EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this 1st day of October 1996 ("Agreement")
by and between SENETEK, PLC, having a place of business at 00X Xxxxxx Xxxxxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "EMPLOYER") and
XXXXX X. XXXXX, residing at 000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 (hereinafter
referred to as "EMPLOYEE").
W I T N E S S E T H:
WHEREAS, the EMPLOYER is engaged in the business of developing various
biomedical products in the areas of male sexual dysfunction and age-related skin
disorders, as well as the manufacture and distribution of a wide range of health
and cosmetic beauty products; and
WHEREAS, the EMPLOYER wishes to employ EMPLOYEE and EMPLOYEE wishes to
be employed by EMPLOYER in accordance with the terms and conditions set forth in
this Agreement;
_____________________
NOW, THEREFORE, in consideration of the mutual covenants and promises
and other good and valuable consideration, the receipt of which is hereby
acknowledged, it is mutually agreed as follows:
FIRST: The EMPLOYER does hereby employ, engage and hire the EMPLOYEE
as Executive Vice President and Chief Financial Officer of EMPLOYER for a period
of 23 months commencing October 1, 1996 and terminating August 31, 1998, subject
to the provisions stated herein ("Term").
SECOND: The EMPLOYEE agrees that he will at all times faithfully,
industriously and to the best of his ability, experience and talent, perform all
of the duties that may be required of and from him pursuant to the express and
implicit term hereof.
THIRD: The EMPLOYER shall pay to the EMPLOYEE and the EMPLOYEE agrees
to accept from the EMPLOYER in full payment of the EMPLOYEE's services
hereunder, compensation at the rate of $155,000 per year of the Term. Such
payments shall be paid pursuant to the procedures regularly established, as they
may be amended, by the EMPLOYER during the course of the Term of this Agreement.
Further, the Employer will provide the Employee a Lease car of the Employee's
choice or cash equivalent of $550 per month of the Term.
FOURTH: Upon the due execution and delivery of this Agreement,
EMPLOYER shall grant to EMPLOYEE stock options to
purchase: (a) 200,000 ordinary shares of the EMPLOYER at an exercise price of
$1.25 per share; (b) 100,000 ordinary shares at the exercise price of $1.50 per
share at August 31, 1997; and (c) 100,000 options at an exercise price of $4.00
at August 31, 1998. Subject to all securities and other applicable laws, the
Company will use reasonable efforts to register under a Form S-8 Registration
Statement all stock options granted to EMPLOYEE, or EMPLOYEE will have cost-free
demand registration rights on two occasions for the underlying shares. EMPLOYEE
will also have reasonable piggy-back registration rights for the shares
underlying these options. All stock options are exercisable over a period of the
greater of three (3) years from the date of grant and one (1) year following the
termination of this Agreement.
FIFTH: EMPLOYEE may act as a consultant for other companies, provided,
such arrangement does not interfere with the business of EMPLOYER, does not
directly or indirectly compete with EMPLOYER, does not cause any loss of time in
EMPLOYEE's duties with EMPLOYER, and does not interfere with the EMPLOYEE's
ability to diligently and faithfully serve and endeavor to further the
EMPLOYER's interest. EMPLOYER recognizes that EMPLOYEE is currently a consultant
for the other companies listed on Schedule A hereto. In the event that EMPLOYEE,
during the term of the Agreement, wishes to act as a consultant to any other
company, EMPLOYEE will notify EMPLOYER in writing and EMPLOYEE must obtain
EMPLOYER's written consent, which will not be unreasonably withheld. EMPLOYER
represents and warrants that this Agreement has been ratified, adopted and
confirmed by the Board of Directors of EMPLOYER.
SIXTH: Subject to Paragraph FIFTH, the EMPLOYEE shall devote all of
his working time, attention, knowledge and skill solely and exclusively to the
business and interest of the EMPLOYER. The EMPLOYEE expressly agrees that he
will not, during the Term hereof or for two (2) years from the termination of
this Agreement, be involved directly or indirectly, in any form, fashion or
manner, as a partner, officer, director, stockholder, advisor, consultant or
employee in any other business similar to or in any way competing with the
business of the EMPLOYER. Nothing herein contained shall, however, limit the
rights of the EMPLOYEE to own up to 35% of the capital stock or other securities
of any corporation whose stock or securities are publicly owned or traded
regularly on a public exchange or in the over-the-counter market, or to prevent
the EMPLOYEE from investing financially in, or limiting the EMPLOYEE's rights to
invest financially in, other businesses not allied with or competing with the
business of the EMPLOYER, as long as EMPLOYEE continues to devote all of his
working time, attention, knowledge and skill solely and exclusively to the
business and interest of the EMPLOYER.
SEVENTH: During the course of EMPLOYEE's employment under this
Agreement, and for five (5) year thereafter, the EMPLOYEE specifically agrees
that he will not, at any time, in
2
any fashion, form or manner, either directly or indirectly, use, divulge,
disclose or communicate to any person, firm or corporation, in any manner
whatsoever, any confidential or proprietary information of any kind, nature or
description concerning any matters affecting or relating to the business of the
EMPLOYER, including, without limitation the generality of the foregoing, any of
its customers, its manner of operations, its plans, its ideas, processes,
programs, its intellectual property or other data, information or materials of
any kind, nature or description without regard to whether any or all of the
foregoing matters shall be deemed confidential, material or important. The
parties hereto stipulate that as between them the same as important, material,
confidential and gravely affect the effective and successful conduct of the
business of the EMPLOYER and its good will, and that any breach of the terms of
this paragraph is a material breach thereof, except where the EMPLOYEE shall be
acting on behalf of the EMPLOYER. EMPLOYEE understands and agrees that in the
event that EMPLOYEE violates the terms and conditions as stated in this
paragraph, that he will be subject to an injunction and damages, and understands
and agrees that EMPLOYER's remedy to prevent further or continued damages will
include a petition for injunctive relief. EMPLOYEE expressly acknowledges that
the restrictions contained in this paragraph are reasonable and are properly
required for the adequate protection of the EMPLOYER's interests.
EMPLOYEE further understands and agrees that EMPLOYER, in entering
into this Agreement, is relying upon EMPLOYEE's representation and warranty that
all trade secrets and other proprietary information of EMPLOYER will be kept
strictly confidential by EMPLOYEE and not utilized by EMPLOYEE in any manner
whatsoever other than on EMPLOYER's behalf during the course of EMPLOYEE's
employment with EMPLOYER.
EIGHTH: EMPLOYEE agrees that during the term of this Agreement, and
for two (2) years after termination hereof, he shall not, for himself or any
third party, directly or indirectly divert or attempt to divert from the
EMPLOYER or its subsidiaries or affiliates any business of any kind in which it
is engaged or employ, solicit for employment, or recommend for employment any
person employed by the EMPLOYER or by any of its subsidiaries or affiliates,
during the period of such persons' employment and for a period of two (2) years
thereafter. EMPLOYEE expressly acknowledges that the restrictions contained in
this paragraph are reasonable and are properly required for the adequate
protection of the EMPLOYER's interests.
NINTH: It is expressly understood and agreed that the terms of this
Agreement, except for Paragraphs SIXTH, SEVENTH and EIGHTH, may be determined by
the EMPLOYER prior to August 31, 1998 upon the occurrence of any of the
following events:
(a) Automatically and without notice upon the death of the EMPLOYEE;
it is also understood that EMPLOYEE will be
3
entitled to six months' salary which will be payable to his estate;
(b) Persistent absenteeism on the part of the EMPLOYEE, which in the
reasonable judgment of the Board of Directors of the Company is having or will
have a material adverse effect on the performance of the EMPLOYEE's duties under
this Agreement;
(c) Deliberate and wilful failure to perform normal services and
duties required of EMPLOYEE pursuant to this Agreement, except if the
performance of such duties or services would result in a violation of EMPLOYEE's
fiduciary responsibility to the Company and its shareholders or is in violation
of applicable laws;
(d) Any wilful act or failure to act, which in the reasonable opinion
of the Board, is in bad faith to the material detriment of the EMPLOYER;
(e) Conviction of a felony involving moral turpitude or dishonesty;
(f) Total or partial disability of the EMPLOYEE for a period of three
(3) consecutive months or ninety (90) days in the aggregate so that he is
prevented from satisfactorily performing a substantial part of his duties; it
being further understood and agreed that any proceeds received by EMPLOYER from
a policy of disability benefits insurance or any other proceeds received from
any Federal, State or Municipal agency of government will be credited to the
amount of compensation paid to EMPLOYEE by EMPLOYER; and
(g) Fraudulent misconduct of the EMPLOYEE.
In the event of a material change in the Board of Directors of
EMPLOYER (other than with the acknowledgment of EMPLOYEE) or the wilful failure
of the Company to fulfill its material obligations under this Agreement, upon
thirty (30) days written notice by EMPLOYEE to EMPLOYER, EMPLOYEE may also
terminate this Agreement, except that Paragraphs SIXTH, SEVENTH and EIGHTH shall
survive for the terms set forth in such paragraphs.
TENTH: EMPLOYER agrees that EMPLOYEE will be entitled during the Term
to all fringe benefits in effect for executive officers of the EMPLOYER, such as
Blue Cross/Blue Shield and Major Medical insurance benefits which are afforded
to key employees of the EMPLOYER including a life insurance policy of $500,000.
ELEVENTH: This Agreement contains the total and entire agreement
between the parties and shall, as of the effective date hereof, supersede any
and all other agreements between the
4
parties. The parties acknowledge and agree that neither of them has made any
representations that are not specifically set forth herein and each of the
parties hereto acknowledge that he or it has relied upon his or its own judgment
in entering into the same.
TWELFTH: The parties hereto do further agree that no waiver or
modification of this Agreement or of any covenant, condition or limitation
herein contained, shall be valid, unless in writing and duly executed by the
party to be charged therewith and that no evidence of any proceedings or
litigation between either of the parties arising out of or affecting this
Agreement or the rights and obligations of any party hereunder shall be valid
and binding unless such waiver or modification is in writing, duly executed, and
the parties further agree that the provisions of this paragraph may not be
waived except as herein set forth.
THIRTEENTH: The parties hereto agree that it is their intention and
covenant that this Agreement and the performance hereunder shall be construed in
accordance with and under the laws of the State of Missouri and that the terms
hereof may be enforced in any court of competent jurisdiction in an action for
specific performance which may be instituted under this Agreement.
FOURTEENTH: EMPLOYEE indemnifies and holds harmless EMPLOYEE from any
claims of any type against EMPLOYER that arise prior to the date of the
commencement of this Agreement.
FIFTEENTH: EMPLOYEE warrants and represents to EMPLOYER that EMPLOYEE
has had sufficient and adequate opportunity to consult with EMPLOYEE's counsel
concerning the within agreement and is aware that EMPLOYER is relying upon the
within representation concerning entering into the agreement herein.
SIXTEENTH: All notices required or permitted to be given by either
party hereunder shall be in writing and mailed by registered mail, return
receipt requested, and by regular mail to the other party addressed as follows:
If to EMPLOYER at: SENETEK, PLC
00X Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
If to EMPLOYER at: XXXXX X. XXXXX
000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
5
Any notice mailed as provided above shall be deemed completed on the date of
receipt, or five (5) days from the postmark on said postal receipt.
6
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day, month and year first above written.
SENETEK, PLC
By: /S/ Xxxxxxx X. Xxxxxxx
CHAIRMAN & CEO
/S/ Xxxxx X. Xxxxx
XXXXX X. XXXXX
7
