Contract
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Contents
Clause Page
1 Appointment .................................................................................................. 3
2 Remuneration ................................................................................................ 3
3 Benefits and Pension ..................................................................................... 3
4 Scope and duties of the Employment ............................................................. 7
5 Hours and place of work ................................................................................. 8
6 Expenses ....................................................................................................... 8
7 Holidays ......................................................................................................... 9
8 Sickness benefits ........................................................................................... 9
9 Restrictions during the Employment ............................................................... 9
1O Confidential Information and Company documents ...................................... 10
11 Inventions and other Intellectual Property ..................................................... 11
12. Termination and Garden Leave ..................................................................... 12
13 Restrictive covenants .................................................................................... 15
14 Grievance, dismissal and disciplinary procedures .......................................... 19
15 Disclosure of information ................................................................................ 20
16 General ....................................................................................................20
17 Definitions .................................................................................................... 21
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THIS AGREEMENT is dated 12 October 2017 and is made BETWEEN:
(1) HSBC GROUP MANAGEMENT SERVICES LIMITED (registered number
9231974), whose registered office is at 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(the Company); and
(2) XXXX XXXXX of * (the Executive).
IT IS AGREED as follows:
1 Appointment
1.1 The Employment will begin on the Commencement Date. The Executive's
continuous employment began on 18 October 1989
1.2 Subject to clauses 1.5 and 12, the Employment will continue until terminated by
either party giving to the other twelve months' notice in writing.
1.3 The Executive shall be employed as Group Chief Executive at Global Career
Band (GCB) 0. The Executive shall report to the Group Chairman or such other
appropriate person as the Company shall designate from time to time. The
Employment also requires the Executive to hold various directorships and
offices within the Group from time to time including in relation to Hong Kong and
Shanghai Banking Corporation Limited.
1.4 The Executive consents to the Company transferring of the Executive's
employment and assigning the provisions of this Agreement to any Group
Company at any time (on the terms and conditions of this Agreement).
1.5 The Employment is and remains at all times subject to the Executive
successfully completing all Company required and on-going screenings for a
"High Risk Role", given that any abuse of the role poses particular potential
damage to the Group and external stakeholders. Additionally, the Executive is
at all times required to hold the required approvals by the FCA and all other
relevant regulatory bodies in order to be able to carry out his/her duties. In the
event of any screening result being considered unsatisfactory in the reasonable
opinion of the Company and/or where FCA or any other relevant regulatory
approval is withdrawn, the Company has the right to terminate the Employment
with immediate effect and with no further sums payable to the Executive beyond
any sums accrued due as at the date of that termination.
2 Remuneration
2.1 The Company will pay the Executive a Base Salary of £1,200,000 per annum
(Base Salary). The Base Salary will be paid less Statutory Deductions and
accrue from day to day and be payable in equal monthly instalments in arrears
on or around the 20th day of each calendar month. Unless notice to terminate the
Employment has been given by either party, the Company will review the
Executive's Base Salary in March of each calendar year, in good faith, the first
such review to take place on or about March 2019. The Company has no
obligation to increase the Executive's Base Salary following a review.
2.2 The Executive will not be entitled to receive any other fees for holding any
offices in the Company or any Group Company by virtue of the Employment.
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2.3 In its absolute discretion, the Company will pay the Executive a fixed allowance
of £1,700,000 per annum (the Fixed Pay Allowance). This Fixed Pay Allowance
replaces any fixed pay allowance which you were eligible for in connection with
your previous role or otherwise. The Fixed Pay Allowance will be granted in
shares that vest immediately on a quarterly basis or at any other frequency that
the Group's Remuneration Committee deems appropriate. These shares (net of
those sold to cover any income tax and social security) will be then be released
annually on a pro rata basis over five years, starting from the March immediately
following the end of the financial year for which the shares are granted.
2.4 The Company and/or the Group may decide, in its discretion, to award the
Executive an amount of Variable Pay for any complete financial year of the
Company and/or the Group during which the Employment has continued. The
Executive acknowledges that he/she has no contractual right to receive any
Variable Pay in any financial year even where it may have been paid to him/her
in any previous year(s).
2.5 The Executive will not, unless otherwise approved in writing by the Group's
Remuneration Committee in its absolute discretion, be considered for any
Variable Pay award if, at the date when it might otherwise have been payable,
he/she is under notice of termination (served by either party) or is suspended
pursuant to clause 12.3 and/or is on garden leave in accordance with clause
12.4. The Company (on behalf of itself and/or any Group Company) also has
the right to postpone the payment of any Variable Pay award if, at the date
when it might otherwise have been payable, the Executive is subject to an
ongoing investigation or disciplinary process.
2.6 Where a decision to pay to the Executive a Variable Pay award is made, the
Executive agrees that this will always be, and remain, subject to (i) any
obligations or conditions required by the regulator(s) of the Group or any other
regulatory requirements, including the application of malus and/or clawback in
accordance with the Group's Malus and Clawback Policies in force from time to
time; (ii) any remuneration policy of the Company or any relevant Group
Company from time to time; and (iii) any other applicable rules, codes of practice
and/or guidance regarding remuneration from time to time. Any adjustment
forfeiture or repayment arising from the application of malus and/or clawback
may be deducted from any sums due to the Executive at any time. This is
without prejudice to any right the Company or any Group Company may have to
recover any sums from the Executive including any clawback. The Executive
irrevocably agrees that such sums are recoverable by the Company and/or any
Group Company from any sums otherwise due and/or payable to him/her.
2.7 The Executive may be eligible to participate in any employee share plan
established by the Company and/or the Group from time to time. Eligibility to
participate is subject always to the rules of the relevant plan in force from time
to time and is at the discretion of the Company and/or any Group Company (as
applicable).
2.8 Subject to the rules of the relevant plan as referenced in clause 2.7 and in the
definition of Variable Pay, the Executive waives all rights to compensation or
damages arising from any loss sustained to him/her by a failure to receive any
rights or benefits under the relevant plan (or by their reduction in value) as a
result of:
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(a) notice of termination and/or the termination of his/her office and/or the
Employment given by either party for any reason whatsoever; and/or
(b) the Company's exercise or failure to exercise any discretion available
to it, whether conferred by the rules of the plan or otherwise.
2.9 The Executive authorises the Company to deduct from any Salary or awards of
Variable Pay or from any other remuneration or payments due to the Executive
from the Company or any Group Company at any time, any sums due from the
Executive to the Company including any overpayments, loans or advances
made to him/her by the Company or any Group Company, the cost of repairing
any damage or loss to the Group's property caused by the Executive (and of
recovering such costs), sums in respect of clause 8.3 and/or any sums owing in
connection any malus and/or clawback pursuant to the Group's Malus and
Clawback Policies from time to time in force.
2.10 To avoid any doubt, the operation of and all arrangements relating to any
Variable Pay, can be terminated, replaced and/or amended by the Company at
any time with or without notice to the Executive and, further, the Executive's
total remuneration in respect of the Employment is at all times subject to the
Directors' Remuneration Policy as approved by the Group's shareholders from
time to time.
3 Benefits and Pension
3.1 In connection with his/her role as an Executive Director of the Group, the
Executive is eligible to receive the following benefits during the Employment:
3.1.1 Car
The Executive has access to the chauffeur driven services operated
by the Company under the terms of the Global Expenses Framework
for Executive Directors, Group Managing Directors and Group General
Managers that may apply from time to time.
3.1.2 Personal Accident Insurance Cover
The Executive is eligible to participate on a non-contributory basis in
the Group's personal accident insurance scheme, subject to the rules
of the scheme in force from time to time.
3.1.3 Clubs
The Company will make reasonable payments on the Executive's
behalf in respect of the membership fees for annual memberships of
up to two clubs nominated by the Executive each year, to be pre
approved by the Group Chairman.
3.1.4 Health Check
The Executive is eligible for an annual voluntary health check with a
medical adviser appointed and paid for by the Company.
3.1.5 Medical Cover
The Executive and his/her spouse/partner and eligible dependants are
eligible to participate in any relevant medical scheme operated for
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officers of the Group, from time to time subject always to the rules of
the scheme for the time being in force.
3.1.6 Group Income Protection
If the Executive is unable by reason of illness or injury, to perform the
material or substantial parts of his/her duties, following a period of
absence from work in excess of 26 consecutive weeks, the Executive
will be eligible to be considered for a monthly payment equivalent to
50 per cent. of monthly Base Salary for some or all of his/her on-going
absence. In the event of such payment, the Executive's total annual
pension allowance as set out at clause 3.1.10 will continue to be
payable, subject to a proportionate reduction and, therefore, an overall
reduced cap of 15 per cent. of Base Salary.
3.1.7 Life Assurance Cover
The Executive is eligible for cover under the Group Life Assurance
Scheme up to a sum (currently) equivalent to four times the Executive's
Base Salary, subject to the rules of the scheme in force from time and
any necessary approvals by the Scheme's trustees.
3.1.8 Tax Return Preparation
The Executive is eligible to receive tax return support provided by the
Group's tax provider for global mobility activities, from time to time. The
provision of the tax return support will cover only compensation
delivered to the Executive in respect of the Employment and will not
cover extended wealth management or other investment advice.
3.1.9 Directors' and Officers' Liability
The Executive is eligible for cover under the relevant Company or
Group Directors' and Officers' Liability policy (including Outside
Directors' and Officers' Liability) subject always to the existence of that
policy (determined by the Company in its discretion and the rules of the
policy in force from time in force).
3.1.10 Pension
Subject to clause 3.1.6, the Company will pay to the Executive an
annual pension allowance (Pension Allowance) of 30 per cent of the
Executive's Base Salary payable monthly in arrears, less Statutory
Deductions. The Executive has already opted out of the relevant
Company and/or Group sponsored UK pension plan under UK pension
legislation.
3.1.11 Other Benefits
The Executive may be eligible to take advantage of certain other
employee benefits, including accommodation and car benefit in Hong
Kong, as referred to from time to time in the Directors' Remuneration
Report, in any given year, during the Employment.
3.2 The Company reserves the right to amend or withdraw any employee benefit
without prior notice (although the Company will take reasonable endeavours to
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advise the Executive of any such variation or withdrawal) in circumstances
either where Director's remuneration is not approved or where it is otherwise
reasonable to do so. The Company is not obliged to provide any alternative
benefit or other compensation in the event of withdrawal and/or generally,
where any scheme provider refuses to provide benefits to the Executive (or to
his/her partner/spouse and/or eligible dependants).
4 Scope and duties of the Employment
4.1 In his/her role as Group Chief Executive, the Executive (with delegated authority
from the Board) will be responsible for the day to day operations of the Group;
leading and directing the implementation of the Group's business strategies;
embedding the Group's culture, values and supporting behaviours; managing
risks associated with the Group's business activities; and ensuring the fulfilment
of the Group's corporate responsibilities across all communities in which the
Group operates. As custodian of the Group's franchise, the Group Chief
Executive will have a primary responsibility to protect the Group's reputation and
develop the franchise. During the Employment, the Executive will comply with
any role profile and/or statement of responsibilities applicable to his/her role,
and will at all times:
4.1.1 diligently perform such duties and exercise such powers consistent
with his/her position as Group Chief Executive may from time to time
be assigned to or vested in him/her by the Board (including where he
may be assigned duties of another position of comparable status);
4.1.2 comply with all reasonable and lawful directions given to him/her by the
Board;
4.1.3 act in good faith, and in a way most likely to promote the success of the
Group for the benefit of its members as a whole (which may also
include performing duties from time to time on behalf of any Group
Company);
4.1.4 perform his/her services in a professional and competent manner and
in cooperation with others;
4.1.5 use his/her best endeavours to promote, protect, develop and extend
the business of the Company and any Group Company;
4.1.6 keep the Board and any relevant Group Company promptly and fully
informed (in writing if so requested) of his/her conduct and activities in
relation to the business of the Company and any Group Company and
provide such explanations as the Board may require from time to time
(including for the avoidance of doubt, any misconduct of other
employees or directors or his/her own (including any plans of any other
senior employee to leave, join a competitor and/or establish a business
in competition with the Company or any Group Company as required
by clause 9.5);
4.1.7 not do or fail to do anything that might reasonably be expected to harm
the reputation of the Company or any relevant Group Company;
4.1.8 do all such things as are necessary to ensure his/her compliance with
the Companies Xxx 0000, the UK Listing Rules (including the Model
Code for transactions in securities by directors and certain senior
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executives of listed companies), the Market Abuse Regulation
(596/2014/EU) and the Corporate Governance Code, and all equivalent
legal obligations elsewhere in the world to which he/she is or may
become subject (and specifically, so far as it lies within his/her power to
do so, in all cases, also by the Company and any Group Company;)
4.1.9 comply with all Company and Group Company policies, including,
without limitation, the Code for Dealing in HSBC Group Securities, the
Compliance Guidelines and those set out in the Company's Employee
Handbook and the HR Procedure Manuals from time to time together
with any relevant statement of responsibilities as a Senior Manager
and/or Group Chief Executive as required by the Company, any Group
Company, the FCA or similar regulator;
4.1.10 not, in breach of any applicable legislation, directly or indirectly seek,
receive or obtain, in respect of the performance of his/her duties or of
any goods or services sold or purchased or other business transacted
(whether or not by the Executive) by or on behalf of the Company or
any Group Company, any personal benefits, discount rebate,
commission, bribe, kickback or other inducement (whether in cash or
in kind).
5 Hours and place of work
5.1 The Company's standard working week is 35 hours. The Executive will,
however, devote the whole of his/her time, skill and attention during normal
business hours, and at such other times as may be reasonably necessary
(without additional remuneration,) to his/her duties.
5.2 The Executive acknowledges that, because of the autonomous nature of his/her
role, the duration of his/her working time is not measured or monitored or
determined by the Company, so that the limit on weekly working time set out in
Regulation 4 of the Working Time Regulations 1998 (or such other regulations
as may from time to time come into force) does not apply to the Employment.
5.3 The Executive's normal place of work is the Company's offices at 0 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX and such other places within the UK as the Company
may reasonably require for the proper performance of his/her duties. The
Executive will be required (subject always to the appropriate immigration
approvals) to travel to such places within or outside the UK as may be required
in order to properly perform his/her duties.
6 Expenses
6.1 The Company will reimburse the Executive the amount of all expenses
evidenced by him/her as properly and reasonably incurred in the discharge of
his/her duties, in accordance with the Global Expenses Framework for Executive
Directors, Group Managing Directors and Group General Managers and any
other relevant global policies for directors that may apply from time to time.
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7 Holidays
7.1 The Executive is entitled to 30 days' holiday in each holiday year (1 January to
31 December) calculated on Base Salary and any relevant allowance notified
to the Executive under clause 2.3, in addition to the usual (currently eight)
annual public or bank holidays in England, to be taken at times convenient to
the Company. Holiday entitlement for one holiday year may be carried over to
the following holiday year with the prior agreement of the Group Chairman.
7.2 If the Employment begins or ends part way through a holiday year, the
Executive's holiday entitlement will be calculated on a prorated basis for that
holiday year.
7.3 If, on the termination of the Employment the Executive has: (i) exceeded his/her
accrued holiday entitlement, the excess may be deducted from sums due to the
Executive and the Executive hereby authorises the Company to make such
deduction; or (ii) any unused accrued holiday entitlement, the Company may
either require the Executive to take such unused holiday during any notice
period (whether or not the Executive is on Garden Leave) or make an
appropriate payment in lieu of such untaken accrued holiday.
8 Sickness benefits
8.1 If the Executive cannot attend work due to sickness or injury, he/she will comply
with the notification and certification requirements of the Absence from Work
Policy set out in the Company's Employee Handbook and will receive relevant
payments in respect of his/her absence according to the policy (which are
deemed inclusive of Statutory Sick Pay and all other statutory benefits to which
the Executive may otherwise be entitled).
8.2 If so required, the Executive agrees to supply the Company with medical
certificates covering any period of sickness or incapacity exceeding seven days
(including weekends) and to undergo, at the Company's expense, a medical
examination by a doctor appointed by the Company (and the Executive agrees
that copies of any medical reports prepared by such doctor shall be sent directly
to the Company).
8.3 If the Executive is incapable of performing his/her duties by reason of injury
sustained wholly or partly as a result of negligence or breach of any duty on the
part of a third party, and the Executive recovers an amount by way of
compensation for loss of earnings from that third party, he/she will pay to the
Company any sum (or part sum) received by him/her in respect of any amount
paid to him/her under clause 8.1 above.
9 Restrictions during the Employment
9.1 During the Employment, the Executive will not directly or indirectly either on
his/her own account or on behalf of any other person, company, business entity
or other organisation be employed, engaged, concerned or interested in any
other business or undertaking, except:
9.1.1 as holder (directly or through nominees) of investments listed on the
London Stock Exchange pie or in respect of which dealing takes place
on the Alternative Investment Market of the London Stock Exchange
pie or on The Stock Exchange of Hong Kong Limited or on any
Recognised Investment Exchange, as long as not more than 5 per
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cent. of the issued shares or other securities of any class of any one
company shall be so held; or
9.1.2 with the consent in writing of the Company which may be given subject
to any terms which the Company requires.
9.2 The Executive will not (and will procure so far as he/she is able that any person
connected with the Executive within the meaning of section 252 Companies
Act 2006 (Connected Person) shall not) deal or become or cease to be
interested (within the meaning set out in Schedule 1 Companies Act 2006) in
any securities of the Company, except in accordance with the Company and/or
the Group Code for Dealing in HSBC Group Securities and every regulation of
the Group for the time being in force in relation to dealings in shares or other
securities of the Company or any Group Company.
9.3 Subject to any regulations issued by the Company or any relevant Group
Company, the Executive and any Connected Person shall not be entitled to
receive or obtain directly or indirectly any discount, rebate or commission in
respect of any sale or purchase of goods effected or other business transacted
(whether or not by the Executive) by or on behalf of the Company or any Group
Company and if he/she or any Connected Person (or any firm or company in
which he/she or any Connected Person is interested) shall obtain any such
discount, rebate or commission the Executive will account to the Company or
the relevant Group Company for the amount received by the Executive or any
Connected Person (or a due proportion of the amount received by such
company or firm having regard to the extent of the Executive's or the Connected
Person's interest therein).
9.4 The Executive agrees to disclose to the Board any matters relating to any
Connected Person which may, in the reasonable opinion of the Board, be
considered to interfere, conflict or compete with the proper performance of the
Executive's obligations under this Agreement.
9.5 During the Employment the Executive will inform the appropriate member of
the Board without delay if he/she becomes aware that any director, officer, or
senior employee of the Company or any Group Company is or may be planning
to materially breach any of the provisions of their contract of employment or
implied duties of loyalty, good faith and fidelity.
9.6 The Executive will not, other than having observed the relevant policies and
procedures in force from time to time make or issue any press, radio or
television statement or publish or submit for publication any letter or article
relating directly or indirectly to the business or affairs of the Company or any
Group Company, its or their officers, directors or employees or the Employment
or its termination.
10 Confidential Information and Company documents
1O.1 The Executive recognises that, whilst performing the duties for the Company the
Executive will have access to and come into contact with Confidential
Information belonging to the Company and/or any Group Company and will
obtain personal knowledge of and influence over its or their customers,
suppliers and/or employees. The Executive therefore agrees that the
restrictions set out in this clause 1O are reasonable and necessary to protect
the legitimate business interests of the Company and the Group both during
and after the termination of the Employment. The Executive shall neither during
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the Employment (except in the proper performance of the duties) nor at any
time (without limit) after the termination of the Employment directly or indirectly:
10.1.1 divulge or communicate to any person, company, business entity or
other organisation; or
10.1.2 use for his/her own purposes or for any purposes other than those of
the Company or any Group Company; or
10.1.3 through any failure to exercise due care and diligence, cause any
unauthorised disclosure of
any Confidential Information relating to the Company or any Group Company.
10.2 This restriction does not apply to information which:
10.2.1 is used or disclosed by the Executive in the proper performance of
his/her duties or with the prior written consent of the Company or any
Group Company;
10.2.2 the Executive is ordered by a court of competent jurisdiction to disclose
or which is otherwise required to be disclosed by law; or
10.2.3 is already in the public domain (other than as a result of unauthorised
disclosure by the Executive or any other person).
10.3 The Executive will not, during the Employment or at any time thereafter, make,
except for the benefit of the Company or any Group Company, any copy, record
or memorandum of any Confidential Information and any such copy, record or
memorandum will be and remain the property of the Company and will be
returned by the Executive to the Company or irrevocably deleted from any
computer, mobile and/or handheld device and/or any other media (including,
but not limited to, any cloud based storage system) in the Executive's
possession or under the Executive's control, when required to do so by the
Company and in any event on the termination of the Employment.
10.4 Nothing in this Agreement precludes the Executive from making any legitimate
whistleblowing type disclosure to any relevant regulator anywhere in the world
(including, so far as the UK is concerned, within the meaning of Part 4A
(Protected Disclosures) of the Employment Rights Act 1996 and so far as
reportable concerns are defined by the FCA).
11 Inventions and other Intellectual Property
11.1 The Executive may make inventions or create other Intellectual Property during
the Employment. In this respect the Executive has a special responsibility to
further the interests of the Company and the Group given the Executive's
position at the Company and the remuneration paid to the Executive under this
Agreement.
11.2 In recognition of the Executive's position, remuneration and responsibility, the
Executive acknowledges and agrees that any Intellectual Property made,
created or discovered by him/her during the Employment (whether capable of
being patented or registered or not) in conjunction with or in any way affecting
or relating to the business of the Company or any Group Company or capable
of being used or adapted for use in the Company or any such Group Company
or in connection therewith shall be immediately disclosed to the Company and
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shall belong to and be the absolute property of the Company or such Group
Company as the Company may direct.
11.3 However this will only apply to the extent that any invention was made by the
Executive in the course of his/her duties or in the course of duties falling outside
the Executive's normal duties but which have been specifically assigned to
him/her (together Duties) and (i) such invention was reasonably expected to
result therefrom; and/or (ii) at the time of making the invention, because of the
nature of his/her Duties and the particular responsibilities arising therefrom, the
Executive had a special obligation to further the interests of the Company.
11.4 The Executive acknowledges that he/she has no rights, interest or claims,
either during the Employment or after the termination of the Employment, in or
to any such Intellectual Property and he/she shall not use such Intellectual
Property other than during the period of the Employment and for the purpose
of the Company or the Group.
11.5 The Executive agrees to sign all documents and to do all other acts which the
Company requests (at its expense) to enable the Company to enjoy the full
benefit of this clause 11. This includes joining in any application, which may be
made in the Company's sole name for registration of any Intellectual Property
Rights (such as a patent, trademark or registered design), and assisting the
Company in defending and enforcing such rights during and after the
employment (at the Company's expense).
11.6 The Executive understands and accepts that the remuneration and benefits
provided to him/her by the Company in accordance with this Agreement
constitute sufficient consideration to the Executive for the performance of
his/her obligations under this clause 11, including the waiver of or covenant not
to assert any moral rights that he/she may have.
11.7 This clause 11, and the rights and obligations of the parties contained, will
survive expiry of this Agreement, or its termination, for any reason.
12 Termination and Garden Leave
12.1 Notwithstanding the notice obligation to which the parties are generally subject
in clause 1.2, the Employment may also be terminated by the Company:
12.1.1 by not less than six months' notice in writing given at any time where
the Executive has been incapacitated by reason of ill health or accident
from performing the duties hereunder for a period of (or periods
aggregating) 26 weeks in total in any period of 12 months, provided that
such termination does not take effect if it would remove any entitlement
he would otherwise have thereafter for a maximum period of 24 months
to enjoy the receipt of any benefits arising out of or in connection with
any permanent health insurance policy or arrangement existing from
time to time for his benefit. The Executive generally agrees that if he
has been incapacitated by reason of ill health or accident from
performing the duties hereunder for the said period of (or periods
aggregating) 26 weeks in any period of 12 months, the Company may
appoint another person or persons to perform his role of CEO pursuant
to clause 1.3 without giving rise to any breach of any obligation owed
to the Executive (under this agreement or generally, as a matter of
law, and, accordingly, he will
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have no cause of action against the Company or the Group
whatsoever in respect of such termination of employment.
12.1.2 by summary notice in writing and with no liability to make any further
payment to the Executive (other than in respect of any sums accrued
due as at the Termination Date) if the Executive:
(a) fails or neglects efficiently and diligently to discharge his/her
duties, or is guilty of any serious or repeated breach of his/her
obligations under this Agreement
(b) is guilty of any fraud, dishonesty, serious misconduct or any
other conduct which brings or is likely to bring the Executive or
the Company or any Group Company into disrepute or affects
or is likely to affect prejudicially the interests of the Company or
the Group;
(c) is convicted of an arrestable offence (other than a road traffic
offence for which a non-custodial penalty is imposed);
(d) is guilty of any material breach or material non-observance of
any code of conduct, rule or regulation referred to in clause 4.1;
(e) becomes bankrupt or makes any arrangement or composition
with his/her creditors;
(f) is prohibited from being a director by law, or has such regulatory
approval as required pursuant to clause 1.5, withheld or
withdrawn;
(g) voluntarily resigns as a director of the Company or any Group
Company; or
(h) is not or ceases to be eligible to work in the UK.
12.2 The Company's rights under clause 12.1 are without prejudice to any other
rights that it might have at law to terminate the Employment or to accept any
breach of this Agreement by the Executive as having brought the Agreement
to an end. Any delay by the Company in exercising its rights will not constitute
a waiver.
12.3 If the Company may be or becomes entitled to terminate the Employment
pursuant to clauses 1.5 or 12.1.2, or whilst the Company or any external body
may wish to investigate any allegation against the Executive it will be entitled
(without prejudice to its termination rights) to suspend the Executive for so long
as it considers necessary or appropriate.
12.4 Following service of notice to terminate the Employment by either party, the
Company may require the Executive to stay away from all or any of the
Company's premises and/or will not be provided with any work and/or will have
no business contact with all or any of the Group's agents, employees,
customers, clients, distributors and suppliers and/or will have no access to the
Company's communications systems (Garden Leave). During any period of
Garden Leave, the Company may appoint a replacement to exercise any of the
Executive's duties and responsibilities and may require the Executive to take
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such actions as it reasonably requires to effect a proper handover of any or all
of his/her duties and responsibilities. However, the Executive will continue to
be bound by all his/her obligations under this Agreement including, without
limitation, his/her duties of fidelity and of good faith.
12.5 In addition to the circumstances referred to in clause 12.1.1 above, the
Company may terminate the Employment at any time and with immediate effect
by notifying the Executive in writing of that fact, confirming the date termination
is to occur. If the Company terminates the Executive's employment in this way,
it will make a payment in lieu of any notice of termination and/or in lieu of the
balance of the fixed term of employment corresponding to the notice period as
set out in clause 1.2 (the Payment in Lieu). The Executive agrees that the
Payment in Lieu will consist of Base Salary, Fixed Pay Allowance and Pension
Allowance but will not include any Variable Pay, payment in respect of benefits
or any holiday entitlement for the fixed term and/or notice period which is
accrued due as at the Termination Date (or, if notice has already been given,
during the remainder of the notice period) less Statutory Deductions.
12.6 The Company may decide to pay any Payment in Lieu only in equal monthly
instalments until the date on which the notice period referred to in clause 1.2
would have expired if notice had been given (the Payment Period). The
Executive shall comply with his/her common law duty immediately following the
termination of his/her employment and take all reasonable steps to obtain
alternative employment or engagement during the Payment Period.
12.7 If the Executive obtains alternative employment or engagement during the
Payment Period, any further monthly instalments of the Payment in Lieu will be
reduced on a pro rata basis by the amount he/she receives. If the Executive
fails to take all reasonable steps to obtain alternative employment or
engagement, the Company will have the right to terminate all further
instalments of the Payment in Lieu, and he/she will not be entitled to any further
compensation.
12.8 Without prejudice to the constitution (including for the avoidance of doubt the
articles of association) of any Group Company, on the Termination Date or on
either the Company or the Executive having served notice of such termination,
the Executive will:
12.8.1 at the request of the Company resign from office as a Director of the
Company and all offices held by the Executive in any Group Company
provided however that such resignation shall be without prejudice to
any claims which the Executive may have against the Company or any
Group Company arising out of the termination of the Employment;
12.8.2 transfer without payment to the Company or as the Company may
direct to any third party, any shares or other securities held by the
Executive in the Company as a nominee or trustee for the Company or
any Group Company and deliver to the Company the related
certificates;
12.8.3 deliver to the Company all Confidential Information which may be in
the Executive's possession or under the Executive's power or control
and, if requested, provide a signed statement that he/she has fully
complied with the obligations under this clause 12.8.3; and
15
12.8.4 cooperate with the Company and any Group Company by providing
such assistance as may reasonably be required in connection with any
handover arrangements or any claim made by or against the Company
or any such Group Company.
12.9 If the Employment is terminated for the purpose of the reconstruction or
amalgamation of the Company or by reason of the Company transferring all or
a substantial part of its business to another company and the Executive is
offered employment by the reconstructed or amalgamated or transferee
company on similar terms to the terms of this Agreement, the Executive will
have no claim against the Company or such reconstructed or amalgamated or
transferee company in respect of the termination of the Appointment.
13 Restrictive covenants
13.1 For the purposes of this clause 13 the following words have the following
meanings:
13.1.1 Capacity means as agent, consultant, director, employee, owner,
partner, shareholder beyond the shareholding limits applied in clause
9.1 or in any other capacity;
13.1.2 Company Products means any risk, banking or financial products
researched into, developed, supplied, distributed or sold to or by the
Company with which the duties of the Executive were materially
concerned or for which he/she was directly or ultimately responsible
during the Restricted Period;
13.1.3 Company Services means any risk, banking or financial services
(including but not limited to technical and product support technical
advice and customer services) developed or supplied to or by the
Company with which the duties of the Executive were materially
concerned or for which he/she was directly or ultimately responsible
during the Restricted Period;
13.1.4 Comparator Group as at the date of this Agreement means Bank of
America, Barclays, BNP Paribas, Citigroup, Credit Suisse, DBS,
Deutsche Bank, XX Xxxxxx Xxxxx, Lloyds Banking Group, Standard
Chartered and UBS, together with any transfer, merger, amalgamation
and/or reconstruction of any relevant business or part of such business
of any such company. This list of Comparator Group may have names
removed, amended and/or added at any time during the Employment
by the Company;
13.1.5 Customer means any person or firm or company or other organisation
whatsoever to whom or which the Company supplied Company
Products and/or Company Services during the Restricted Period and
with whom or which, during the Restricted Period:
(a) the Executive had material personal dealings pursuant to the
Employment; or
(b) any employee who was under the direct supervision of either the
Executive or of the Executive's direct reports, had material
personal dealings pursuant to their employment,
16
provided that in the case of a firm, company or other organisation
"Customer" shall not include any division, branch or office of such firm
or company or other organisation with which the Executive and/or any
such employee as defined in sub-clause (b) above had no dealings
during the Restricted Period save that where a restructuring of the firm
or company or organisation has occurred following such personal
dealings "Customer" shall include the part of the business with which
the Executive or any employee as defined in sub-clause (b) above had
dealings during the Restricted Period;
13.1.6 Prospective Customer means any person or firm or company or other
organisation whatsoever with whom or which the Company shall have
had negotiations or material discussions regarding the possible
distribution, sale or supply of Company Products and/or Company
Services during the Restricted Period and which were ongoing and not
finally concluded at the Termination Date and with whom or which
during such period:
(a) the Executive will have had material personal dealings pursuant
to the Employment; or
(b) any employee who was under the direct supervision of either the
Executive or of the Executive's direct reports will have had
material personal dealings pursuant to their employment; or
(c) the Executive was directly responsible in a client management
capacity on behalf of the Company,
provided that in the case of a firm, company or other organisation
"Prospecitve Customer" shall not include any division, branch or office
of such firm, company or other organisation with which the Executive
and/or any such employee had no dealings during the Restricted Period
save that where a restructuring of the firm or company or organisaiton
has occurred following such personal dealings, ''Prospective Customer''
shall include the part of the business with which the Executive or any
employee as defined in sub-clause (b) had dealings during the
Restricted Period;
13.1.7 Restricted Employee means any person who is on the Termination
Date, or was during the Restricted Period, employed or engaged by
the Company or any Group Company and is by reason of such
employment or engagement in possession of, or is reasonably likely to
be in possession of, any trade secret or Confidential Information
relating to the business of the Company or any Group Company or has
acquired influence over its Customers or Prospective Customers (as
defined in this clause 13 but so that references to "the Executive" will
be replaced by references to the relevant employee and so that
references to Employment will mean the relevant employee's
employment with the Company or Group Company, being in either
case a person with whom the Executive had material dealings during
the Restricted Period);
13.1.8 Restricted Period means the period of 12 months ending on the
Termination Date or, in the event that no duties were assigned to the
Executive for any part of the duration of the notice period, the 12 months
17
immediately preceding the last day on which the Executive carried out
any duties for the Company;
13.1.9 Restricted Products means Company Products or any products of the
same or of a similar kind;
13.1.10 Restricted Services means Company Services or any services of the
same or of a similar kind;
13.1.11 Restricted Supplier means any person, company, business entity or
other organisation whatsoever who has supplied goods or services to
the Company or any Group Company (other than utilities and goods or
services supplied for administrative purposes) during any part of the
Restricted Period or who has agreed prior to the Termination Date to
supply goods or services to the Company to commence at any time in
the twelve months following the Termination Date.
13.2 The Executive recognises that, whilst performing his/her duties for the
Company, he/she will have access to and come into contact with Confidential
Information belonging to the Company and certain Group Companies and will
obtain personal knowledge of and influence over their customers and/or
employees.
13.3 The Executive hereby undertakes with the Company that he/she will not for the
period of six months after the Termination Date without the prior written consent
of the Company (such consent not to be unreasonably withheld) whether by
himself/herself, through his/her employees or agents or otherwise and whether
on his/her own behalf or on behalf of any other person, firm, company or other
organisation, directly or indirectly:
13.3.1 in competition with the Company anywhere in the world in a senior role,
be involved in any Capacity in any of the companies (or other entities)
in the Comparator Group in the business of researching into,
developing, distributing, selling, supplying or otherwise dealing with
Restricted Products or Restricted Services; or
13.3.2 in competition with the Company, accept orders or facilitate the
acceptance of any orders or have any business dealings for Restricted
Products or Restricted Services from any Customer or Prospective
Customer; or
13.3.3 employ or otherwise engage any Restricted Employee in the business
of or be personally involved to a material extent in employing or
otherwise engaging any Restricted Employee in the business of
researching into, developing, manufacturing, distributing, selling,
supplying or otherwise dealing with Restricted Products or Restricted
Services; or
13.3.4 interfere with, or endeavour to interfere with, the supply or provision of
goods or services (other than utilities, or goods or services supplied for
an administrative purpose) to the Company or to induce the cessation
of the supply or provision of such goods or services from any Restricted
Supplier; or
13.3.5 in competition with the Company, solicit business from, or solicit the
supply of goods or services (other than utilities, or goods or services
18
supplied for an administrative purpose) from any Restricted Supplier
for the purposes of the provision of Restricted Products or Restricted
Services.
13.4 The Executive hereby undertakes with the Company that he/she will not for the
period of twelve months after the Termination Date without the prior written
consent of the Company (such consent not to be unreasonably withheld)
whether by himself/herself through his/her employees or agents or otherwise
and whether on his/her own behalf or on behalf of any other person, firm,
company or other organisation, directly or indirectly:
13.4.1 in competition with the Company, solicit business from or endeavour to
entice away or canvass any Customer or Prospective Customer if such
solicitation or canvassing is in respect of Restricted Products or
Restricted Services;
13.4.2 solicit or induce or endeavour to solicit or induce any Restricted
Employee to cease working for or providing services to the Company,
whether or not any such person would thereby commit a breach of
contract.
13.5 The Executive agrees that a copy of this clause 13, and clauses 1O and 11 will
be provided by him/her to any person firm company or other entity that makes
or may make an offer to him/her of employment appointment as a director or
officer, agency, partnership, or joint venture either during Employment or after
its termination (in such latter case, where such restriction continues in full force
and effect).
13.6 If the restrictions in clauses 13.3 and 13.4 are for any reason held to be
unenforceable in any jurisdiction in the world the Executive agrees to such
amended or lesser restriction as would enable that restriction to be enforced so
far as possible in such jurisdiction.
13.7 In addition to the provisions of clause 16.6, the benefit of clauses 13.3 and 13.4
shall be held on trust by the Company for each Group Company and the
Company reserves the right to assign the benefit of such provisions to any
Group Company, in addition such provisions also apply as though there were
substituted for references to "the Company" references to each Group Company
in relation to which the Executive has in the course of his/her duties for the
Company or by reason of rendering services to or holding office in such Group
Company:
13.7.1 acquired knowledge of its trade secrets or Confidential Information; or
13.7.2 had material personal dealings with its Customers or Prospective
Customers; or
13.7.3 supervised directly or indirectly employees having material personal
dealings with its Customers or Prospective Customers,
but so that references in clause 13 to "the Company" shall for this purpose be
deemed to be replaced by references to the relevant Group Company. The
obligations undertaken by the Executive pursuant to this clause 13.7 shall, with
respect to each such Group Company, constitute a separate and distinct
covenant and the invalidity or unenforceability of any such covenant shall not
19
affect the validity or enforceability of the covenants in favour of any other Group
Company or the Company.
13.8 In the event of the transfer(within the meaning of the Transfer of Undertakings
(Protection of Employment) Regulations 2006 and other equivalent legislation
(the Transfer Regulations) of the undertaking or the part of the undertaking in
which the Executive shall at the time be employed as the result of which (by
virtue of the Transfer Regulations) the Employment is automatically transferred
to another company (the Transferee), the provisions of this clause 13 shall
have effect as though references in it (and in all associated terms defined in
this Agreement) to "the Group" are construed as references to "any other
company within the Transferee's Group" (which for these purposes shall
comprise the Transferee and any holding company of the Transferee and the
subsidiaries of the Transferee and of any such holding companies for the time
being).
13.9 The Executive hereby undertakes with the Company that he/she will not at any
time without the consent of the Company after the Termination Date:
13.9.1 engage other than as a private consumer in any trade or business or
be associated with any person, firm or company engaged in any trade
or business using the name(s) HSBC or Hongkongand Shanghai
Banking Corporation or incorporating the word(s) Hongkong
Shanghai Banking Corporation;
13.9.2 in the course of carrying on any trade or business, claim, represent or
otherwise indicate any present association with the Company or any
Group Company or for the purpose of carrying on or retaining any
business or custom, claim, represent or otherwise indicate any past
association with the Company or any Group Company to its detriment
other than simple and factual statements regarding the Executive's
period of employment, job title, responsibilities and role.
13.10 The parties agree that the periods referred to in clauses 13.3 and 13.4 above
will be reduced by one day for every day, during which, at the Company's
direction, the Executive is on Garden Leave.
13.11 The Executive agrees that, having taken independent legal advice, the
restrictions contained in this clause 13 are reasonable and necessary for the
protection of the Company and any Group Company and that they do not bear
harshly upon him/her. The parties agree that:
13.11.1 each restriction shall be read and construed independently of the other
restrictions so that if one or more are found to be void or unenforceable
as an unreasonable restraint of trade or for any other reason the
remaining restrictions shall not be affected; and
13.11.2 if any restriction is found to be void but would be valid and enforceable
if some part of it were deleted, that restriction shall apply with such
deletion as may be necessary to make it valid and enforceable.
14 Grievance, dismissal and disciplinary procedures
14.1 The non-contractual grievance and disciplinary procedures applicable to the
Executive are set out in the Company's Employee Handbook.
HIGHLY RESTRICTED - 20
15 Disclosure of information
15.1 The Executive consents to the Company or any Group Company processing
data relating to the Executive for legal, personnel, administrative and
management purposes and in particular to the processing of any sensitive
personal data (as defined in the Data Protection Act 1998) relating to the
Executive, including, as appropriate:
15.1.1 information about the Executive's physical or mental health or condition
in order to monitor sick leave and take decisions as to the Executive's
fitness for work;
15.1.2 the Executive's racial or ethnic origin or religious or similar information
in order to monitor compliance with equal opportunities legislation; and
15.1.3 information relating to any criminal proceedings in which the Executive
has been involved for insurance purposes and in order to comply with
legal requirements and obligations to third parties.
15.2 The Company may make such information available to any Group Company, to
third parties who provide products or services to any Group Company, including
in connection with the administration of benefits (such as advisers, payroll
administrators, actuaries, insurers, pension scheme administrators and banks),
regulatory authorities, potential or future employers, governmental or quasi-
governmental organisations and potential purchasers of the Company or the
business in which the Executive works. Data may also be shared with or
transferred to parties with whom the Company or any Group Company is
negotiating a commercial agreement (including relating to a business sale or
joint venture).
15.3 3 The Executive consents to the transfer of such information to any Group
Company and the Company's business contacts (including service providers
and third parties specified in clause 15.2) outside the European Economic Area
in order to further their business interests even where the country or territory in
question does not maintain adequate data protection standards.
15.4 The Executive consents to the Company monitoring and recording any use that
he/she makes of the Company's electronic communications systems for the
purpose of ensuring compliance with the Company's policies and procedures.
16 General
16.1 This Agreement is governed by and interpreted in accordance with English law.
16.2 The parties submit to the exclusive jurisdiction of the courts of England and
Wales, but this Agreement may be enforced by the Company in any court of
competent jurisdiction.
16.3 This Agreement contains all the information required to be provided to the
Executive under section 1 of the Employment Rights Xxx 0000.
16.4 Any notices or other document to be served on a party under this Agreement
will be delivered by hand or sent to the party at the address or fax number given
in this Agreement or as otherwise notified in writing to the other party. A properly
addressed and prepaid notice sent by post will be deemed to have been served
at 9.00amon the second working day after posting or at the time
21
recorded by the delivery service. If sent by fax, notice will be deemed to have
been received at the time of transmission.
16.5 The Executive will, at the time of signing this Agreement, appoint the Company
as his/her attorney so that the Company can give effect to the provisions of
clauses 11 and 12.8.1.
16.6 Each Group Company will have the right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce the rights bestowed on it by this Agreement. The
consent of a Group Company is not required to amend any terms of this
Agreement. Except as set out in this clause 16, a person who is not a party to
this Agreement may not enforce any of its provisions under the Contracts
(Rights of Third Parties) Xxx 0000.
16.7 The Company is not party to any collective agreement which affects the
Employment.
16.8 Save as otherwise advised in writing to the Executive, upon or during the
Employment, pursuant to clause 2.3 or otherwise, this Agreement comprises
the whole agreement between the parties relating to the Employment.
Accordingly, as from the effective date of this Agreement, all other agreements
or arrangements between the Company and/or any Group Company relating
to the employment of the Executive, save for such matters referred to within
this Agreement or required to be entered into pursuant to this Agreement will
cease to have effect.
16.9 This Agreement may be executed in any number of counterparts, each of which,
when executed, shall constitute a duplicate original, but all the counterparts
shall together constitute the one agreement.
17 Definitions
17.1 In this Agreement unless the context otherwise requires the following
expressions have the following meanings:
Board means the Board of Directors for the time being of HSBC Holdings pie or
any committee of the Board (including the Group Management Board) to which
powers have been properly delegated or such person or persons designated
by the Board from time to time as its representative for the purposes of this
Agreement;
Commencement Date means 22 February 2018;
Company's Employee Handbook and Company's HR Procedures Manual
means the Company's Employee Handbook and the Company's HR
Procedures Manual from time to time in force, which can be viewed on the
Company's intranet;
Confidential Information means information relating to the business, clients,
customers, products, affairs and finances of the Company or any Group
Company that is confidential to the Company or any Group Company, or in
relation to which the Company or any Group Company is subject to a duty of
confidentiality, and trade secrets including technical data and know-how
relating to the business of the Company or any Group Company or of any
persons having dealings with the Company or any Group Company, whether
or not such information is marked confidential. This includes: details of
22
suppliers and their terms of business, details of customers, clients and
prospective customers/clients and their requirements, the prices charged to
and terms of business with customers, marketing plans and sales forecasts,
financial information, results and forecasts (save to the extent that these are
included in published audited accounts), any proposals relating to the
acquisition or disposal of a company or business or any part thereof or to any
proposed expansion or contraction of activities, or any other business strategy
or tender, details of employees, atypical workers and officers and of the
remuneration and other benefits paid to them, information relating to research
activities, inventions, secret processes, designs, software, formulae and product
lines, any information which the Executive either is aware or reasonably ought
to know is confidential and any information which has been given to the
Company or any Group Company in confidence by customers, suppliers or
other persons;
Corporate Governance Code means the UK Corporate Governance Code
published by the Financial Reporting Council (as amended from time to time);
Directors' Remuneration Policy means the Group's directors' remuneration
policy as set out in the Directors' Remuneration Report of the Group's Annual
Report and Accounts from time to time;
Employment means the Executive's employment under this Agreement;
FCA means the Financial Conduct Authority;
Group means (1) HSBC Holdings pie and any entity which from time to time is
a holding company of HSBC Holdings pie or a subsidiary of HSBC Holdings pie
or of any such holding company; and (2) any entity over which from time to time
any of the entities defined in paragraph (1) of this definition either directly or
indirectly exercises management control, even though it may own less than fifty
per cent. (50%) of the shares and is prevented by law from owning a greater
shareholding and Group Company and Group Companies shall be construed
accordingly;
Group Chairman means the Chairman of the Group from time to time;
Group Chief Executive means the Chief Executive of the Group (not simply
of the Company) from time to time;
Group's Malus and Clawback Policies means any of the Group's policies on
malus and clawback which may be in force and amended from time to time;
Intellectual Property means any invention, improvement, design, process,
information, copyright work, trade xxxx, trade name or get-up or any other
intellectual property;
Recognised Investment Exchange means an investment exchange granted
recognition under section 285 (1) Financial Services and Markets Xxx 0000
including a recognised overseas investment exchange;
Statutory Deductions means appropriate tax, national insurance contributions
and any other applicable statutory deductions;
Termination Date means the date on which the Executive's Employment
terminated;
23
UK Listing Authority means the FCA in its capacity as the competent authority
for the purposes of Part VI of the Financial Services and Markets Xxx 0000, as
amended by the Financial Services Xxx 0000;
Variable Pay means any non-pensionable incentive compensation (excluding
any other allowance notified to the Executive in writing from time to time)
including any bonus or deferred bonus in the form of (i) cash (ii) deferred cash
or (iii) equity awarded under any share or variable pay/ Long Term Incentive
plan in force from time to time (in relation to which performance and/or other
conditions may or may not be attached) and subject always to the deferral
policy and/or any other variable pay policy applicable at the time of such award
and subject to clauses 2.5, 2.6, 2.8, 2.9 and 2.10.
17.2 References to clauses, sub-clauses and schedules are unless otherwise stated
to clauses and sub-clauses of and schedules to this Agreement.
17.3 The headings to the clauses are for convenience only and shall not affect the
construction or interpretation of this Agreement.
17.4 The words subsidiary and holding company have the meanings set out in
section 1159 of the UK Companies Xxx 0000 and "management control" shall
be demonstrated by the ability to exercise significant influence over an entity or
its management.
17.5 A reference to any statute or statutory provision (whether of the United Kingdom
or elsewhere) includes any subordinate provision (as defined by section 21(1)
Interpretation Act 1978) made under it and provision which has superseded it
or re-enacted it (with or without modification) before or after the date of this
Agreement except where it is after the date of this Agreement to the extent that
the liability of any party is thereby increased or extended.
24
This Agreement has been signed on behalf of the Company and executed as a deed
by the Executive the day and year first above written.
Executed as a Dee
EMENT SERVICES LIMITED in the presence of:
Dated: .... .. ... ... .. . ..... . .......... .. ... .
Director
Dated: ...... ... ..... ....... ... ..... .. .......
Director/Secretary
