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Exhibit 10.38
SERVICE AGREEMENTS WITH THE COMPANY
Service Agreement dated June 30, 1997 between with the Company and Xx 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
XXXXXX XXXXX of 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, XXX ("the
Executive").
WHEREAS the Company employs the Executive and the Executive serves the Company
as the Company's Chief Scientific Advisor pursuant to Letter Agreement
dated April 8, 1997, such Letter Agreement incorporating certain
elements of a Service Agreement dated August 11, 1995, ("the Existing
Agreements") the Company and the Executive have agreed that the Existing
Agreements shall be superseded in their entirety by this present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 its Chief Scientist reporting to
the Company's Chief Executive Officer with effect from June 1, 1997,
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 United Kingdom 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
United Kingdom 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.
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3. (a) The remuneration of the Executive shall be a salary (which shall
accrue from day to day) at a rate of U.S.$200,000 per annum.
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.
(f) 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 Blue
Cross/BUPA or a similar organization offering equivalent
benefits. Such policy to be reviewed and sanctioned by the
Company prior to each renewal date.
(g) 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 U.S. Securities Act of 1933, as amended.
(h) During the period of his employment, the Company will effect
insurance cover on the life of the Executive in the sum of
U.S.$500,000, 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.
(i) The Company may request the Executive to work at such locations
or offices of the Company, its subsidiaries or associated
companies as it may identify, but the Executive shall be under
no obligation to move from his existing location.
(j) There are no fixed hours of work.
4. The Company will provide the Executive with a car allowance of U.S.$750
per month, from which the Executive shall meet all costs relating to his
use of whatever vehicle he may decide to utilise.
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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.
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 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
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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.
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
transferees 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
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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 in accordance with and
under the laws of the State of Missouri applicable to agreements made
and to be performed in such State.
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Signed by } /s/ Xxxx X. Xxxxx
for and on behalf of } ----------------------------------------
SENETEK PLC in the presence } XXXX X. XXXXX
of:
Witness
Signed by } /s/ Xxxxxx Xxxxx
XXXXXX XXXXX } ----------------------------------------
in the presence of: } XXXXXX XXXXX
Witness
SCHEDULE
NO. OF OPTIONS GRANTED CONVERSION SECURITY CONVERSION PRICE VESTING DATE
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50,000 5p Ordinary shares U.S.$1.50 December 31, 1997
of Senetek PLC
50,000 5p Ordinary shares U.S.$1.50 December 31, 1998
of Senetek PLC
50,000 5p Ordinary shares U.S.$1.50 December 31, 1999
of Senetek PLC
