Private & Confidential | |
![]() | Exhibit 4.1 |
Dated 14 October 2008 | |
HSBC HOLDINGS PLC | (1) |
and | |
DOUGLAS JARDINE FLINT | (2) |
SERVICE AGREEMENT | |
3.2 | Pension Allowance | |
Subject to clause 3.4.4, the Executive is eligible to receive an allowance of 55 per cent. of annual Basic Salary in order to fund personal pension arrangements. | ||
3.3 | Clubs | |
The Company shall make payments on the Executive's behalf in respect of the annual membership subscription of two clubs or such similar two clubs as the Executive shall nominate each year, to be approved by the Company through the Group Managing Director, Human Resources. | ||
3.4 | Medical Benefits | |
The Executive shall participate in the schemes set out under this clause 3.4 subject always to the relevant schemes' terms and conditions from time to time in force and subject to the Executive meeting the requirements of the relevant scheme and being deemed eligible by the relevant insurance provider. The Company shall not be liable to provide any benefits or any compensation in lieu thereof or take any action to enforce the provision of such benefits in circumstances where the scheme provider refuses for any reason whatsoever, to provide any benefits to the Executive. | ||
3.4.1 | Health Checks | |
The Executive is eligible for an annual voluntary health check with a medical adviser appointed and paid for by the Company. | ||
3.4.2 | Medical Cover | |
The Executive and his spouse/partner and eligible dependants are entitled to participate in the Group's UK Medical Scheme. | ||
3.4.3 | Personal Accident Insurance Cover | |
The Executive is entitled to non-contributory membership of the Company's personal accident insurance scheme. | ||
3.4.4 | Permanent Health Insurance | |
If the Executive is unable by reason of illness or injury, to perform the material or substantial parts of his duties hereunder, 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 Basic Salary. In the event of such payment, the Executive's pension allowance at clause 3.2 will continue to be payable, at a rate of 35 per cent, of the Executive's annual Basic Salary. | ||
3.5 | Life Assurance Cover | |
In the event of the Executive's death, a sum equivalent to four times annual Basic Salary will be paid to the Executive's nominated beneficiaries, subject to Trustee approval. |
at any time during the currency of such a notice the Executive shall provide a medical certificate satisfactory to the Board to the effect that he has fully recovered physical and/or mental health and that no recurrence of illness or incapacity can reasonably be anticipated, the Company shall withdraw the notice; | |||
14.1.2 | by summary notice in writing and with no liability to make any further payment to the Executive (other than in respect of amounts accrued due at the Termination Date) if the Executive shall have: | ||
(a) | committed by any act or omission any serious breach or repeated or continued (after warning) a material breach of the Executive's obligations hereunder; or | ||
(b) | been guilty of conduct by act or omission (whether in the course of the duties hereunder or otherwise) tending to bring the Executive or the Company or any Group Company into disrepute in the reasonable opinion of the Board or which causes the Company or any Group Company substantial economic harm, provided that if such conduct is capable of remedy, he has first been given the opportunity to remedy the contract and has failed to do so; or | ||
(c) | been convicted of an offence under any statutory enactment or regulation (other than a traffic offence in respect of which the only penalty or sanction is a fine and/or licence endorsement and which does not render him unable to discharge his duties under this Agreement); or | ||
(d) | become bankrupt or had an interim order made against the Executive under the Insolvency Act 1986 or compounded with his creditors generally; or | ||
(e) | in the reasonable opinion of the Board, failed to perform the duties hereunder to a satisfactory standard, after having received a written warning from the Company relating to the same; or | ||
(f) | been disqualified from being a director by reason of any order made under the Company Directors Disqualification Act 1986 or any other enactment; or | ||
(g) | resigned of his own choice as a director of the Company or any Group Company and not being at the request of or with the prior written agreement of the Board (save with reasonable and proper cause and where remaining as a director would substantially disadvantage him in his capacity as an officeholder of HSBC); | ||
Any delay by the Company in exercising such right of termination shall not constitute a waiver thereof. | |||
14.2 | If the Company becomes entitled to terminate the Employment pursuant to clause 14.1.2, or whilst the Company or any external body investigates any allegation which would or may entitle the Company to terminate the Employment pursuant to clause 14.1.2 it shall be entitled (but without prejudice to its right subsequently to terminate such appointment on the same or any other ground) to suspend the Executive on full pay for so long |
as it may think fit or, for such period as is reasonable in the circumstances. During the period of any suspension the Executive will continue to be bound by the provisions of this Agreement and must continue at all times to conduct himself with good faith towards the Group. | ||
14.3 | The Company reserves the right in its absolute discretion to give the Executive pay in lieu of all or any part of the notice of termination (whether notice is given by the Company or by the Executive). A dismissal without notice per se shall not constitute or imply an election under this clause 14.3. For this purpose, the Executive agrees that pay in lieu will consist of Basic Salary and other contractual benefits or cash equivalent (but excluding any Variable Pay) for the relevant period of notice less all Statutory Deductions. | |
14.4 | During any period of notice of termination or part thereof (whether given by the Company or the Executive), the Company shall be under no obligation to assign any duties to the Executive and shall be entitled to exclude him from the Group's premises and to direct that the Executive refrains from contacting any customers, clients, suppliers, agents, professional advisers or employees of the Company or any Group Company, provided that this shall not affect the Executive's entitlement during this period, to receive his normal salary and other contractual benefits (excluding Variable Pay). For the avoidance of doubt, during such period the Executive shall continue to be bound by the same obligations to the Company as were owed prior to the commencement of the period, including for the avoidance of doubt, the duty of good faith and fidelity. | |
14.5 | The Executive agrees that during any period of notice of termination whether given by the Company or by the Executive he will give such assistance in effecting an orderly and comprehensive handover as the Company may require. | |
14.6 | Without prejudice to the constitution (including for the avoidance of doubt the articles of association) of the Company or any Group Company, on termination of the Employment howsoever arising, or upon either the Company or the Executive having served notice of such termination and the Company having exercised its rights under clause 14.4 the Executive shall at the request of the Company: | |
14.6.1 | resign from all offices held by him in the Company and any Group Company, and | |
14.6.2 | transfer without payment to the Company, or as the Company may direct any third party, any shares or other securities held by the Executive in HSBC, the Company or any Group Company, as a nominee or trustee for HSBC, the Company or any other Group Company and deliver to the Company the related certificates | |
14.6.3 | provided however, that such resignations 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; and | |
14.6.4 | forthwith deliver to the Company all Confidential Information and all materials within the scope of clause 12.3 including any copies of any such materials, and all credit cards and other property of or relating to the business of the Company or of any Group Company which may be in the |
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; | |||
15.1.6 | "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 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 shall have had material personal dealings pursuant to the Employment; or | ||
(b) | any employee who was under the direct or indirect supervision of the Executive shall 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 "Prospective 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 organisation 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; | |||
15.1.7 | "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 15 but so that references to the Executive shall be replaced by references to the relevant employee, being in either case a person with whom the Executive had material dealings during the Restricted Period); | ||
15.1.8 | "Restricted' Products" means Company Products or any goods of the same or of a similar kind. | ||
15.1.9 | "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 immediately preceding the last day on which the Executive carried out any duties for the Company; | ||
15.1.10 | "Restricted Services" means Company Services or any services of the same or of a similar kind; |
15.1.11 | "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 foradministrative purposes) during anypart ofthe 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; | |
15.2 | The Executive recognises that, whilst performing his duties for the Company, he will have access to and come into contact with trade secrets and Confidential Information belonging to the Company and certain Group Companies and will obtain personal knowledge of and influence over its or their customers and/or employees. The Executive therefore agrees that the restrictions set out in this clause 15 are reasonable and necessary to protect the legitimate business interests of the Company and any applicable Group Company both during and after the termination of the Employment. | |
15.3 | The Executive hereby undertakes with the Company that he will not for the period of twelve months after the Termination Date (and six months after the Termination Date in the case of clause 15.3.1) whether by himself, through his employees or agents or otherwise howsoever and whether on his own behalf or on behalf of any other person, firm, company or other organisation, directly or indirectly: | |
15.3.1 | in competition with the Company anywhere in the world, in a senior capacity be employed by or engaged or otherwise interested in any of the companies(or other entities)within the Comparator Group in the business ofdeveloping, selling, supplying or otherwise dealing with Restricted Products or Restricted Services; | |
15.3.2 | 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 | |
15.3.3 | employ or otherwise engage 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 | |
15.3.4 | interfere with, or endeavour to interfere with, the supply or provision of goods or services (other than utilities, or goods or services supplied for administrative purposes) to the Company or to induce the cessation of the supply or provision of such goods or services from any Restricted Supplier. | |
15.3.5 | in competition with the Company, solicit business from or endeavour to entice away or canvass any Customer or Prospective Customer if suchsolicitation or canvassing is in respect of Restricted Products or Restricted Services; | |
15.3.6 | 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. |
15.4 | If the restriction in clause 15.3.1 is for any reason held to be unenforceable in any jurisdiction in the world, the Executive shall agree to such amended or lesser restriction as would enable that restriction to be enforced so far as possible in such jurisdiction. | |
15.5 | The benefit of clause 15.3 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 duties for the Company or by reason of rendering services to or holding office in such Group Company: | |
15.5.1 | acquired knowledge of its trade secrets or Confidential Information; or | |
15.5.2 | had material personal dealings with its Customers or Prospective Customers; or | |
15.5.3 | supervised directly or indirectly employees having material personal dealings with its Customers or Prospective Customers, | |
but so that references in clause 15 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 15.5 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 affect the validity or enforceability of the covenants in favour of any other Group Company or the Company. In addition, at the request of the Company the Executive shall enter into a direct agreement or undertaking with any Group Company whereby he will accept restrictions corresponding to the restrictions in this clause 15 (or such of them as may be appropriate). | ||
15.6 | The Executive hereby undertakes with the Company that he will not at any time without the consent of the Company: | |
15.6.1 | after the Termination Date 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 "The Hongkong and Shanghai Banking Corporation" or incorporating the word(s) Hongkong Shanghai Banking Corporation; | |
15.6.2 | after the Termination Date 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. | |
15.7 | The parties agree that the periods referred to in clause 15.3 above will be reduced by one day for every day, during which, at the Company's direction and in accordance with clause 14.4, the Executive has been excluded from the Company's premises and has not carried out any duties. |
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. |