**EXHIBIT 10.40****CONFIDENTIAL TREATMENT REQUESTED BY QLT INC.****Amended and Restated License Agreement**BETWEEN:**the University of British Columbia**, a corporation continuedunder the *University Act*of British Columbia and having itsadministrative offices at 2075 Wesbrook Mall, in the City ofVancouver, in the Province of British Columbia, V6T 1W5(the “***University***”)AND:**QLT Inc.**, a British Columbia company, having a place ofbusiness at 887 Great Northern Way, Vancouver, British Columbia,Canada, V5T 4T5(the “***Licensee***”)**WHEREAS:**A. The University has been engaged in research during the course of which it has invented,developed and/or acquired certain technology relating to **[**]**compounds, therapies and/or uses asset out on Schedules “***A***” and “***B***”, which schedules shall be updated annually;B. The University and the Licensee have agreed that all research conducted by the University or theLicensee prior to the Commencement Date of this Agreement (as hereinafter defined) which hasresulted in the invention, development and/or acquisition of the technology set out in Schedules“***A***” and “***B***” was conducted under the direction of the principal investigators, **[**********]**;C. The technology described on Schedule “***B***” was invented, developed and/or acquired under thedirection of **[**********]**as a faculty member of the University together with employees of theLicensee or other third parties;D. The University has granted to the Licensee a number of separate licenses set out on Schedule “***C***”(collectively, the “***Existing License Agreements***”) with respect to the technology identified onSchedules “***A***” and “***B***”;E. It is the intention of the University and the Licensee to enter into this license agreement toamend and restate any and all of the Existing License Agreements on terms and conditions set outherein; andF. The University is desirous of entering into this Agreement with the objective of furtheringsociety’s use of its advanced technology, and to generate further research in a manner consistentwith its status as a non-profit, tax exempt educational institution.     NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises and of themutual covenants herein set forth, the parties hereto have covenanted and agreed as follows: ** Confidential Treatment Requested.

 

2**1. DEFINITIONS:**1.1 In this Agreement, unless a contrary intention appears, the following words and phrases shallmean: (a) “***Accounting***”: means an accounting statement setting out in detail how theamount of Revenue was determined,  (b) “***Affiliated Company***” or “***Affiliated Companies***”: means two or more corporationswhere the relationship between them is one in which one of them is a subsidiary of theother, or both are subsidiaries of the same corporation, or fifty percent (50%) or moreof the voting shares of each of them is owned by the same person, corporation or otherlegal entity,  (c) “***Confidential Information***”: means any part of the Information which isfurnished by either party to the other and designated at that time as confidential,whether orally or in writing but excluding any part of the Information: (i) possessed by the Recipient prior to receipt from the Discloser,as evidenced by the Recipient’s business records;  (ii) published or available to the general public otherwise thanthrough a breach of this Agreement;  (iii) obtained by the Recipient from a third party with a validright to disclose it, provided that said third party is not known by theRecipient to be under a confidentiality obligation to the Discloser; or  (iv) independently developed by employees, agents or consultants ofthe Recipient who had no knowledge of or access to the Confidential Informationas evidenced by the Recipient’s business records, (d) “***Date of Commencement***” or “***Commencement Date***”: means this Agreement will bedeemed to have come into force on the Date of Commencement which shall be the 1st dayof January, [**], and shall be read and construed accordingly,  (e) “***Discloser***”: means a party to this Agreement providing its ConfidentialInformation to the other party as Recipient,  (f) “***Effective Date of Termination***”: means the date on which this Agreement isterminated pursuant to Article 18,  (g) “***Improvements***”: means, collectively, the QLT Improvements and the UBCImprovements,  (h) “***Information***”: means any and all Technology and any and all Improvements andany and all oral, written, electronic or other communications and other informationdisclosed or provided by one party to the other including any and all analyses orconclusions drawn or derived therefrom regarding this Agreement and informationdeveloped or disclosed hereunder, or either party’s raw materials, processes,formulations, analytical procedures, methodologies, products, samples and specimens orfunctions,

 

3 (i) “***Patents***”: means, collectively, the patents and patent applications listed inSchedules “***A***” and “***B***”, including any patents or patent applications that may be addedto Schedules “***A***” and “***B***” from time to time, and any counterparts,Continuations-In-Part, renewals, divisionals, reissues, corresponding internationalpatent applications, continuations and any patents resulting therefrom, and which havenot yet expired or been abandoned;  (j) “***Product(s)***”: means goods manufactured using the Technology or Improvements,including Visudyne;  (k) “***QLT Improvements***”: means any and all patentable improvements, variations,updates, modifications, enhancements and alterations related to the Technology whichare conceived, invented, developed and/or acquired by the Licensee (but not jointly bythe Licensee and the University) at any time which claim priority from any of thepatents or patent applications which comprise the Technology and cannot be used orpractised without a licence of Technology;  (l) “***QLT New Technology***”: means any new discovery or invention, whether patentableor not, which: (i) is conceived, invented, developed and/or acquired by theLicensee (but not jointly by the Licensee and the University), at any time, and  (ii) is not a QLT Improvement, a UBC Improvement or UBC NewTechnology; (m) “***Recipient***”: means a party to this Agreement receiving ConfidentialInformation of the other party as Discloser;  (n) “**Retirement Date**” means March 31, **[**]**;  (o) “***Revenue***”: means, without duplication, all revenues, receipts, monies, and thefair market value of all other consideration received, whether by way of cash or creditor any **[**]**or any other licensee or party claiming a right by or through such party,from the marketing, manufacturing, sale, licensing, or distribution of the Technology,Improvements, Visudyne and/or other Products in any or all parts of the world where theLicensee is permitted by law and this Agreement to market, sell or distributeTechnology, Improvements, Visudyne and/or other Products, less the following deductionsto the extent included in the amounts invoiced and thereafter actually allowed andtaken:**[**]**.Without limiting the generality of the foregoing, Revenue shall also include,without duplication, all initial license fee payments (or any share thereof) made tothe Licensee, **[**]**pursuant to each sublicense agreement entered into by theLicensee relating to the Technology and any Improvements, Visudyne and/or otherProducts. For greater clarity, it is confirmed that Revenue shall only include**[**********]**received by the Licensee in excess of the direct reimbursement forthe actual costs (including overhead for which the Licensee has been reimbursed) ofsuch **[**********]**incurred by the Licensee pursuant to a written **[**********]**agreement. Where any Revenue is derived from a country other than Canada it shallbe converted to the equivalent in Canadian dollars at the rate of exchange set bythe Licensee’s ** Confidential Treatment Requested.

 

4principal bank for buying such currency on the Royalty Due Dates. The amount ofCanadian dollars pursuant to such conversion shall be included in the Revenue.**[**]** (p) “***Royalty Due Dates***”: the last working day of March, June, September andDecember of each and every year during which this Agreement remains in full force andeffect.  (q) “***Technology***”: the Patents together with any and all compounds, knowledge,know-how and/or technique or techniques invented, developed and/or acquired, prior tothe Commencement Date by: (i) the University; or (ii) jointly by the University and theLicensee; relating to the Patents, as amended from time to time, including, withoutlimitation, all research, data, specifications, instructions, manuals, papers or othermaterials of any nature whatsoever, whether written or otherwise, relating to same,  (r) “***UBC Improvements***”: Any and all improvements, variations, updates,modifications, enhancements and alterations related to the Technology, including allimprovements, variations, updates, modifications, enhancements and alterations relatingto photodynamic compounds or therapies, which are conceived, invented, developed and/oracquired solely by UBC Personnel, or by UBC Personnel jointly with the Licensee at anytime after the Commencement Date, whether patentable or not, (i) if patentable, claim priority from any of the patents or patentapplications which comprise the Technology and can not be used or practicedwithout a licence of Technology,  (ii) if not patentable, which relate directly to the Technology, or  (iii) inventions or developments by **[**********]**relating to**[**********]**. (s) “***UBC New Technology***”: any new discovery or invention, whether patentable ornot, which: (i) is conceived, invented, developed and/or acquired by UBCPersonnel (but not jointly by the Licensee and the University) which relate tothe Technology, at any time, and  (ii) is not a UBC Improvement, a QLT Improvement, or QLT NewTechnology; (t) “***UBC Personnel***” shall mean all persons employed by or attending the Universityincluding without limitation, University faculty members, research associates,post-doctoral fellows, graduate students and undergraduate students and staff, **[**]**and, for the period prior to the Retirement Date, **[******]**;  (u) “***UBC Trade-marks***”: any mark, trade-mark, service mark, logo, insignia, seal,design, symbol, or device used by the University in any manner whatsoever; and ** Confidential Treatment Requested.

 

5 (v) “***Valid Patent Claim***” means a claim in any unexpired Patent which forms a partof the Technology, which: (i) is part of a pending application for a Patent which claim hasnot been held invalid; or  (ii) has matured into an issued patent which has not been heldinvalid by a non-appealed or unappealable decision by a court or otherappropriate body of competent jurisdiction.The scope of a Valid Patent Claim shall be limited to its terms as set forth in thePatent itself or as defined by any court or appropriate body of competentjurisdiction. **(w)** “*Visudyne*”: **[**]**.**2. PROPERTY RIGHTS IN AND TO THE TECHNOLOGY:**2.1 The parties hereto hereby acknowledge and agree that: (a) the University owns any and all right, title and interest in and to: (i) the Technology that was conceived, invented, developed and/oracquired solely by UBC Personnel;  (ii) any UBC Improvements that are conceived, invented, developedand/or acquired solely by UBC Personnel; and  (iii) any UBC New Technology; (b) the Licensee shall own any and all right, title and interest in and to: (i) the QLT Improvements; and  (ii) the QLT New Technology. (c) the University and the Licensee shall jointly own any and all right, title andinterest in and to: (i) the Technology that was conceived, invented, developed and/oracquired jointly by UBC Personnel and the Licensee; and  (ii) any UBC Improvements that are conceived, invented, developedand/or acquired jointly by UBC Personnel and the Licensee.2.2 The parties shall enter into such further agreements and execute any and all documents as maybe required to ensure that ownership of the Technology, any Improvements, UBC New Technology, andQLT New Technology vest with, or remains with, the parties as set out in Article 2.1.2.3 Not less than once per year during each and every year of the term of this Agreement, theparties shall exchange in writing the details of any and all Improvements which the University orthe Licensee have developed and/or acquired during the previous twelve month period. ** Confidential Treatment Requested.

 

6**3. GRANT OF LICENSE:**3.1 In consideration of the royalty payments reserved herein, and the covenants on the part of theLicensee contained herein, the University hereby grants to the Licensee an exclusive, worldwidelicense to use and sublicense the Technology, all UBC Improvements and to manufacture, distribute,and sell Products on the terms and conditions hereinafter set forth during the term of thisAgreement (the “***License Grant***”).3.2 For greater clarity it is confirmed that nothing in this Agreement, and in particular Article3.1, shall be interpreted as granting to the Licensee any license or right to the UBC NewTechnology.3.3 Subject to Article 4.1, the license granted herein is personal to the Licensee and is notgranted to any Affiliated Company or Affiliated Companies.**3.4 [**]**3.5 Notwithstanding Article 3.1 herein, the parties acknowledge and agree that the University mayuse the Technology and Improvements without charge in any manner whatsoever for non-commercialresearch, scholarly publication, educational or other non-commercial use. The Licensee herebygrants to the University a worldwide, non-exclusive license to use the QLT Improvements withoutcharge in any manner whatsoever for non-commercial research, scholarly publication, educational orother non-commercial use.3.6 The Licensee shall give written notice to the University if its chief place of business in ajurisdiction outside British Columbia, prior to beginning business in that other jurisdiction. Theinadvertent failure of the Licensee to comply with this Section 3.6 shall not give rise to a rightof termination by the University under Section 18.3.3.7 This Agreement amends and restates the Existing License Agreements. As between the Universityand the Licensee, the Existing License Agreements described on Schedule “***C***” hereto shall hereby beterminated and of no further force or effect. To the extent such Existing License Agreements havethird party signatories, the University and the Licensee agree that they shall make reasonableefforts to execute, together with such third parties, a termination agreement with respect to allof the Existing License Agreements. The rights granted by the Licensee to the Technology and UBCImprovements prior to the date of execution of this Agreement are not subject to Article 4 or theother obligations to be imposed on sublicensees set out in this Agreement. Royalties and otherpayments paid by the Licensee to the University in respect of the Existing License Agreements priorto the Commencement Date shall be retained by the University without credit therefor hereunder,and, in respect of periods prior to the Commencement Date for which the Licensee has not yet made aroyalty payment to the University pursuant to the Existing License Agreements, the Licensee shallmake royalty payments in accordance with the terms of this Agreement.**4. SUBLICENSING:**4.1 The Licensee shall have the right to grant sublicenses to Affiliated Companies and other thirdparties with respect to the Technology and any UBC Improvements without the prior written consentof the University. The Licensee will furnish the University with a copy of each sublicense grantedwithin 30 days after execution.4.2 Any sublicense granted by the Licensee shall contain covenants by the sublicensee to observeand perform similar terms and conditions to those in Schedule “**D**” to ** Confidential Treatment Requested.

 

7this Agreement. The University acknowledges and agrees that this Section 4.2 shall not apply tothe **[**]**dated **[**********]**between Licensee and **[**********]**, as amended.**5. ROYALTIES:**5.1 In consideration of the license granted hereunder, the Licensee shall pay to the University aroyalty as follows: (a) **[**********]**of all Revenue derived from Visudyne  (b) **[**********]**of all Revenue derived from the Technology listed in Schedule“***A***” (as amended from time to time). whether or not such Revenue is also derived fromTechnology listed in Schedule “***B***”;  (c) **[**********]**of all Revenue derived from the Technology listed in Schedule“***B***” (as amended from time to time);  (d) **[**********]**of all Revenue derived from any UBC Improvement; and  (e) **[**********]**of all Revenue derived from any QLT Improvement.For greater clarity it is confirmed that the royalty rates in paragraphs 5.1(a), (b), (c), (d) and(e) are not intended to be cumulative and that only a single royalty not less than **[**********]**,and not greater than **[**********]**, shall be payable with respect to the Revenue received orderived from any Product. For further clarity, the royalties due pursuant to paragraphs 5.1 (a),(b), (c), (d) and (e) shall be payable for so long as **[**********]**.5.2 The royalty rates set in Article 5.1(b), (c), (d) and (e) will be reduced by up to**[**********]**for any Product (other than Visudyne) which satisfies (and continues to satisfy)each of the following **[**********]**conditions: (a) **[**********]**For greater certainty, notwithstanding anything in this Article 5.2, the final royalty payable bythe Licensee to the University shall not be less than **[**********]**of the Royalties determinedin accordance with Article 5.1.The royalty shall become due and payable within 60 days of each respective Royalty Due Date andshall be calculated with respect to the Revenue received by the Licensee in the three month period,immediately preceding the applicable Royalty Due Date.5.3 All payments of royalties made by the Licensee to the University hereunder shall be made inCanadian dollars without any reduction or deduction of any nature or kind whatsoever, except as maybe prescribed by law.5.4 Visudyne and all other Products shall be deemed to have been sold and included in the Revenueby: (a) the Licensee when Revenue is actually received, provided that the Licenseediligently pursues same; and  (b) any sublicensee when Revenue is reported to the Licensee by such sublicensee. ** Confidential Treatment Requested.

 

85.5 Subject only to Articles 5.6 and 5.7, any transaction, disposition, or other dealing involvingthe Technology or Improvements or any part thereof between the Licensee or any sublicensee andanother person that is not made at fair market value shall be deemed to have been made at fairmarket value, and the fair market value of that transaction, disposition, or other dealing shall beadded to and deemed part of the Revenue and shall be included in the calculation of royalties underthis Agreement.5.6 No royalties will be payable on: (a) Products used in research, pre-clinical trials, clinical trials or forcompassionate use for which the Licensee does not receive consideration;  (b) payments made to the Licensee other than those on account of Revenue, or anyamounts received by the Licensee as reimbursement for direct out of pocket expenses(including overhead for which the Licensee has been reimbursed) incurred and charged bythe Licensee for further research, development or regulatory approval of theTechnology, Improvements or Products;  (c) sales among the Licensee, its Affiliates, sublicensees and sub-sublicensees orother licensees, but royalties shall be payable on all sales by the Licensee, itsAffiliates, sublicensees, or sub-sublicensees to a third party (other than anAffiliate, sublicensee, sub-sublicensee or other licensee).5.7 If at any time, and from time to time, a third party in any country shall, under the right of a**[**]**, by a competent governmental authority, manufacture, use or sell any Product with respect towhich royalties would otherwise be payable pursuant to this Agreement, then the Licensee may**[**********]**in such country of Product to an amount **[**********]**by said party asconsideration for the **[**********]**.**6. ANNUAL LICENSE FEE:**6.1 In further consideration for the license granted hereunder, the Licensee shall pay to theUniversity, in addition to all other amounts due under this Agreement, an annual maintenance fee of**[**********]**(Canadian funds) payable on or before the anniversary of the Commencement Date, andannually thereafter during the term of this Agreement (the “***Annual Maintenance Fee***”). Neither allnor any part of the Annual Maintenance Fee paid shall be refundable to the Licensee under anycircumstances.**7. PATENTS:**7.1 The parties acknowledges that the ownership of the Patents and patent applications are as setforth in Schedules “***A***” and “***B***”, notwithstanding the manner in which ownership is registered in anypatent office in any jurisdiction and which Schedules shall be updated by mutual agreement not lessthan once a year during the term of this Agreement (the “***Patent Portfolio***”), which updating shallinclude the addition of all Improvements.7.2 Subject to Article 7.5, the Licensee shall prudently manage the Patent Portfolio and shall takeall reasonable steps as may be required to protect and preserve the Patent Portfolio. The Licenseeagrees to pay all costs in relation to the management of the Patent Portfolio and any furtherapplications made by the Licensee pursuant to Article 7.4 incurred after the date of execution ofthis Agreement. Without limiting the generality of the forgoing the Licensee agrees to pay for allcosts with respect to the Patents, patent applications, divisionals, substitutions, continuations,continuations in part, all claims of foreign patent applications and ** Confidential Treatment Requested.

 

9any and all patents relating to the Technology and any UBC Improvements licensed hereunder, andwith respect to any and all maintenance fees for any and all patents relating to the Technology andany UBC Improvements licensed hereunder.7.3 Within 30 days of presentation of receipts and/or invoices by the University to the Licensee,the Licensee will reimburse the University for all costs incurred to date with respect to any andall patents relating to the Technology and any UBC Improvements licensed hereunder.7.4 The Licensee shall have the right to apply for further patents in other jurisdictions, orcontinuations, continuations-in-part, divisions, reissues, re-examinations or extensions of thePatents, or any further applications made hereunder, in the name of the University with respect tothe Technology or any UBC Improvement that may be patentable, and the Licensee shall pay all costsof applying for, registering and maintaining the same. **[**]**. In the event that this Agreement isterminated for any reason whatsoever, the Licensee shall pay all outstanding costs relating to suchpatent applications and shall direct the patent agents responsible for such patent applications totake all further instructions, if any, relating to such applications from the University.7.5 Should the Licensee decide to: (a) discontinue pursuing patent protection in relation to the Patent Portfolio, orany continuation, continuation-in-part, division, re-issue, re-examination or extensionof the patents in the Patent Portfolio, or  (b) not pursue patent protection in relation to the Patents in the Patent Portfolioin any jurisdiction, or  (c) discontinue or not pursue patent protection in relation to any further process,use or products arising out of the Technology or UBC Improvements in any jurisdiction,then the Licensee shall provide the University with a minimum of 60 days written notice of itsdecision to discontinue or not to pursue such patent protection (the “***Discontinued Patent***”) insufficient time for the University to file a patent application, or continue pursuing an existingpatent application. During the 60 day transition period, the Licensee shall be responsible for allcosts of filing, prosecuting and maintaining the Patent Portfolio. After the 60 day transitionperiod, provided that the University diligently pursues such Discontinued Patent application, ormaintains any existing registration for the Discontinued Patent, the Discontinued Patent shall beexcluded from the License Grant under this Agreement.7.6 For the purposes of greater clarity, the parties agree that should the Licensee decide not topursue patent protection in relation to the Patents in a specific jurisdiction other than the**[**********]**, for reasonable commercial reasons, this shall not invoke the provisions of Article7.5.7.7 The Licensee shall provide to the University once each year during the term of this Agreement areport of all patents filed and/or maintained in the preceding twelve month period relating to theTechnology, UBC Improvements and QLT Improvements.7.8 In the event of the issuance of any new patent for use of the Technology or any UBCImprovements, the Licensee shall have the right to become, and shall become the Licensee, of thesame without charge, all pursuant to the terms contained herein. ** Confidential Treatment Requested.

 

107.9 During the term of this Agreement, without the consent of the University, the Licensee shallnot contest the validity or scope of any University patent including any Patent(s) in the PatentPortfolio.7.10 The Licensee will ensure proper patent marking for all Technology and any UBC Improvementslicensed hereunder and, where reasonable to do so, shall clearly mark the appropriate patentnumbers on any Products made using the Technology and any UBC Improvements or any patentedprocesses used to make such Products.**8. DISCLAIMER OF WARRANTY:**8.1 Except as expressly set out in this Agreement, the University makes no representations,conditions, or warranties, either express or implied, with respect to the Technology, or anyImprovements, or any Products. Without limiting the generality of the foregoing, the Universityspecifically disclaims any implied warranty, condition, or representation that the Technology, orany Improvements, or any Products: (a) shall correspond with a particular description;  (b) are of merchantable quality;  (c) are fit for a particular purpose; or  (d) are durable for a reasonable period of time.The University shall not be liable for any loss, whether direct, consequential, incidental, orspecial which the Licensee suffers arising from any defect, error, fault, or failure to performwith respect to the Technology or any Improvements, or any Products, even if the University hasbeen advised of the possibility of such defect, error, fault, or failure. The Licenseeacknowledges that it has been advised by the University to undertake its own due diligence withrespect to the Technology, and any Improvements.8.2 The parties acknowledge and agree that the *International Sale of Goods Act*and the UnitedNations Convention on Contracts for the International Sale of Goods have no application to thisAgreement.8.3 Except as expressly set out in this Agreement, nothing in this Agreement shall be construed as: (a) a warranty or representation by the University as to title to the Technologyand/or any Improvement, or that anything made, used, sold or otherwise disposed ofunder the license granted in this Agreement is or will be free from infringement ofpatents, copyrights, trade-marks, industrial design or other intellectual propertyrights,  (b) an obligation by the University to bring or prosecute or defend actions orsuits against third parties for infringement of patents, copyrights, trade-marks,industrial designs or other intellectual property or contractual rights, or  (c) the conferring by the University of the right to use in advertising orpublicity the name of the University or UBC Trade-marks.8.4 Except as previously disclosed in writing by one Party to the other, the Parties warrant that,to the best of their knowledge, without making any enquiry, as of the date of execution of thisAgreement, in respect of the Technology which is identified in the unmodified

 

11Schedules “**A**” and “**B**” as of the date of execution of this Agreement, all inventors listed thereinhave assigned their rights in the Patents to the respective Party, and no claims have been filedand served on such party or threatened in writing in respect of the Technology.8.5 Notwithstanding Article 8.3, in the event of an alleged infringement of the Technology or anyUBC Improvements or any right with respect to the Technology or any UBC Improvements, the Licenseeshall have, the right to prosecute litigation designed to enjoin infringers of the Technology orany UBC Improvements. The University agrees to provide reasonable cooperation to the Licensee, tothe extent of executing all necessary documents and to vest in the Licensee the right to instituteany such suits, so long as all the direct or indirect costs and expenses of bringing and conductingany such litigation or settlement shall be borne by the Licensee and in such event all recoveriesshall enure to the Licensee.8.6 In the event that any complaint alleging infringement or violation of any patent or otherproprietary rights is made against the Licensee or a sublicensee of the Licensee with respect tothe use of the Technology or any UBC Improvements, or the manufacture, use or sale of any Products,the following procedure shall be adopted: (a) the Licensee shall promptly notify the University upon receipt of any suchcomplaint and shall keep the University fully informed of the actions and positionstaken by the complainant and taken or proposed to be taken by the Licensee on behalf ofitself or a sublicensee,  (b) except as provided in Article 8.5(d), all costs and expenses incurred by theLicensee or any sublicensee of the Licensee in investigating, resisting, litigating andsettling such a complaint, including the payment of any award of damages and/or coststo any third party, shall be paid by the Licensee or any sublicensee of the Licensee,as the case may be,  (c) solely to the extent that any final disposition of the litigation that willrestrict the claims in or admit any invalidity of any Patent(s) or significantlyadversely affect the University’s rights, no such disposition of the litigation shallbe taken without full consultation with and approval by the University, not to beunreasonably withheld or delayed,  (d) the University may elect to participate formally in any litigation involvingthe complaint to the extent that the court may permit, but any additional expensesgenerated by such formal participation shall be paid by the University (subject to thepossibility of recovery of some or all of such additional expenses from thecomplainant).**9. INDEMNITY AND LIMITATION OF LIABILITY:**9.1 The Licensee hereby indemnifies, holds harmless and defends the University, its Board ofGovernors, officers, employees, faculty, students, invitees, and agents against any and all claims(including all legal fees and disbursements incurred in association therewith) arising out of theexercise of any rights under this Agreement including, without limiting the generality of theforegoing, against any damages or losses, consequential or otherwise, arising from or out of theuse of the Technology or any Improvements or any Products licensed under this Agreement by theLicensee or its sublicensees, or their customers or end-users howsoever the same may arise.9.2 Subject to Article 9.3, the University’s total liability, whether under the express or impliedterms of this Agreement, in tort (including negligence), or at common law, for any loss or damagesuffered by the Licensee, whether direct, indirect, special, or any other similar or like

 

12damage that may arise or does arise from any breaches of this Agreement by the University, itsBoard of Governors, officers, employees, faculty, students, or agents shall be limited to the **[**]**.9.3 In no event shall the University be liable for **[**********]**arising from any breach orbreaches of this Agreement.**9.4 [**********]****10. PUBLICATION AND CONFIDENTIALITY:**10.1 The Discloser’s Confidential Information shall be developed, received, and used by theRecipient solely in furtherance of the purposes set forth in this Agreement subject to the termsand conditions set forth in this Article 10.10.2 The Recipient shall keep and use all of the Confidential Information in confidence and willnot, without the Discloser’s prior written consent, disclose any Confidential Information to anyperson or entity, except those of the Recipient’s officers, faculty, students, staff, employees,consultants, agents and assigns who require said Confidential Information in performing theirobligations under this Agreement. The Recipient covenants and agrees that it will initiate andmaintain an appropriate internal program limiting the internal distribution of the ConfidentialInformation.10.3 The Recipient shall not use, either directly or indirectly, any Confidential Information forany purpose other than as contemplated herein without the Discloser’s prior written consent.10.4 In the event that the Recipient is required by judicial or administrative process to discloseany or all of the Confidential Information, the Recipient shall promptly notify the Discloser, andwhen available, shall allow the Discloser reasonable time to oppose such process before disclosingany Confidential Information.10.5 Notwithstanding any termination or expiration of this Agreement, the obligations created inthis Article 10 shall survive and be binding upon the Recipient, its successors and assigns.10.6 Notwithstanding, Articles 10.1, 10.2, 10.3 and 10.8, the University shall not be restrictedfrom presenting at symposia, national or regional professional meetings, or from publishing injournals or other publications accounts of its research relating to the Information, provided thatwith respect to Confidential Information only, the Licensee shall have been furnished copies of thedisclosure proposed therefor at least 30 days in advance of the date for submission of same forpresentation or publication and does not within 30 days after receipt of the proposed disclosureobject to such presentation or publication. Any objection to a proposed presentation orpublication shall specify the portions of the presentation or publication considered objectionable(the “***Objectionable Material***”). Upon receipt of notification from the Licensee that any proposedpublication or disclosure contains Objectionable Material, the University and the Licensee shallwork together to revise the proposed publication or presentation to remove or alter theObjectionable Material in a manner acceptable to the Licensee, in which case the Licensee shallwithdraw its objection. In the event that an objection is made, disclosure of the ObjectionableMaterial shall not be made for a period of 6 months after the date the Licensee has received theproposed publication or presentation relating to the Objectionable Material. The University shallco-operate in all reasonable respects in making revisions to any proposed disclosures if consideredby the Licensee to contain Objectionable Material. The University shall not be restricted frompublishing or presenting the proposed ** Confidential Treatment Requested.

 

13disclosure as long as the Objectionable Material has been removed. After the 6 month period haselapsed, the University shall be free to present and/or publish the proposed publication orpresentation, whether or not it contains Objectionable Material. In respect of any disclosures madepursuant to this Section, at the Licensee’s request, the Licensee’s Confidential Information shallbe deleted therefrom prior to such disclosure.10.7 The Licensee requires of the University, and the University agrees insofar as it may bepermitted to do so at law, that this Agreement, and each part of it, is confidential and shall notbe disclosed to third parties, as the Licensee claims that such disclosure would or could revealcommercial, scientific or technical information and would significantly harm the Licensee’scompetitive position and/or interfere with the Licensee’s negotiations with prospectivesublicensees. Notwithstanding anything contained in this Article, the parties hereto acknowledgeand agree that the University may identify the title of this Agreement, the parties to thisAgreement, and the names of the inventors of the Technology and any UBC Improvements.10.8 The parties acknowledge that: (a) this Agreement is in part, a license of know-how, and (b)the definition of Confidential Information contained herein applies only to Information disclosedby one party to the other; and (c) Information regarding the Technology may have arisen at theUniversity, and (d) the University would have no obligation of confidence in respect of suchInformation without this Section 10.8. Notwithstanding the definition of Confidential Informationcontained in this Agreement, the University shall use reasonable efforts to maintain theconfidentiality of the Information arising at the University respecting the Technology and theImprovements, unless same is Information falling within the terms of Section 1.1(c)(ii) or(iii).Notwithstanding the rest of this Article 10, the Licensee’s obligations of confidence and userespecting the University’s Confidential Information are subject to the Licensee’s rights todisclose and use the Technology and UBC Improvements in the exercise of the Licensee’s rights underthe License Grant in Article 3.**11. PRODUCTION AND MARKETING:**11.1 The Licensee shall not use any of the UBC Trade-marks or make reference to the University orits name in any advertising or publicity whatsoever, without the prior written consent of theUniversity, except as required by law. Without limiting the generality of the foregoing, neitherparty shall issue a press release with respect to this Agreement or any activity contemplatedherein without the prior review and approval of same by the other party, except as required by law.If either party is required by law to act in contravention of this Article, such party shallprovide the other party with sufficient advance notice in writing to permit the other party tobring an application or other proceeding to contest the requirement.11.2 The Licensee represents and warrants to the University that: (a) it has the infrastructure, expertise and resources to develop and commercializethe Technology and any UBC Improvements;  (b) it has the infrastructure, expertise and resources to track and monitor on anongoing basis performance under the terms of each sublicense agreement entered into bythe Licensee; and  (c) it has the infrastructure, expertise and resources to initiate and maintain anappropriate program limiting the distribution of the University’s ConfidentialInformation, Technology and any UBC Improvements, and any related biological materialsas set out in this Agreement.11.3 Subject to the following, the Licensee shall use reasonable efforts to develop and, subjectto obtaining regulatory approval, promote, market and sell Products and utilize the

 

14Technology and any UBC Improvements and to meet or cause to be met the market demand for Productsand the utilization of the Technology and any UBC Improvements on a product-by-product basis. TheUniversity acknowledges that, with respect to Visudyne and the Technology and any UBC Improvementsrespecting Visudyne, the Licensee shall be deemed to be making such reasonable efforts so long asVisudyne is being marketed. Without limiting the generality of the foregoing, the Licenseecovenants and agrees that it shall notify the University in writing if it no longer intends toproceed with the development and commercialization of any of Product embodying any material part ofthe Technology or UBC Improvements (the “**Non-Commercialized Technology**”). Upon the University’sreceipt of such written notice, the Non-Commercialized Technology shall be excluded from theLicense Grant under this Agreement and if jointly owned by the Licensee and the University shall be**[**]**.11.4 In the event that the University is of the view that the Licensee is in breach of Article11.3, the University shall notify the Licensee in writing, specifying the portion of the Technologyor UBC Improvements for which it alleges that the Licensee has not used reasonable efforts asspecified in Article 11.3 (the “**Disputed Technology**”). The parties shall use good faith efforts toresolve the matter for a period of sixty (60) days following receipt of written notice by theLicensee. If the parties fail to resolve the matter within that time period, they shall appoint amutually acceptable person as an independent evaluator (the “**Evaluator**”) to conduct the evaluationset forth in Article 11.5. In the event that the parties cannot agree on such an Evaluator, theappointing authority shall be the British Columbia International Commercial Arbitration Centre.11.5 Unless the parties mutually agree otherwise, the following rules and procedures shall governthe conduct of the parties and the Evaluator before and during the investigation by the Evaluator: (a) within 30 days of the appointment of the Evaluator each party shall provide tothe Evaluator and the other party copies of all documents, statements and records onwhich the party intends to rely in presenting its position to the Evaluator;  (b) within 45 days of the appointment of the Evaluator the Licensee shall provideto the Evaluator and the University a written summary of its position respecting theDisputed Technology. On receipt of the Licensee’s summary the University shall have 15days to prepare and submit to the Licensee and the Evaluator its own summary in replyto the summary submitted by the Licensee;  (c) on receipt of the documents, statements, records and summaries submitted by theparties the Evaluator shall have 30 days within which to conduct such further inquiriesas he or she may deem necessary for the purpose of reviewing the efforts made by theLicensee with respect to the Disputed Technology in compliance with the requirements ofArticle 11.3. For the purpose of conducting such an inquiry, the Evaluator shall havethe right to: (i) require either party to disclose any further documents orrecords which the Evaluator considers to be relevant;  (ii) interview or question either orally (or by way of writtenquestions) one or more representatives of either party on issues deemed to berelevant by the Evaluator;  (iii) make an “on site” inspection of the Licensee’s facilities; ** Confidential Treatment Requested.

 

15 (iv) obtain if necessary, the assistance of an independent expert toprovide technical information with respect to any area in which the Evaluatordoes not have a specific expertise; (d) on completion of the Inquiry described in Article 11.5(c), the Evaluator shallwithin 15 days prepare a report setting out his or her findings and conclusions as towhether or not the Licensee has used reasonable efforts as specified in Article 11.3respecting the Disputed Technology. If the Evaluator has determined that the Licenseehas failed to use reasonable efforts as specified in Article 11.3 respecting theDisputed Technology, then the Evaluator shall also specify in the report his or herconclusions as to what would constitute such reasonable efforts, and the Licensee shallthereafter make the efforts so specified. If the Licensee fails to make such efforts,after notice of default provided in accordance with the terms of Article 18, then theUniversity’s sole remedy for failure to make the efforts specified in Articles 11.3 and11.5(d) respecting the Disputed Technology shall be, at the Licensee’s option, either: (i) that the Disputed Technology shall be excluded from the LicenseGrant under this Agreement and, if owned by the Licensee, shall be assigned bythe Licensee to the University without payment of any consideration by theUniversity; or  (ii) the remedies set out in Article 18.9 respecting the DisputedTechnology.11.6 The University may not call for more than one evaluation pursuant to Article 11.4 in any threeyear period. The cost of an evaluation hereunder shall be borne by the unsuccessful party.**12. ACCOUNTING RECORDS:**12.1 The Licensee shall maintain at its principal place of business, or such other place as may bemost convenient, separate accounts and records of all Revenues, and all business done pursuant tothis Agreement, such accounts and records to be in sufficient detail to enable proper returns to bemade under this Agreement, and the Licensee shall cause its sublicensees to keep similar accountsand records.12.2 The Licensee shall deliver to the University on the date 60 days after each and every RoyaltyDue Date, together with the royalty payable thereunder, the Accounting and a report on allsublicensing activity, including an accounting statement setting out in detail how the amount ofRevenue was determined and identifying each sublicensee and the location of the business of eachsublicensee.12.3 The calculation of royalties shall be carried out in accordance with generally acceptedCanadian accounting principles (“GAAP”), or the standards and principles adopted by the U.S.Financial Accounting Standards Board (“FASB”) applied on a consistent basis.12.4 The Licensee shall retain the accounts and records referred to in Article 12.1 above for atleast **[**]**years after the date upon which they were made and shall permit on reasonable notice,and no more than once every year, any duly authorized representative of the University to inspectsuch accounts and records during normal business hours of the Licensee at the University’s expense.The Licensee shall furnish such reasonable evidence as such representative will deem necessary toverify the Accounting and will permit such representative to make copies of or extracts from suchaccounts, records and agreements at the University’s ** Confidential Treatment Requested.

 

16expense. If an inspection of the Licensee’s records by the University shows an under-reporting orunderpayment by the Licensee of any amount to the University, in excess of **[**]**, then the Licenseeshall reimburse the University for the cost of the inspection as well as pay to the University anyamount found due **[**********]**within 30 days of notice by the University to the Licensee.12.5 During the term of this Agreement and thereafter, the University shall use reasonable effortsto ensure that all information provided to the University or its representatives pursuant to thisArticle remains confidential and is treated as such by the University.**13. INSURANCE:**13.1 Unless satisfactory arrangements are made between the Licensee and the University with respectto a self-insurance program or the requirement for insurance hereunder is waived by the Universitysixty (60) days prior to the commencement of any human clinical trials or other Product testinginvolving human subjects by the Licensee or any sublicensee, the Licensee shall procure andmaintain, during the term of this Agreement, the insurance outlined in Articles 13.2 and 13.3 andotherwise comply with the insurance provisions contained in Articles 13.2 and 13.3.13.2 The Licensee shall give written notice to the University: (a) 30 days prior to the commencement of the first of any human clinical trialsinvolving any Product testing involving human subjects by the Licensee or anysublicensee, (“***Human Clinical Trials***”), and  (b) 30 days prior to the first sale of any Product by the Licensee or anysublicenseeof the terms of the appropriate product liability and clinical trials insurance which it hasplaced. Such insurance shall in no case be less than the insurance which a reasonable and prudentbusinessperson carrying on a similar line of business would acquire. To the extent available to areasonable and prudent businessperson carrying on a similar line of business: (a) this insuranceshall be placed with a reputable and financially secure insurance carrier; (b) shall include theUniversity, its Board of Governors, faculty, officers, employees, students, and agents asadditional insureds; and (c) shall provide primary coverage with respect to the activitiescontemplated by this Agreement. Failing the parties agreeing on the appropriate terms or theamount of coverage, then the matter shall be determined by arbitration as provided for herein.13.3 The Licensee shall provide the University with certificates of insurance evidencing suchcoverage 30 days before commencement of Human Clinical Trials and 30 days prior to the sales of anyProduct and the Licensee covenants not to start Human Clinical Trials, unless the insuranceoutlined in Article 13.1 or 13.2 is in effect.**13.4 The Licensee shall require that each sublicensee under this Agreement shall either:** (a) **[**********]****14. ASSIGNMENT:**14.1 Except as expressly permitted hereby, the Licensee will not assign, transfer, mortgage, chargeor otherwise dispose of any or all of the rights, duties or obligations granted to it under thisAgreement without the prior written consent of the University, which consent will not beunreasonably withheld. Notwithstanding the foregoing, the Licensee shall have the right to ** Confidential Treatment Requested.

 

17assign to an Affiliated Company, any entity with which it may merge or amalgamate, or an entitythat acquires all or most of the assets related to the Technology, the rights granted hereunderwith respect to the UBC Improvements, and/or any Products.14.2 The University shall have the right to assign its rights, duties and obligations under thisAgreement to a company or society of which it is the sole shareholder in the case of a company orof which it controls the membership, in the case of a society, in either case, if such company orsociety acquires all or most of the University’s assets related to the Technology and the UBCImprovements. In the event of such an assignment, the Licensee will release, remise and foreverdischarge the University from any and all obligations or covenants, provided however that suchcompany or society, as the case may be, executes a written agreement which provides that suchcompany or society shall assume all such obligations or covenants from the University and that theLicensee shall retain all rights granted to the Licensee pursuant to this Agreement.**15. GOVERNING LAW AND ARBITRATION:**15.1 This Agreement shall be governed by and construed in accordance with the laws of the Provinceof British Columbia and the laws of Canada in force therein without regard to its conflict of lawrules. All parties agree that by executing this Agreement they have attorned to the jurisdictionof the Supreme Court of British Columbia. Subject to Article 15.2 and 15.3, the British ColumbiaSupreme Court shall have exclusive jurisdiction over this Agreement.15.2 In the event of any dispute arising between the parties concerning this Agreement, itsenforceability or the interpretation thereof, the same shall be settled by a single arbitratorappointed pursuant to the provisions of the Commercial Arbitration Act of British Columbia, or anysuccessor legislation then in force. The place of arbitration shall be Vancouver, BritishColumbia. The language to be used in the arbitration proceedings shall be English.15.3 Nothing in Article 15.2 shall prevent a party hereto from applying to a court of competentjurisdiction for interim protection such as, by way of example, an interim injunction.15.4 Notwithstanding the rest of this Article 15, if a ruling by a court or arbitral authority onany dispute between the Licensee and a sublicensee, regarding the interpretation of thesublicensee’s sublicense agreement, could reasonably effect the interpretation of this Agreement,then on receipt of notice of such a dispute from the Licensee, the University may elect to apply tojoin in such proceeding. If: (a) the University is permitted to join in such proceeding it shall be bound by thedecision of such court or arbitral authority, in so far as such decision reasonablyeffects the interpretation of this Agreement;  (b) if the University elects not to join in such proceeding (for reasons other notbeing permitted to join) then the University hereby agrees to be bound by the decisionof such court or arbitral authority, in so far as such decision reasonably effects theinterpretation of this Agreement.  (c) if the University is not permitted to join in such proceeding, then theUniversity shall not be bound by the decision of such court or arbitral authority.If the Licensee and the University retain common counsel to represent them for the purposes of anysuch proceeding, then the Licensee shall bear all costs of such counsel. If the University retainsindependent counsel, then the Licensee will bear one-half of the cost of such counsel.

 

18**16. NOTICES:**16.1 All payments, reports and notices or other documents that any of the parties hereto arerequired or may desire to deliver to any other party hereto may be delivered only by personaldelivery or by registered or certified mail, or fax, all postage and other charges prepaid, at theaddress for such party set forth below or at such other address as any party may hereinafterdesignate in writing to the others. Any notice personally delivered or sent by fax shall be deemedto have been given or received at the time of delivery, or faxing. Any notice mailed as aforesaidshall be deemed to have been received on the expiration of five days after it is posted, providedthat if there shall be at the time of mailing or between the time of mailing and the actual receiptof the notice a mail strike, slow down or labour dispute which might affect the delivery of thenotice by the mails, then the notice shall only be effected if actually received.   If to the University: The Director  University — Industry Liaison Office  University of British Columbia  #103 — 6190 Agronomy Road  Vancouver, British Columbia  V6T 1Z3  Telephone: (604)-822-8580  Fax: (604)-822-8589   If to the Licensee: Attention: President and Chief Executive Officer  QLT Inc.  887 Great Northern Way  Vancouver, B.C.  V5T 4T5  Telephone: (604)-707-7000  Fax: (604)-707-7001   Attention: Legal Department  QLT Inc.  887 Great Northern Way  Vancouver, B.C.  V5T 4T5  Telephone: (604)-707-7000  Fax: (604)-707-7001**17. TERM:**17.1 This Agreement and the license granted hereunder shall terminate on the expiration of a termof **[**]**, whichever event shall last occur unless earlier terminated pursuant to Article 18 herein.Upon the later of the expiry of the term of **[**********]**, the Licensee shall thereafter have inperpetuity, a fully paid up world-wide, exclusive license to use and sublicense the Technology andUBC Improvements and to manufacture, distribute, and sell any Products, without further accountingto the University.**18. DEFAULT AND TERMINATION:**18.1 This Agreement shall automatically and immediately terminate without notice to the Licensee ifany proceeding under the *Bankruptcy and Insolvency Act*of Canada, or any other statute of similarpurport, is commenced by or against the Licensee, provided that if such proceedings are initiatedagainst the Licensee by a third party and are not initiated by the ** Confidential Treatment Requested.

 

19Licensee, the Licensee shall have a 60 day period following the commencement of any suchproceedings to discharge such proceedings, and, if such proceedings are discharged within suchperiod, the termination shall be of no effect.18.2 The University may, at its option, terminate this Agreement immediately on the happening ofany one or more of the following events by delivering notice in writing to that effect to theLicensee: (a) if any resolution is passed by the Licensee or voluntary order made or othersteps taken by the Licensee for the winding up, liquidation or other termination of theexistence of the Licensee other than as a result of a disposition of its substantiallyall of its assets to another party,  (b) if the Licensee ceases to carry on its business other than as a result of adisposition of its substantially all of its assets to another party,  (c) if the Licensee commits a material breach of the requirement to obtain andmaintain insurance pursuant to Article 13.4,  (d) if, as a result of the operation of Articles 11.3 or 11.5(d), no Technology orUBC Improvements remain subject to the License Grant under this Agreement18.3 Other than as set out in Articles 18.1 and 18.2, if either party shall be in material defaultunder or shall fail to comply with the material terms of this Agreement then the non-defaultingparty shall have the right to terminate this Agreement by written notice to that effect if: (a) such default is reasonably curable within 30 days after receipt of notice ofsuch default and such default or failure to comply is not cured within 30 days afterreceipt of written notice thereof, or  (b) such default is not reasonably curable within 30 days after receipt of writtennotice thereof, and such default or failure to comply is not cured within such furtherreasonable period of time as may be necessary for the curing of such default or failureto comply.18.4 If this Agreement is terminated pursuant to Article 18.1 or 18.2, or 18.3 the Licensee shallmake royalty payments to the University in the manner specified in Article 5, and 6 and theUniversity may proceed to enforce payment of all outstanding royalties or other monies owed to theUniversity and to exercise any or all of the rights and remedies contained herein or otherwiseavailable to the University by law or in equity, successively or concurrently at the option of theUniversity.18.5 Upon any termination of this Agreement, the Licensee shall: (a) except as required by law, deliver up to the University within a reasonabletime, not to exceed six months from the Effective Date of Termination, all Technologyand any UBC Improvements in its possession or control (except for a copies retained forrecord keeping purposes) and shall thereafter have no further right of any naturewhatsoever in the Technology or any UBC Improvements.  (b) have a reasonable time to liquidate its inventory of Products, provided thatsuch period shall not exceed six months from the Effective Date of Termination. TheLicensee shall then deliver or cause to be delivered to the University an accountingwithin 210 days from the Effective Date of Termination. The accounting will specify,in or on such terms as the University may in its

 

20   reasonable discretion require, the inventory or stock of Products manufactured andremaining unsold on the Effective Date of Termination. The Licensee will continue tomake royalty payments to the University in the same manner specified in Article 5and 6 on all unsold Products that are sold in accordance with this Article 18.5(b),notwithstanding anything contained in or any exercise of rights by the Universityunder Article 18.5 herein.18.6 Except as required by law, upon any termination of this Agreement, each party shall cease touse the Confidential Information of the other party, and upon written request and at the option ofthe other party, shall deliver or destroy (and certify the destruction) of all copies of same.18.7 Notwithstanding the termination of this Agreement, Article 12 shall remain in full force andeffect until **[**]**years after (a) all payments of royalty required to be made by the Licensee to the Universityunder this Agreement have been made by the Licensee to the University, and  (b) any other claim or claims of any nature or kind whatsoever of the Universityagainst the Licensee has been settled.18.8 In the event that this Agreement is terminated, any sublicense granted by the Licensee underthis Agreement shall be assigned by QLT to the University and shall remain in full force and effectbetween the sublicensee and the University, except that the University’s obligations thereundershall be no greater than the University’s obligations under this Agreement. At the request of theLicensee, the University shall acknowledge to a sublicensee the University’s obligations to thesublicensee under this Section.18.9 Except as otherwise expressly set out in this Agreement, including Articles 18.1, 18.2 and18.3, the University and the Licensee agree that, in the event of breach of this Agreement by theLicensee, the University’s sole remedies shall be: (a) a judgement for payment of any and all monetary amounts that are due and owingby the Licensee to the University pursuant to this Agreement and enforcement of anysuch judgement;  (b) injunctive relief to enjoin further breach of this Agreement;  (c) specific performance by the Licensee of the Licensee’ obligations hereunder;  (d) damages; and  (e) recovery of costs associated with seeking and obtaining such judgement,injunctive relief, specific performance or damages.The University may exercise the foregoing remedies concurrently.**19. MISCELLANEOUS COVENANTS OF LICENSEE:**19.1 Licensee will provide to the University such reasonable assistance, necessary background andadditional information as may be required by the University in determining an equitable sharing ofrevenues with the inventors of the Technology. ** Confidential Treatment Requested.

 

2119.2 The Licensee hereby represents and warrants to the University that QLT Inc. is a corporationsduly organized, existing, and in good standing under the laws British Columbia and has the power,authority, and capacity to enter into this Agreement and to carry out the transactions contemplatedby this Agreement, all of which have been duly and validly authorized by all requisite corporateproceedings.19.3 The Licensee represents and warrants that it has the expertise necessary to handle theTechnology and any UBC Improvements with care and without danger to the Licensee, its employees,agents, or the public. The Licensee shall not accept delivery of the Technology or any UBCImprovements until it has requested and received from the University all necessary information andadvice to ensure that it is capable of handling such Technology and any UBC Improvements in a safeand prudent manner.19.4 The Licensee shall comply in all material respects with all laws, regulations and ordinances,whether Federal, State, Provincial, County, Municipal or otherwise with respect to the Technologyand any UBC Improvements and/or this Agreement.**19.5 [**]**19.6 The Licensee shall pay all taxes and any related interest or penalty howsoever designated andimposed as a result of the existence or operation of this Agreement, including, but not limited to,tax which the Licensee is required to withhold or deduct from payments to the University. TheLicensee will furnish to the University such evidence as may be required by Canadian authorities toestablish that any such tax has been paid. **[**********]**19.7 **[**********]**to the appropriate governmental authority, and **[**********]**with proof ofpayment of such income tax together with official or other appropriate evidence issued by theappropriate governmental authority sufficient to enable **[**********]**.19.8 The obligations of the Licensee to make all payments hereunder will be absolute andunconditional and will not except as expressly set out in this Agreement, be affected by anycircumstances, including without limitation any set-off, compensation, counterclaim, recoupment,defence or other right which the Licensee may have against the university, or anyone else for anyreason whatsoever.19.9 All amounts due and owing to the University hereunder but not paid by the Licensee on the duedate thereof shall bear interest in Canadian dollars at the rate of **[**********]**per annumcalculated annually not in advance. Such interest shall accrue on the balance of unpaid amountsfrom time to time outstanding from the date on which portions of such amounts become due and owinguntil payment thereof in full.**20. GENERAL:**20.1 On reasonable notice, the Licensee shall permit any duly authorized representative of theUniversity during normal business hours and at the University’s sole risk and expense to enter uponand into any premises of the Licensee for the purpose of inspecting any Products and the manner oftheir manufacture and generally of ascertaining whether or not the provisions of this Agreementhave been, are being, or will be complied with by the Licensee.20.2 Nothing contained herein shall be deemed or construed to create between the parties hereto apartnership or joint venture. No party shall have the authority to act on behalf of any otherparty, or to commit any other party in any manner or cause whatsoever or to use any other party’sname in any way not specifically authorized by this Agreement. No party shall be ** Confidential Treatment Requested.

 

22liable for any act, omission, representation, obligation or debt of any other party, even ifinformed of such act, omission, representation, obligation or debt.20.3 Subject to the limitations hereinbefore expressed, this Agreement shall enure to the benefitof and be binding upon the parties, and their respective successors and permitted assigns.20.4 No condoning, excusing or overlooking by any party of any default, breach or non-observance byany other party at any time or times in respect of any covenants, provisos, or conditions of thisAgreement shall operate as a waiver of such party’s rights under this Agreement in respect of anycontinuing or subsequent default, breach or non-observance, so as to defeat in any way the rightsof such party in respect of any such continuing or subsequent default or breach and no waiver shallbe inferred from or implied by anything done or omitted by such party, save only an express waiverin writing.20.5 No exercise of a specific right or remedy by any party precludes it from or prejudices it inexercising another right or pursuing another remedy or maintaining an action to which it mayotherwise be entitled either at law or in equity.20.6 Marginal headings as used in this Agreement are for the convenience of reference only and donot form a part of this Agreement and are not be used in the interpretation hereof.20.7 The terms and provisions, covenants and conditions contained in this Agreement which by theterms hereof require their performance by the parties hereto after the expiration or termination ofthis Agreement shall be and remain in force notwithstanding such expiration or other termination ofthis Agreement for any reason whatsoever.20.8 In the event that any Article, part, section, clause, paragraph or subparagraph of thisAgreement shall be held to be indefinite, invalid, illegal or otherwise voidable or unenforceable,the entire agreement shall not fail on account thereof, and the balance of the Agreement shallcontinue in full force and effect.20.9 The parties hereto acknowledge that the law firm of Richards Buell Sutton has acted solely forthe University in connection with this Agreement and that all other parties hereto have beenadvised to seek independent legal advice.20.10 Subject to Article 3.7, this Agreement sets forth the entire understanding between theparties and replaces any and all previous License Agreements regarding the Technology andImprovements between the parties to this Agreement. No modifications hereof shall be bindingunless executed in writing by the parties hereto.

 

2320.11 Whenever the singular or masculine or neuter is used throughout this Agreement the same shallbe construed as meaning the plural or feminine or body corporate when the context or the partieshereto may require.IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement on the14th day of December, 2007 but effective as of the Date of Commencement.   SIGNED FOR AND ON BEHALF of  **THE UNIVERSITY OF BRITISH COLUMBIA**  by its duly authorized officers:     /s/ Angus Livingston Authorized Signatory      Authorized Signatory     **QLT Inc.**  Per:  /s/ Bob Butchofsky Authorized Signatory     /s/ Cameron Nelson Authorized Signatory  

 

24SCHEDULE “***A***”DESCRIPTION OF TECHNOLOGY AND IMPROVEMENTS — **[******]**ROYALTIES**[**********]** ** Confidential Treatment Requested.

 

25SCHEDULE “***B***”DESCRIPTION OF TECHNOLOGY AND IMPROVEMENTS — **[**]**ROYALTY**[**********]** ** Confidential Treatment Requested.

 

26SCHEDULE “***C***”EXISTING LICENSE AGREEMENTS**[**]** ** Confidential Treatment Requested.

 

27SCHEDULE “***D***”SUBLICENSE TERMS**[**]** ** Confidential Treatment Requested.