxxxxx under this Agreement will be subject to QLT's
withholding of applicable withholding taxes.
10.2 INDEPENDENT LEGAL ADVICE -- Xx. Xxxxxx acknowledges that he has obtained or
had the opportunity to obtain independent legal advice with respect to this
Agreement and all of its terms and conditions.
10.3 BINDING AGREEMENT -- The parties agree that this Agreement will enure to
the benefit of and be binding upon each of them and their respective heirs,
executors, successors and assigns.
10.4 GOVERNING LAW -- The parties agree that this Agreement will be governed by
and interpreted in accordance with the laws of the Province of British
Columbia and the laws of Canada applicable to this
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Agreement. All disputes arising under this Agreement will be referred to
the Courts of the Province of British Columbia, which will have exclusive
jurisdiction, unless there is mutual agreement to the contrary.
10.5 NOTICE -- The parties agree that any notice or other communication required
to be given under this Agreement will be in writing and will be delivered
personally or by facsimile transmission to the addresses set forth on page
1 of this Agreement to the attention of the following persons:
(a) IF TO QLT -- Attention: Chief Executive Officer, Fax No. (604)
707-7001,
WITH A COPY TO:
QLT Inc.
000 Xxxxx Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Attention: Principal Legal Officer
Fax No.: (000) 000-0000
(b) IF TO XX. XXXXXX -- To the address for Xx. Xxxxxx specified on page 1
of this Agreement;
or to such other addresses and persons as may from time to time be notified
in writing by the parties. Any notice delivered personally will be deemed
to have been given and received at the time of delivery. Any notice
delivered by facsimile transmission will be deemed to have been given and
received on the next business day following the date of transmission.
10.6 SURVIVAL OF TERMS
(a) XX. XXXXXX'X OBLIGATIONS -- Xx. Xxxxxx acknowledges and agrees that
his representations, warranties, covenants, agreements, obligations
and liabilities under any and all of Sections 7, 8 and 10 of this
Agreement will survive any termination of this Agreement.
(b) COMPANY'S OBLIGATIONS -- QLT acknowledges and agrees that its
representations, warranties, covenants, agreements, obligations and
liabilities under any and all of Sections 3, 4, 5 and 10 of this
Agreement will survive any termination of this Agreement.
(c) WITHOUT PREJUDICE -- Any termination of this Agreement will be without
prejudice to any rights and obligations of the parties arising or
existing up to the effective date of such expiration or termination,
or any remedies of the parties with respect thereto.
10.7 WAIVER -- The parties agree that any waiver of any breach or default under
this Agreement will only be effective if in writing signed by the party
against whom the waiver is sought to be enforced, and no waiver will be
implied by indulgence, delay or other act, omission or conduct. Any waiver
will only apply to the specific matter waived and only in the specific
instance in which it is waived.
10.8 ENTIRE AGREEMENT -- The parties agree that the provisions contained in this
Agreement, any Stock Option Agreements or agreements relating to a change
of control of QLT entered into between QLT and Xx. Xxxxxx constitute the
entire agreement between QLT and Xx. Xxxxxx with respect to the subject
matters hereof or thereof, and supersede all previous communications,
understandings and agreements (whether verbal or written) between QLT and
Xx. Xxxxxx regarding the subject matters hereof or thereof. QLT and Xx.
Xxxxxx hereby agree that the employment agreement previously entered into
between them dated April 12, 2000 is terminated and replaced by this
Agreement. To the extent that there is any conflict between the provisions
of this Agreement and any Stock Option Agreements
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between QLT and Xx. Xxxxxx, the following provisions will apply:
(a) CHANGE OF CONTROL - If the conflict is with respect to an event,
entitlement or obligation in the case of a Change of Control of QLT (as
defined in any agreement relating to a change of control of QLT entered
into between QLT and Xx. Xxxxxx), the provisions of that change of
control agreement will govern (unless Xx. Xxxxxx otherwise elects as
contemplated in paragraph 5.8 of this Agreement).
(b) STOCK OPTIONS -- If the conflict is with respect to an entitlement or
obligation with respect to stock options of QLT, the provisions of the
Stock Option Agreements will govern (unless the parties otherwise
mutually agree).
(c) OTHER -- In the event of any other conflict, the provisions of this
Agreement will govern (unless the parties otherwise mutually agree).
10.9 SEVERABILITY OF PROVISIONS -- If any provision of this Agreement as
applied to either party or to any circumstance is adjudged by a court of
competent jurisdiction to be void or unenforceable for any reason, the
invalidity of that provision will in no way affect (to the maximum extent
permissible by law):
(a) The application of that provision under circumstances different from
those adjudicated by the court;
(b) The application of any other provision of this Agreement; or
(c) The enforceability or invalidity of this Agreement as a whole.
If any provision of this Agreement becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction by reason of the scope, extent or
duration of its coverage, then the provision will be deemed amended to the
extent necessary to conform to applicable law so as to be valid and
enforceable or, if the provision cannot be so amended without materially
altering the intention of the parties, then such provision will be stricken
and the remainder of this Agreement will continue in full force and effect.
10.10 CAPTIONS -- The parties agree that the captions appearing in this
Agreement have been inserted for reference and as a matter of convenience
and in no way define, limit or enlarge the scope or meaning of this
Agreement or any provision.
10.11 AMENDMENTS -- Any amendment to this Agreement will only be effective if
the amendment is in writing and is signed by QLT and Xx. Xxxxxx.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day
and year first written above.
QLT INC.
BY: /s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
------------------------ ------------------
XXXXXX X. XXXXXXXXXX XXXXXXX XXXXXX
ACTING CHIEF EXECUTIVE OFFICER
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