Exhibit 10.6
CONSULTING AGREEMENT
BETWEEN:
B TWELVE LIMITED
(hereinafter referred to as the "Company")
-and-
JEAN-LUC BERGER, Ph.D.
(hereinafter referred to as the "Executive")
WHEREAS the Company is a wholly owned subsidiary of B. Twelve, Inc., a
corporation existing under the laws of the State of Florida; and
WHEREAS the Executive is President and Chief Executive Officer of B. Twelve,
Inc. since June 1st, 2001 and a Director, since inception.
WHEREAS the Executive is President, Chief Executive Officer, and Secretary of
the Company since December 14th, 2001.
WHEREAS, the Employment and Option agreements of the Executive were terminated
without cause on November 15th, 2001.
WHEREAS, the Company desires to continue to maintain the benefit of Executive's
knowledge and experience by retaining Executive as consultant, and Executive
desires to accept such position, for the term and upon the other conditions
hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the services,
payments, terms, provisions and covenants hereinafter set forth, the parties
agree as follows:
1. The Company hereby engages the Executive as President and Chief
Executive Officer. The Executive will devote a sufficient portion of
his business time and effort to carry out the performance and duties as
reported in Schedule A, attached hereto, and under this agreement and
shall conform to all lawful instructions and directions given to him by
the Board of Directors of the Company.
2. This agreement shall commence November 15th, 2001 and continue for a
period of one (1) year until November 15th, 2002 at which time it shall
come to an end unless earlier terminated in accordance with the terms
of this agreement.
3. In consideration of the services performed by the Executive, the
Company will pay to the Executive an annual salary in the amount of
C$60,000.
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4. Vacation time will be granted to the Executive on a discretionary
basis. Under no circumstances will vacation time be less than that
required pursuant to the Employment Standards Act of Ontario.
5. The Executive will be entitled to employee benefits pursuant to the
policy in place for employees of the
Company.
6. The Executive will be reimbursed by the Company for all legitimate and
authorized expenses incurred by the Executive in the course of his
consulting agreement on behalf of the Company.
7. The Executive may terminate this agreement by giving to the Company
written notice equal to one (1) month. Where the Executive provides
such notice of termination, the Company may, in its sole discretion,
waive all or part of such notice, and the Executive shall not be
entitled to any compensation for the period of notice so waived, except
as may be required pursuant to the Employment Standards Act of Ontario.
8. The Company may terminate this agreement without cause at any time by
providing the Executive with notice as required by the Employment
Standards Act of Ontario.
9. Notwithstanding paragraph 9, the Company may terminate this agreement
for just cause at any time without notice and without compensation to
the Executive. For the purposes of the agreement, "cause" shall be
defined as set out in paragraph 2 (i) to (iv) inclusive of the Option
Agreement attached hereto terminated on November 15th, 2001.
10. All confidential records, material, and information and copies thereof
and all trade secrets (and without restricting the generality of the
foregoing, including inventions, discoveries and methods of processing
and production) concerning the business or affairs of the Company
obtained by the Executive in the course of his employment shall remain
the exclusive property of the Company. During the Executive's
employment, or at any time thereafter, the Executive shall not divulge
the contents of such confidential records or any of such than to the
Company or Company's qualified employees, and the Executive shall not,
following the termination of his employment hereunder for any reason,
use the contents of such confidential records or such confidential
information or trade secrets for any purpose whatsoever. Under no
circumstances shall the Executive remove any books, records or
documents or copies thereof (whether or not confidential) for the
Company's offices, nor shall the Executive make any copies of such
books, records or documents or copies thereof for use outside the
Company's office, except as is reasonably required in the performance
of his duties hereunder or as specifically authorized by the Company.
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11. This agreement constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof. The agreement may only
be amended by an agreement in writing executed by the parties hereto.
12. This agreement shall not be assigned by either party hereto without the
prior written consent of the other.
13. The illegality or unenforceability of any term of terms of this
agreement shall not affect the legality of enforceability of any other
term or terms. Should any term of this agreement be held to be
unenforceable by a Court or other body having jurisdiction, then this
agreement shall be interpreted and construed as though such illegal or
unenforceable term was omitted.
14. The obligations of the Executive and the rights of the Company pursuant
to paragraph 10 shall survive the termination of this agreement for any
reason whatsoever and shall continue thereafter in full force and
effect.
15. The Executive acknowledges and agrees that he has had an opportunity to
obtain independent legal advice with respect to this agreement and that
he executes this agreement voluntarily, with full knowledge of its
terms and conditions.
16. The agreement shall be governed by and interpreted in accordance with
the laws of the Province of Ontario.
IN WITNESS WHEREOF the parties have executed this agreement at
______________ in the Province of Ontario.
- --------------------------------- ----------------------------------
Witness B Twelve Limited
per:
- ----------------- ------------------
Date Date
----------------------------------
Jean-Luc Berger, Ph.D.
------------------
Date
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SCHEDULE A
Expected performance and duties to be carry out by the Executive under this
Agreement:
[checkmark] Provide future vision and leadership for survival and growth of the
Company,
[checkmark] Responsible in raising additional capital for the Corporation,
[checkmark] Evaluate in-licensing opportunities, identify and solicit potential
licensees or co-development partners for Company's technology and
product candidates, and negotiate contractual terms.
[checkmark] Responsible for day to day operations including report and analysis
of financial statements, projection of earnings and cash-flow,
regulatory matters, and interviews with senior executives and
investment banking.
[checkmark] Draft and review of printed materials prepared for public
consumption such as business plan or investor/partner presentation,
[checkmark] Provide agenda of key issues from business operations for
resolution and adoption by the Board,
[checkmark] Monitor on-going Company R&D progress to ensure that program
timetable is realistic and met with budget and on schedule,
[checkmark] Monitor on-going Company R&D progress to ensure that appropriate
steps such as patent filings are taken to protect new and
innovative discoveries; Manage the intellectual property, including
the patent portfolio,
[checkmark] Prepare on a quarterly basis a corporate progress report as well as
an annual report at year-end to be submitted to the Board of
Directors,
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