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Exhibit 10.39
SERVICE AGREEMENTS WITH THE COMPANY
Service Agreement dated June 30, 1997 between with the Company and Mr C.D. Brune
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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 23 Palace
Street, London SW1E 5HW, and
CLIFFORD D. BRUNE of 329 Glengary Drive, Aurora, Ohio 44202, USA ("the
Executive").
WHEREAS the Company employs the Executive and the Executive serves the Company
as the Company's Executive Vice President and Chief Financial Officer pursuant
to an Employment Agreement dated October 1, 1996 ("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superseded in its entirety by this present Agreement of June 30, 1997, save
that the option entitlement referred to in Clause 4 of the Existing Agreement
shall remain in full force and effect.
NOW IT IS HEREBY AGREED that the Company shall employ the Executive and the
Executive shall serve the Company as its Chief Operating Officer reporting to
the Company's Board of Directors and/or its 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 UK 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 UK
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 US$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.
(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 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.
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(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 US$500,000, expressed
in favor 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 US$750 per
month, from which the Executive shall meet all costs relating to his use
of whatever vehicle he may decide to utilise.
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.
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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 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
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.
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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 governed by and construed and enforced in
accordance with the laws of the State of New York applicable to agreements
made and to be performed in such State.
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Signed by }
for and on behalf of } ....................................
SENETEK PLC in the presence } PAUL A. LOGAN
of:
Witness
Signed by }
CLIFFORD D. BRUNE } ....................................
in the presence of: } CLIFFORD D. BRUNE
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