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EXHIBIT 10.2
CONSULTANCY AGREEMENT
XXXXXX & PAYKEL INDUSTRIES LIMITED
and
LRS MANAGEMENT LIMITED
THIS AGREEMENT is made this 10th day of September 2001
B E T W E E N
XXXXXX & PAYKEL INDUSTRIES LIMITED with its registered office at 00 Xxxxxxx
Xxxx, Xxxx Xxxxxx, Xxxxxxxx (hereinafter called "Healthcare" of the one part)
AND
LRS MANAGEMENT LIMITED with its registered office at 0 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx (hereinafter called "Management Company") of the other part.
INTRODUCTION
A. Healthcare requires the services of an experienced consultant able to
provide legal and commercial advice to Healthcare and to any related
or subsidiary company of Healthcare for the period and upon and
subject to the terms and conditions set out in this agreement.
B. The Management Company now has offered to provide the services
required by Healthcare and has agreed to designate Xx X X Xxxxxxxxxx
as the consultant in its employment who will assume responsibility
for the provision of such services upon and subject to the terms and
conditions of this agreement.
IT IS AGREED
1. Services to be provided by Management Company
1.1 The Management Company agrees to make the services of Xx X X
Xxxxxxxxxx available to Healthcare and to its related and subsidiary
companies upon and subject to the terms and conditions of this
agreement.
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1.2 The services to be provided pursuant to this agreement shall be
provided by Xx Xxxxxxxxxx on the basis of 2 1/2 days in each working
week (subject to public holidays).
1.3 The Management Company shall ensure that Xx Xxxxxxxxxx exercises the
same standard of care as would reasonably be expected to be exercised
by a Senior Executive of Healthcare in the performance of his duties
hereunder.
1.4 Healthcare agrees that it has been informed that the Management
Company has entered into (or will enter into) an agreement with
Xxxxxx & Paykel Appliances Holdings Limited pursuant to which it will
provide similar services to that company as are to be provided by it
to Healthcare pursuant to this agreement. Accordingly, if from time
to time Xxxxxx & Paykel Appliances Holdings Limited requires the
services of Xx Xxxxxxxxxx for longer than a 2-1/2 day period in any
week or requires him to travel overseas, then the provision of such
services to Xxxxxx & Paykel Appliances Holdings Limited shall not
constitute a breach of this agreement, provided that a like clause to
this Clause 1.4 is included in the agreement between the Management
Company and Xxxxxx & Paykel Appliances Holdings Limited.
1.5 During the term of this agreement the Management Company agrees that
it will not enter into any agreement with a third party (other than
Xxxxxx & Paykel Appliances Holdings Limited as aforesaid) which will
require the Management Company to provide the services of Xx
Xxxxxxxxxx to such third party without the prior consent of
Healthcare.
2. Provision of Services
2.1 It is intended that Xx Xxxxxxxxxx will provide the consultancy
services in Healthcare's office and accordingly Healthcare shall
provide such secretarial and other services and facilities to Xx
Xxxxxxxxxx as may reasonably be required in relation thereto and
shall also ensure that Xx Xxxxxxxxxx has full and free access to all
such information, reports and other material in the possession or
under the control of Healthcare as he may require in order to provide
the required consultancy services.
2.2 Whilst it is contemplated that Xx Xxxxxxxxxx will provide consultancy
services in Healthcare's office from time to time Xx Xxxxxxxxxx may
also utilise the Management Company's office or his residence for the
provision of consultancy services.
3. Fee for Services
3.1 Healthcare shall pay the Management Company the sum of $200,000 per
annum (plus GST) for the consultancy services to be provided
hereunder.
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3.2 In addition to the consultancy fee Healthcare shall refund to the
Management Company all out of pocket costs and expenses of the
Management Company necessarily incurred in the provision of the
consultancy services with the exception of the travel costs of Xx
Xxxxxxxxxx when travelling between his residence or the Management
Company's office to Healthcare's office in Auckland.
3.3 The Management Company shall tender invoices for services provided in
each calendar month during the term of this agreement, being the sum
of $16,666.67 (plus GST) together with any sum due as reimbursement
of expenses on or before the 5th day of the next successive calendar
month and payment shall be made by Healthcare to the Management
Company prior to the 20th day of the month in which each such invoice
is received.
4. Availability of Xx Xxxxxxxxxx
Healthcare agrees that it has been advised that under its agreement with
Management Company Xx Xxxxxxxxxx is entitled to 30 days holiday in each year
(which he may take in at the one time or in segments) as well as all New Zealand
public holidays. The Management Company shall give Healthcare reasonable notice
of any holidays (other than public holidays) to be taken by Xx Xxxxxxxxxx.
5. Responsibility
If Healthcare shall have any reason to question the conduct of Xx Xxxxxxxxxx,
the services provided by Management Company or the operation of this agreement,
the matter shall first be raised between the Chairman of Directors of Healthcare
and the Management Company who shall endeavour to resolve the actual or
perceived problem. In the absence of agreement, each company may then take such
action as it deems fit.
6. Confidentiality
6.1 The Management Company recognises that in order to provide the
services to Healthcare contemplated by this agreement Xx Xxxxxxxxxx
and the Management Company will necessarily be possessed of
information relating to the business and affairs of Healthcare which
is of commercial value to Healthcare or to its competitors.
Accordingly the Management Company agrees and will procure the
agreement of Xx Xxxxxxxxxx that during the term of this agreement
neither the Management Company nor Xx Xxxxxxxxxx will:
6.1.1 Enter into an agreement to provide or provide consultancy
services to any third party which carries on a business
which is in the same field of activity as Healthcare or
which manufactures, designs, imports, produces or sells any
products which can be substituted for or compete with
products produced or marketed by Healthcare or any
subsidiary or associated company of Healthcare or provide
services to any such third party.
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6.1.2 Divulge any information concerning the business or affairs
of Healthcare to any third party being information which is
not already in the public domain at the time of such
disclosure.
6.2 Notwithstanding the foregoing if so required by Healthcare Management
Company shall require Xx Xxxxxxxxxx to enter into a separate
confidentiality agreement with Healthcare which imposes restrictions
which are not inconsistent with the foregoing.
7. Term of Agreement
This agreement has been entered into by the parties on the understanding that
Xxxxxx & Paykel Healthcare Corporation Limited will be listed under that name on
the New Zealand Stock Exchange and that its registered office will be
transferred to 00 Xxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx and accordingly,
shall commence on the separation of the Healthcare business and of the
Appliances business of the Xxxxxx & Paykel group into separate companies, each
listed on the New Zealand Stock Exchange (the Separation) or on the 1st January
2002 (whichever shall last occur) provided however that if the Board of
Directors of Healthcare resolve at any time that the Separation shall not
proceed then this agreement shall terminate forthwith.
8. Termination
8.1 Each party shall have a right to terminate this agreement by a notice
in writing if the other party is in breach of any material term or
condition thereof and does not remedy the breach within thirty days
of the date of a notice in writing specifying the breach and
requiring its remedy.
8.2 Termination of this agreement shall be without prejudice to the other
rights or remedies of either party arising out of any default prior
to termination and shall also be without prejudice to any sum payable
as at the date of termination or services performed or liabilities
accrued prior to such date.
9. Waiver
No waiver of any breach of this agreement shall be deemed to be a waiver of any
other or any subsequent breach. The failure of either party to enforce any
provision of this agreement at any time shall not be interpreted as a waiver of
the provision.
10. Force Majeure
The Management Company shall not be liable to Healthcare for a failure to
perform or carry out its obligations hereunder if the failure results from force
majeure.
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11. Indemnity
Healthcare shall indemnify the Management Company and Xx X X Xxxxxxxxxx against
all loss, damages or costs suffered or incurred by the Management Company and/or
Xx X X Xxxxxxxxxx in performing services under the Agreement, except where such
loss, damage and/or costs are the direct result of the gross negligence of, or
wilful misconduct by, the Management Company and/or Xx X X Xxxxxxxxxx.
12. Illness and Accident
If Xx Xxxxxxxxxx is incapacitated by illness or accident so that the Management
Company is unable to provide services in accordance with this agreement for a
period of six consecutive months, then Healthcare may at its discretion
terminate this agreement by a notice in writing to the Management Company.
13. Notices
Any notice to be given by either party to the other party shall be deemed to
have been duly given if in writing and delivered or posted to the other party at
its address as set out in this agreement or to such other address as notified to
the other party in accordance with this clause and if delivered shall be deemed
to have been received on the day of delivery and if posted on the day next
following the day after posting.
14. Assignment
This agreement is personal to the parties and may not be assigned.
Signed by Signed by
XXXXXX & PAYKEL INDUSTRIES LIMITED: LRS MANAGEMENT LIMITED:
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/s/ Xxxx Xxxxxx Paykel /s/ Xxxxxxx Xxxxxxx Xxxxxxxxxx
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Director Director
/s/ Xxxxx Xxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxxxx
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Director Director
