Exhibit 10.44
QLT GUARANTEE
To induce Allergan Sales, LLC, a
Delaware limited liability corporation, (“Purchaser”),
to enter into that certain Purchase Agreement between Purchaser and
QLT USA, Inc., a Delaware corporation (“Seller”), dated
as of June 6, 2008 (the “Purchase Agreement”), QLT
Inc., a corporation formed under the laws of the Province of
British Columbia, Canada (“QLT”) hereby absolutely,
unconditionally and irrevocably guarantees the prompt and complete
performance of all obligations of Seller under
Section 8.1 and Article X of the Purchase
Agreement and the prompt payment of all obligations of Seller
thereunder (such guarantee, together with the other provisions of
this guarantee, this “ Guarantee ”). QLT further
agrees to pay Purchaser for any and all out-of-pocket expenses
reasonably incurred by Purchaser in enforcing its rights against
Seller under the Purchase Agreement and against QLT under this
Guarantee, including any and all reasonable attorneys’ costs
and expenses incurred in connection therewith (collectively, the
“Enforcement Expenses Obligation”). To the extent that
Seller fails to perform any of the obligations guaranteed hereunder
on a timely basis pursuant to the terms and conditions of the
Purchase Agreement, QLT will promptly cause Seller to perform such
obligations or will perform such obligations.
No claim, set-off or other right that
QLT or Seller or any of their respective affiliates may have
against Purchaser will reduce or otherwise affect the obligations
of QLT hereunder. Any waiver of Purchaser’s rights under this
Guarantee must be in writing. This Guarantee may not be terminated
or amended, except with the written consent of Purchaser. QLT
further agrees that this Guarantee will continue to be effective or
be reinstated (if a release or discharge has occurred), as the case
may be, if at any time the obligations guaranteed hereunder or any
portion thereof will be rescinded or avoided (whether as a result
of any bankruptcy or otherwise), and any prior release or discharge
of this Guarantee will be without effect.
QLT hereby represents and warrants to
Purchaser that (i) QLT has full corporate power and authority
to execute and deliver this Guarantee and perform its obligations
hereunder, (ii) QLT has taken all actions necessary to
authorize its execution, delivery and performance of this
Guarantee, (iii) the execution, delivery and performance of
this Guarantee do not violate QLT’s charter, by-laws or other
governing organizational documents, and (iv) this Guarantee is
the legal, valid and binding obligation of QLT, enforceable against
QLT in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors’ rights generally and general principles
of public policy.
QLT agrees that Purchaser may at any
time and from time to time, without notice to or further consent of
QLT, extend the time of payment of any obligation or liability, and
may also make any agreement with Seller for the extension,
