PRIVATE AND CONFIDENTIAL Megan Boston Dear Megan LETTER OF APPOINTMENT
Exhibit 10.3
11 July 2018
PRIVATE AND CONFIDENTIAL
▇▇▇▇▇ ▇▇▇▇▇▇
[***]
[***]
Dear ▇▇▇▇▇
Following recent discussions, this letter (“Agreement”) sets out the terms on which you will fulfill the role of Head of Operations, Australia with Benitec Biopharma Limited (“Company”). Part of the effect of the Agreement is that you will cease to be a non-executive director of the Company while the Agreement is in effect and for that period will be an executive director of the Company. While you are an executive director, you will be paid in accordance with this Agreement and any director’s fee that would have been payable if you were a non-executive director will not apply and will not be paid. Other than in relation to you becoming an executive director and that change to payment terms, the terms of the Agreement will not affect your role as a director.
| 1. | Position |
| 1.1 | You will fulfill the role of Head of Operations, Australia, effective from 14 June 2018 (“Commencement Date”). |
| 1.2 | Your duties and responsibilities in that role are set out in Appendix A. This description is not intended to be exhaustive and you may be required to perform other duties consistent with your role in addition to those set out in Appendix A. |
If your position, duties and/or responsibilities change for any reason, then the terms of this contract will continue to apply unless expressly varied by the parties in writing.
| 1.3 | You will perform that role during 2 days per week on days and at times agreed with the chairman of the Company. |
| 2. | Remuneration |
| 2.1 | In respect of you performing that role, the Company will pay you a gross annual remuneration package of AUD $180,000 per annum plus superannuation contributions in accordance with legislative requirements. |
| 2.2 | The salary referred to in this clause 2 has been set specifically having regard to any and all entitlements that may apply now, or in the future, under an industrial award, enterprise agreement or the Fair Work Act 2009 (Cth), as amended from time to time, (“Act”) including reasonable additional hours, shift penalties, overtime and allowances (howsoever described). It is agreed that the Company may apply any over award salary or remuneration in satisfaction of its obligation to provide such award benefits. |
| 2.3 | The Company can offer you flexibility within your gross annual remuneration to allow you to salary sacrifice and the Company will add that salary sacrifice to its contribution to the superannuation scheme. Any actual increase in the Company contribution to the superannuation scheme is subject to legislative rules at the time. The minimum company superannuation contribution is set by legislation. |
| 2.4 | Any business expenses which you necessarily incur for the purpose of carrying out your duties will be reimbursed by the Company provided that the expenses are reasonable and related directly to the Company business. You will also be required to provide the Company with itemised receipts of these expenses, and any other additional evidence of these expenses as it may reasonably require, and comply with any other policy or procedure published by the Company from time to time regarding the reimbursement of expenses. |
| 3. | Salary Review – Performance Measures |
| 3.1 | The Chairman intends to review your gross salary package annually against your performance and as a result of your performance the Chairman and Board may, at their sole discretion, increase or not make any changes to your salary and pay or not pay a bonus whether in the form of cash, share options or both. The first of such annual reviews will be held in June 2019. |
| 3.2 | Your performance will be reviewed against key performance criteria (set with you by the Chairman soon after entering into this Agreement). It is intended that subsequent key performance criteria will be set in consultation with you annually at the beginning of the financial year. The key performance criteria will describe your business objectives, specific annual goals and agreed outcomes (pre-agreed performance targets) against which you will be measured. |
| 4. | Payment |
Your salary will accrue and be payable monthly one half in advance and one half in arrears by equal instalments on or about the 15th of each month by electronic funds transfer to a bank account nominated by you.
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| 5. | Annual leave and long service leave |
| 5.1 | You will be entitled to four weeks’ annual leave pro rata per year of service in accordance with the Act. You will be encouraged to take your full entitlement each year. |
| 5.2 | Payment for the period of leave will be on the basis of the ordinary time you would have worked had you not been on annual leave. |
| 5.3 | Annual leave must be taken at a time or times to be approved by the Company. |
| 5.4 | You will be entitled to long service leave entitlements in accordance with the long service leave legislation applicable to the Company’s employment. |
| 6. | Personal/▇▇▇▇▇’s and compassionate leave |
| 6.1 | You will be entitled to 10 days’ paid personal/carer’s leave per year of service pro rata if you: |
| (a) | cannot attend work due to illness; or |
| (b) | need to care or support an immediate family member or other member of your household due to their illness or unexpected emergency. |
| 6.2 | Untaken paid personal/▇▇▇▇▇’s leave accumulates from year to year but will not be paid out on termination. |
| 6.3 | In addition, you will be granted two days’ unpaid carer’s leave if you have exhausted paid personal/carer’s leave and you provide proof in accordance with clause 7.5. Rights under this clause 7.3 arise each time you need to care for or support an immediate family member or other member of your household due to their illness or unexpected emergency. |
| 6.4 | You are entitled to two days’ paid compassionate leave in the event of the death or a serious life-threatening illness or injury of an immediate family member or member of your household. Untaken compassionate leave does not accumulate from year to year and will not be paid out if your employment ends. |
| 6.5 | The Company may require you to provide a medical certificate or, if it is not reasonably practicable to do so, a statutory declaration for any absence from work for personal/carer’s or compassionate leave. |
| 6.6 | You must give the Company notice of your taking of personal/carer’s or compassionate leave as soon as practicable. You must also advise the Company of the period or expected period of leave. |
| 7. | Parental leave |
You will be provided with parental leave in accordance with the Act on a pro rata basis.
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| 8. | Community service leave |
You may be entitled to community service leave in accordance with the Act.
| 9. | Alternative Employment |
During your employment you cannot, without the prior written consent of the Company, be engaged, concerned or interested directly or indirectly in any capacity in any trade or business other than the Company nor will you directly or indirectly acquire or attain any financial interest in any business or other enterprise similar or of substantially similar nature to the business of the Company without the prior written approval of the Company. This clause does not prevent you from holding any investments listed on a Stock Exchange.
| 10. | Best Endeavours |
You agree throughout your term of employment to act conscientiously and diligently and in the best interests of the Company and use your best endeavours to promote and enhance the business reputation and affairs of the Company.
| 11. | Confidential Information |
| 11.1 | You acknowledge the Company’s rights to preserve and protect the confidentiality of its confidential information and all such confidential information received or generated by you during the course of your employment. |
| 11.2 | You shall not during and after your employment, except as authorised or required by your duties, reveal to any person or persons any the Company confidential information which may come to your knowledge during your employment and keep with complete secrecy all confidential information entrusted to you and not use or attempt to use any such information in any matter which may injure or cause loss or be likely to injure or cause loss either directly or indirectly to the Company or its business. |
| 11.3 | You acknowledge and agree that the undertakings given by you in relation to confidential information will survive any termination of employment and will continue in force until such time as the confidential information has legally come into the public domain. |
| 11.4 | You agree to use your best endeavours to prevent the publication or disclosure of any confidential information by any third party and upon becoming aware of any actual or apprehended publication or disclosure of any confidential information you agree to inform the Company immediately. |
| 11.5 | You will not at any time without the Company’s prior written consent, which consent may be withheld or given with conditions, copy or take extracts from the confidential information or remove any item of confidential information from the Company’s premises except as authorised by the Company. Where such confidential information is to be taken from the Company’s premises with the Company’s consent, you agree to adopt and maintain all reasonable precautions as are prudent or desirable in order to safeguard the confidentiality of the confidential information and to prevent the disclosure of the confidential information to persons other than those approved and permitted by the Company. |
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| 12. | Disciplinary Action |
You agree that in a situation where the Company is required to investigate a disciplinary incident or complaint it may be necessary to suspend (with or without loss of pay) the employee whose alleged actions are the subject of the investigation while the investigation is being undertaken.
| 13. | Termination of Employment |
| 13.1 | The Company may terminate this Agreement by giving six months prior written notice to you. |
| 13.2 | You may terminate this Agreement on giving the Company six months prior written notice. |
| 13.3 | The Company reserves the right to pay out your notice period and have you leave on the day of your notice. |
| 13.4 | Notwithstanding any provision in this Agreement, your employment may be terminated immediately by the Company without prior notice to you at any time if you: |
| (a) | commit any serious or persistent breach of any of the provisions of this Agreement; |
| (b) | commit any act of wilful or serious misconduct or negligence in the discharge of your duties. By way of example only, as currently framed, serious misconduct under the Act includes but is not limited to theft, fraud, assault, being intoxicated at work or the refusal to carry out a lawful and reasonable instruction that is consistent with the terms and conditions of your employment; |
| (c) | become bankrupt or makes any arrangement or composition with your creditors; |
| (d) | become of unsound mind or under the control of any committee or officer under any law relating to mental health; |
| (e) | are convicted of any criminal offence other than an offence which in the reasonable opinion of the Company does not affect your position; or |
| (f) | become permanently incapacitated by accident or illness from performing your duties under this Agreement. For the purposes of this clause, incapacity rendering you unable to perform his or her duties for a period aggregating more than 3 months in any 6 month period, or for any period beyond 3 consecutive months, is deemed to be permanent incapacity. |
| 13.5 | Upon termination of your employment for any reason, you will immediately return any property belonging to the Company including without limitation all Confidential Information, tools, vehicles, uniforms and equipment in your power, possession or control. |
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| 14. | Redundancy |
In the event that your position becomes redundant, the terms and conditions in regard to your retrenchment will be in accordance with the Company’s policies and procedures and any relevant legislation, including the Act. The minimum period of notice would be provided in accordance with clause 15.1.
| 15. | Intellectual Property |
| 15.1 | For the purposes of this clause: |
“Intellectual Property Rights” means any and all intellectual and industrial property rights throughout the world including without limitation rights in respect of or in connection with any Confidential Information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions, patents, trademarks, service marks, designs, circuit layout, patentable idea, trade secrets, plan to variety rights, know-how, technology and all other like rights whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.
| 15.2 | You acknowledge that in the course of your employment you may be required to create material which gives rise to Intellectual Property Rights. You further acknowledge and agree that any Intellectual Property Rights which you conceive, make, invent or suggest, at any time during the terms of this Agreement whether during or outside business hours, which is in any way connected with your employment by the Company or with work or tests carried out by the Company or any related corporation to the Company must be immediately communicated to the Company and are and remain the property of the Company to deal with as it sees fit. |
| 15.3 | You assign upon creation to the Company or any related corporation nominated by the directors of the Company any and all rights you may have in relation to any Intellectual Property Rights specified in clause 17.2 and you agree to execute all documents and do all things that the Company may reasonably request in connection with the obtaining of any intellectual property protection and/or registration by the Company or its nominee in relation to any such Intellectual Property Rights. |
| 15.4 | You irrevocably appoint severally the Company and each director and secretary for the time being of the Company to be your attorney in your name and on your behalf to execute all such instruments and do all such things and generally to use your name for the purpose of assuring to the Company (or its nominee) the full benefit of provisions of this clause. |
| 16. | Moral Rights |
You acknowledge that, in respect of any moral rights that you may have by operation of Part IX of the Copyright Act 1968 (Cth) in respect of any work or material created by you in the course of your employment, you irrevocably consent to any acts or omissions of the Company, and any entities granted rights by the Company, in using, modifying or reproducing that work or material that may or would constitute an infringement of your moral rights.
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| 17. | Employee Activities |
| 17.1 | You agree to refrain from acting or purporting to act on behalf of the Company or any of its related companies in any manner outside the directions given and authority granted to you by the Company. |
| 17.2 | You warrant that at the date of signing this Agreement there are no impediments in undertaking the duties set out in this Agreement. If any such impediments arise in the future, you will immediately advise the Company of the full details of any such issues. |
| 18. | Health and Safety |
| 18.1 | You agree to comply with all the Company’s policies and procedures and agree to undergo any medical examination or drug or alcohol test that may be required by the Company; all expenses of which will be met by the Company. Testing may be by urine or blood sample. |
| 18.2 | The Company will take all reasonable steps to ensure that all examinations, tests and their results concerning you remain confidential. |
| 18.3 | Information arising from a medical examination or drug or alcohol test will not be released by the Company except: |
| (a) | to obtain legal advice; |
| (b) | in relation to legal proceedings to which the Company is a party and which relates to your employment; |
| (c) | if required by law; or |
| (d) | with your prior written consent. |
| 19. | Inducements |
You must not accept any payment or other benefit as an inducement or reward for any act in connection with the business of the Company, other than under this Agreement.
| 20. | Declaration of Interest |
You shall not have any direct or indirect pecuniary interests in any business, club, organisation, corporation or group that would in any way compromise the performance of your duties unless that disclosure of that direct or indirect interest has been made to the Company and you have complied with any reasonable written directions.
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| 21. | Non-Solicitation of Employees |
You agree that during your employment and for a period of one (1) year after the termination of your employment for any reason, you shall not induce or attempt to induce any employee, agent or consultant of the Company or its related entities to terminate his or her association with the Company or its related entities. The parties agree that the provisions of this clause 23 contain restrictions that are not greater than necessary to protect the interests of the Company. In the event of the breach or threatened breach by you, the Company or its related entities, in addition to all other remedies available to it at law or in equity, will be entitled to seek injunctive relief and/or specific performance to enforce this clause.
| 22. | Governing Law |
This agreement will be governed by the laws of New South Wales.
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If this Agreement accurately reflects our discussions, please sign the acknowledgement below to confirm and accept its terms.
| Yours sincerely |
| Benitec Biopharma Limited |
| /s/ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ |
| ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ |
Chairman
DECLARATION AND AGREEMENT
I acknowledge that I have read and I understand and accept the provisions of this Agreement.
| Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇ |
Date: 17/07/2018
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| Appendix | A - Duties |
The Executive Director, Head of Australian Operations will continue her duties as a Director of Benitec as well as oversee the Australian corporate office, specifically focusing on the following:
| • | Supporting the Chairman (while the Chairman holds an executive role) and any CEO that is appointed (together ‘the CEO’) |
| • | Designing and implementing business operations |
| • | Establishing policies that promote company culture and vision |
| • | Overseeing operations of the company and the work of executives |
| • | Lead employees to encourage maximum performance and dedication |
| • | Evaluate performance by analysing and interpreting data and metrics |
| • | Write and submit reports to the CEO in all matters of importance |
| • | Assist the CEO in fundraising ventures |
| • | Participate in expansion activities (investments, acquisitions, corporate alliances etc.) |
| • | Manage relationships with partners/vendors |
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