EXHIBIT 10.81
(QLT INC. LOGO) EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of February 20, 2003
BETWEEN:
QLT INC., having an address of 000 Xxxxx Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0;
("QLT" or the "COMPANY")
AND:
XX. XXXXXXXX XXXX, having an address of Xxxxx 000, 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
("XX. XXXX").
WHEREAS:
A. QLT is a world leader in the development and commercialization of
proprietary pharmaceutical products for use in photodynamic therapy and has
other active development programs ongoing in areas outside of photodynamic
therapy;
B. Xx. Xxxx is a senior executive officer of QLT;
C. QLT has offered to Xx. Xxxx, and Xx. Xxxx has accepted, promotion to the
position of Senior Vice President and Chief Medical Officer; and
D. QLT and Xx. Xxxx wish to enter into this Agreement to set out the current
terms and conditions of Xx. Xxxx'x employment with QLT.
NOW THEREFORE in consideration of $10.00, 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. Xxxx agree as follows:
1. POSITION AND DUTIES
1.1 POSITION - QLT will employ Xx. Xxxx in the position of Senior Vice
President & Chief Medical Officer and Xx. Xxxx agrees to be employed by QLT
in this position, subject to the terms and conditions of this Agreement.
1.2 DUTIES, REPORTING AND EFFORTS - In the performance of his duties as Senior
Vice President & Chief Medical Officer, Xx. Xxxx shall:
(a) OVERALL RESPONSIBILITIES - Have overall responsibility for the
development, implementation and coordination of the Company's Clinical
drug development strategies, activities and programs, in accordance
with the Company's business strategies and objectives, and serve as a
member of the
1
Company's Executive Committee to provide leadership and direction in
respect of the implementation and development of the Company's overall
business strategies and objectives;
(b) REPORT - Report, as and when required, to the President;
(c) BEST EFFORTS - Use his best efforts, industry and knowledge to improve
and increase QLT's business and to ensure that QLT is at all times in
compliance with applicable provincial, state, federal and other
governing statutes, policies and regulations pertaining to QLT
business, and its drug development activities in particular;
all as is more specifically set out in his Accountability Statement, as may be
amended from time to time by the Company acting reasonably.
2. COMPENSATION
2.1 ANNUAL COMPENSATION - In return for his services under this Agreement, the
Company agrees to pay or otherwise provide the following total annual
compensation to Xx. Xxxx:
(a) BASE SALARY - A base salary in the amount of $290,000.00 (U.S.) in 24
equal installments payable semi-monthly in arrears, subject to
periodic increases at the discretion of the President and the Board.
(b) BENEFIT PLANS - Coverage for Xx. Xxxx 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. Xxxx 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. Xxxx 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 the
Company'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. Xxxx, subject to him maintaining
proper accounts and providing documentation for these expenses upon
request.
(d) VACATION - twenty-five days of paid vacation per year, as may be
increased from time to time in accordance with QLT's standard vacation
policy. As per the Company's Policy and Procedures Manual (as amended
from time to time), unless agreed to in writing by the Company:
I. All vacation must be taken within one year of the year in which
it is earned by Xx. Xxxx, and
II. Vacation entitlement shall not be cumulative from year to year.
I. RRSP CONTRIBUTIONS - If Xx. Xxxx makes a contribution to his
registered retirement savings plan (the "RRSP"), QLT will make a
matching contribution to the RRSP of up to 7% of Xx. Xxxx'x
annual base salary in effect for the tax year in respect of which
the contribution has been
2
made by Xx. Xxxx, to a maximum of 50% of the annual limit for
Registered Retirement Savings Plans then in effect as established
by Revenue Canada.
(e) 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 the payment granted, if any, is at the
discretion of the Executive Compensation Committee of the Board. For
2003 the target cash incentive compensation opportunity for Xx. Xxxx
is 45% of Xx. Xxxx'x annual base salary, the entitlement to which will
be evaluated as to 80% based on the achievement by the Company of its
corporate goals, and as to 20% based on the achievement by Xx. Xxxx of
his individual goals.
(f) 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. Xxxx 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. Xxxx
and require him to leave the premises forthwith:
(a) BASE SALARY - Base salary owing to Xx. Xxxx 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. Xxxx and his eligible dependents prior to the date of his
Resignation Notice. Xx. Xxxx acknowledges and agrees that pension and
short and long term disability plans provided through the Company will
not be continued beyond the last day that Xx. Xxxx works at the
Company's premises (the "LAST ACTIVE DAY").
(c) EXPENSE REIMBURSEMENT - Reimbursement (in accordance with the
Company'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. Xxxx 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. Xxxx as at the expiry of the 60-day notice period.
(e) PRORATED RRSP CONTRIBUTION - A prorated matching contribution to Xx.
Xxxx'x RRSP, the pro-ration to be with respect to the portion of the
current calendar year worked by Xx. Xxxx, up to and including the
60-day notice period, subject to the contribution limits set out in
subparagraph 2.1(e).
3.2 OTHERS - In the event of resignation of Xx. Xxxx as set out in paragraph
3.1, the parties agree:
(a) NO BONUS - Xx. Xxxx will have no entitlement to participate in the
Company's Cash Incentive Compensation Plan for the year in which he
resigns his employment with QLT. Any Cash Incentive Compensation in
respect of the previous calendar year which has not been paid to Xx.
Xxxx will become due and payable; and
(b) STOCK OPTION PLAN - Xx. Xxxx'x participation in any stock option plan
offered by QLT to its employees shall be in accordance with the terms
of the plan in effect at the time of the stock option offer(s) to Xx.
Xxxx; and
3
(c) RRSP MATCHING CONTRIBUTION - Any matching RRSP contribution in respect
of the previous tax year not yet paid to Xx. Xxxx will become due and
payable upon his tendering evidence of his contribution, subject to
the limits set out in subparagraph 2.1(e).
4. RETIREMENT
4.1 RETIREMENT - Effective the date of retirement (as defined in the Company's
Policy and Procedures Manual, as amended from time to time) of Xx. Xxxx
from active employment with the Company, the parties agree that:
(a) THIS AGREEMENT - Subject to the provisions of paragraph 10.5, both
parties' rights and obligations under this Agreement will terminate
without further notice or action by either party.
(b) STOCK OPTIONS -Xx. Xxxx'x participation in any stock option plan
offered by QLT to its employees shall be in accordance with the terms
of the plan in effect at the time of the stock option offer(s) to Xx.
Xxxx.
5. TERMINATION
5.1 TERMINATION FOR CAUSE - QLT reserves the right to terminate Xx. Xxxx'x
employment at any time for any reason. Should Xx Xxxx be terminated for
cause, he will not be entitled to any advance notice of termination or pay
in lieu thereof.
TERMINATION OTHER THAN FOR CAUSE - QLT reserves the right to terminate Xx.
Xxxx'x employment at any time without reason. However, if QLT terminates
Xx. Xxxx'x employment for any reason other than for cause, then, except in
the case of Xx. Xxxx becoming completely disabled (which is provided for in
paragraph 5.7) and subject to the provisions set forth below, Xx. Xxxx
shall 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.
5.2 SEVERANCE NOTICE AND PAY - In the event QLT terminates Xx. Xxxx'x
employment as set out in paragraph 5.2, Xx. Xxxx shall 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 for each complete year of
continuous employment after February 15, 1997;
up to a maximum total of 24 months' Severance Notice, or Severance Pay
in lieu of Severance Notice. Xx. Xxxx 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 the Company's discretion.
(b) BENEFITS - Except as set out below, for 30 days after Xx. Xxxx'x Last
Active Day, all employee benefit plan coverage enjoyed by Xx. Xxxx and
his dependents prior to the date of termination. Thereafter, and in
lieu of employee benefit plan coverage, Xx. Xxxx shall receive
compensation ("BENEFITS COMPENSATION") in the amount of 10% of his
base salary for the balance of his Severance
4
Notice period. Xx. Xxxx acknowledges and agrees that pension and short
and long term disability plans provided through the Company will not
be continued beyond Xx. Xxxx'x Last Active Day.
(c) OUT PLACEMENT COUNSELING - In the event QLT terminates Xx. Xxxx'x
employment as set out in paragraph 5.2, in the year following
termination, QLT will pay to an out placement counseling service (to
be agreed to by Xx. Xxxx and QLT) a maximum of Cdn $5,000 for
assistance rendered to Xx. Xxxx in seeking alternative employment.
(d) OTHER COMPENSATION - In the event QLT terminates Xx. Xxxx'x employment
as set out in paragraph 5.2, the parties further agree as follows:
I. The Company will reimburse (in accordance with the Company's
Policy and Procedures Manual, as amended from time to time) Xx.
Xxxx for all reasonable business related promotion, entertainment
and/or travel expenses incurred by Xx. Xxxx prior to the date of
termination, subject to the expense reimbursement provisions set
out in subparagraph 2.1(c).
II. The Company will make a payment to Xx. Xxxx in respect of his
accrued but unpaid vacation pay to the date of termination.
The Company will make a prorated matching contribution to Xx. Xxxx'x
RRSP, the pro-ration to be with respect to the portion of the current
calendar year worked by Xx. Xxxx and the contribution to be subject to
the limits set out in subparagraph 2.1(e). Any matching RRSP
contribution in respect of the previous tax year not yet paid to Xx.
Xxxx will become due and payable upon his tendering evidence of his
contribution, subject to the limits set out in subparagraph 2.1(e).
III. The Company will make a prorated payment to Xx. Xxxx in respect
of his entitlement to participate in the Company's Cash Incentive
Compensation Plan, the pro-ration to be with respect to the
portion of the current calendar year worked by Xx. Xxxx and the
entitlement to be at the maximum level Xx. Xxxx would have
otherwise been eligible to receive in the current calendar year.
Any Cash Incentive Compensation in respect of the previous
calendar year which has not been paid to Xx. Xxxx will become
immediately due and payable.
IV. Xx. Xxxx'x participation in any stock option plan offered by QLT
to its employees shall be in accordance with the terms of the
plan in effect at the time of the stock option offer(s) to Xx.
Xxxx.
5.3 ACKNOWLEDGEMENT - Xx. Xxxx acknowledges and agrees that in the event QLT
terminates Xx. Xxxx'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);
The Company shall have no further obligations, statutory or otherwise, to
Xx. Xxxx in respect of this Agreement and Xx. Xxxx'x employment under this
Agreement.
5.4 NO DUPLICATION - In the event that the Severance Pay provisions of this
Agreement and the payment provisions of the Change in Control Agreement are
both applicable, Xx. Xxxx agrees that he will give written notice to the
Company with respect to which agreement he wishes to be paid out under and
that he is not entitled to severance pay under both agreements.
5.5 TERMINATION DUE TO INABILITY TO ACT
5
(a) TERMINATION - QLT may immediately terminate this Agreement by giving
written notice to Xx. Xxxx 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. Xxxx. Notwithstanding the foregoing, QLT agrees that it will not
terminate Xx. Xxxx pursuant to this provision unless and until Xx.
Xxxx 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. Xxxx'x employment with
the Company pursuant to the provisions of this paragraph 5.6, the
Company agrees to pay to Xx. Xxxx Severance Pay and Benefits
Compensation as set out in paragraph 5.3 and in this situation:
I. While he is completely disabled Xx. Xxxx shall have no duty to
mitigate the payments owing to him by looking for and accepting
suitable alternative employment or contract(s) for service, and
II. If Xx. Xxxx ceases to be completely disabled, then the provisions
of paragraph 5.3(c) (out placement counseling) shall apply.
(c) DEFINITION - The term "completely disabled" as used in this paragraph
5.6 shall mean the inability of Xx. Xxxx 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. Xxxx from satisfactorily performing
the essential functions of his position for the Company during the
foreseeable future.
5.6 DEATH - Except as set out below, effective the date of death (the "DATE OF
DEATH") of Xx. Xxxx, this Agreement and both parties' rights and
obligations under this Agreement shall 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), the Company shall pay
the following amounts to Xx. Xxxx'x estate:
(a) BASE SALARY - Base salary owing to Xx. Xxxx 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, which payment will be in addition to any payment due to Xx.
Xxxx'x beneficiary(ies) under the terms of any life insurance benefit
provided by the Company.
(c) EXPENSE REIMBURSEMENT - Reimbursement (in accordance with the
Company'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. Xxxx 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. Xxxx as at his Date of Death.
(e) RRSP CONTRIBUTION - A prorated contribution to Xx. Xxxx'x RRSP, the
pro-ration to be with respect
6
to the portion of the current calendar year worked by Xx. Xxxx and the
contribution to be subject to the conditions set out in subparagraph
2.1(e). Any matching RRSP contribution in respect of the previous tax
year not yet paid to Xx. Xxxx will become due and payable upon his
tendering evidence of his contribution, subject to the limits set out
in subparagraph 2.1(e).
(f) BONUS - A prorated payment to Xx. Xxxx in respect of his
entitlement to participate in the Company's Cash Incentive
Compensation Plan, the pro-ration to be with respect to the portion of
the current calendar year worked by Xx. Xxxx and the entitlement to be
at the maximum level Xx. Xxxx would have otherwise been eligible to
receive in the current calendar year. Any Cash Incentive Compensation
earned by Xx. Xxxx in respect of the previous calendar year which has
not been paid will become immediately due and payable.
After his Date of Death, Xx. Xxxx'x participation and/or entitlement
under any stock option plan offered by QLT to its employees shall be
in accordance with the terms of the plan in effect at the time of the
stock option offer(s) to Xx. Xxxx.
6. CONFLICT OF INTEREST
6.1 AVOID CONFLICT OF INTEREST - Except as set out below, during the term of
his employment with QLT, Xx. Xxxx agrees to conduct himself in accordance
with the Company's Code of Ethics.
6.2 NO FINANCIAL ADVANTAGE - During the term of his employment with QLT, Xx.
Xxxx 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. Xxxx
agrees to comply with all written policies issued by QLT dealing with
conflicts of interest.
7. CONFIDENTIALITY
7.1 INFORMATION HELD IN TRUST - Xx. Xxxx acknowledges and agrees that all
business secrets and trade secrets, confidential information and
confidential knowledge which Xx. Xxxx acquires during his employment with
QLT relating to the business and affairs of QLT or to technology, systems,
programs, ideas, products or services which have been or are being
developed or utilized by QLT, or in which QLT is interested (collectively,
"CONFIDENTIAL INFORMATION"), shall for all purposes and at all times, both
during the term of Xx. Xxxx'x employment with the Company and at all times
thereafter, be held by Xx. Xxxx in trust for the exclusive benefit of the
Company.
7.2 NON DISCLOSURE - Xx. Xxxx 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. Xxxx will not:
(a) DISCLOSE - Except as required by law, 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 of QLT; or
(b) USE - Use any Confidential Information that he may acquire with
respect to QLT's affairs for his own purposes or for any purposes,
other than those of the Company.
7.3 INTELLECTUAL PROPERTY RIGHTS
7
(a) DISCLOSE INVENTIONS - Xx. Xxxx 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. Xxxx 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 the
Company.
(b) INVENTIONS ARE QLT PROPERTY - All Inventions shall at all times and for all
purposes be the property of QLT for QLT to use, alter, vary, adapt and
exploit as it shall see fit, and shall be acquired or held by Xx. Xxxx in a
fiduciary capacity solely for the benefit of QLT.
(c) ADDITIONAL REQUIREMENTS - Xx. Xxxx agrees to:
I. Treat all information with respect to Inventions as Confidential
Information.
II. Keep complete and accurate records of Inventions, which records shall
be the property of QLT and copies of which records shall 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.
Xxxx in the course of his employment with the Company, 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. Xxxx agrees that all business 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 shall 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. Xxxx 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.
8. POST-EMPLOYMENT RESTRICTIONS
8.1 NON-COMPETE - Xx. Xxxx agrees that, without the prior written consent of
QLT, which consent will not be unreasonably withheld, for a period of one year
following termination of his employment with the Company for any reason (by
resignation or otherwise), as measured from his Last Active Day, Xx. Xxxx shall
not 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 with respect
to the development and/or commercialization and/or marketing of light-activated
pharmaceutical products for photodynamic therapy in the treatment of cancer,
opthalmic, or auto-immune disease anywhere in Canada, the United States or
Europe.
8.2 ADDITIONAL RESTRICTIONS - Xx. Xxxx agrees that, for a period of two years
following termination of his employment with the Company for any reason (by
resignation or otherwise), as measured from his Last
8
Active Day, he will not:
(a) SOLICIT EMPLOYEES -
(i) directly or indirectly solicit any individual to leave QLT's
employment for any reason or interfere in any other manner with the
employment relationship existing between QLT and its current or
prospective employees;
(ii) directly or indirectly solicit for employment any employee that, to
Xx. Xxxx'x knowledge, QLT is, as at the Last Active Day, contractually
restrained from soliciting for employment; nor
(b) INTERFERE WITH BUSINESS RELATIONSHIPS - directly or indirectly induce
or attempt to induce any supplier, consultant, distributor, licensee or
other entity having a business relationship with QLT, or any of the
employees of such entities, to cease doing business with QLT or in any way
interfere with the existing business relationship between any such
supplier, distributor, licensee or other business relation and QLT.
8.3 MINORITY SHARE INTERESTS ALLOWED - The parties agree that nothing contained
in paragraph 8.1 is intended to prohibit Xx. Xxxx from owning any minority
interest in any company where stock or shares are traded publicly.
9. REMEDIES
9.1 IRREPARABLE DAMAGE - Xx. Xxxx acknowledges and agrees that:
(a) BREACH - Any breach of any provision of this Agreement could cause
irreparable damage to QLT; and
(a) CONSEQUENCES OF BREACH - In the event of a breach of any provision of
this Agreement by him, QLT shall 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.
Xxxx agrees that QLT shall 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 shall be
required from QLT in connection therewith.
9.3 ADDITIONAL REMEDIES - Xx. Xxxx 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 shall see fit.
10. GENERAL MATTERS
10.1 TAX WITHHELD - The parties acknowledge and agree that all payments to be
made by the Company to Xx. Xxxx under this Agreement will be subject to the
Company's withholding of applicable withholding taxes.
10.2 INDEPENDENT LEGAL ADVICE - Xx. Xxxx acknowledges that he has obtained or
had the opportunity to
9
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 shall 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 shall be governed by
and interpreted in accordance with the laws of the Province of British
Columbia and the laws of Canada applicable to this 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 shall be in writing and shall be delivered
personally to the addresses set forth on page 1 of this Agreement, and in
the case of notice to the Company, shall be addressed to the attention of
the President.
or to such other addresses and persons as may from time to time be notified
in writing by the parties. Any notice delivered personally shall be deemed
to have been given and received at the time of delivery.
10.6 SURVIVAL OF TERMS
(a) XX. XXXX'X OBLIGATIONS -Xx. Xxxx 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 shall survive any termination of this Agreement.
(b) COMPANY'S OBLIGATIONS - The Company 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 shall survive any termination of this Agreement.
(c) WITHOUT PREJUDICE - Any termination of this Agreement shall 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 shall only be effective if in writing signed by the party against
whom the waiver is sought to be enforced, and no waiver shall be implied by
indulgence, delay or other act, omission or conduct. Any waiver shall 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, Xx. Xxxx'x Change in Control Letter Agreement and any Stock Option
Agreements between the Company and Xx. Xxxx constitute the entire agreement
between QLT and Xx. Xxxx with respect to the subject matters hereof, and
supersede all previous communications, understandings and agreements (whether
verbal or written) between QLT and Xx. Xxxx regarding the subject matters
hereof. To the extent that there is any conflict between the provisions of this
Agreement, Xx. Xxxx'x Change in Control Letter Agreement and any Stock Option
Agreements between the Company and Xx. Xxxx, the following provisions shall
apply:
(a) CHANGE IN CONTROL - If the conflict is with respect to an event,
entitlement or obligation in the case of a Change in Control of the
Company (as defined in the Change in Control Letter Agreement), the
provisions of the Change in Control Letter Agreement will govern
(unless the parties otherwise
10
mutually agree), but not so as to prevail over paragraph 5.4 of this
Agreement.
(b) STOCK OPTIONS - If the conflict is with respect to an entitlement or
obligation with respect to stock options of the Company, 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 shall 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 shall 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 shall 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 shall only be effective if
the amendment is in writing and is signed by the Company and Xx. Xxxx.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day
and year first written above.
QLT INC.
BY: ________________________________ ______________________________
XXXXX XXXXXX XX. XXXXXXXX XXXX
SENIOR VICE PRESIDENT,
HUMAN RESOURCES & ADMINISTRATION
11
