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EXHIBIT 10.1
CONSULTANCY AGREEMENT
XXXXXX & PAYKEL INDUSTRIES LIMITED & XXXXX XXXXX XXXXX
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
A N D
XXXXX XXXXX XXXXX of 000 Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxxxxxxx (hereinafter
called "Xx Xxxxx") of the other part
1. Appointment
1.1 Healthcare hereby appoints Xx Xxxxx as a consultant to Healthcare to
provide general financial and taxation 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.
1.2 Nothing in this agreement shall be read or construed so as to constitute
Xx Xxxxx as an employee of Healthcare or to restrain or restrict his other
activities save and except as specifically set out herein.
1.3 It is contemplated that Xx Xxxxx will attend Healthcare's office when
carrying out his duties hereunder but Xx Xxxxx may also utilise his place
of business as and when appropriate to the performance of such duties.
Attendance at Healthcare's office for any period of less than 4 hours
shall be taken as one half day and when working in his own premises a day
shall be deemed to consist of 7 hours.
1.4 Xx Xxxxx shall be provided with all necessary facilities in the office of
Healthcare and with full and free access to all such information, reports
and other material in the possession of the company as may be required by
him in order to provide the required consultancy service.
2. Availability of Xx Xxxxx
2.1 Healthcare recognises that Xx Xxxxx will be providing consultancy services
to third parties and accordingly save and except in cases where there is
an urgent requirement for his services, Healthcare shall give Xx Xxxxx the
longest practicable notice of the days on which his attendance is
required.
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2.2 Services to be provided by Xx Xxxxx in his own premises shall be subject
to existing commitments by Xx Xxxxx to third parties.
2.3 The parties recognise that at any time and from time to time Healthcare
may need urgent advice from Xx Xxxxx and in any such case Xx Xxxxx shall
use his best endeavours to provide such urgent advice as and when required
by Healthcare.
3. Payment for Services
3.1 Xx Xxxxx shall be paid a retainer of $75,000 per annum (plus GST) and in
consideration for such payment Xx Xxxxx shall provide services for up to
52 days in each calendar year.
3.2 If Healthcare requires Xx Xxxxx to provide services for a period in excess
of 52 days in any year of this agreement Xx Xxxxx shall not unreasonably
decline to provide such additional services but before agreeing so to do
shall be entitled to take into account his obligations to third parties
and other commitments. Any such additional services shall be subject to
payment of such sum and upon such terms and conditions as may be mutually
agreed.
3.3 Xx Xxxxx shall tender an invoice each calendar month, being the sum of
$6,250.00 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 prior to the 20th day of the month
in which each such invoice is received.
4. Expenses
Xx Xxxxx shall not be entitled to travel expenses between his place of business
and Healthcare's office in Auckland, but otherwise shall be entitled to his
out-of-pocket expenses and travel costs when travelling elsewhere at
Healthcare's request.
5. Responsibility
Xx Xxxxx shall be responsible to the Chairman of the Board of Directors of
Healthcare as regards his conduct and the administration of this agreement. If
any dispute or issue arises in respect of his conduct or the services provided
or agreed to be provided in accordance with this agreement then Xx Xxxxx and the
Chairman of the Board of Directors shall confer together with the object of
resolving the matter in dispute in an amicable manner but in default of
agreement each party may then take such action as he or it deems fit.
6. Confidentiality
Xx Xxxxx recognises that in order to provide the services to Healthcare
contemplated by this agreement he 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 Xx Xxxxx agrees that during the
term of this agreement he will not without the prior written approval of
Healthcare:
6.1 Enter into a consultancy or employment agreement with 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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6.2 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.
7. Full Time Employment
If during the term of this Agreement Xx Xxxxx secures full time employment with
a third party which renders him incapable of carrying out and performing his
duties and obligations hereunder then Xx Xxxxx may terminate this agreement by
not less than thirty days prior written notice to Healthcare.
8. 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 the 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 1 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.
9. Termination
9.1 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.
9.2 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.
10. Consultancy After Termination
On termination of this agreement for any reason, and if so requested by
Healthcare at any time thereafter, Xx Xxxxx shall provide information and
assistance concerning the financial affairs of Healthcare during his previous
employment or during his consultancy under this agreement for a period of five
years from the date of the Separation. Any such information and assistance is to
be provided in such manner as may be mutually agreed subject always to any
pre-existing commitments made by Xx Xxxxx to third parties existing at the time
information is requested. Payment to Xx Xxxxx shall be at an hourly rate of $300
plus GST per hour or otherwise as may be mutually agreed.
11. Indemnity
Healthcare shall indemnify Xx Xxxxx against all loss, damages or costs suffered
or incurred by Xx Xxxxx in performing his 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, Xx Xxxxx.
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12. 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.
13. Force Majeure
Neither Healthcare nor Xx Xxxxx shall be liable to perform its or his
obligations if the failure results from force majeure which, in the case of Xx
Xxxxx shall include serious accident or illness.
14. 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.
Signed by Signed by
XXXXXX & PAYKEL INDUSTRIES LIMITED: XXXXX XXXXX XXXXX:
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/s/ Xxxxxxx Xxxxxxx Xxxxxxxxxx /s/ Xxxxx Xxxxx Xxxxx
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Director Signature
/s/ Xxxx Xxxxxx Paykel
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Director
