SERVICE AGREEMENT between THE ROYAL BANK OF SCOTLAND plc and BRUCE VAN SAUN The Royal Bank of Scotland plc Edinburgh EH2 2YB
Exhibit
4.3
between
THE
ROYAL BANK OF SCOTLAND plc
and
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o
The
Royal Bank of Scotland plc
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1
INDEX
Clause
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1.
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Definitions,
Interpretation and Construction
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2.
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Position
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3.
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Commencement
of Employment
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4.
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Duties
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5.
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Other
Interests
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6.
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Place of
Employment
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7.
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Hours of
Work
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8.
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Remuneration
(RBSelect)
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9.
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Deductions
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10.
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Bonuses
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11.
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Executive
Long Term Incentives
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12.
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YourBank
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13.
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Expenses
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14.
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Dealings in
Investments
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15.
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Pension and
Life Cover
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16.
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Holidays
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17.
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Sickness
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18.
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Confidentiality
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19.
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Group
Property
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20.
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Intellectual
Property
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21.
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Power of
Attorney
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22.
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Grievance
Procedure
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23.
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Disciplinary
Procedure
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24.
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Summary
Termination
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25.
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Termination
by Notice
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26.
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Garden
Leave
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27.
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Events on
Termination
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28.
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Restrictions
after Termination of Employment
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29.
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Declaration
of Secrecy
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30.
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Data
Protection
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2
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31.
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Notices
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32.
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Continuing
Provisions
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33.
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Whole
Agreement and Severability
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34.
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Collective
Agreements
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||
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35.
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Governing
Law
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3
Between
THE ROYAL BANK OF SCOTLAND plc
having its registered office at ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter called the “Company")
and
▇▇▇▇▇ ▇▇▇ ▇▇▇▇, residing at
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇
(hereinafter called
the “Executive")
THE
AGREEMENT BETWEEN THE PARTIES IS AS FOLLOWS:-
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1.
|
Definitions,
Interpretation and Construction
|
In this Agreement,
unless otherwise stated, the following definitions apply:
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1.1.1.
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"Associated
Company" means any company (i) having an ordinary share capital of which
not less than 25 per cent is owned directly or indirectly by RBSG or (ii)
a holding company of the Company or any direct or indirect subsidiary of
any such holding company or (iii) any company or other entity in respect
of which the Group exercises management control, including joint venture
operations;
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1.1.2.
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"Board" means
the Board of Directors of the Company or an authorised committee of the
Board of Directors of the
Company;
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1.1.3.
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“Main Board”
means the Board of Directors of the
Company;
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1.1.4.
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"Group" means
the Company and its Associated
Companies;
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1.1.5.
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"Remuneration
Committee" means the Remuneration Committee of the Board or any committee
empowered by the Board in substitution for the Remuneration
Committee;
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4
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1.1.6.
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“RBSG” means
The Royal Bank of Scotland Group plc having its
registered office at ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇; and
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1.1.7.
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the
expressions "subsidiary" and "holding company" have the same meanings in
this Agreement as they have in Section 1159 of the Companies ▇▇▇
▇▇▇▇.
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1.2.
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In this
Agreement:
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1.2.1.
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unless
otherwise stated, references to statutes, rules or regulations or their
provisions will also include amendments, extensions, consolidations or
replacements and will refer to any orders or regulations, instruments or
subordinate legislation;
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1.2.2.
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the masculine
gender shall include the feminine gender and singular number shall include
the plural and vice versa;
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1.2.3.
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unless
otherwise stated, references to clauses and sub-clauses are references to
clauses and sub-clauses of this Agreement and references to clauses shall
be deemed to include references to the sub-clauses of that clause;
and
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1.2.4.
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the headings
to clauses are for convenience only and shall not affect the construction
or interpretation of this
Agreement.
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2.
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Position
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2.1.
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The Executive
will be employed as Group Finance Director and the Executive agrees to
accept the position on the terms and conditions set out in this
Agreement.
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2.2.
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The Executive
warrants that by virtue of entering into this Agreement, he will not be in
breach of any express or implied terms of any contract or other obligation
binding upon him.
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2.3.
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This role
requires the Executive to be registered as an Approved Person within a
Controlled Function under the terms of the Financial Services and Markets
Act, as regulated by the Financial Services Authority (FSA). Consequently,
the Executive is required to satisfy the FSA’s requirements for Fitness
and Propriety and abide by the FSA’s Principles and Code of Practice for
Approved Persons.
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5
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2.4.
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A copy of the
Group’s Explanatory Booklet for Approved Persons is attached. This
provides guidance on the Executive’s responsibilities as an Approved
Person and forms part of the Executive’s terms and conditions of
employment. However, it is essential to note that the Executive must refer
to the latest rules and guidance contained in the FSA’s handbook. The
links to this are set out in the Explanatory
Booklet.
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3.
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Commencement
of Employment
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3.1.
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The
Executive’s employment under this Agreement commences on 8 September 2009.
The Executive’s continuous employment with the Company commences on 8
September 2009.
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3.2.
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No period of
employment with a previous employer counts as part of the Executive’s
period of continuous employment with the
Company.
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4.
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Duties
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4.1.
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The Executive
will report to the Group Chief
Executive.
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4.2.
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During his
employment the Executive shall:
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4.2.1.
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devote the
whole of his time, attention and skill to the business of the Group and
shall faithfully, efficiently, competently and diligently perform such
duties and exercise such powers, authorities and discretions which may be
assigned to or vested in him by the Board;
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4.2.2. |
comply with
the Group’s rules, policies and regulations as varied from time to time
and obey all reasonable and lawful directions given by or under the
authority of the Board;
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4.2.3
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comply with
the terms of the Group’s Code of Conduct;
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4.2.4.
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not do anything prejudicial to
the interests and reputation of the Group and shall promote and extend the
business of the Group and protect and further its interests and
reputation;
and
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4.2.5. |
accept
secondment to the employment of any Associated Company. Any
such secondment may be for a fixed period (which may be extended by the
Company according to business requirements) and may apply to all of the
Executive’s employment duties or only some of them. Notwithstanding the
foregoing, the Executive will not be required to perform any services
which
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6
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he cannot
reasonably be expected to perform or which are not commensurate with his
skills and experience. During any period of secondment, the
Executive will continue to receive his normal salary and benefits and will
remain subject to the terms of this Agreement except as otherwise provided
in any secondment agreement.
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4.3.
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Additionally,
the Executive may be required to undertake such other duties as the
Company considers necessary to meet the needs of the
business. The Executive may also be required to perform
services for any Associated Company and may be required to undertake the
role and duties of a non-executive Director of other companies within the
Group. No additional remuneration will be paid in respect of
these appointments.
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4.4.
|
The duties of
the Executive as an officer of the Company or of any Associated Company
shall be subject to the Articles of Association (or equivalent) of the
relevant company and shall be separate from and in addition to his duties
under this Agreement. Save where the Executive is a director of
the Main Board, if he ceases to be a director or officer of the Company or
of any Associated Company (otherwise than by resignation from employment,
termination by the Company of the Executive’s employment under this
Agreement or where the Executive is prohibited by law from acting as a
director or officer of the Company or an Associated Company) this
Agreement shall nevertheless remain in force as if the Executive's
employment is that of executive manager rather than that of director. The
parties agree that in such circumstances the Executive will not be
entitled to any compensation in respect of the loss of his position as
director or officer.
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4.5.
|
The
Executive's performance and discharge of his duties and responsibilities
hereunder shall be the subject of regular review, the object of which is
to assess performance during the period under review and to set agreed
performance standards for future review periods. In the event
that, in the opinion of the Board and after receiving a warning from it
and reasonable opportunity to cure any failure, the Executive fails to
achieve the agreed personal performance standards, the Company may
terminate the Executive's employment in accordance with the provisions of
clause 25.
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5.
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Other
Interests
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5.1.
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The Executive
shall not (except with the Group Chief Executive's prior written consent)
be directly or indirectly engaged or concerned in any capacity in the
conduct of, or have any financial interest in: any business, trade,
profession or
|
7
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organisation
(other than Associated Companies) save through holding or being interested
in investments (quoted or unquoted) not representing more than two per
cent of the issued equity capital or any other class of share or debenture
capital of any one company.
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5.2.
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The Executive
will not, without the Group Chief Executive’s
prior consent, give lectures, speak in public or publish anything in any
form or medium relating to the affairs of, or matters which may affect
RBSG, other than as required in the normal course of his employment under
this Agreement.
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6.
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Place
of Employment
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6.1.
|
The Executive
will normally work between the Company’s offices in Edinburgh at
Gogarburn, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
but may be required to travel elsewhere in the world in the performance of
his duties.
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6.2.
|
The Executive
may be required to move temporarily or permanently to any other location,
as may be reasonably specified by the Company, in which case a minimum of
4 weeks’ notice of the move will be given and reasonable travel,
subsistence and relocation expenses will be paid by the
Company.
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7.
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Hours
of Work
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7.1.
|
The
Executive’s normal hours of work are from 9.00 a.m. to 5.00 p.m. Monday to
Friday, inclusive of one hour for lunch daily, but the Executive may be
required to work reasonable additional hours when necessary for the
performance of his duties, without additional
remuneration.
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8.
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Remuneration
(RBSelect)
|
|
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8.1.
|
The Company
operates a flexible compensation and benefits package called RBSelect, which
comprises:
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8.1.1.
|
individually
calculated basic salary (the “Salary Element”);
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8.1.2.
|
any regional allowances the Executive is entitled to receive; | |
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8.1.3
|
value of the
Managers’ Car Scheme;
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8.1.4
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value of
private medical cover; and
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8.1.5
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value of
Managers’ medicals.
|
8
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|
The residual
amount may be used by the Executive to select preferred benefits from
RBSelect.
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|
The Salary
Element is used to calculate certain benefits such as any discretionary
bonus payment or any other payment directly linked to
salary. The Salary Element is also used to calculate severance
payments including redundancy.
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|
|
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|
The
Executive’s Salary Element is £725,000 per annum. The Executive
will also receive funding in lieu of pension, equal to 35% of his Salary
Element, and funding towards the provision of competitive benefits in kind
of £26,245. Full details of RBSelect
are contained in the Company’s guidebook and on the Group intranet in
relation to the scheme.
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8.2.
|
The monthly
value of the Executive’s ValueAccount less the cost of any benefits
elected through RBSelect will be paid on
the 18th day of each month (or on the last preceding working day where the
18th day falls on a weekend or public holiday) directly into the
Executive’s bank account. Salary will be paid partly in advance
and partly in arrears up to the last day of each calendar
month.
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8.3.
|
The
Executive’s salary will be reviewed annually on the 1st day of April of
each year or any other day approved by the Remuneration Committee, with
any adjustments having immediate effect unless otherwise specified by the
Company. Any review of salary will be entirely at the Company’s
discretion. The Executive has no automatic right to any increase in
salary.
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8.4.
|
All
remuneration payable in cash to the Executive under this Agreement shall
only be credited to a bank account maintained by the Executive and held
with the Company or with another company in the
Group.
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9.
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Deductions
|
|
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9.1.
|
The Executive
agrees that the Company may, at any time during the Executive’s
employment, or in any event upon termination of the Executive’s
employment, deduct from his remuneration any monies due by him to the
Company including any overpayment made and/or outstanding loans, advances,
relocation expenses, the cost (including the legal and other costs
involved) of repairing any damage or loss to the Company’s property
(including intellectual property) caused by him, salary paid in respect of
excess holidays and any other monies owed by him to the Company or any
Associated Company.
|
9
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10.
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Bonuses
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10.1.
|
The Company
may in its absolute discretion pay the Executive a bonus of such amount,
at such intervals and subject to such conditions as the Company may in its
absolute discretion determine from time to time.
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10.2.
|
Any bonus in
terms of clause 10.1 above may be paid in cash, shares or any other form,
may be deferred in full or in part, and may be forfeited or reduced in
such circumstances and on such terms as the Company, acting in good faith,
determines appropriate.
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10.3.
|
The exercise of discretion
under clause 10.1 above in one financial year shall not bind the Company
or act as a precedent for the exercise of discretion in any other
financial year.
|
|
| 10.4. |
If, on or before the date
when
a bonus under
clause 10.1 above might
otherwise have been payable, the Executive’s employment has
terminated or either party has given notice under this Agreement to
terminate the Executive’s employment, the Executive will not be entitled
to receive any such bonus (whether in cash, shares or any other
form).
|
|
| 10.5. |
The Company reserves the right
to change the rules of any bonus scheme, or to cancel such scheme, at any
time without prior notice. In the event of any conflict, the
rules of any relevant bonus scheme (as amended from time to time) shall
take precedence over the terms of this
Agreement.
|
|
11.
|
Executive
Long Term Incentives
|
| 11.1. |
The Executive
may, at the absolute discretion of the Remuneration Committee, be eligible
to participate in the Company's long term incentive plans, subject to the
rules of those plans.
|
|
12.
|
YourBank
|
| 12.1. |
The Executive
shall be eligible to access preferential rates across a range of financial
products and services from the Group through YourBank. YourBank
is available to all UK and offshore employees and eligible Group
pensioners.
|
|
13.
|
Expenses
|
| 13.1. |
The Company
shall reimburse the Executive for all reasonable out-of-pocket expenses
properly incurred in the performance of his duties, subject to the
Executive
|
10
producing all
relevant receipts or other satisfactory evidence and his compliance with the
Company’s travel and expenses policy as amended from time to time.
|
|
13.2.
|
In order to
facilitate payment of expenses, the Executive may be supplied with a
credit card for use solely in this
connection.
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14.
|
Dealing
in Investments
|
|
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14.1.
|
The Executive
is subject to the Company's Staff Dealing Rules (and divisional rules
where applicable) which may require prior permission to be obtained before
the Executive is permitted to deal in most types of securities
transactions. Requests must be submitted in writing on the appropriate
Company form. The Company also operates a closed period during
which the Executive will not be permitted to deal in RBSG
shares. Failure to abide by these rules will constitute serious
misconduct for the purposes of any disciplinary action and may lead to
criminal proceedings and / or the summary dismissal of the
Executive.
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|
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14.2.
|
Details of
the Company's Staff Dealing Rules are contained in the Group compliance
manual (known as the Group Regulatory Risk Policy Handbook) and any local
compliance manual.
|
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15.
|
Pension
and Life Cover
|
|
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15.1.
|
The Executive
shall be eligible to join The Royal Bank of Scotland Group Retirement
Savings Plan (The Plan). The Executive can elect to join this plan through
RBSelect. Further
details are provided in the enclosed Retirement Savings Plan
guidebook.
|
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15.2.
|
The Plan is
not contracted out of the State Second Pension and no Contracting Out
certificate is required.
|
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15.3.
|
The Executive
will be provided with Life Cover as a core benefit under RBSelect. The cost of this
is then deducted from the Executive’s ValueAccount. The Executive will
find more information in the RBSelect
guidebook.
|
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16.
|
Holidays
|
|
|
16.1.
|
The Executive
will be entitled to paid holidays, subject to the undernoted
conditions:
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16.1.1.
|
The Executive
will be entitled to 30 working days’ holiday per year, to be taken at such
time or times as the Executive shall request and agree in advance with the
Company, plus a further 8 days to be taken at times to be determined by
the Company (which will normally be Bank Holidays). The
|
11
|
Company reserves the right to
request the Executive to work on Bank Holidays in return for which he will
be entitled to holiday, equal to the period worked, to be taken at another
time.
|
||
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16.1.2.
|
The Company’s
holiday year runs from 1 January to 31 December
inclusive.
|
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16.1.3.
|
If the
Executive’s employment commences or terminates part way through the
holiday year, holiday entitlement will be assessed on a pro-rata basis for
each complete month of service during the holiday
year.
|
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16.1.4.
|
The Executive
may carry over a maximum of 5 days’ unused holiday entitlement from one
holiday year to the next, but only with the prior written consent of the
Company.
|
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|
16.2.
|
On
termination of employment the Executive will be entitled to payment in
respect of any accrued unused holiday entitlement except where the
Executive’s employment is terminated by the Company for misconduct or
gross misconduct when only accrued unused statutory holiday will be
paid.
|
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|
16.3.
|
Upon
termination of this Agreement the Executive will repay to the Company any
salary received for holidays taken by him in excess of his accrued
entitlement. The Executive agrees that any sums due to the
Company by the Executive may be deducted by the Company from any monies
owed to the Executive in accordance with clause
9.
|
|
|
16.4.
|
During any
period of notice (whether given by the Company or the Executive), whether
being worked or spent on Garden Leave (as defined below), the Executive is
required to take all accrued and outstanding holiday entitlement at times
to be agreed with the Company. However, the Company retains the discretion
to release the Executive from this obligation and to make a payment in
lieu of such outstanding entitlement or part
thereof.
|
|
17.
|
Sickness
|
|
|
17.1.
|
There is no
contractual right to payment in respect of any period of absence due to
sickness or incapacity and any such payments will be made at the Company’s
sole discretion.
|
If the Executive is
absent from work due to illness, injury, or accident the Company may, at its
sole discretion, pay Company sick pay (inclusive of any statutory sickness
benefit) at 100% of the Executive’s ValueAccount rate for the first 182 days of
12
incapacity. Beyond
the initial 182 days, the Executive will be eligible to be considered on a
discretionary basis for Disability Cover under the rules of the Company’s
Disability Cover scheme. Continued receipt of payments under the
scheme will be at the Company’s discretion and will be subject to the rules of
the scheme which the Company has the right to vary from time to
time. Disability Cover is a core benefit under RBSelect. The cost will be
deducted from the Executive’s ValueAccount. The Executive will find more
information in the RBSelect
guidebook.
|
|
17.2.
|
The Executive
may self-certify his incapacity for absences of up to seven consecutive
days (including weekends and statutory
holidays).
|
|
|
17.3.
|
A doctor’s
certificate must be submitted to the Company for absences of more than
seven consecutive days. Thereafter, the Executive must submit a
new doctor’s certificate as and when necessary to ensure that all periods
of absence are covered.
|
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|
17.4.
|
The Company
reserves the right to request the Executive to provide evidence for any
period of absence including those that would normally be
self-certified.
|
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|
17.5.
|
For the
purposes of assessing the Executive’s entitlement to Statutory Sick Pay,
the qualifying days will be Monday to Friday
inclusive.
|
|
|
17.6.
|
If the
Executive is incapable of performing his duties because of injuries
sustained wholly or partly as a result of actionable negligence, nuisance
or breach of any statutory duty on the part of any person other than a
company in the Group (a “third party") or if the Executive is covered by
any health or other insurance scheme (an “insurance policy”) all
Disability Cover payments made to the Executive shall (to the extent that
compensation for loss of earnings is recoverable from the third party or
under the insurance policy), constitute loans by the Company (or by any
Associated Company from whom the Company may have procured payment of the
Executive's salary) to the Executive and shall be repaid when the
Executive recovers compensation for loss of earnings from the third party
by action or otherwise or under the insurance
policy.
|
|
|
17.7.
|
Without
prejudice to the provisions of Clause 17.6, in the event that the
Executive has been incapacitated from performing his duties by reason of
injuries sustained wholly or partly as a result of actionable negligence
or as a result of matters which are covered by an insurance policy, the
Company shall be entitled to require the Executive
either:-
|
|
|
17.7.1.
|
(subject to
the Company agreeing to indemnify the Executive against all reasonable
legal expenses) to raise legal proceedings to enforce his
rights
|
13
against
any third party who has committed such an actionable negligence against him
and/or to pursue a claim under the insurance policy; or
|
|
17.7.2.
|
to assign to
the Company or any Associated Company his right to raise legal proceedings
to recover from such third party and/or the relevant insurance company
compensation for any loss of earnings sustained by the
Executive.
|
|
|
17.8.
|
The Executive
shall at any time (including during any period of incapacity) at the
request and expense of the Company submit to medical examinations by a
medical practitioner nominated by the Company. The results
shall, subject to the provisions of the Access to Medical Reports ▇▇▇
▇▇▇▇, be disclosed to the
Company.
|
|
18.
|
Confidentiality
|
|
|
18.1.
|
During the
Executive’s employment, he must treat the business of the Company and any
Associated Company and any information received during the course of or as
a result of his employment about or provided by any third party as
strictly confidential.
|
|
|
18.2.
|
The Executive
may not at any time (whether during his employment or after its
termination) disclose to any unauthorised person, firm or corporation or
use or attempt to use for his own or any other person, firm or
corporation’s advantage, any confidential information relating to the
business affairs or trade secrets of the Company or any Associated
Company, or any confidential information (howsoever obtained) about or
provided by any third party received during the course of or as a result
of his employment (“Confidential Information”). Confidential
Information includes, but is not limited to, information relating to
employees, customers and suppliers (whether former, actual or potential),
Group contracts, pricing structures, financial and marketing details,
business plans, any technical data, designs, formulae, product lines,
Intellectual Property (as defined in clause 20), research activities and
any Group information which may be deemed to be commercially or price
sensitive in nature. It also includes, again without
limitation, any information contained in documents marked "confidential"
or documents of a higher security classification and other information
which, because of its nature or the circumstances in which the Executive
receives it, he should reasonably consider to be
confidential.
|
|
|
18.3.
|
The Company
reserves the right to modify the categories of Confidential Information
from time to time.
|
|
|
18.4.
|
The Executive
is not permitted to make any copy, abstract, summary or précis of the
whole or any part of any document belonging to the Group unless he has
been
|
14
authorised to do
so by the Company, and shall not at any time use or permit to be used any such
items otherwise than for the benefit of the Group.
|
|
18.5.
|
The
obligations contained in this clause 18 shall not
apply:
|
|
|
18.5.1.
|
to
information or knowledge which is already in the public domain other than
by way of unauthorised use or disclosure (whether by the Executive or a
third party);
|
|
|
18.5.2.
|
where the
Executive’s use or disclosure of the information has been properly
authorised by the Company;
|
|
|
18.5.3.
|
to any
information which the Executive discloses in accordance with applicable
public interest disclosure legislation;
or
|
|
|
18.5.4.
|
to any
information which is required to be disclosed in accordance with an order
of a Court of competent
jurisdiction.
|
|
|
18.6.
|
The Executive
shall exercise all due care and diligence and shall take all reasonable
steps to prevent the publication or disclosure of any Confidential
Information relating to, in particular, but not limited to, actual or
proposed transactions, of any employee, customer, client or supplier
(whether former, actual or potential) of the Company or any Associated
Company including the partnerships, companies, bodies, and corporations
having accounts with or in any way connected to or in discussion with the
Group and all other matters relating to such customers, clients or
suppliers and connections.
|
|
|
18.7.
|
Any breach by
the Executive of the provisions of this clause 18 will be regarded by the
Company as a serious disciplinary matter and may, if committed while the
Executive is employed by the Company, result in disciplinary action being
taken against the Executive up to and including dismissal without
notice.
|
|
|
18.8.
|
The Executive
agrees that the undertakings comprised in this clause 18 are reasonable
and necessary to protect the legitimate business interests of the Group
both during the Executive’s employment and after its
termination.
|
|
19.
|
Group
Property
|
|
|
19.1.
|
All reports,
files, notes, memoranda, e mails, accounts, documents or other material
(including all notes and memoranda of any Confidential Information as
defined in clause 18.2 and the items referred to in clause 18.4) and any
copies made or received by the Executive in connection with his employment
under this Agreement
|
15
are and shall
remain the sole property of the Company or the appropriate Associated Company
and shall be surrendered by the Executive to someone duly authorised by the
Company in accordance with clause 27.
|
20.
|
Intellectual
Property
|
|
|
20.1.
|
For the
purposes of this clause, "Intellectual Property" means patents, trade
marks, service marks, registered designs (including applications for and
rights to apply for any of them), unregistered design rights, trade or
business names, copyright, database rights, Confidential Information or
knowhow and any similar rights in any
country.
|
|
|
20.2.
|
All
Intellectual Property which the Executive develops or produces in
connection with his employment duties, or which the Executive derives from
any material produced by the Executive or any other employee of the
Company in connection with their employment duties, will be owned by the
Company absolutely. The Executive agrees, at the Company’s
expense, to sign all documents and carry out all such acts as will be
necessary to achieve this. The Executive waives all moral
rights in all Intellectual Property which is owned by the Company, or will
be owned by the Company, further to this
clause.
|
|
21.
|
Power
of Attorney
|
|
|
21.1.
|
The Executive
irrevocably appoints any Director or the Secretary of the Company to be
his authorised attorney to do all such things and to execute all such
documents in his name and on his behalf, which may be necessary or
desirable for the Company to obtain for itself, or its nominees or any
Associated Company the full benefit of the provisions in clauses 20 and
27.
|
|
|
21.2.
|
A letter,
signed by any Director or Secretary of the Company certifying that
anything has been done or that any document has been executed in
accordance with the authority conferred by this clause, shall be
conclusive evidence that such is the case as far as any third party is
concerned save that the Executive may not sign such a letter
himself.
|
|
22.
|
Grievance
Procedure
|
|
|
22.1.
|
If the
Executive has a grievance relating directly to his employment, the
grievance and the basis for it should be raised in writing with the
ultimate executive director to whom the Executive reports, for his
consideration. Such executive director will meet with the
Executive and will notify the Executive in writing of his findings and of
any
|
16
action to be
taken to redress any justifiable grievance found to exist. If the
Executive considers that the matter remains unresolved he should raise an appeal
with the Group Director, Human Resources or such other person as the Group
Director, Human Resources may nominate, whose decision, following a further
meeting with the Executive, will be final and binding on the
Executive.
|
|
22.2.
|
At any stage
of the grievance procedure, the Executive may be accompanied at formal
meetings by either a work colleague or a trade union
representative.
|
|
23.
|
Disciplinary
Procedure
|
|
|
23.1.
|
Without
prejudice to the terms of clause 24, the Company may take disciplinary
action against the Executive for, but not limited
to:
|
|
|
23.1.1.
|
conduct
incompatible with the Executive’s status (whether or not during working
hours); or
|
|
|
23.1.2.
|
poor
attendance; or
|
|
|
23.1.3.
|
a breach by
the Executive of any of the terms and conditions of his employment;
or
|
|
|
23.1.4.
|
unsatisfactory
performance by the Executive of his
duties.
|
|
|
23.2.
|
Such action
may include a verbal or written warning (including a final written
warning), suspension with or without pay, or dismissal with or without
notice.
|
|
|
23.3.
|
The Company
may suspend the Executive with or without pay and benefits to enable it to
carry out an investigation into any matter in respect of which it is
considering taking disciplinary action against the Executive or for any
other good reason. The period of suspension will not normally exceed 12
weeks.
|
|
|
23.4.
|
After the
investigation the ultimate executive director to whom the Executive
reports (or his nominated deputy) will write to the Executive setting out
the alleged conduct and basis for the disciplinary action and inviting the
Executive to a meeting to discuss the
matter.
|
|
|
23.5.
|
After the
meeting such executive director (or his nominated deputy) will write to
the Executive advising him of the outcome and of any disciplinary sanction
to be imposed.
|
17
|
|
23.6.
|
If the
Executive is unhappy with the outcome he may appeal the decision by
raising it with the Group Director, Human Resources (or his nominated
deputy).
|
|
|
23.7.
|
If the
Executive appeals the decision the Group Director, Human Resources (or his
nominated deputy) will hold an appeal meeting with the
Executive.
|
|
|
23.8.
|
After the
meeting the Group Director, Human Resources (or his nominated deputy) will
write to the Executive advising him of the outcome. The decision of the
Group Director, Human Resources (or his nominated deputy) will be
final.
|
|
|
23.9.
|
The procedure
set out in clauses 23.4 to 23.8 does not confer any contractual rights on
the Executive.
|
|
|
23.10.
|
The Company’s
Disciplinary Policy does not apply to the Executive’s employment
hereunder.
|
|
|
23.11.
|
At any stage
of the disciplinary procedure, the Executive may be accompanied at formal
meetings by either a work colleague or a trade union
representative.
|
|
|
23.12.
|
For the
purposes of this clause the following are examples of conduct which will
be treated as ‘Gross Misconduct’ and are therefore likely to result in the
dismissal of the Executive without
notice:
|
|
|
23.12.1.
|
theft;
|
|
|
23.12.2.
|
damage to
Company property;
|
|
|
23.12.3.
|
misuse of
Company property or resources including computers and any other part of
the Company’s telecommunication
system;
|
|
|
23.12.4.
|
fraud;
|
|
|
23.12.5.
|
incapacity
for work due to being under the influence of alcohol or illegal
drugs;
|
|
|
23.12.6.
|
physical
assault;
|
|
|
23.12.7.
|
gross
insubordination; and
|
|
|
23.12.8.
|
serious
harassment on any grounds.
|
For the avoidance of doubt this list is not
exhaustive.
18
|
24.
|
Summary
Termination
|
|
|
24.1.
|
Notwithstanding
the provisions of clauses 23 and 25 of this Agreement, the Company shall
(without prejudice to the other rights and remedies of the Company) be
entitled to dismiss the Executive without notice or payment in lieu of
notice if the Executive:
|
|
|
24.1.1.
|
commits any
serious or persistent breach of his duties, refuses or neglects to comply
with any term of this Agreement, refuses or neglects to comply with any
reasonable order or direction given to him by the Company, or is guilty of
any gross default or incompetence or misconduct in connection with or
affecting the business of the Company or conducts himself (whether or not
in connection with his employment) in a manner which, in the reasonable
opinion of the Company, is prejudicial to the Company or may bring him or
the Company into disrepute;
|
|
|
24.1.2.
|
is guilty of
dishonesty, gross incompetence, wilful neglect of duty, or of
mismanagement of his financial affairs through failure to observe rules
and procedures for the operation of bank accounts and/or
borrowing;
|
|
|
24.1.3.
|
is found
guilty of any criminal offence (other than a minor offence under the Road
Traffic Acts which does not result in imprisonment) whether or not in
connection with employment;
|
|
|
24.1.4.
|
is or
becomes, in the reasonable opinion of the Company, of unsound
mind;
|
|
|
24.1.5.
|
becomes a
patient for any purpose of any statute relating to mental
health;
|
|
|
24.1.6.
|
is
declared bankrupt or takes advantage of any statute for the
time being in force offering relief to insolvent
debtors;
|
|
|
24.1.7.
|
resigns as an
officer of the Company or any Associated Company without the agreement of
the Board;
|
|
|
24.1.8.
|
if, as the
result of any default on the part of the Executive, is prohibited by law
from acting as an officer of the Company or any Associated Company;
or
|
|
|
24.1.9.
|
loses any
Registration or Regulatory Status necessary to fulfil his
duties.
|
|
|
24.2.
|
Notwithstanding
the provisions of clause 2 and clause 4, the Executive agrees that he
shall have no remedy against the Company if his employment is terminated
by
|
19
|
|
|
reason of the
liquidation of the Company for the purposes of amalgamation or
reconstruction provided that he is offered employment with any concern or
undertaking resulting from such amalgamation or reconstruction on terms
and conditions which taken as a whole are not substantially less
favourable than the terms of this
Agreement.
|
|
25.
|
Termination
by Notice
|
|
|
25.1.
|
The length of
notice which the Executive is obliged to give the Company when seeking to
leave employment is twelve months, or such shorter period as is mutually
agreed. Notice must be given in
writing.
|
|
|
25.2.
|
Subject to
clauses 23 and 24 above, the length of notice which the Executive is
entitled to receive from the Company to terminate his employment is twelve
months, or such shorter period as is mutually agreed. Notice by
the Company will be given in
writing.
|
|
|
25.3.
|
Without
prejudice to clause 25.4 below, the Company reserves the right to make a
payment in lieu of notice, subject to the
following:
|
|
|
25.3.1.
|
Any payment
in lieu of notice will represent a payment in lieu of the Salary Element
of the Executive’s ValueAccount only. No payment will be made in respect
of any other benefit;
|
|
|
25.3.2.
|
Any payment
in lieu of notice will be released in monthly instalments based on the
Executive’s normal Salary Element. These payments will be made
on the Company’s normal pay dates;
|
|
|
25.3.3.
|
Throughout the period he is in
receipt of such instalments, the Executive will be obliged
to use reasonable
endeavours to seek alternative employment or engagement. If the
Executive secures new employment (or any other means of generating income,
e.g. a consultancy or directorship or any other engagement or appointment)
he must disclose that fact to the Company without delay. The Executive will
have no right to any further payments under this clause 25 (whether in
whole or in part) from the date he commences such new employment or
engagement; and
|
|
|
25.3.4.
|
Any payment
in lieu of notice made pursuant to this clause 25 will be subject to such
deductions as the Company is required by law to
make.
|
20
|
|
25.4.
|
In the event
that the Executive’s employment is terminated by reason of his personal
underperformance, the Company, having complied with its obligations
contained in the second sentence of clause 4.5 above, may elect to
terminate the Executive’s employment by giving written notice with
immediate effect (and, for the avoidance of doubt, without making any
payment in lieu of notice).
|
|
|
25.5.
|
The
Executive’s normal retirement age is 65. This Agreement will automatically
terminate without notice on the Executive reaching the age of
65.
|
|
26.
|
Garden
Leave
|
|
|
26.1.
|
At any stage
of the Executive’s notice period referred to in clause 25 above (whether
notice was given by the Executive or by the Company), the Company may, at
its absolute discretion and without being required to give any reasons,
require the Executive to remain away from work (the “Garden
Leave”).
|
|
|
26.2.
|
During any
period of Garden Leave:
|
|
|
26.2.1.
|
the Executive
must (save for periods when he is on holiday, whether pursuant to clause
16.4 or otherwise) be available for work, but the Company is not obliged
to provide him with any work and may require him to perform different
duties and/or tasks from his normal
duties;
|
|
|
26.2.2.
|
the Executive
will be entitled to receive the Salary Element of his ValueAccount
together with any benefits under this Agreement, but excluding any
discretionary or performance bonus, which will not accrue while the
Executive is not carrying out his normal
duties;
|
|
|
26.2.3.
|
the Executive
may not, without the prior written consent of the Company, contact or
attempt to contact any client, customer, agent, professional adviser,
employee, supplier or broker of the Company, any Associated Company or any
other company within the Group;
|
|
|
26.2.4.
|
the Executive
will not be permitted to work for any other organisation or on his own
behalf without the Company’s prior written
consent;
|
|
|
26.2.5.
|
all other
terms and conditions of the Executive’s employment (both express and
implied) will remain in full force and effect until the end of the notice
period; and
|
|
|
26.2.6.
|
the Executive
continues to owe the Company a duty of fidelity and good
faith.
|
21
|
|
26.3.
|
Any period of
Garden Leave shall count towards any period of restriction set out in
clause 28.2.
|
|
27.
|
Events
on Termination
|
|
|
27.1.
|
Upon
termination of the Executive’s employment for any reason whatsoever or at
any other time at the request of the Company, the Executive shall
immediately:
|
|
|
27.1.1.
|
deliver to
the Company, in accordance with its instructions all items referred to in
clause 19 and all other property of the Company (including, but not
limited to, any company car, credit cards, equipment, correspondence,
data, disks, tapes, records, specifications, software, models, notes,
reports and other documents together with any extracts or summaries,
removable drives or other computer equipment, keys and security passes) or
of any Associated Company in his possession or under his
control;
|
|
|
27.1.2.
|
resign,
without claim for compensation, from all directorships and other offices
within the Group then held by him and the Executive hereby irrevocably
authorises the Company to appoint some person in his name and on his
behalf to sign any documents and do any things necessary to effect such
resignation should he fail to do so;
and
|
|
|
27.1.3.
|
transfer
(without payment in return) to the Company or its nominee, any qualifying
or nominee shares registered in the name of the Executive (either solely
or jointly) and held by the Executive as nominee, beneficial owner or
trustee on behalf of the Company or any Associated
Company.
|
|
|
27.2.
|
The Executive
shall, if so required by the Company, confirm in writing that he has
complied with his obligations under this clause
27.
|
|
28.
|
Restrictions
after Termination of Employment
|
|
|
28.1.
|
In this
clause the following definitions shall
apply:
|
|
|
28.1.1.
|
"Termination
Date" means the date on which the Executive’s employment
ends;
|
|
|
28.1.2.
|
"Restricted
Period" means the period of 12 months starting with the Termination Date
(or such period less than 12 months as reduced by any period spent on
Garden Leave);
|
22
|
|
28.1.3.
|
"Business"
means those parts of the business carried on at the Termination Date by
the Company and any Associated Company with which the Executive was
involved to a material extent during the 12 months preceding the
Termination Date;
|
|
|
28.1.4.
|
“Competitor” means any
business which is the same or similar to the Business and which is or is
likely to be or which becomes (during the Restricted Period) a business in
competition with the Business;
|
|
|
28.1.5.
|
“Key
Employee” means any employee of the Company or any Associated Company at
appointed, managerial, senior managerial or executive level who in the
reasonable opinion of the Company (or Associated Company as appropriate)
could damage its interests if involved in any capacity with a Competitor
and with whom the Executive has worked during the 12 months preceding the
Termination Date; and
|
|
|
28.1.6.
|
“Customer”
means any person, firm, company, organisation who or which, at any time
during the 12 months preceding the Termination Date, was a customer of, an
investor with or an exclusive supplier of services to, the Group, or any
such entity who was negotiating with or contemplating doing business with
the Group as at the Termination
Date.
|
|
|
28.2.
|
The Executive
agrees and undertakes in favour of the Company, as separate and
independent obligations, that he will not, without first obtaining the
written consent of the Company:-
|
|
|
28.2.1.
|
during the
Restricted Period hold any position as employee, director, officer,
consultant, partner, agent or principal in or with any
Competitor;
|
|
|
28.2.2.
|
during the
Restricted Period directly or indirectly and whether on his own or someone
else’s behalf canvass or solicit the custom of any Customer whom he has
had dealings with, responsibility for or material knowledge of in the
course of his employment within the 12 months immediately prior to the
Termination Date;
|
|
|
28.2.3.
|
during the
Restricted Period, seek to influence, be engaged in or have any dealings
with any business, including but not limited to any Customer, where he is
or may be able to influence any trading relationship which has existed
during the period of 12 months immediately prior to the Termination
|
23
|
|
|
Date between
any business or Customer and the Company or an Associated
Company;
|
|
|
28.2.4.
|
during the
Restricted Period or at any time beforehand, induce or seek to induce or
entice or seek to entice away from the Company or any Associated Company,
any Key Employee.
|
|
|
28.3.
|
Nothing in
clause 28.2 will prevent the Executive from being involved in any business
where his duties relate primarily to goods, services and activities not
sold, provided or carried on by the Company or any Associated
Company.
|
|
|
28.4.
|
The Executive
agrees and acknowledges that the restrictions contained in clause 18
(Confidentiality), clause 19 (Group Property), clause 26 (Garden Leave),
clause 27 (Events on Termination) and clause 28 (Restrictions after
Termination of Employment) are reasonable and necessary to protect the
business and the Confidential Information of the Company and that the
benefits he receives under this Agreement are sufficient compensation for
these restrictions. However, if any such restriction or
restrictions are together or individually found to be void or
unenforceable but would be valid and effective if some part or parts of
them were deleted, the restriction or restrictions shall apply with any
deletions or amendments necessary to make it or them valid, effective and
enforceable.
|
|
|
28.5.
|
The Executive
shall not, following the termination of his employment with the Company,
represent himself or hold himself out as being in any way connected with
the business of the Group.
|
|
29.
|
Declaration
of Secrecy
|
|
|
29.1.
|
The Executive
will be required to sign a Declaration of Secrecy in such form as may be
required by the Company from time to
time.
|
|
30.
|
Data
Protection
|
|
|
30.1.
|
The Executive
undertakes to familiarise himself with the Data Protection policy,
procedures and accountabilities set down by the Company as a result of the
Data Protection ▇▇▇ ▇▇▇▇. The Executive acknowledges that the
Company will view any breach of these procedures as a serious matter of
discipline.
|
|
|
30.2.
|
By signing
this Agreement, the Executive acknowledges and agrees that the Company is
permitted to hold personal information about him as part of its personnel
and other business records and may use such information in the course of
the
|
24
|
|
|
Company's
business. The Executive agrees that the Company may disclose
such information to third parties in the event that such disclosure is in
the Company's view required for the proper conduct of the Company's
business or that of any Associated Company. This clause applies
to information held, used or disclosed in any
medium.
|
|
|
30.3.
|
The Company
reserves the right to carry out searches relating to the Executive through
credit reference agencies or through the Group’s own customer records at
any time during the employment of the Executive. These searches
will provide the Company with information that it may use for the purposes
of identifying any serious debt or other significant financial
difficulties that the Executive may have. This will allow the Company to
raise this with the Executive in order to detect or eliminate any
particular risk of employee fraud or theft, and thereafter to take any
steps that the Company considers necessary to mitigate that
risk. The Company will only retain the information about the
Executive which it obtains from these searches for as long as the Company
needs it for the purposes set out above (subject to any legal (including
any regulatory) obligation which requires the Company to retain that
information for a longer period). The relevant credit reference agency
will record details of the search but these will not be available for use
by lenders to assess the ability of the Executive to obtain credit. The
Executive has the right of access to his personal records held by credit
reference agencies. The Company will supply the names and
addresses of the relevant credit reference agencies upon request, to help
the Executive to exercise his right of access to those
records.
|
|
|
30.4.
|
For the
reasons referred to above, it is important that the Executive manages his
personal finances responsibly. The Executive is required to
draw to the attention of his manager any serious debt or significant
financial difficulties that he may have including those which result in
court action being taken against
him.
|
|
|
30.5.
|
By signing
this Agreement, the Executive hereby gives permission for the Company or
any Associated Company and/or their appointed agents to carry out such
credit reference searches in relation to him, including searches of
customer credit records, during the term of this Agreement, as it
considers necessary from time to time for the purposes set out in this
clause.
|
|
31.
|
Notices
|
|
|
31.1.
|
Any notice or
other communication may be given by either party by personal delivery or
prepaid first class mail to the other party at (in the case of the
Company) its registered office for the time being marked “For the
Attention of the Company Secretary” or (in the case of the Executive) his
last known usual address and any
|
25
|
|
|
such notice
shall be deemed to have been served (in the case of first class mail) at
the expiry of 48 hours after the same was posted or (in the case of
personal delivery) at the time of such
delivery.
|
|
32.
|
Continuing
Provisions
|
|
|
32.1.
|
The
termination of this Agreement shall not affect the provisions of clause 18
(Confidentiality), clause 19 (Group Property), clause 26 (Garden Leave),
clause 27 (Events on Termination) and clause 28 (Restrictions after
Termination of Employment).
|
|
33.
|
Whole
Agreement and Severability
|
|
|
33.1.
|
These terms
and conditions constitute a written statement of the terms of the
Executive's employment in accordance with the provisions of the Employment
Rights ▇▇▇ ▇▇▇▇. These terms and conditions supersede any
previous agreement, whether oral or in writing, between the Executive and
the Company in relation to the matters dealt with herein and, together
with the Executive’s letter of appointment, represent the entire agreement
between the Executive and the
Company.
|
|
|
33.2.
|
The Company
reserves the right to make changes to this Agreement from time to time and
will endeavour to give the Executive one month's notice in writing of any
significant changes. The foregoing notwithstanding, the Company
agrees not to make changes to this Agreement which materially adversely
affect the entitlements of the Executive hereunder without the Executive’s
express written consent.
|
|
|
33.3.
|
In addition
to the terms of this Agreement, the Executive is also required to comply
with all other applicable statutory, divisional or company rules, as
amended from time to time.
|
|
|
33.4.
|
The various
provisions and sub-provisions of this Agreement are severable. If any
provision or sub-provision (or identifiable part thereof) is held to be
invalid or unenforceable, then such invalidity or unenforceability shall
not affect the remaining provisions (or identifiable parts thereof) in
this Agreement.
|
|
34.
|
Collective
Agreements
|
|
|
34.1.
|
There are no
collective agreements applicable to the Executive’s
employment.
|
26
35.
Governing
Law
|
|
35.1.
|
The
interpretation and enforcement of this Agreement shall be governed by and
construed in all respects in accordance with the law of Scotland and the
parties submit to the non-exclusive jurisdiction of the Scottish
courts.
|
| Signed for and on behalf of | ||||
|
THE ROYAL
BANK OF SCOTLAND plc
|
|
|||
|
on
[ ]
|
▇▇▇▇
▇▇▇▇▇
|
|||
|
at
[ ]
|
|
|||
| by ▇▇▇▇ ▇▇▇▇▇, Group Director, Human Resources |
|
Signed by
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
|
|
|||
|
on
[ ]
|
▇▇▇▇▇ ▇▇▇
▇▇▇▇
|
|||
|
at
[ ]
|
|
|||
| before the undernoted witness:- | ||||
| (Witness) |
| Full Name |
| Address |
| Address |
| Occupation |
27