Exhibit 10.48


 


CONSULTING AGREEMENT


 


 


THIS CONSULTING AGREEMENT (the “Agreement”) is
dated as of


the 27th day of February, 2006.


 


 


BY AND BETWEEN:


 


 


Biovail Laboratories International SRL

having a business location at

Barbados


 


 


(hereinafter referred to as “Biovail”)


 


 


and


 


 


Bord de Lac Ltd


 


 


(hereinafter referred to as the “Consultant”)


 

















 


WHEREAS Biovail wishes
to retain the Consultant to provide consulting services to Biovail relating to
responsible for the direction, management and control of all aspects of BLS
business, the whole as more fully described on Schedule A annexed hereto
(hereinafter referred to as the “Services”);


 


AND WHEREAS Consultant
agrees to be retained for that purpose in accordance with the terms and
conditions hereinafter described,


 


NOW THEREFORE in
consideration of the terms and conditions contained herein and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
Biovail and Consultant agree as follows:


 


1.                                      SERVICES AND
REMUNERATION


 


1.01                           The Consultant
hereby agrees to provide and perform the Services for, and for the benefit of,
Biovail, including such various assignments as may otherwise be requested from
time to time by the President of BLS (the “Supervisor”)
..


 


1.02                           The Consultant’s
representative for the provision of the Services hereunder shall be Michel
Chouinard.  No change to the Consultant’s
representative can be made without written agreement by the Supervisor of
Biovail.


 


1.03                           In performing
the Services, Consultant shall report to, and be subject to the direct
supervision of the Supervisor and shall take instructions and directions only
from the Supervisor, or such other person as indicated by the Supervisor.


 


1.04                           In
consideration of the provision by Consultant of the Services to Biovail,
Biovail agrees to pay Consultant a consulting fee (the “Consulting Fee”) in the sum of THIRTEEN
THOUSAND SEVEN HUNDRED AND FIFTY U.S. DOLLARS (US$13,750) per month of work of
the performed by Consultant in executing the Services, as partial consideration
for Consultant’s Services.  These fees
will be increased annually to reflect, at a minimum, cost of living increases
in Barbados.


 


1.05                           The Consultant
is also eligible to an annual performance based Bonus up to FIFTY (50%) percent
of the sum of the Consulting Fee paid in each calendar year for the duration of
the Term of this Agreement, payable within 90 days of the end of each calendar
year.


 


1.06                           Consultant
shall also be entitled to reimbursement for its reasonable expenses which are: (a) incurred
directly in performing the Services; and (b) approved in advance by
Biovail in accordance with its applicable expense reimbursement policies in
effect from time to time (the “Consultant
Expenses”).


 


1.07                           The Consulting
Fee (and Consultant Expenses, if any) shall be payable by Biovail to Consultant
for each month of Services performed under this Agreement, in arrears, within
thirty (30) days of receipt by Biovail of a consulting report (the “Report”)  to
be provided by Consultant to Biovail once quarterly (on the last


 

















 


Business
Day of each calendar month of the Term of this Agreement).  For the purposes hereof the term “Business Day”  means any day other than a Saturday, Sunday or federal, or
local statutory holiday, on which banks are normally open for business in
Barbados.  The Report must contain the
following details: (a) an invoice including the number of hours that the
Consultant has worked in the previous calendar quarter pursuant to Consultant’s
obligations hereunder; (b) details and amounts of the Consulting Expenses,
if any (including invoices evidencing any such Consulting Expenses so
incurred); and (c) a brief list or explanation of all accomplishments of
the Consultant for such calendar in the provision of the Services hereunder.


 


2.                                      TERM


 


2.01                           Biovail and
Consultant agree that the term of this Agreement shall be for the period from
the date hereof until the termination of the Executive Employment Agreement
between Michel Chouinard and Biovail Laboratories International SR.L, not to
exceed a 5-year period ending on February 27th, 2011. (the “Term”).  The
Agreement may be renewed or extended by mutual Agreement.


 


2.02                           Consultant
acknowledges and agrees that the Term of this Agreement is temporary and that
this Agreement is not intended to create a contract of indefinite duration.


 


3.                                      TERMINATION


 


3.01                           In the event
that Biovail, in its sole discretion, determines at any time during the
currency of this Agreement that Consultant is in breach of the terms and
conditions hereof or is otherwise not performing the functions requested of
Consultant competently, then Biovail may terminate this Agreement by providing
Consultant with nine (9) months’ prior written notice.  The Consultant will be eligible at Biovail’s
sole discretion for the Bonus for that period.


 


3.02                           In the event of
any termination of this Agreement, Biovail shall have no further financial or
other obligations to Consultant, other than the payment of the Consultant Fee
(and the reimbursement of Consultant Expenses, if any) incurred to the date of
termination of the Notice period.


 


4.                                      CONFIDENTIALITY
COVENANT


 


4.01                           Consultant
acknowledges that Consultant may acquire or have disclosed to Consultant by
Biovail or by any affiliate, associate, or technology or financial partner of
Biovail, either directly or indirectly, in writing, conversation, or through
observation, various information about the business of Biovail which is not in
the public domain and which Biovail does not wish to be divulged to other
persons, companies, or third parties.


 


4.02                           As a condition
of and in consideration of Consultant’s provision of Services to Biovail,
Consultant understands and agrees that during the Term and for a period of 


 


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time
thereafter (as more particularly described below), Consultant is required to
hold strictly confidential any knowledge, information, or facts concerning
Biovail’s:


 


(a)                                  research and
development activities;


 


(b)                                 technological
plans, advances, applications and inventions;


 


(c)                                  technical specifications,
designs and plans;


 


(d)                                 materials and
sources of supply;


 


(e)                                  discoveries,
inventions, trade secrets, patents;


 


(f)                                    financial
affairs, contracts, licensing agreements, customer lists, pricing practices,
marketing and sales strategies and programs;


 


(g)                                 potential
merger and acquisition transactions; and


 


(h)                                 any other
information regarding Biovail, its  business,
finances, products and their development which is not in the public domain.


 


All
of the foregoing shall hereinafter collectively be referred to as “Confidential
Information”.  For a period commencing on
the date hereof and ending ten (10) years from the date of the termination
of this Agreement, Consultant shall keep strictly confidential any and all
Confidential Information which has been disclosed to Consultant and shall not
divulge in any manner whatsoever any such information to any person, firm,
corporation, partnership or other entity.


 


4.03                           Should
Consultant breach or threaten to breach this Agreement, Consultant shall be
liable to Biovail in equity and/or in law for damages that may be suffered by
Biovail as a result of the breach or threatened breach.  Consultant understands that a breach of this
Agreement may result in irreparable harm to Biovail such as to warrant the
entitlement to a preliminary, interlocutory and/or permanent injunction and/or
other equitable relief and Consultant specifically agrees that Consultant will
not argue the adequacy of damages in any such proceeding.


 


4.04                           All
Confidential Information disclosed by Biovail to Consultant during the course
of this Agreement (or prior to the execution hereof or following the
termination of this Agreement) and any rights related thereto, including but
not limited to intellectual property rights, rights of know how, patent,
trademark copyright and any other rights related in any way to any such
Confidential Information, are and shall remain the exclusive and absolute
property of Biovail.


 


4.05                           Consultant
shall not, except as and to the extent required to enable Consultant to carry
out Consultant’s duties with Biovail, make any copies or reproduce the
Confidential Information nor shall Consultant remove or cause to have removed 


 


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from
the premises of Biovail any Confidential Information unless required to do so
in order to fulfill Consultant’s duties with Biovail.  Such copies or reproductions shall be subject
to the terms and conditions of this Agreement.  Consultant shall take all steps so as to
restrict access to and protect the strict confidentiality of such copies or
reproductions of the Confidential Information. 
Any such copies or reproductions made shall become, upon their being
made, the exclusive and absolute property of Biovail.


 


4.06                           Upon request of
Biovail, Consultant agrees to immediately surrender to Biovail all
documentation and information, notes, drawings, recordings, manuals, letters,
correspondence, computer data and programs, records, books or any other
materials relating to the Confidential Information which is in Consultant’s
possession.


 


4.07                           The disclosure
or divulging of any Confidential Information contrary to this Agreement, or the
violation of this Agreement in any way shall result in immediate termination of
this Agreement.


 


5.                                      NON-SOLICITATION


 


5.01                           During the Term
of this Agreement and for a period of two years thereafter, Consultant will not
directly or indirectly hire any employee of Biovail or its affiliated companies
with respect to the businesses conducted by Biovail or its affiliated companies,
or attempt to induce any such employee to leave his or her employment with
Biovail or its affiliated companies.


 


5.02                           The Consultant
shall disclose to Biovail any and all intellectual property which Consultant
may make solely, jointly, or in common with any other person consultants during
the Term of Consultant’s engagement with Biovail.  Any intellectual property made and/or
developed by the Consultant while engaged by Biovail, whether or not conceived
or made during regular working hours, and whether or not the Consultant is
specifically instructed to make or develop same, shall be for the benefit of
Biovail and shall be the sole exclusive and absolute property of Biovail.  The Consultant shall assign, set over and
transfer to Biovail Consultant’s entire right, title and interest in and to any
and all of such intellectual property and all rights therein, and to all
letters patent and applications for letters patent which may be, or may have
been filed and/or issued by or to Consultant or on Consultant’s behalf, and the
Consultant agrees to execute and deliver to Biovail any and all instruments
necessary or desirable to accomplish the foregoing and, in addition to the
foregoing, to do all lawful acts which may be necessary or desirable to assist
Biovail to obtain and enforce protection of such intellectual property.  To the extent of any rights Consultant may
have with respect to such intellectual property which are not assignable,
including but not limited to moral rights, the Consultant hereby waives same.  The Consultant will execute and deliver to
Biovail or its successors and assigns, such other and further assignments,
instruments and documents as Biovail from time to time reasonably may request
for the purpose of establishing, evidencing, and 


 


4

















 


enforcing
or defending its complete, exclusive, perpetual, and worldwide ownership of all
rights, titles, and copyrights, in and to intellectual property, and Consultant
constitutes and appoints Biovail as agent and attorney-in-fact, with full power
of substitution, to execute and deliver such assignments, instruments,
documents as Consultant may fail to refuse to execute and deliver, this power
and agency being coupled with an interest and being irrevocable.


 


6.                                      GENERAL


 


6.01                           The Consultant
hereby acknowledges that Biovail is a publicly traded company and the trading
in securities of Biovail is subject to applicable securities legislation.  The Consultant hereby further acknowledges
that as a result of the disclosure that may be made to it of any Confidential
Information of Biovail, it may possess material, non-public information of
Biovail.  Accordingly, the Consultant
hereby acknowledges and agrees that any trading by it in the securities of
Biovail may entail the violation by the Consultant of applicable securities and
other legislation and regulations, and the Consultant hereby irrevocably agrees
to fully indemnify and hold harmless Biovail and all of its affiliated entities
and their respective directors, officers, representatives and employees from
any damages that may be caused to any of such persons as a result of any such
violations.


 


6.02                           Michel
Chouinard hereby irrevocably agrees to guarantee the obligations and duties of
the Consultant hereunder, jointly and severally (solidarily), as if he was
defined hereunder as the “Consultant”.


 


6.03                           This Agreement
constitutes the entire agreement between the parties and supersedes any other
agreements, negotiations or discussions between the parties whether written or
oral.  This Agreement may not be altered
or amended except in writing and signed by both parties.  If any provision hereof is held to be invalid
or unenforceable by a court of competent jurisdiction, such provision shall be
severed from this Agreement and shall not serve to invalidate the remaining
provisions hereof.


 


6.04                           This Agreement
shall be governed by the laws of Barbados and the parties attorn and submit to the exclusive
jurisdiction of the courts in such jurisdiction, to resolve any dispute in any
manner related to the matters contemplated by this Agreement.


 


6.05                           Nothing herein
contained will be deemed to constitute Consultant or any of its employees an
agent, partner or joint venturer of Biovail or
its affiliated companies.  It is
understood that Consultant shall render his consulting services to Biovail as
an independent contractor and Consultant shall not have any right, title or
authority to enter any contract, agreement or commitment on behalf of Biovail
or its affiliated companies or to bind Biovail or its affiliated companies in
any manner whatsoever.


 


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6.06                           This Agreement
is not assignable by Consultant without the prior written consent of Biovail
(which consent may be unreasonably withheld in the sole and absolute discretion
of Biovail, which discretion may be exercised arbitrarily, with or without
reasons) and any such assignment without Biovail’s consent shall be null and
void.


 


6.07                           If any notice
is required or permitted to be given, such may be effectively given if
delivered personally or sent by facsimile and addressed:


 


6.07.1                  in the case of Biovail to:


 


Biovail
Laboratories International SRL

At the Address first hereinabove set forth

Fax: 246-228-7891

Attention: President


 


6.07.2                  In the case of Consultant
to:


 


Bord
de Lac Ltd

At the address first hereinabove set forth 

Fax: n/a

Attention: Michel Chouinard


 


Any
such notice shall be deemed to have been given and received when actually
received unless the day of receipt is not a business day in which case it shall
be deemed to have been given and received on the next following business day.


 


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IN WITNESS
WHEREOF the parties to this Agreement hereby execute this
Agreement as of the date first written above.


 


Biovail Laboratories SRL


 


 


	
  Per:

  	
  /s/ Eugene Melnyk

  	
   

  
	
   

  	
  Name:

  	
  Eugene Melnyk

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  



 


 


Bord de Lac Ltd


 


 


	
  Per:

  	
  /s/ Michel Chouinard

  	
   

  
	
   

  	
  Name:

  	
  Michel Chouinard

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  



 


 


As Guaranteed by:


 


 


	
  /s/ Michel Chouinard

  	
   

  	
  Witnessed By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Paula Cozier

  
	
   

  	
   

  	
  Paula Cozier

  



 

















 


SCHEDULE A

SERVICES


 


	
  Area of Focus:

  	
  BLS  management
  and operations

  
	
   

  	
   

  
	
  REPORTS TO:

  	
  President,
  Biovail Laboratories International SRL

  
	
   

  	
   

  
	
  LOCATION:

  	
  Barbados

  



 


Consulting
Mandate SUMMARY:


 


Supervise and lead Biovail Laboratories
International SRL (BLS) operations including responsible for the direction,
management and control of all aspects of BLS business.


 


KEY RESPONSIBILITIES:


 


1)                                      Development and
execution of BLS’  strategic plan.


 


2)                                      Management of
BLS’ relationships with third parties.


 


3)                                      Responsibility
for all activities related to BLS’ products and technologies, including, but
not limited to:


 


·                                          Direction and
control over all Business Development activities


·                                          Supply chain
management


·                                          Customer and
supplier relationship


·                                          Direction and
control over all R & D activities related to BLS’ business


·                                          Direction and
control over all regulatory activities relating to BLS’ business


 


RELATIONSHIPS WITH:


 


BLS’ Customers and Suppliers

Licensors and Licensees of BLS’ Technology

Senior Executives of Affiliates

BLS and External IP and Business Development Executives


 


Effort and
Working Conditions:


 


Required to meet frequent deadlines.  Variation from regular hours of work.  Regular periods of prolonged mental
concentration.  Frequent interruptions
and frequent changing of priorities.  Some
travelling may be required.