Consultancy Agreement - FISHER & PAYKEL HEALTHCARE CORP LTD - 9-13-2001 - DOC

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Consultancy Agreement - FISHER & PAYKEL HEALTHCARE CORP LTD - 9-13-2001 - DOC Powered By Docstoc
					EXHIBIT 10.2 CONSULTANCY AGREEMENT FISHER & PAYKEL INDUSTRIES LIMITED and LRS MANAGEMENT LIMITED THIS AGREEMENT is made this 10th day of September 2001 BETWEEN FISHER & PAYKEL INDUSTRIES LIMITED with its registered office at 78 Springs Road, East Tamaki, Auckland (hereinafter called "Healthcare" of the one part) AND LRS MANAGEMENT LIMITED with its registered office at 2 Pompallier Terrace, Ponsonby, Auckland (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 Mr W L Gillanders 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. 1.1 Services to be provided by Management Company The Management Company agrees to make the services of Mr W L Gillanders 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 Mr Gillanders on the basis of 2 1/2 days in each working week (subject to public holidays). The Management Company shall ensure that Mr Gillanders 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. Healthcare agrees that it has been informed that the Management Company has entered into (or will enter into) an agreement with Fisher & 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 Fisher & Paykel Appliances Holdings Limited requires the services of Mr Gillanders 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 Fisher & Paykel Appliances Holdings Limited shall not constitute a breach of this agreement, provided that a like clause to

1.3

1.4

1.2

The services to be provided pursuant to this agreement shall be provided by Mr Gillanders on the basis of 2 1/2 days in each working week (subject to public holidays). The Management Company shall ensure that Mr Gillanders 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. Healthcare agrees that it has been informed that the Management Company has entered into (or will enter into) an agreement with Fisher & 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 Fisher & Paykel Appliances Holdings Limited requires the services of Mr Gillanders 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 Fisher & 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 Fisher & Paykel Appliances Holdings Limited. During the term of this agreement the Management Company agrees that it will not enter into any agreement with a third party (other than Fisher & Paykel Appliances Holdings Limited as aforesaid) which will require the Management Company to provide the services of Mr Gillanders to such third party without the prior consent of Healthcare. Provision of Services It is intended that Mr Gillanders will provide the consultancy services in Healthcare's office and accordingly Healthcare shall provide such secretarial and other services and facilities to Mr Gillanders as may reasonably be required in relation thereto and shall also ensure that Mr Gillanders 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. Whilst it is contemplated that Mr Gillanders will provide consultancy services in Healthcare's office from time to time Mr Gillanders may also utilise the Management Company's office or his residence for the provision of consultancy services. Fee for Services Healthcare shall pay the Management Company the sum of $200,000 per annum (plus GST) for the consultancy services to be provided hereunder.

1.3

1.4

1.5

2. 2.1

2.2

3. 3.1

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 Mr Gillanders when travelling between his residence or the Management Company's office to Healthcare's office in Auckland. 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. Availability of Mr Gillanders

3.3

4.

Healthcare agrees that it has been advised that under its agreement with Management Company Mr Gillanders 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

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 Mr Gillanders when travelling between his residence or the Management Company's office to Healthcare's office in Auckland. 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. Availability of Mr Gillanders

3.3

4.

Healthcare agrees that it has been advised that under its agreement with Management Company Mr Gillanders 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 Mr Gillanders. 5. Responsibility If Healthcare shall have any reason to question the conduct of Mr Gillanders, 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. 6.1 Confidentiality The Management Company recognises that in order to provide the services to Healthcare contemplated by this agreement Mr Gillanders 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 Mr Gillanders that during the term of this agreement neither the Management Company nor Mr Gillanders 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 Mr Gillanders to enter into a separate confidentiality agreement with Healthcare which imposes restrictions which are not inconsistent with the foregoing. Term of Agreement

7.

This agreement has been entered into by the parties on the understanding that Fisher & 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 15 Maurice Paykel Place, East Tamaki, Auckland and accordingly, shall commence on the separation of the Healthcare business and of the Appliances business of the Fisher & Paykel group into

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 Mr Gillanders to enter into a separate confidentiality agreement with Healthcare which imposes restrictions which are not inconsistent with the foregoing. Term of Agreement

7.

This agreement has been entered into by the parties on the understanding that Fisher & 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 15 Maurice Paykel Place, East Tamaki, Auckland and accordingly, shall commence on the separation of the Healthcare business and of the Appliances business of the Fisher & 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. 8.1 Termination 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. 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. Waiver

8.2

9.

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 Mr W L Gillanders against all loss, damages or costs suffered or incurred by the Management Company and/or Mr W L Gillanders 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 Mr W L Gillanders. 12. Illness and Accident If Mr Gillanders 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

11. Indemnity Healthcare shall indemnify the Management Company and Mr W L Gillanders against all loss, damages or costs suffered or incurred by the Management Company and/or Mr W L Gillanders 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 Mr W L Gillanders. 12. Illness and Accident If Mr Gillanders 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 FISHER & PAYKEL INDUSTRIES LIMITED: ----------------------------------Signed by LRS MANAGEMENT LIMITED: -----------------------------------

/s/ Gary Albert Paykel ----------------------------------Director /s/ David Brian Henry ----------------------------------Director

/s/ William Lindsay Gillanders ----------------------------------Director /s/ Bronwen Gillanders ----------------------------------Director

EXHIBIT 11.1 Computation of per share earnings The following table sets forth the computation of basic and diluted earnings per share for the period indicated:
Year Ended March 31, --------------------------------------1999 2000 2001 -----------------------(in thousands of U.S. dollars, except per share data) Numerator: Profit (loss) from continuing operations after taxation Profit (loss) from discontinued operations after taxation Group profit Denominator: Shares used in computing basic and diluted earnings per share (in thousands of shares) Basic and diluted earnings per share from continuing 9,304 387 --------$ 9,691 ========= $ 29,052 (935) --------$ 28,117 ========= $ 3,51 42 -------$ 3,93 ======== $

117,549 =========

117,643 =========

118,11 ========

EXHIBIT 11.1 Computation of per share earnings The following table sets forth the computation of basic and diluted earnings per share for the period indicated:
Year Ended March 31, --------------------------------------1999 2000 2001 -----------------------(in thousands of U.S. dollars, except per share data) Numerator: Profit (loss) from continuing operations after taxation Profit (loss) from discontinued operations after taxation Group profit Denominator: Shares used in computing basic and diluted earnings per share (in thousands of shares) Basic and diluted earnings per share from continuing operations Basic and diluted earnings per share from discontinued operations Basic and diluted net earnings per share 9,304 387 --------$ 9,691 ========= $ 29,052 (935) --------$ 28,117 ========= $ 3,51 42 -------$ 3,93 ======== $

117,549 ========= $ 0.08

117,643 ========= $ 0.25

118,11 ======== $ 0.0

---------$ 0.08 =========

(0.01) --------$ 0.24 =========

-------$ 0.0 ========

EXHIBIT 21.1 SUBSIDIARIES OF FISHER & PAYKEL INDUSTRIES LIMITED
Subsidiaries Fisher & Paykel Limited.................................. Fisher & Paykel Finance Limited.......................... Fisher & Paykel Healthcare Limited....................... Fisher & Paykel Healthcare Properties Limited............ Fisher & Paykel Holdings, Inc............................ Fisher & Paykel (Singapore) Pte Limited.................. Fisher & Paykel Production Machinery Limited............. Fisher & Paykel Healthcare Limited....................... Fisher & Paykel Healthcare Pty Limited................... Consumer Finance Limited................................. Equipment Finance Limited................................ Fisher & Paykel Appliances, Inc.......................... Fisher & Paykel Healthcare, Inc.......................... Fisher & Paykel Healthcare SAS........................... Fisher & Paykel Healthcare GmbH & Co KG.................. Fisher & Paykel Australia Holdings Limited............... Jurisdiction New Zealand New Zealand New Zealand New Zealand California Singapore New Zealand United Kingdom Australia New Zealand New Zealand California California France Germany Australia

EXHIBIT 21.1 SUBSIDIARIES OF FISHER & PAYKEL INDUSTRIES LIMITED
Subsidiaries Fisher & Paykel Limited.................................. Fisher & Paykel Finance Limited.......................... Fisher & Paykel Healthcare Limited....................... Fisher & Paykel Healthcare Properties Limited............ Fisher & Paykel Holdings, Inc............................ Fisher & Paykel (Singapore) Pte Limited.................. Fisher & Paykel Production Machinery Limited............. Fisher & Paykel Healthcare Limited....................... Fisher & Paykel Healthcare Pty Limited................... Consumer Finance Limited................................. Equipment Finance Limited................................ Fisher & Paykel Appliances, Inc.......................... Fisher & Paykel Healthcare, Inc.......................... Fisher & Paykel Healthcare SAS........................... Fisher & Paykel Healthcare GmbH & Co KG.................. Fisher & Paykel Australia Holdings Limited............... Fisher & Paykel Australia Pty Limited.................... Fisher & Paykel Manufacturing Pty Limited................ Jurisdiction New Zealand New Zealand New Zealand New Zealand California Singapore New Zealand United Kingdom Australia New Zealand New Zealand California California France Germany Australia Australia Australia

EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the use in this Registration Statement on Form F-1 of our reports dated June 6, 2001, except for Notes 30 and 31, for which the date is August 21, 2001, relating to the financial statements and financial statement schedule of Fisher & Paykel Industries Limited, which appear in such Registration Statement. We also consent to the references to us under the headings "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers PricewaterhouseCoopers Auckland, New Zealand September 13, 2001

EXHIBIT 23.3 CONSENT of

EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the use in this Registration Statement on Form F-1 of our reports dated June 6, 2001, except for Notes 30 and 31, for which the date is August 21, 2001, relating to the financial statements and financial statement schedule of Fisher & Paykel Industries Limited, which appear in such Registration Statement. We also consent to the references to us under the headings "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers PricewaterhouseCoopers Auckland, New Zealand September 13, 2001

EXHIBIT 23.3 CONSENT of DELOITTE TOUCHE TOHMATSU We hereby consent to (i) the inclusion of our Independent Report In Respect of the Proposed Separation of Fisher & Paykel Industries Limited, dated August 23, 2001, delivered to the Board of Directors of Fisher & Paykel Industries Limited, as Appendix B to the Registration Statement of Fisher & Paykel Industries Limited on Form F-1, and (ii) the reference made to our firm and such opinion in such Registration Statement under the caption entitled "The Reorganization." In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, and the Rules and Regulations promulgated thereunder, and we do not admit that we are experts with respect to any part of the Registration Statement within the meaning of the term "expert" as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. DELOITTE TOUCHE TOHMATSU
/s/ Deloitte Touche Tohmatsu ---------------------------Auckland, New Zealand September 13, 2001

EXHIBIT 23.3 CONSENT of DELOITTE TOUCHE TOHMATSU We hereby consent to (i) the inclusion of our Independent Report In Respect of the Proposed Separation of Fisher & Paykel Industries Limited, dated August 23, 2001, delivered to the Board of Directors of Fisher & Paykel Industries Limited, as Appendix B to the Registration Statement of Fisher & Paykel Industries Limited on Form F-1, and (ii) the reference made to our firm and such opinion in such Registration Statement under the caption entitled "The Reorganization." In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, and the Rules and Regulations promulgated thereunder, and we do not admit that we are experts with respect to any part of the Registration Statement within the meaning of the term "expert" as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. DELOITTE TOUCHE TOHMATSU
/s/ Deloitte Touche Tohmatsu ---------------------------Auckland, New Zealand September 13, 2001