Employment Contract
between
Advanced Medical Institute Pty Limited
(ABN 56 095 238 645)
and
Xx Xxxx Xxxxxxx
Contents
Clause
number Heading Page
1 Dictionary 1
2 Identity of the Employer and Employee 1
3 Commencement 1
4 Duration of Employment 1
5 The Position 1
6 Location of Employment 2
7 Travel 2
8 Conduct and Performance 2
9 Performance Standards and Review 2
10 Conflicts of Interest and Code of Conduct 3
11 Hours of Work 3
12 Base Salary Package 4
13 Bonus 4
14 Refund of expenses and provision of allowances 5
15 Annual Leave 5
16 Long Service Leave 5
17 Sick Leave 5
18 Policies and Procedures 6
19 Occupational Health and Safety 6
20 Anti-discrimination and Harassment 6
21 Use of Employer's Facilities 7
22 Termination Upon Prior Notice 7
23 Summary Termination 8
24 Appointment to and Resignation from Offices 9
25 Suspension 9
26 Confidential Information and Xxxxxxx Xxxxxxx 10
i
27 Return of Property and Documents upon Termination 11
28 Post-Employment Restrictions 11
29 Entire Agreement 11
30 No Representations and Warranties 11
31 Governing Law and Jurisdiction 11
32 Independent Legal Advice 12
Schedule A 14
Job Description 14
Schedule B 15
Confidential Information 15
Schedule C 16
Post-Employment Restrictions 16
ii
Employment Contract
1 Dictionary
1.1 For the purpose of this contract, the following terms have the meanings
set out below.
"Employment" means the employment of the Employee by the Employer.
"Document" means any record of information.
"Position" means the position of Chief Executive Officer and Managing
Director of the Employer.
"Related Body Corporate" has the same meaning as that set out in section
50 of the Corporations Xxx 0000.
1.2 Other terms may be specially defined elsewhere in this contract.
2 Identity of the Employer and Employee
2.1 The Employer is Advanced Medical Institute Pty Limited (ABN 56 095 238
645) of Xxxxx 0, 000-000 Xxxxxx Xxxx, Xxxxxxxxxx XXX 0000.
2.2 The Employee is Xx Xxxx Xxxxxxx of 000/00 Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx
XXX 0000.
2.3 The Employee will promptly notify the Employer in writing of any change to
the residential address of the Employee.
3 Commencement
3.1 The Employee has been employed by the Employer or its associated companies
since 1 March 1993.
3.2 The parties have agreed to amend the terms and conditions of the
Employment, with effect from 1 July 2005 ("Effective Date"), and to set
out in this contract the terms and conditions of the Employment in effect
on and from the Effective Date.
4 Duration of Employment
The Employment will continue indefinitely until terminated by either party in
accordance with the terms of this contract.
5 The Position
5.1 The Employee will be employed in the position of Chief Executive Officer
and Managing Director.
5.2 In the Position, the Employee will report directly to the Employer's board
of directors.
5.3 A description of the duties and responsibilities of the Position is set
out in Schedule A. This description is not intended to be exhaustive and
the Employer may require the Employee to perform other duties in addition
to or instead of those set out in Schedule A.
5.4 The Employee warrants that the Employee is not subject to any direct or
indirect restrictions on the Employee's ability to fully perform the
duties of the Position and will not be breaching any obligation to a third
party by entering into this contract.
6 Location of Employment
6.1 The Employment will initially be based at the Employer's workplace at
Xxxxx 0, 000-000 Xxxxxx Xxxx, Xxxxxxxxxx XXX 0000.
6.2 The Employer may change the base of the Employment to any location within
the Sydney Metropolitan Area at any time by giving the Employee at least
one month's notice in writing. In the event of such relocation, the
Employee will not be entitled to any additional remuneration.
7 Travel
7.1 The Employee acknowledges that the nature of the position requires
frequent and unscheduled travel.
7.2 The Employee must engage in such travel without any additional
remuneration and as required by the Employer. All reasonable and proper
expenses associated with such travel will be borne by the Employer in
accordance with clause 13.
8 Conduct and Performance
8.1 The Employee must:
(a) comply with the lawful directions of the Employer;
(b) serve the Employer and fulfil the duties of the Position honestly,
faithfully and in a professional manner;
(c) use the Employee's best efforts to promote the business of the
Employer;
(d) fully and truthfully answer any questions asked by the Employer
regarding the Employment; and
(e) fully report to the Employer all business opportunities which may
advantage the Employer and any significant threats to the Employer's
business as soon as these come to the attention of the Employee.
8.2 The Employee warrants that the Employee is not subject to any restrictions
on the Employee's ability to perform the duties of the Position.
9 Performance Standards and Review
9.1 The Employee must answer fully and truthfully all questions relating to
the Employee's performance and conduct.
9.2 The Employee must attend and participate in all performance interviews,
and complete any performance related questionnaires or appraisal forms.
9.3 The Employee's performance will be reviewed by the Employer throughout the
Employment and at least once every year of service on or about 31
December.
9.4 The Employee must meet the minimum performance standards usually
applicable to a chief executive officer for a similar size organisation.
If the Employee fails to meet these standards, the Employer may take
disciplinary action against the Employee. This disciplinary action may
include the termination of the Employment.
9.5 The performance standards represent minimum requirements only and are not
intended to constitute an exhaustive list of the performance measures
which will be used by the Employer to assess the Employee.
9.6 The Employer may review and amend these minimum performance standards at
the beginning of each financial year or at any other time after
consultation with the Employee.
10 Conflicts of Interest and Code of Conduct
10.1 The Employee must not undertake any activity (including paid or unpaid
work) which may either compromise or give rise to a conflict with either:
(a) the Employee's duties and responsibilities under this contract; or
(b) the business interests of the Employer,
unless the Employee has obtained the prior consent of the Employer in
writing. The Employer acknowledges that the Employee has disclosed his
business relationship with Yayasan On-Clinic, a business which operates an
Indonesian business which is similar to the Employer's Australian
business, and the Employee's ownership of certain intellectual property in
fields similar to the Employer's business. The Employer acknowledges and
agrees that the Employee is entitled to licence that intellectual property
to a third party outside Australia and be involved in businesses similar
to the Employer's business outside Australia. The Employer also
acknowledges that the Employee is engaged in medication formulation and
development separate tot eh Employee's employment with the Employer and
that the Employee (or his nominee) will own any intellectual property
relating from such activities.
10.2 The Employee must immediately and fully disclose in writing to the
Employer any potential or actual conflicts of interest.
10.3 The Employee is not prevented by this clause from:
(a) any reasonable involvement in any professional or educational
activity or body; or
(b) trading in any shares or stock of any company which is listed on a
recognised stock exchange for the purpose of investment only,
provided that such shares or stock do not exceed 5% of the company's
issued capital, excepting shares in the Employer (in respect of
which the Employee continues nevertheless to be subject to all other
relevant obligations, including under statute and in equity).
10.4 The obligations contained in this clause are not intended to detract from
the Employee's express and implied obligations to act in good faith and
fidelity towards the Employer.
11 Hours of Work
The Employee is engaged on a full time basis and is expected to devote the
Employee's full time and attention to the business of the Employer during normal
working hours, and when necessary, after such hours without further remuneration
or time off in lieu.
12 Base Salary Package
12.1 The Employer will provide a gross base salary package of $350,000 per
annum plus employer superannuation contributions in accordance with clause
12.3.
12.2 The Employer will pay the base salary to the Employee in fortnightly
instalments into a bank account nominated by the Employee. The instalments
will be paid in arrears.
12.3 In accordance with the federal Superannuation Guarantee Scheme, the
Employer will make employer superannuation contributions for the benefit
of the Employee into a complying superannuation fund. The employer
superannuation contributions will be the minimum amount required for the
Employer to avoid the payment of a superannuation guarantee charge.
12.4 The level of the Employee's gross base salary package will be reviewed by
the Employer annually on or about 31 December. In undertaking this review
the Employer may have regard to any matter in its absolute discretion,
including but not limited to the performance of the Employee, the
performance of the Employer, the prevailing economic conditions, the
Employer's business requirements and its capacity to pay. This review will
not necessarily lead to an increase in base salary.
13 Bonus
13.1 The Employee is eligible to participate in a discretionary bonus scheme
operated by the Employer ("xxx Xxxxxx").
13.2 Under the Scheme, the Employee may receive a bonus following the
completion of each calendar year, to be determined at the sole and
absolute discretion of the Employer, which bonus will only be payable if
the Employee remains employed by the Employer as at the date the bonus, if
any, is to be paid.
13.3 The bonus will be payable within 3 months after the end of the relevant
calendar year.
13.4 The Employer may take into account such matters which it believes to be
relevant, which may include the individual performance of the Employee as
well as the overall performance of the Employer.
13.5 No bonus will be payable in relation to a financial year unless the
Employer's overall financial performance exceeds the minimum target set by
the board. The minimum financial target applying to the current calendar
year ending 31 December 2005 will be consolidated Net Income of the
Employer (before income tax expenses and excluding any capital profits
received from sale of assets), as determined in accordance with the
applicable Australian accounting standards, of A$1.5 million.
13.6 The conferral and value of any bonus under the Scheme will at all times be
within the sole and absolute discretion of the Employer.
13.7 Notwithstanding the foregoing, providing the Employee's overall
performance is excellent, it is envisaged that the Employee's bonus for
the current calendar year ending 31 December 2005 will be an amount of up
to 7% of that portion of the Employer's Net Income (before income tax
expenses and excluding any capital profits received from sale of assets)
that is above the target amount set under clause 13.5 for that calendar
year.
13.8 The Employer may vary the terms of or cancel the Scheme at any time.
14 Refund of expenses and provision of allowances
14.1 Any business expenses which the Employee necessarily incurs for the
purpose of carrying out the duties of the Position will be reimbursed by
the Employer provided that:
(a) the expenses are reasonable and related directly to the Employer's
business;
(b) the Employee has provided the Employer with itemised receipts of
these expenses, and any other additional evidence of these expenses
as it may reasonably require; and
(c) the Employee complies with any other policy or procedure published
by the Employer from time to time regarding the reimbursement of
expenses.
14.2 In addition to the Employee's base remuneration and bonus, the Employer
will provide the Employee with a car allowance of $35,000 per annum.
15 Annual Leave
15.1 The Employee is entitled to take annual holidays in accordance with the
provisions of the Annual Xxxxxxxx Xxx 0000 (NSW).
15.2 The Employee is not entitled to annual leave loading.
15.3 The Employer has the right to direct the Employee to take accrued annual
leave by giving one month's notice.
15.4 The Employee acknowledges that the Employer may take into account its
business requirements when either accepting or rejecting an application
from the Employee to take annual holidays at a particular time.
15.5 Whilst on such leave, the Employee will not engage in any conduct which is
inconsistent with the Employee's duties and responsibilities under this
contract.
15.6 The parties agree and acknowledge that the Employee's accrued annual leave
as at the date of this contract totals 120 days.
16 Long Service Leave
16.1 The Employee is entitled to take long service leave in accordance with the
provisions of the Long Service Leave Xxx 0000 (NSW).
16.2 The Employee acknowledges that the Employer may take into account its
business requirements when either accepting or rejecting an application
from the Employee to take long service leave at a particular time.
16.3 Whilst on such leave, the Employee will not engage in any conduct which is
inconsistent with the Employee's duties and responsibilities under this
contract.
16.4 The parties agree and acknowledge that the Employee's commencement of
employment for the purpose of calculating long service leave entitlements
was 1 March 1993.
17 Sick Leave
17.1 The Employee will be entitled to 8 days' sick leave on full remuneration
per year of service, provided that, when taking sick leave, at the first
available opportunity the Employee:
(a) promptly notifies the Employer of the proposed absence on sick
leave, the reason for taking the sick leave, and the expected
duration of the absence;
(b) upon request, provides the Employer with a medical certificate
signed by a registered medical practitioner which sets out the
reason for the Employee's absence and the expected duration of
absence; and
(c) the Employee provides the Employer with any other medical evidence
in relation to the sick leave as required by the Employer.
17.2 Untaken sick leave will accumulate from year to year up to a total
accumulation of 100 days. The Employer and the Employee agree and
acknowledge that the Employee has accumulated 100 days as at the date of
this contract.
17.3 The Employee will not be entitled to receive any payment for untaken sick
leave days upon termination or at any other time.
18 Policies and Procedures
18.1 The Employee must comply with the employment policies and procedures of
the Employer as published and amended by the Employer from time to time.
18.2 The Employer will notify the Employee in writing of any changes to its
employment policies and procedures.
19 Occupational Health and Safety
19.1 The Employee must:
(a) safely attend to the duties of the Position;
(b) familiarise himself with all occupational health and safety laws and
the regulations which are relevant to the duties of the Position,
and also the occupational health and safety policies and procedures
of the Employer;
(c) comply with the above and take steps to ensure that the employees of
the Employer comply with the above;
(d) immediately notify the board of directors of any potential or actual
occupational health and safety risks;
(e) take a pro-active interest in eliminating or reducing health and
safety risks to the Employee and to others in the workplace; and
(f) co-operate with the Employer in its efforts to comply with
occupational health and safety requirements.
20 Anti-discrimination and Harassment
20.1 The Employer is an equal opportunity employer and will not tolerate
unlawful discrimination or harassment at its workplace.
20.2 The Employee must at all times comply with and ensure that the employees
of the Employer comply with the anti-discrimination and harassment
policies of the Employer.
20.3 The Employee must immediately notify the board of directors as soon the
Employee becomes aware of any unlawful discrimination or harassment.
21 Use of Employer's Facilities
21.1 The Employer may provide the Employee with access to certain facilities,
including email and Internet services, computer systems, telephone
services (mobile and landline), facsimile machines and photocopy
facilities ("the Facilities").
21.2 The Facilities are provided for use in connection with the business of the
Employer only. The Employee will reimburse the Employer for any costs
incurred as a result of any use of the Facilities that is not related to
the business of the Employer, including the following:
o personal calls on mobile phones;
o personal interstate or overseas phone calls;
o personal facsimile charges; and
o personal photocopy costs.
21.3 The use of the Facilities will be monitored by the Employer and the
Employee consents to this monitoring. The Employee acknowledges that any
personal messages received or sent on the Facilities will not be regarded
as confidential.
21.4 The Employee must not use the Facilities to access, download, copy,
circulate, send, receive, or otherwise communicate:
o hateful or abusive material;
o offensive material (including jokes or games);
o defamatory material;
o material which would offend anti-discrimination and/or harassment
laws; or
o pornography.
The Employee must also actively discourage anyone else from sending the
Employee this type of material.
21.5 The Employee must not use the Facilities to infringe the copyright of
others. For example, copying and distributing licensed software may be in
breach of copyright and may expose the Employee and the Employer to legal
action.
21.6 The Employee must not use unauthorised software on the Employer's computer
or download software from the Internet.
21.7 The Employee must also comply with any policies distributed by the
Employer regarding the use of the Facilities.
22 Termination Upon Prior Notice
22.1 Either Party may terminate the Employment by giving the other not less
than 12 months' prior notice.
22.2 Where the Employee is required to work out a period of notice, the
Employer may direct the Employee during some or all of the notice period:
(a) not to attend the office;
(b) not to contact clients, customers, suppliers, employees or
contractors of the Employer;
(c) not to perform the duties of the Position;
(d) to perform the duties of the Position from home;
(e) to assist the Employer to arrange a proper handover of the duties of
the Position, including clients or customers and businesses; or
(f) any combination of the above,
provided always that:
(i) this is done for the primary purpose of protecting the business of
the Employer; and
(ii) the Employee continues to receive remuneration under this contract
(or where this remuneration includes commission or bonuses) a
reasonable assessment of the remuneration under this contract that
the Employee would have received if this direction was not given.
22.3 If the Employee gives the Employer notice of termination for the purpose
of commencing work with a competitor of the Employer, or otherwise
competing with the Employer, the Employee must:
(a) immediately upon giving notice disclose full details of this purpose
so as to enable the Employer to take steps to protect its business,
and arrange the hand over of the Position's duties (including
clients, suppliers and business) to another employee; and
(b) comply with any directions given by the Employer for the purpose of
giving effect to (a) above.
The obligation set out in this sub-clause above is not intended to detract
from the Employee's general obligation to immediately disclose any
conflict of interest to the Employer.
22.4 The Employer may also terminate the Employment by either:
(a) making a payment in lieu of the entire notice period; or
(b) requiring the Employee to work part of the notice period and making
a payment in lieu of the balance of the notice period.
In either case the Employment will be terminated upon the making of the
payment in lieu of notice.
22.5 Subject to the following subclause, any payment in lieu of notice will be
calculated by reference to the remuneration which the Employee would have
earned under this contract if the Employee worked the Employee's normal
hours throughout the notice period (or part thereof).
23 Summary Termination
23.1 The Employer may terminate the Employment at any time without prior notice
if the Employee:
(a) is guilty of serious misconduct (including, but not limited to
theft, fraud, and assault);
(b) is grossly negligent or otherwise incompetent in the performance of
the duties of the Position;
(c) commits a serious or persistent breach of the terms of this
contract;
(d) refuses to carry out a lawful and reasonable instruction that is
consistent with this contract;
(e) becomes bankrupt or suspends payment or compounds with or assigns
the Employee's estate for the benefit of his creditors;
(f) commits a crime or other civil wrong, which in the reasonable
opinion of the Employer, may seriously impact on the Employee's
ability to perform the duties of the Position or is likely to
significantly damage the reputation or business of the Employer; or
(g) is either repeatedly absent from work or absent from work for a
period of five (5) consecutive days without proper explanation or
the consent of the Employer.
23.2 The Employee may terminate the Employment without prior notice if the
Employer commits a serious breach of this contract.
24 Appointment to and Resignation from Offices
24.1 The Employer may, during the Employment, request that the Employee hold
offices with the Employer or a Related Body Corporate of the Employer.
Unless otherwise agreed in writing, these offices will be held without any
further remuneration to the Employee.
24.2 On termination of the Employment for any reason, the Employee must, at the
request of the Employer, resign from any office (including the office of
director) held by the Employee in the Employer or in any Related Body
Corporate, without claim for compensation.
24.3 The Employee will not be entitled to a benefit under this contract or
otherwise in connection with the termination of the Employment, if the
giving of the benefit will give rise to a breach of Part 2D.2 of the
Corporations Xxx 0000, any other provision of that Act, or any other
applicable statute, rule or regulation that limits or restricts the giving
of such benefits. Further, the Employer is under no obligation to seek or
obtain the approval of its shareholders in general meeting for the purpose
of overcoming any such limitation or restriction.
25 Suspension
25.1 If the Employer suspects that the Employee has been involved in any
improper conduct or involved in any other conduct which in the reasonable
opinion of the Employer requires proper investigation, the Employer may do
the following for the purposes of conducting this investigation:
(a) suspend the Employee from any requirement to perform the duties and
responsibilities of the Position for a period not exceeding two
weeks;
(b) direct the Employee not to attend the workplace or contact fellow
employees or any other party involved in the conduct which is being
investigated;
(c) appoint any person to conduct the investigation; and
(d) direct the Employee to provide any assistance and answer any
questions, required for the investigation.
25.2 During the period of suspension the Employee will continue to receive the
remuneration set out under this agreement.
25.3 Any suspension under this clause will not be treated as disciplinary
action by the Employer, but will be instituted solely for the purpose of
conducting an investigation.
26 Confidential Information and Xxxxxxx Xxxxxxx
26.1 "Confidential Information" means the following information which is
obtained by the Employee during the course of or as a result of the
Employment:
(a) information which is marked "Confidential" or which is described or
treated by the Employer as confidential;
(b) information of a business sensitive nature;
(c) personal information as defined in the Privacy Xxx 0000 (Cth);
(d) trade secrets; and
(e) without limiting the generality of the above, the information which
is listed in Schedule B of this Contract.
26.2 Confidential Information is not confined to information of the Employer,
but may also include information of its Related Bodies Corporate, clients,
suppliers, contractors and employees and information of the Employer's
customers, contractors, suppliers, clients and their Related Bodies
Corporate.
26.3 Confidential Information will not include information which is or becomes
readily available in the public domain otherwise than as a result of the
breach of an obligation of confidence by the Employee.
26.4 The Employee must not use or disclose Confidential Information during or
after the Employment except in the following circumstances:
(a) the Employer has given its prior written consent; or
(b) in the proper course of performing the duties of the Position and
for the benefit of the Employer; or
(c) to the extent required by law.
26.5 Without limiting generality of the above, the Employee must not disclose
Confidential Information to other employees of the Employer unless these
employees are authorised by the Employer to receive this information and
need to know this information to perform their duties to the Employer.
26.6 The Employee must immediately notify the Employer if the Employee suspects
that Confidential Information has been improperly used or disclosed.
26.7 The Employee must take all reasonable steps to prevent the unauthorised
disclosure or use of Confidential Information.
26.8 The Employee must execute all confidentiality agreements with the Employer
which are designed to protect Confidential Information which comes to the
attention of the Employee as a result of the Employment, as reasonably
required by the Employer from time to time.
26.9 The Employee must not copy or remove from the Employer's premises any
Document which contains Confidential Information except for the purpose of
properly performing the duties of the Position and for the benefit of the
Employer.
26.10 The Employee acknowledges that the Employee is likely to have access to
material non-public information regarding the Employer or its Related
Bodies Corporate and that xxxxxxx xxxxxxx restrictions may apply to the
Employee as a result of obtaining such information. The Employee
acknowledges and agrees that the Employee will comply with all legal
obligations which the Employee has in relation to such restrictions in
respect of such information.
27 Return of Property and Documents upon Termination
27.1 Upon the termination of the Employment, the Employee must immediately
deliver to the Employer without any further demand:
(a) all Documents and other property of the Employer; and
(b) without limiting the generality of (a) above, all Documents which
contain any Confidential Information, documents in the Employee's
possession or control relating in any way to any Confidential
Information.
28 Post-Employment Restrictions
28.1 The Employee will comply with the post-employment restrictions which are
set out in Schedule C to this contract.
28.2 The Employment is conditional upon the Employee complying with the
post-employment restrictions. The Employee acknowledges that the
Employee's remuneration under this contract incorporates consideration for
the post-employment restrictions.
28.3 The Employee acknowledges that during the Employment, the Employee has or
will become possessed of Confidential Information regarding the business
of the Employer and its Related Bodies Corporate, clients, customers and
suppliers, and the disclosure or use of such information may materially
harm the Employer or its Related Bodies Corporate. The Employee agrees
that the post-employment restraints contained in Schedule C are reasonable
and necessary for the protection of the business of the Employer and its
Related Bodies Corporate.
29 Entire Agreement
This contract constitutes the entire agreement relating to the Employment on and
from 1 July 2005 and supersedes all prior agreements, contracts, negotiations
and representations whether in writing or oral in relation to the Employment
after 30 June 2005. This contract may only be amended by agreement in writing
signed by both parties. For the avoidance of doubt, this contract does not
constitute a guarantee of employment with the Employer for any period, including
up to 30 June 2005.
30 No Representations and Warranties
The Employee acknowledges that in entering into this contract, the Employee has
not relied on any representations or warranties about its subject matter, except
as provided in this contract.
31 Governing Law and Jurisdiction
The Employment is governed by the laws in force in New South Wales and both the
Employer and the Employee irrevocably submit to the non-exclusive jurisdiction
of the courts of New South Wales.
32 Independent Legal Advice
32.1 The Employee acknowledges that the Employee has had a reasonable
opportunity to obtain independent legal advice regarding the contents of
this contract.
32.2 The Employee acknowledges that the Employee has had sufficient time to
review the contents of this contract and further, understands the contents
of this contract.
32.3 The Employee acknowledges that the Employee has not been placed under any
undue pressure to enter into this contract.
Signed for and on behalf of )
Advanced Medical Institute Pty )
Limited )
by its sole director/Authorized Officer )
/s/ Xxxx Xxxx
----------------------------------
Signature of Authorized Officer
Xxxx Xxxx
----------------------------------
Name of Authorized Officer (please
print)
Signed by )
Xx Xxxx Xxxxxxx )
in the presence of: )
/s/ Xxxxx Xxxxxxxx /s/ Xxxx Xxxxxxx
------------------------------------- ----------------------------------
Signature of witness Signature of Xx Xxxx Xxxxxxx
Xxxxx Xxxxxxxx
-------------------------------------
Name of witness (please print)
Schedule A
Job Description
--------------------------------------------------------------------------------
As chief executive officer and managing director, the Employee will have
significant responsibility for the performance of the Employer and will exercise
all powers vested in him by the Employer from time to time.
Without limiting the generality of the foregoing, the Employee will be
responsible for oversight of the following:
(a) the strategic business operation and development of the Employer;
(b) monitoring the general non-strategic day to day business operations
of the Employer (by supervising the performance of the Employer's
chief operating officer and chief financial officer and the staff
reporting to them);
(c) supervising the performance of the Employer's chief operating
officer and chief financial officer;
(d) human resources including advertising, interviewing and engaging
contractors (doctors and other service providers) and staff (sales,
helpline, back office) for the operation of the business of the
Employer;
(e) monitoring and reviewing staff and contractors;
(f) supervising and working with the chief financial officer with
respect to his accounting, budgeting and information technology
responsibilities;
(g) analysing the market, being involved in settling service rates and
reviewing business performance;
(h) assisting with advertisement and call centre script preparation and
review;
(i) preparing and reviewing business plans;
(j) engaging suppliers;
(k) assisting with premises and lease sourcing and review;
(l) compliance with legal obligations in respect of corporate governance
and day to day business operations; and
(m) working closely with the Employer's contracted pharmacy, doctors,
nurses, sales staff and call centre staff to ensure services are
delivered to the highest standard and revenue and profit is
maximised.
Schedule B
Confidential Information
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(a) the names and addresses and other personal details of employees,
contractors, clients and suppliers of the Employer or its Related
Bodies Corporate (including without limitation doctors, nurses,
sales staff, clinic staff, pharmacy contractors, medical equipment
suppliers, pharmaceutical suppliers and information technology
suppliers);
(b) the terms upon which the Employer or its Related Bodies Corporate
contract with employees, contractors, clients and suppliers;
(c) financial results, business plans and forecasts of the Employer or
its Related Bodies Corporate;
(d) the terms of this contract;
(e) know-how, trade secrets, ideas, concepts, technical and operational
information, arising or used by the Employer or its Related Bodies
Corporate in relation to their businesses including without
limitation treatment methods and compositions, client databases and
details, call centre scripts and direct sales scripts, outbound call
scripts, treatment manuals and customer management software;
(f) information concerning the affairs or property of the Employer's
business or the business of its Related Bodies Corporate or any
business, property or transaction in which the Employer or its
Related Bodies Corporate may be or may have been concerned or
interested;
(g) information about the business methods of the Employer or its
Related Bodies Corporate in the conduct of their businesses; and
(h) information which by its nature or by the circumstances of its
disclosure, is or could reasonably be expected to be regarded as
confidential to the Employer or any third party with whose consent
or approval the Employer uses that information.
Schedule C
Post-Employment Restrictions
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1. For the purposes of this Schedule the following words have these meanings:
"Customer" means any person who:
(a) is a customer of the Employer; or
(b) was a customer of the Employer within the Relevant Period; or
(c) was having discussions with the Employer at any time in the last
three months of the Employment regarding becoming a customer.
"Geographical Area" means New South Wales, Victoria, Queensland, Western
Australia, South Australia, the Northern Territory, Tasmania, the
Australian Capital Territory and any other place that the Employer or any
of its Related Bodies Corporate was carrying on business at the
Termination Date.
"Relevant Period" means the last twelve months of the Employment up to and
including the Termination Date, or if the period of the Employment was
less than twelve months, that shorter period.
"Restraint Period" means:
(a) a period of 2 years after the Termination Date; but if that period
is held by a court of competent jurisdiction to be unenforceable,
(b) a period of 1 year after the Termination Date; but if that period is
held by a court of competent jurisdiction to be unenforceable,
(c) a period of 6 months after the Termination Date; but if that period
is held by a court of competent jurisdiction to be unenforceable,
(d) a period of 3 months after the Termination Date.
"Restricted Business" means:
(a) the business of providing programmes for the treatment of impotence,
premature ejaculation or sexual dysfunction in men and women; and
(b) any other business activity of a kind carried on in the Geographical
Area by the Employer or a Related Body Corporate of the Employer in
which the Employee was involved in the course of the Employment at
any time during the Relevant Period.
"Restricted Person" means any person:
(a) who is an employee, consultant or contractor of the Employer; or
(b) who was an employee, consultant or contractor of the Employer within
the Relevant Period; or
(c) with whom the Employer was having discussions at any time in the
last three months of the Employment regarding that person becoming
an employee, consultant or contractor of the Employer.
"Supplier" means any person who:
(a) supplies the Employer or any of its Related Bodies Corporate with
goods or services relating to Restricted Business including without
limitation pharmaceutical services, pharmaceuticals, medical devices
or equipment and medical services (including without limitation as a
doctor or a nurse); or
(b) supplied the said goods or services to the Employer or any of its
Related Bodies Corporate in the Relevant Period; or
(c) was having discussions with the Employer at any time in the last
three months of the Employment regarding becoming a supplier of the
said goods or services to the Employer.
"Termination Date" means the date on which the Employment is terminated
for any reason.
2. A person will not constitute a Customer, Restricted Person, or Supplier as
defined in clause 1 above unless the Employee either had material contact
or dealings with that person in the course of the Employment, is likely to
have developed a direct or indirect influence over that person as a result
of the Employment, or had access to information regarding that person as a
result of the Employment.
3. The Employee will not at any time during the Restraint Period (without the
Employer's prior written consent) directly or indirectly, on the
Employee's own behalf or on behalf of any other person:
(a) in the Geographical Area participate in or be involved with the
carrying on of Restricted Business;
(b) in the Geographical Area, in respect of Restricted Business, become
employed by, or provide services to, or have any other business
association with, a business carrying on Restricted Business,
including but not limited to such a business in which any of Xxxx
Xxxxx, Xxxx Xxxx, Xxx Xxxxxxxx, Xxxxxx Xxxxxx and Xxxxxx Xxxxx
(which persons the Employee acknowledges are competitors of the
Employer) or any person associated with any of them is participating
or is involved;
(c) in the Geographical Area solicit Restricted Business from any
Customer or Supplier;
(d) endeavour to entice a Customer or Supplier away from the Employer or
otherwise interfere with the relationship which the Employer
maintains or proposes to maintain with a Customer or Supplier;
(e) accept a request from a Customer to provide the Customer with
services in the Geographical Area that would constitute Restricted
Business;
(f) interfere with any transaction relating to Restricted Business in
which the Employer is involved or proposes to be involved;
(g) attempt to entice away from the Employer any Restricted Person or
otherwise interfere with the relationship which the Employer
maintains or proposes to maintain with a Restricted Person;
(h) engage in any conduct which may tend to damage the business or
business interests of the Employer; or
(i) counsel, procure or assist any person to do any of the acts referred
to above.
4. The restrictions imposed on the Employee under sub-clauses 3 (a) to (i)
are separate and independent restrictions, apply concurrently, and are not
intended to limit the operation, interpretation or severability of each
other. Subject always to the operation of the Restraints of Trade Act 1976
(NSW), each and every restriction in this Schedule will be taken to be a
severable and independent restriction with the intent that, if they are,
taken together, adjudged to go beyond what is reasonable in all the
circumstances but would be adjudged reasonable with any one or more
restrictions or parts of the restrictions deleted, the restrictions will
be taken to apply as if those restrictions or parts of restrictions so
adjudged unreasonable were deleted.
5. Nothing in this Schedule prevents the Employee from:
(a) being a holder for the purposes of investment only of a
corporation's marketable securities quoted on a recognised stock
exchange (providing the holding is limited to 5% or less of the
corporation's issued capital); or
(b) reasonable involvement in any professional or educational activity
or body.
6. The Employee acknowledges that, if the Employee breaches clause 3 above,
damages may not be a sufficient remedy and that the Employer will be
entitled to claim injunctive and/or other equitable relief.
7. The Employee acknowledges that the restrictions set out in this clause are
reasonably necessary to protect the business of the Employer and its
Related Bodies Corporate.
