Private & Confidential | |
Exhibit 4.4 |
Dated 29 August 2008 |
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED | (1) |
and | |
VINCENT CHENG HOI CHUEN | (2) |
SERVICE AGREEMENT |
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13.1.1 | by not less than 6 months’ notice in writing given at any time while the Executive shall have been incapacitated by reason of ill health or accident from performing the duties hereunder for a period of or periods aggregating 26 weeks in the preceding 12 months. If 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 andlor mental health and that no recurrence of illness or incapacity can reasonably be anticipated, the Company may withdraw the notice; | |||
13.1.2 | by summary notice in writing: | |||
(a) | if the Executive: | |||
(i) | wilfully disobeys a lawful and reasonable order; or | |||
(ii) | misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties; or | |||
(iii) | is guilty of fraud or dishonesty; or | |||
(iv) | is habitually neglectful in his duties; or | |||
(b) | on any other ground on which the Company would be entitled to terminate the contract without notice at common law. | |||
Any delay by the Company in exercising such right of termination shall not constitute a waiver thereof. | ||||
13.2 | If the Company becomes entitled to terminate the Employment pursuant to clause 13.1.2, 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 13.1.2 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. | |||
13.3 | The Company reserves the right in its absolute discretion to give the Executive wages in lieu of all or any part of any notice of termination (whether given by the Company or by the Executive). | |||
13.4 | 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 its 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 (other than Variable Bonus for which the Executive will not be considered). 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. |
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(b) | GE Money, Australia and New Zealand Banking Group Limited, Mitsubishi UFJ Financial, Mizuho Financial Group, Sumitomo Mitsui Financial, Resona Holdings and Sumitomo Trust and Bank, | ||
or where any of the companies or entities in (a) or (b) above are the subject of a takeover or undergo any form of reconstruction, the entities to which the relevant business assets of such companies are transferred from time to time (and for the purpose of this clause 14.1.3 the Comparator Group shall include all group companies of the companies and entities identified at (a) and (b) above); | |||
14.1.4 | “Confidential Information” has the meaning ascribed thereto in clause 11.2; | ||
14.1.5 | “Customer” means any person or firm or company or other organisation whatsoever to whom or which the Company supplied Company Products and 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 or indirect supervision of the Executive had material personal dealings pursuant to their employment, | ||
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; | |||
14.1.6 | “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 |
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business with which the Executive or any employee as defined in sub-clause (b) had dealings during the Restricted Period; | ||
14.1.7 | “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 14 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 with during the Restricted Period); | |
14.1.8 | “Restricted Products” means Company Products or any goods of the same or of a similar kind. | |
14.1.9 | “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; | |
14.1.10 | “Restricted Services” means Company Services or any services of the same or of a similar kind; | |
14.1.11 | “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; | |
14.2 | 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 14 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. | |
14.3 | 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 14.3.1) 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: | |
14.3.1 | 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 of developing, selling, supplying or otherwise dealing with Restricted Products or Restricted Services; or |
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14.3.2 | 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 | |
14.3.3 | 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 | |
14.3.4 | 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. | |
14.3.5 | 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; | |
14.3.6 | 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. | |
14.4 | If the restriction in clause 14.3.1 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. | |
14.5 | The benefit of clause 14.3 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: | |
14.5.1 | acquired knowledge of its trade secrets or Confidential Information; or | |
14.5.2 | had material personal dealings with its Customers or Prospective Customers; or | |
14.5.3 | supervised directly or indirectly, employees having material personal dealings with its Customers or Prospective Customers, but so that references in clause 14.1 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 14.5 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 14 (or such of them as may be appropriate). |
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“Group” means the Company and the Group Companies; | ||
“Group Company” means a legal entity from time to time in which HSBC (or one or more of its holding or subsidiary companies, or subsequent holding or subsidiary companies of such entity) (i) owns at least fifty per cent (50%) or more of the voting shares or (ii) has a minority shareholding or (iii) 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; | ||
“Group Chief Executive” means the Group Chief Executive of HSBC from time to time; | ||
“HSBC” means HSBC Holdings plc; | ||
“Termination Date” means the date on which the Executive’s Employment terminated; | ||
18.1.2 | references to clauses, sub-clauses and schedules are unless otherwise stated to clauses and sub-clauses of and schedules to this Agreement; | |
18.1.3 | the headings to the clauses are for convenience only and shall not affect the construction or interpretation of this Agreement. |
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