Exhibit 10.2
CONSULTANCY AGREEMENT
XXXXXX & PAYKEL INDUSTRIES LIMITED
and
LRS MANAGEMENT LIMITED
THIS AGREEMENT is made this 17h day of October 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.
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.
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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.
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.
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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.
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
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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. The term of this
agreement shall be for a three year period from the date of commencement as
determined by this clause.
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.
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.
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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/ Bronwen Xxxxxx Xxxxxxxxxx
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Director Director
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