BRIDGING AGREEMENT
THIS AGREEMENT dated for reference the 1st day of December, 1996.
BETWEEN:
QLT PHOTOTHERAPEUTICS INC., a British Columbia
corporation with executive offices at 000 Xxxx
0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx, X0X 0X0
("QLT-BC")
OF THE FIRST PART
AND:
QLT PHOTOTHERAPEUTICS INC., a subsidiary of
QLT-BC, incorporated in the State of Delaware,
and having a business office c/o 000 Xxxx 0xx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx,
X0X 0X0
("QLT-US")
OF THE SECOND PART
AND:
AMERICAN HOME PRODUCTS CORPORATION, a Delaware
corporation, with executive offices at Five
Giralda Farms, Madison, New Jersey, U.S.A.
07940
("AHP")
OF THE THIRD PART
AND:
AMERICAN CYANAMID COMPANY, a subsidiary of
AHP, incorporated in the State of Maine, with
executive offices at Xxx Xxxxxxxx Xxxxx,
Xxxxx, Xxx Xxxxxx, X.X.X., 00000
("ACY")
OF THE FOURTH PART
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WHEREAS:
A. QLT-BC, QLT-US (together, "QLT") and ACY are parties to
a Product Co-Development and Distributorship Agreement dated for
reference November 13, 1989, as amended by Amendment No. 1 dated as
of January 1, 1991, Amendment No. 2 dated as of January 31, 1991,
Amendment No. 3 dated as of August 31, 1991, Amendment No. 4 dated
June 30, 1992 and Amendment No. 5 dated August 30, 1994 (the
agreement together with amendments collectively the "Co-Development
Agreement")
B. The parties desire to terminate the Co-Development
Agreement effective October 31, 1996 (the "Effective Date") and to
concurrently enter into new arrangements for the distribution and
supply of PHOTOFRIN as specifically set forth in the
"Distributorship Agreement" and the "Supply Agreement" (both as
hereinafter defined);
C. QLT-BC and ACY are parties to an agreement (the "UBC
License Continuity Agreement") with The University of British
Columbia ("UBC") and Xxxxx Xxxxxxx ("Dolphin") dated November 13,
1989, which UBC License Continuity Agreement is to be terminated to
reflect the parties' new distribution and supply arrangements;
D. QLT-BC and ACY are parties to an agreement (the "HRI
License Continuity Agreement") with Health Research, Inc. ("HRI"),
which HRI License Continuity Agreement is to be terminated to
reflect the parties' new distribution and supply arrangements;
E. QLT-BC and ACY also desire to modify the terms of the
following share purchase agreements (collectively, the "Share
Purchase Agreements") pursuant to which ACY acquired shares of
QLT-BC:
(a) Share Purchase Agreement dated as of December 21, 1987
(the "1987 Share Purchase Agreement"); and
(b) Share Purchase Agreement dated as of November 13, 1989
(the "1989 Share Purchase Agreement");
X. XXX is a Grandfathered Person as defined in and with
respect to the Rights Agreement (the "Rights Agreement") dated as
of March 17, 1992 between QLT-BC and Montreal Trust Company, and
the parties now wish to confirm the removal of ACY as such a
Grandfathered Person pursuant to the Rights Agreement;
G. QLT, ACY and AHP wish to resolve certain outstanding
matters contemplated by Amendment No. 5 to the Co-Development
Agreement;
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H. The parties desire to enter into this Agreement to
provide for such termination and amendment of existing agreements,
and for certain other matters in respect of the implementation of
their new distribution and supply arrangements;
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
SECTION 1.
INTERPRETATION AND TABLE OF CONTENTS
1.1 Table of Contents
Item Page
1. INTERPRETATION AND TABLE OF CONTENTS 3
I. BRIDGING PROVISIONS 4
2. TERMINATION OF EXISTING AGREEMENTS 4
3. MATTERS REMAINING FROM AMENDMENT NO. 5 4
4. TERMINATION OF UBC LICENSE CONTINUITY AGREEMENT 6
5. TERMINATION OF HRI LICENSE CONTINUITY AGREEMENT 6
6. AMENDMENT OF SHARE PURCHASE AGREEMENTS 6
7. AMENDMENT OF RIGHTS AGREEMENT 7
II. GENERAL PROVISIONS 7
8. NOTICES 7
9. GOVERNING LAW 7
10. ENTIRE AGREEMENT 7
11. BINDING EFFECT 8
1.2 When used herein the following terms or expressions shall
be deemed to have the following meanings:
(a) "Distributorship Agreement" means the agreement of even
date herewith between QLT-BC, QLT-US and ACY.
(b) "Supply Agreement" means the agreement of even date
herewith between QLT-BC, QLT-US, Lederle Laboratories
Pharmaceutical Division of American Cyanamid Company
("Lederle") and Lederle Parenterals Inc. ("LPI").
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I. BRIDGING PROVISIONS
SECTION 2.
TERMINATION OF EXISTING AGREEMENTS
2.1 The Co-Development Agreement, is hereby terminated
effective 12:00 midnight on December 1, 1996 (the "Effective
Time").
2.2 Except as otherwise set forth in this Agreement,
effective the Effective Time, each of the parties to the Co-
Development Agreement, hereby releases and forever discharges all
other parties thereto of and from all obligations, including
without limitation co-development funding obligations, and any
liability whatsoever to such party under the Co-Development
Agreement.
SECTION 3.
MATTERS REMAINING FROM AMENDMENT NO. 5
TO THE CO-DEVELOPMENT AGREEMENT
3.1 ACY hereby confirms and acknowledges its agreement to the
terms of the letter dated December 29, 1995 from QLT to ACY
attached to this Agreement as Schedule A providing notice to ACY of
QLT s decision to exercise its option to reacquire marketing rights
to PHOTOFRIN for all jurisdictions, except those jurisdictions set
out therein, pursuant to Section 2.7 of the Co-Development
Agreement.
3.2 ACY hereby confirms and acknowledges its agreement to the
terms proposed by QLT in the letter dated December 29, 1995 from
QLT to ACY attached to this Agreement as Schedule B for the
reacquisition by QLT of marketing rights to PHOTOFRIN in the
Netherlands in accordance with Section 2.8 of the Co-Development
Agreement, as amended. Upon execution of this Agreement by AHP and
ACY, QLT shall pay to ACY US$73,400 as full and final compensation
for such re-acquisition of marketing rights in the Netherlands, as
contemplated by paragraph (e) of the letter attached hereto as
Schedule B.
3.3 ACY hereby confirms and acknowledges its agreement to the
terms of the letter dated October 7, 1996 from QLT to ACY attached
to this Agreement as Schedule C providing notice to ACY of QLT's
decision to exercise its option to reacquire marketing rights to
PHOTOFRIN for Italy, pursuant to Section 2.7 of the Co-Development
Agreement. Upon completion of the transfer of product and
marketing rights, within thirty (30) days of completion of such
transfer, QLT shall agree to negotiate in good faith compensation
to be paid to the Italian subsidiary of AHP as reimbursement for
marketing and other expenses.
3.4 In connection with Sections 3.1, 3.2 and 3.3 above, ACY
and AHP agree to provide an assignment to QLT-BC of all PHOTOFRIN
trademarks, including those listed in Schedule D attached to this
Agreement currently registered or applied for in any jurisdiction
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other than Japan within thirty (30) days of the Effective Date.
All costs relating to the filing of such assignments will be the
responsibility of QLT.
3.5 In connection with those jurisdictions identified in
Sections 3.1, 3.2, and 3.3, ACY and AHP and their respective
affiliates will cooperate generally in the orderly transfer of
product and marketing rights to QLT or a QLT designee, including
the following:
(a) (transfer of ownership of any regulatory and pricing
approvals either received or pending which are required
to market PHOTOFRIN in these jurisdictions;
(b) transfer of technology, data and registration packages
for PHOTOFRIN clinical studies and regulatory approvals
in these jurisdictions; and
(c) transfer of existing external or internal market research
reports or pricing studies relating to the
commercialization of PHOTOFRIN in these jurisdictions.
3.6 Notwithstanding the termination of the Co-Development
Agreement, as amended, to the extent required by regulatory
authorities in any jurisdiction included in Sections 3.1, 3.2, and
3.3, ACY and AHP will provide access to personnel and facilities of
the relevant jurisdiction to:
(a) support the preparation of responses to regulatory
agencies with respect to pending regulatory filings; and
(b) support any pre-approval inspections.
3.7 Costs relating to the activities contemplated by Sections
3.4 and 3.5 shall continue to be the responsibility of QLT and QLT
shall reimburse ACY and AHP for the cost of such work within thirty
(30) days after receipt of a valid invoice therefor.
3.8 AHP and ACY agree to use their reasonable commercial
efforts to grant the fully paid, perpetual, exclusive license to
QLT to manufacture, use and sell Second Generation Products, as
such term is defined in the Co-Development Agreement, all as
contemplated by Section 25.6 of the Co-Development Agreement as
contained in Amendment No. 5 to the Co-Development Agreement,
including the transfer of documentation relating to the manufacture
of Second Generation Products.
SECTION 4.
TERMINATION OF UBC LICENSE CONTINUITY AGREEMENT
4.1 ACY hereby agrees that, upon QLT obtaining the agreement
of UBC and Dolphin to the termination of the UBC License Continuity
Agreement, ACY shall consent to such
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termination and shall execute and deliver any documentation
reasonably required by QLT to effect such termination, including
the agreement attached as Schedule E.
SECTION 5.
TERMINATION OF HRI LICENSE CONTINUITY AGREEMENT
5.1 ACY hereby agrees that, upon QLT obtaining the agreement
of HRI to the termination of the HRI License Continuity Agreement,
ACY shall consent to such termination and shall execute and deliver
all documentation reasonably required by QLT to effect such
termination, including the agreement attached as Schedule F.
SECTION 6.
AMENDMENT OF SHARE PURCHASE AGREEMENTS
6.1 AHP and ACY each acknowledge and confirm that neither
shall, as of and from the Effective Time of this Agreement, have
any pre-determined right to appoint nominees for election to the
board of directors of QLT-BC. Without limiting the generality of
the foregoing, Section 8.4 of the 1987 Share Purchase Agreement and
Section 8.2 of the 1989 Share Purchase Agreement, each pertaining
to ACY representation on the QLT-BC board, are hereby deleted
therefrom in their entirety.
6.2 QLT hereby confirms and agrees that, from and after the
Effective Time, any and all contractual restrictions on the
transfer of common stock of QLT held by ACY (the "Previously
Restricted Stock") that are in effect by virtue of the provisions
of the 1987 Share Purchase Agreement or any other agreement between
the parties prior to the date hereof, are of no further force or
effect. Without limiting the generality of the foregoing, those
restrictions on transfer of shares of QLT held by ACY set forth in
Section 10 of the 1987 Share Purchase Agreement are hereby deleted
therefrom in their entirety.
6.3 QLT hereby covenants and agrees that, from and after the
Effective Time, upon receipt of representations from ACY evidencing
compliance with the requirements of Rule 144(k) of the Securities
Exchange Act of 1933 with respect to the Previously Restricted
Stock, QLT will, in the absence of, or in conjunction with, any
sale, agree to remove any legends (the "Restrictive Legends")
imprinted on the certificates representing the Previously
Restricted Stock and shall issue and deliver to ACY or its
transferee replacement certificates therefor without any
Restrictive Legend imprinted thereon.
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SECTION 7.
AMENDMENT OF RIGHTS AGREEMENT
7.1 AHP and ACY hereby confirm and agree with QLT that, from
and after the Effective Time, notwithstanding the terms of the
Rights Agreement with respect to the definition of Grandfathered
Person, none of AHP, ACY, or any Affiliate, as such term is defined
in the Rights Agreement, of AHP or ACY shall be considered a
Grandfathered Person pursuant to the Rights Agreement.
II. GENERAL PROVISIONS
SECTION 8.
NOTICES
8.1 Any notice expressly provided for under this Agreement
shall be in writing, shall be given either in person or by mail, or
facsimile and shall be deemed sufficiently given if and when
received by the party to be notified at its address first set forth
above or if and when mailed by certified mail, postage prepaid,
addressed to such party at such address. Either party may, by
notice to the other, change its address for receiving such notices.
SECTION 9.
GOVERNING LAW
9.1 This Agreement shall be deemed to have been made in the
State of New York, U.S.A., and shall be construed in accordance
with and governed by the law of New York without regard to the
conflicts of laws of such state.
SECTION 10.
ENTIRE AGREEMENT
10.1 This Agreement constitutes the entire agreement between
the parties with reference to the subject matter hereof and
supersedes any prior agreements with respect to such subject
matter, and may not be changed or modified orally, but only by an
instrument in writing, signed by the parties, which states that it
is an amendment to this Agreement. The invalidity or
unenforceability of any term or provision of this Agreement shall
not affect the validity or enforceability of any other term or
provision.
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SECTION 11.
BINDING EFFECT
11.1 This Agreement shall enure to the benefit of and be
binding upon the parties and any of their respective subsidiaries
which may succeed to or control any of the assets necessary to the
due performance hereof.
IN WITNESS WHEREOF this Agreement has been executed as of the date
first written above.
QLT PHOTOTHERAPEUTICS INC.
(a British Columbia Corporation)
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
QLT PHOTOTHERAPEUTICS INC.
(a Delaware Corporation)
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
AMERICAN CYANAMID COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
