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EXHIBIT 10.13
DATED 4th January 1996
(1) PBA TECHNOLOGY LIMITED
- and -
(2) X X XXXX ESQ
C O N S U L T A N C Y A G R E E M E N T
Xxxxxxxx Xxxxx + Xxxx
Solicitors
Peterborough
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THIS AGREEMENT is made the 4th day of January 1996
BETWEEN
(1) PBA TECHNOLOGY LIMITED (formerly Xxxxxxx Xxxxx Limited) (Company
Registration Number 2315315) whose registered office is at 154B St Neots
Road, Xxxxx Ford, St Neots Cambridge PE19 3AD ("Company") and
(2) XXXX XXXXXXXX XXXX of Homestead Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX ("Consultant")
WHEREAS: -
(A) The Consultant has expert knowledge applicable to the business of the
Company
(B) The Company wishes to retain the Consultant to provide services to its
business on the terms and subject to the conditions hereinafter appearing
NOW IT IS HEREBY AGREED as follows: -
1. DEFINITIONS
In this Agreement unless the context otherwise requires: -
"Board" means the Board of Directors for the time being of the
Company excluding the Consultant
"the Commencement Date" means the lst December 1995
"the Services" means the Services to be provided by the Consultant to
the Company as set out in Clause 3
"the Fees" means the fees payable for the Services calculated and
payable pursuant to Clause 6
"Time Commitment" means the number of working days, as stipulated in
Clause 5
2. APPOINTMENT
The Company hereby engages the Consultant and the Consultant agrees to provide
the Services to the Company from the Commencement Date for a period of one year
and thereafter unless and until this Agreement is terminated by at least three
months written notice given by the Consultant or twelve months written notice
given by the Company to expire on the first anniversary of the Commencement Date
or at any time thereafter Subject Always to earlier termination in accordance
with Clause 12 below.
3. THE SERVICES
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3.1 The Consultant agrees that the Services to be provided hereunder during the
term of this Agreement shall be to advise on such aspects of the business
of the Company as may from time to time be reasonably required by the board
and in particular (but without limitation to the generality of the
foregoing) the Consultant shall:-
3.1.1 provide support and advice to the Board and assist it in planning
and operating the business of the Company and the Consultant will
report his activities directly to the Board;
3.1.2 in conjunction with other members of the Board assist in defining
corporate strategy and policy and be responsible for legal,
financial and commercial matters as may from time to time be agreed
with the Board;
3.1.3 advise on such specific projects as may from time to time be
assigned to him by the Board including directing commercial and
contractual negotiations; and
3.1.4 promote the Company and market its products and services including
exploring and advising on opportunities outside the present areas of
business;
4. OBLIGATIONS OF CONSULTANT
4.1 The Services shall be performed solely by the Consultant in the United
Kingdom although he will not unreasonably refuse to travel abroad for short
periods to fulfil the terms of this Agreement.
4.2 The Consultant agrees to observe and perform the following obligations:
(a) the Consultant shall promptly and faithfully comply with and observe
all lawful and proper requests which may from time to time be made to
the Consultant by the Board within the ambit of this Agreement;
(b) the Consultant shall perform the Services with reasonable care and
skill and shall provide the Company with the full benefit of his
expertise during the Time Commitment;
(c) the Consultant shall use all reasonable and proper means within the
Time Commitment to further the business the reputation and the
interests of the Company and its subsidiaries;
5. TIME COMMITMENT
5.1 The Services shall be provided by the Consultant to the Company for a total
of not more than 2 1/2 working days per week.
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5.2 Prior to the 31st May in each year the Board may vary the minimum number of
such days for the ensuing year which the Consultant shall be required to
devote to the provision of the services to the company provided that such
variation shall not result in the Consultant being required to devote less
than one nor more than four working days a week to the provision of the
Services to the Company.
5.3 The Consultant shall be given two months notice in writing of any variation
in accordance with Clause 5.2 and upon the expiry of such notice the fees
payable under Clause 6 shall be adjusted pro rata to any adjustment in the
time commitment.
6. FEES
6.1 In consideration of the Services to be provided by the Consultant under the
terms of this Agreement the Company shall pay to the Consultant an initial
fee of Pound Sterling 37,500 per annum.
6.2 The Company shall pay an annual additional fee to the Consultant of 2.5 per
cent of the Net Profit of the Company per annum throughout the term of this
Agreement to be paid to him within one month of the adoption of the
Company's audited accounts by its annual general meeting in each year. The
Consultant shall deliver an invoice for such sum to the Company upon
receipt of notification from the Company of the Sum due.
6.3 For the purpose of this Clause 6.3 Net Profit of the Company shall mean the
profit of the Company for the financial period as shown in the audited
accounts for such period:
6.3.1 before paying or making adequate reserve in respect of the Company's
liability to corporation tax;
6.3.2 before payment of the bonus payable under this clause or the payment
of any bonus calculated as a percentage of the net profit of the
Company now or at any time payable to any other director or employee
of the Company;
6.3.3 before adding or deducting profits or losses on the revaluation of
any assets or any adjustment arising on the translation into pounds
sterling of assets and liabilities denominated in foreign
currencies;
6.3.4 before adjustment for extraordinarv items not deriving from the
ordinary activities of the Company as required by Statement of
Standard Accounting Practice No. 6 (SSAP 6);
6.3.5 after paying or making adequate reserve in respect of: -
6.3.5.1 depreciation of the Company's tangible
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assets;
6.3.5.2 directors' fees and salaries of working directors including
the initial fee payable under Clause 6.1; and
6.3.6 excluding profits or losses of a capital nature
6.4 The fees to be paid by the Company to the Consultant pursuant to Clause 6.1
shall be invoiced by the Consultant monthly in arrears and shall be paid by
the Company on the last day of each such month. All sums specified in
clauses 6.1 and 6.2 are net of VAT (if any) due thereon which shall be paid
by the Company in addition to such sums. On termination of this Agreement
for any reason all sums owed to the Consultant on the date of termination
will be paid to him on the said date of termination and any additional fee
payable under Clause 6.2 shall be calculated pro rate for the period prior
to the date of termination in respect of such financial year.
6.5 The Company shall reimburse to the Consultant in respect of all travel
hotel entertaining and other expenses properly incurred by the Consultant
(subject to producing vouchers and receipts in respect thereof) in the
provision of the Services.
6.6
6.6.1 On lst June every year the Consultant's fee's shall be reviewed and
the annual amount payable immediately before such review date shall
be increased as from such date by
6.6.1.1 such percentage (if any) as the last figure of the Index of
Retail Prices ("index") published by the Department of
Employment prior to that date shall have increased over the
figure of the index current one year previously; or
6.6.1.2 such higher rate as may be agreed by the Board
6.6.2 If during the year immediately prior to any review date the basis of
computation of the index shall have changed any official
reconciliation between the two bases of computation published by the
Department of Employment shall be binding on the Consultant and the
Company
6.6.3 In the absence of such official reconciliation adjustments shall be
applied to the latest index figure to make it, as nearly as
practicable, fairly comparable with the figure with which it is
being compared
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6.6.4 If the index is no longer published an alternative method of
periodically adjusting the Consultant's salary shall be adopted
either by reference to other published statistics or otherwise
6.6.5 In this clause any reference to the Department of Employment
includes the body for the time being officially responsible for
publication of the index expressly published to replace the Index of
Retail Prices within the United Kingdom.
6.7 Notwithstanding anything to the contrary contained in the Articles of
Association of the Company the Consultant shall not be entitled to any
other fees as a Director of the Company.
7. OTHER SERVICES
Nothing in this Agreement shall preclude the Consultant from providing
services to any other person, firm or company PROVIDED THAT the Consultant
shall not provide services to any other business whose activities compete
in any material respect with the business activities of the Company without
the prior written consent of the Company (such consent not to be
unreasonably withheld or delayed) The Consultant undertakes that any other
commissions accepted by him will not interfere with the provisions of the
Services to the Company under the terms of this Agreement.
8. STATUS
8.1 It is hereby agreed and declared by both the Consultant and the Company
that the agreement herein contained does not constitute a contract of
employment for the purposes of the Employment Protection (Consolidation)
Xxx 0000 the payment of income tax or national insurance contributions or
for any other purpose whatsoever.
8.2 The Consultant hereby undertakes to indemnify the Company in respect of any
claims that may be made by the relevant authorities against the Company
concerning any fees or expenses paid to the Consultant in respect of the
provision of the Services hereunder.
9. CONFIDENTIALITY
9.1 During the term of this Agreement and after the date of termination the
Consultant undertakes that he shall not (except in the proper performance
of the Services or as required by law or any government authority or
otherwise with the prior consent in writing of the Company) use divulge or
communicate to any person firm or company any confidential information
concerning the business processes inventions designs know-how products
materials secrets meetings transactions affairs customers or business
associates of the Company which the Consultant may have
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received or obtained while in the course of providing Services to the
Company. This restriction shall continue to apply after termination of this
agreement without limit in time but shall cease to apply to information or
knowledge which may come into the public domain otherwise than through any
fault or action on the part of the Consultant.
9.2 The Consultant shall not during the term of this Agreement or for a period
of 2 years after the date of termination (however caused or arising) make
copy use or permit to be made copied or used (otherwise than in the course
of the proper performance of the Services hereunder) any notes minutes
memoranda drawings diagrams recordings or any correspondence accounts
reports or other documents relating to or connected with-the business or
affairs of the Company and all such notes minutes memoranda drawings
diagrams recordings or any correspondence accounts reports or other
documents made copied or used shall remain the property of the Company and
shall be delivered up to the Company forthwith upon the termination of this
agreement.
10. RESTRICTION
10.1 The Consultant agrees that for a period of 12 months after termination of
this Agreement (whether by an effluxion of time or otherwise) the
Consultant shall not either on his own account or for any other person in
connection with the carrying on of any business similar to the business for
the time being of the Company directly or indirectly solicit interfere with
or endeavour to entice away from the Company or its subsidiaries any
person, company or firm who is then or was during the period of one year
preceding the date of such termination:-
(i) a client; or
(ii) a customer; or
(iii) an employee;
of the Company or its subsidiaries with whom the Consultant shall have
contact Provided Always that nothing in this clause shall prohibit the
seeking or procuring of orders or the doing of business not related or
similar to the business for the time being of the Company.
10.2 The Consultant hereby covenants that he will not for a period of 12 months
after the termination of this Agreement (howsoever such termination may
arise) whether for his own account or that of any person, firm or company
other than the Company whether as director, principal, employee, consultant
or agent, in competition with the Company do business or perform services
of the same or similar type to the business carried on or the services
provided by the Company as at the date of such termination from any office
located less than 50 miles from an existing factory or office of the
Company PROVIDED THAT nothing herein shall
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preclude the Consultant from holding up to three per cent (3%) of the
securities of any company which is quoted on a recognised stock exchange.
10.3 While the restrictions contained in clauses 10.1 and 10.2 are considered by
the parties to be reasonable in all the circumstances, it is recognised
that restrictions of the nature in question may fail for technical reasons
and, accordingly, it is hereby agreed and declared that if any one or more
of such restrictions shall, either by itself or themselves or taken with
others, be adjudged to be invalid as exceeding what is reasonable in all
the circumstances for the protection of the interests of the Company, but
would be valid if any particular restriction or restrictions were deleted,
or if part of parts of the wording thereof were deleted, restricted or
limited in a particular manner, or if the period thereof were reduced or
curtailed, then the said restriction or restrictions shall apply with such
deletion, restriction, limitation, reduction, curtailment or modification
as may be necessary to make them valid and effective.
11. INVENTIONS
11.1 Any discovery or invention or secret process or improvement in procedure
made or discovered by the Consultant during the course of the performance
of the Services (whether or not capable of patent, copyright or trade xxxx
protection) in connection with or in any way affecting or relating to the
business of the Company or capable of being used or adapted for use in the
business of the Company shall forthwith be disclosed to the Company and
shall belong to and be the absolute property of the Company.
11.2 The Consultant shall, if and whenever required so to do (whether
during or after the termination of this agreement) at the expense of the
Company (or its nominee) apply or join in applying for letters patent or
other equivalent protection in the United Kingdom or any other part of the
world for any such discovery, invention, process or improvement as
aforesaid and shall execute and do all instruments and things necessary for
vesting any letters patent or any other intellectual property rights
obtained in respect of such invention and all right title and interest
thereto in the Company (or its nominee) absolutely and as the sole
beneficial owner.
11.3 For the avoidance of doubt copyright and design rights in all material
which the Consultant may prepare during the course of the Services shall
belong exclusively to the Company and is subject to the Confidentiality
obligations set out in clause 9.
12. TERMINATION
12.1 Without prejudice to any remedy either party may have against the other
this Agreement may be terminated forthwith
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by notice in writing:
(a) by the company if:-
(i) The Consultant shall in the performance of the Services be
incompetent, guilty of gross misconduct and/or any serious or
persistent negligence; or
(ii) the Consultant shall fail or refuse after written warning to carry out
any duties reasonably and properly required of him under the terms of
this Agreement; or
(iii)the Consultant acts in any manner which may bring the Company
materially into disrepute; or
(iv) the Consultant shall be in breach of any of the terms of this
Agreement which (in the case of a breach capable of remedy) is not
remedied by the Consultant within 21 days of receipt by the Consultant
of a notice from the Company specifying the breach and requiring its
remedy; or
(v) by reason of death the Consultant is unable to provide the Services;
or
(vi) ill health or accident the Consultant is unable to provide the
Services for a period in excess of six months
(b) by the Consultant if: -
(i) the Company shall enter into liquidation whether compulsory or
voluntary (otherwise than for the purpose of amalgamation or
reconstruction) or shall have a receiver appointed over all or any
part of its assets or shall be the subject of any petition for the
appointment of an administrator; or
(ii) the Company shall be in breach of any of the terms of this Agreement
which (in the case of a breach capable of remedy) is not remedied by
the Company within 21 days of receipt by the Company of a notice from
the Consultant specifying the breach and requiring remedy.
12.2 Upon termination of this Agreement howsoever arising the Consultant shall
forthwith deliver up to the Company all documents and property belonging to
the Company which may be in his possession or control.
13. ENTIRE AGREEMENT
THIS Agreement shall be deemed to have effect from the date hereof and shall
supersede any other agreement whether written or oral with respect to the
provisions of the Services of the Consultant to the Company.
14. NOTICES
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14.1 All communications between the parties with respect to any of the
provisions of this Agreement shall be sent to the addresses set out in this
Agreement (or to such other addresses as may be notified by the parties for
the purpose of this clause) by pre-paid registered or recorded delivery
post and any such communication shall be deemed to be served at the
expiration of two working days after the envelope containing the same was
put into the mail.
14.2 In proving service it shall only be necessary to prove that the
communication was contained in an envelope which was duly addressed stamped
and posted by registered or recorded delivery post.
IN WITNESS whereof this Agreement has been entered into the day and year first
before written.
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SIGNED by )
or and on behalf of )
PBA TECHNOLOGY LIMITED ) /s/ Xxxxxx Xxxxxxx
in the presence of:- )
SIGNED by the said )
XXXX XXXXXXXX XXXX in the ) /s/ P. Xxxxxxxx Xxxx
presence of:- )
Witness' name: Xxxxxxxxx Xxxxx
Witness' address: Xxxxxx Xxxxx
Xxxx Xxxx
Xxxxxxxxxxxx
Witness' occupation: Solicitor
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[GENOMIC SOLUTIONS INC. LETTERHEAD]
December 22, 1999
Mr. Xxxx Xxxx
Xxx Xxxxxxxxx, Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx
Xxxxxxxxxxxxxx
Xxxxxxx
Dear Nick,
This letter is to confirm our mutual understanding regarding the services you
will provide for Genomic Solutions Inc. and Genomic Solutions Ltd. We have
agreed that:
- This letter provides you with official notice as per the terms of your
employment agreement with the Company that the Company shall no longer be
obligated to use your services or provide you with payment after December
31, 2000. That is, we are serving you with twelve months notice as required
by the agreement with this letter.
- For each month during 2000, you will provide services for the Company and
xxxx the Company the sum of Pound Sterling 3,000 per month plus expenses.
- In addition, you will xxxx the Company prior to the end of 1999 a one time
special fee of 7,500 for the extraordinary amount of work you have done,
and will do in the future to conclude, the Xxxxx Xxxxx and HD Technologies
situations.
Sincerely,
/s/Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
President & CEO, Genomic Solutions Inc.
Chairman, Genomic Solutions Ltd.
I ACCEPT THE TERMS AND CONDITIONS PROPOSED IN THIS LETTER THIS 23rd DAY OF
DECEMBER, 1999
/s/P. Xxxxxxxx Xxxx
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P. Xxxxxxxx Xxxx
