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Exhibit 10.40
SERVICE AGREEMENTS WITH THE COMPANY
Service Agreement dated June 30, 1997 between with the Company and Xx X.X.
Xxxxx
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EXECUTIVE OFFICER'S AGREEMENT
AN AGREEMENT made the 30th day of June 1997.
BETWEEN
SENETEK PLC ("the Company") whose registered office is situated at 00 Xxxxxx
Xxxxxx, Xxxxxx XX0X 0XX, and
XXXXX XXXXXXX XXXXX of Allstoe House, Church Lane, Greetham, Oakham, Rutland,
Leicestershire LE15 7NF ("the Executive").
WHEREAS the Company employs the Executive and the Executive serves the Company
as President and Chief Executive Officer of the Company's Pharmaceutical
Division pursuant to an Executive Officer's Agreement dated 16th October 1995
("the Existing Agreement") the Company and the Executive have agreed that the
Existing Agreement shall be superseded in its entirety by this present
Agreement of June 30, 1997.
NOW IT IS HEREBY AGREED that the Company shall employ the Executive and the
Executive shall serve the Company as President of the Company's Pharmaceutical
Division, reporting to the Company's Board of Directors and/or its Chief
Executive Officer with effect from June 1, 1997, which reporting duties shall
confer an obligation upon the Executive to provide promptly and faithfully
full, detailed information covering the Company's research and development
activities, its clinical trials data, the stages reached in the application for
regulatory approvals world-wide, and any and all matters arising therefrom
relating to the Company's existing and potential future products, whenever
requested by the Board of Directors, the Company's Chief Executive Officer or
the Company's Chief Scientific Advisor, upon and subject to the following terms
and conditions:
1. In this Agreement:
(a) the expression "the Board" means the Board of Directors for the
time being of the Company.
(b) the expression "Subsidiary" means a subsidiary (as defined by
Section 736 of the Companies Act 1985) for the time being of the
Company.
(c) the expression "associated Company" means in relation to a
company, its holding company (as defined by Section 736 of the
Companies Act 1985) or any subsidiary of such holding company.
(d) the expression "the Group" means the Company and any
subsidiaries of the Company.
(e) any reference to a statutory provision shall be deemed to
include a reference to any statutory modification or re-enactment of
the same.
2. The employment shall be for a fixed period from June 1, 1997 to December
31, 1999, and shall be subject to termination as hereinafter provided.
3. (a) The remuneration of the Executive shall be a salary (which shall
accrue from day to day) at a rate of pounds sterling 122,480 pounds
sterling per annum (representing US$200,000 per annum at the exchange
rate ruling as at June 1, 1997), such remuneration not to be varied as
a result of any subsequent change in the present rate of currency
exchange. Such salary shall be payable by equal monthly installments
on the last day of every month and the first of such payments shall be
due with effect from June 30, 1997. The over-all remuneration (which
term shall also include the cost to the Company of the total benefits
enjoyed by the Executive) of the Executive shall be subject to review
by the Company's Compensation Committee during the first quarter of
each of the Company's fiscal years and the Compensation Committee
shall decide what, if any, increase in the said over-all remuneration
shall apply to the fiscal year in question.
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(b) The Executive shall be entitled to and the Company shall effect
payment of a health insurance policy for the benefit of the Executive,
his spouse and his immediate family with BUPA or a similar
organisation offering equivalent benefits. Such policy to be reviewed
and sanctioned by the Company prior to each renewal date.
(c) The Executive shall be entitled to participate in the Company's
Number 1 Executive Share Option Scheme for Employees ("the Option
Scheme") under the terms and conditions of that scheme and shall be
granted Options to subscribe for shares of the Company in accordance
with the Schedule attached hereto. The grant of options listed on the
said Schedule shall be in addition to the Executive's existing option
entitlements, the rights to which shall remain in full force and
effect. The Company hereby confirms that the Board has undertaken to
exercise its discretion in favor of the Executive under Clause 4.
(1), (2) (a) & (b), and (4)(a) & (b), of the Option Scheme in
connection with the Executive's right of conversion of his option
entitlements into shares and the subsequent sale of the said shares
subject only to (i) the termination of this Executive Agreement for
cause as provided in Clause 6(b) below, and (ii) compliance with the
relevant provisions of Rule 144 of the US Securities Act of 1933, as
amended.
(d) During the period of his employment, the Company will effect insurance
cover on the life of the Executive in the sum of pounds sterling
306,200 (representing US$500,000 at the exchange rate ruling as at
June 1, 1997), such cover not to be varied as a result of any change
in the subsequent rate of currency exchange, expressed in favour of
the Executive's dependants or as he may direct, on a term basis only.
Such cover to be reviewed and sanctioned by the Company prior to each
renewal date.
(e) The Company shall be entitled to require the Executive to work
at such locations or offices of the Company, its subsidiaries or
associated companies as it may direct.
(f) There are no fixed hours of work.
4. The Company will provide the Executive with a car allowance of pounds
sterling459 per month (representing US$750 per month at the exchange rate
ruling as at June 1, 1997), such allowance not to be varied as a result of
any change in the present rate of currency exchange, from which the
Executive shall meet all costs relating to his use of whatever vehicle he
may decide to utilise. The existing Company owned vehicle, L69 DOM, Saab
9000 CSE, 2.3, may either be returned to the Company's London office
forthwith or alternatively the Executive may continue to utilise the
vehicle on the present basis until 30th September 1997 at which date the
vehicle shall be returned to the Company's London office.
5. The Company shall reimburse the Executive all reasonable hotel and other
expenses wholly and exclusively incurred by him in or about the
performance of his duties.
6. (a) In the case of illness of the Executive or other cause incapacitating
him from attending to his duties, the Executive shall continue to be
paid during such absence provided that if such absence shall aggregate
in all thirteen weeks in any twenty-six consecutive weeks, the Company
may terminate the employment of the Executive hereunder by notice
given on the date not more than fourteen days after the end of the
last of such thirteen weeks. In this event the Executive shall be
paid 6 months salary in lieu of notice.
(b) Termination for cause. The Company shall not be obligated to pay or
provide for any compensation or other benefits to the Executive or
give effect to any rights for the exercise of options for any period
after termination for cause. For the purposes of this Agreement,
"cause" shall mean termination for personal dishonesty, wilful
misconduct, breach of fiduciary duty involving personal profit, wilful
material violation of any law, rule or regulation or material breach
of any provision of this Agreement.
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7. The Executive shall (in addition to the usual public and bank holidays) be
entitled to four weeks holiday in each year to be taken at a time or times
convenient to the Company. Any vacation not taken during the 12 month
period to December 31 of each year shall lapse and shall not be carried
forward. No payment shall be made in lieu of vacation time not taken.
8. During the continuance of his employment hereunder, the Executive shall,
unless prevented by ill health, do all in his power to promote, develop,
and extend the business of the Group and shall at all times and in all
respects conform to and comply with the directions and regulations made by
the Board and also shall not, without the previous consent of the Board,
engage in any other business of a similar nature to or competitive with
that carried on by the Group.
9. Any invention, discovery or improvement upon or in addition to any of the
Company's or the Group's inventions made by the Executive during the
period of employment shall be forthwith communicated to the Company and
shall be the absolute property of the Group and at the request of the
Company the Executive shall give and supply all information, know-how and
data as may be requisite to enable the Group to exploit such invention,
discovery or improvement and shall execute and do all documents and things
as may be necessary or desirable for obtaining patent or similar
protection for the same in any parts of the world as may be specified by
the Company and for vesting the same in the Group as it may direct.
10. The Executive shall not (except in the proper course of his duties
hereunder) either during or after the period of his employment hereunder,
divulge to any person and shall use his best endeavors to prevent the
publication or disclosure of any trade secret or manufacturing process or
any information concerning the business or finances of the Group or any of
its dealings, transactions or affairs or any trade secret or secret
manufacturing process of any such confidential information governing the
Group and all notes and memoranda of such trade secrets or information
made or received by the Executive during the course of his employment
hereunder shall be the property of the Company and shall be surrendered by
the Executive or someone duly authorized in that behalf at the termination
of his employment or at the request of the Board at any time during the
course of his employment.
11. The Executive hereby covenants with the Company that he will not, within
2 years after ceasing to be employed hereunder, without the consent of the
Company in writing under the hand of a Director duly authorized by a
resolution of the Board, directly or indirectly seek to procure orders
from or do business with any person, firm, or company who, on the date of
the Executive ceasing to be employed hereunder or at any time in the
twelve months prior to that date, was a client or customer of the Group
and with whom in the course of his employment, the Executive shall have
had dealings, provided always, that nothing in this clause contained shall
be deemed to prohibit the seeking or procuring of orders or the doing of
business not in direct or indirect competition with the business or
businesses conducted by the Group.
12. This Agreement shall not be terminated by any:
(a) merger or consolidation where the Company is not the consolidating or
surviving entity; or
(b) transfer of all or a substantial majority of the assets of the
Company.
(c) acquisition or control of 50 per cent or more of the Company's
issued and voting equity share capital by any party, or by parties
acting in concert or under common control.
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In the event of any such merger or consolidation or transfer of all or
a substantial majority of the assets of the Company or acquisition or
control of 50 per cent or more of the Company's issued and voting
equity share capital by any party, or by parties acting in concert or
under common control, the surviving or resulting entity or the
transferee or transferrees of the Company's assets or its issued and
voting equity share capital shall be bound by, and shall have the
benefit of, the provisions of this Agreement, and the Company shall
endeavor to take all actions necessary to ensure that such entity or
transferee or transferees is bound by the provisions of the Agreement.
Moreover, in the event of such merger or consolidation, or transfer of
all or a substantial majority of the assets of the Company or
acquisition or control of 50 per cent or more of the Company's issued
and voting equity share capital as aforesaid, the Executive may at his
option at any time continue his employment under the terms and
conditions of this Agreement, or upon giving not less than 28 days
Notice at any time, by registered mail, to the registered office of
the Company, require the Company to effect full settlement of all of
the Executive's entitlements under the terms and conditions of this
Agreement, which settlement shall also include the payment of his
remuneration for the full term of the Agreement and the right to
convert any and all Option entitlements, (whether such Options be
vested or not) up to and including December 31, 1999 and the Company
shall effect full and final settlement within 28 days of receiving the
said Notice from the Executive.
13. There is no pension payable, and there is no contracting out certificate in
force in respect of the Executive's employment hereunder.
14. There are no disciplinary rules or grievance procedures in place in
relation to the Executive's employment hereunder. The Executive may raise
any grievance or concern about any disciplinary matter with the Board.
15. This Agreement shall be construed and governed by the laws of England and
Wales and to the jurisdiction of the English Courts.
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Signed by }
for and on behalf of } ....................................
SENETEK PLC in the presence } XXXX X. XXXXX
of:
Witness
Signed by }
XXXXX XXXXXXX XXXXX } ....................................
in the presence of: } XXXXX XXXXXXX XXXXX
Witness
SCHEDULE
NO. OF OPTIONS GRANTED CONVERSION SECURITY CONVERSION PRICE VESTING DATE
100,000 5p Ordinary shares
of Senetek PLC US$1.50 December 31, 1997
100,000 5p Ordinary shares
of Senetek PLC US$1.50 December 31, 1998
100,000 5p Ordinary shares
of Senetek PLC US$1.50 December 31, 1999
