Separation Agreement - Eyewire Services Inc., Getty Images Inc. and Bradley E. Zumwalt
SEPARATION AGREEMENT
This separation agreement (the "Agreement") is entered into this 30th
day of March, 2000 (the "Effective Date"), by and between Eyewire Services, Inc.
and Getty Images, Inc. (collectively referred to as the "Company") and Bradley
E. Zumwalt ("Zumwalt").
I. RECITALS
The parties agree that it is in their mutual interest for Zumwalt to
resign from his employment with the Company.
II. AGREEMENT
In consideration of the foregoing recitals, the parties agree as
follows:
1. Separation of Employment. Zumwalt hereby resigns from his employment
with the Company effective March 23, 2000 (the "Separation Date"). Except as
provided herein, the Company hereby waives any required notices under the
Employment Agreement, dated August 5, 1999, between Zumwalt and the Company (the
"Employment Agreement"). The Company hereby pays to Zumwalt his unpaid pro rata
Salary and accrued Bonus as well as all unreimbursed expenses, all as provided
in Section 4(a) of the Employment Agreement and subject to the terms set forth
herein.
2. No Competing Employment. This Separation Agreement shall serve as
notice to Zumwalt of the Company's intent to exercise its option to bind Zumwalt
to the "No Competing Employment" provision of Section 6(a) of the Employment
Agreement for a period beginning on the Separation Date and ending one year
thereafter (the "Restricted Period"). In accordance with the provisions of such
Section 6(a), the Company and Zumwalt agree that the Company shall continue to
pay Zumwalt's current Salary and maximum Bonus, as those terms are defined in
the Employment Agreement, (the "Continuation Payments") throughout the
Restricted Period, provided that Zumwalt shall not be in breach of any provision
of the Employment Agreement or this Agreement. Continuation Payments shall be
paid, at Zumwalt's election, either by check or via direct deposit, in
twenty-four (24) equal installments consistent with the Company's normal payroll
periods. All payments made under this Agreement shall be subject to applicable
federal income tax, social security and any other required withholdings.
3. Vacation. The Company further agrees to pay Zumwalt for his accrued
but unused vacation as of the Separation Date.
4. Release of Company by Zumwalt. Zumwalt accepts the Continuation
Payments in full satisfaction of all his rights and interests relating to
Zumwalt's employment with, and separation from, the Company and in full
satisfaction of all his rights and interests arising under any pre-existing
agreement between the parties including, without limitation, the Employment
Agreement and any and all option agreements between Zumwalt and the Company
(including between Zumwalt and Getty Images and Zumwalt and Eyewire Services).
In consideration therefor, Zumwalt, including his heirs, executors, successors
and assigns, hereby releases and forever discharges the Company and its
subsidiaries, successors, past and present officers, directors, agents, and
employees from any and all claims, causes of action or liabilities, at law or in
equity, judicial or administrative, debts, sums of money, accounts, judgments or
demands, suspected or unsuspected and irrespective of any present lack of
knowledge of any possible claim or of any fact or circumstance pertaining
thereto, which have arisen or may arise related to Zumwalt's employment, or
separation from employment, with the Company on or before the date of this
Agreement. This release specifically covers, but is not limited to, any workers'
compensation
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or disability claims under state law; any claims of discrimination based on
race, color, national origin, sex, marital status, or physical or mental
disability under any United States and Canadian federal, state, provincial, or
local law, rule, or regulation; any contract or tort claims arising under United
States and Canadian federal, state, provincial, or local law; any claims arising
under United States and Canadian federal, state, provincial, or local law based
on promises made or allegedly made by the Company to Zumwalt; any claims under
any express or implied contract or legal restrictions on the Company's right to
terminate its employees; any claims of unfair dismissal pursuant to the laws of
the United States and Canada. Zumwalt hereby covenants not to assert any such
claims or causes of action.
5. Release of Zumwalt by Company. The Company accepts the obligations,
promises and covenants undertaken herein by Zumwalt, as full satisfaction of all
the Company's rights and interests relating to Zumwalt's employment with and
separation from the Company and in full satisfaction of all of Company's rights
and interests arising under any pre-existing agreement between the parties
including, without limitation, any and all option agreements between Zumwalt and
the Company (including between Zumwalt and Getty Images and Zumwalt and Eyewire
Services). In consideration therefor, the Company, including its successors and
assigns, hereby releases and forever discharges Zumwalt and his heirs,
executors, successors and assigns from any and all claims, causes of action or
liabilities, at law or in equity, judicial or administrative, debts, sums of
money, accounts, judgments or demands, suspected or unsuspected and irrespective
of any present lack of knowledge of any possible claim or of any fact or
circumstance pertaining thereto, which have arisen or may arise related to
Zumwalt's employment, or separation from employment, with the Company on or
before the date of this Agreement.
6. Non-Disparagement of Company by Zumwalt. Zumwalt agrees for himself
and all others acting on his behalf, either directly or indirectly, not to take,
support, encourage, induce or voluntarily participate in any action or attempted
action that would negatively comment on, disparage, or call into question the
business operations, policies, or conduct of the Company, or its subsidiaries,
affiliates, officers or employees, or to act in any way with respect to such
business operations, policies or conduct that would damage the Company's
reputation, business relationships, or present or future business, or the
reputation of any past or present directors, executives, officers, agents,
employees or parents, affiliates and subsidiaries of the Company. Zumwalt agrees
that he will not comment about the Company to any person or entity, including
but not limited to current or former employees, officers or customers,
concerning such business operations, policies or conduct except as required or
permitted by law or as necessary for Zumwalt to defend himself in any civil,
criminal, administrative, judicial, arbitral, or administrative proceeding.
Zumwalt further agrees that from this point forward he will not state, comment
or suggest to any persons any false reasons for his separation from his
employment with the Company. Nothing in this paragraph shall prevent Zumwalt
from commenting about his work experience at the Company in connection with any
bona fide efforts at seeking employment, but in such event, he will not
disparage the Company in any way. Nothing in this Section 6 shall prevent
Zumwalt from competing with the Company following the conclusion of the
restrictions contained in Section 6(a) of the Employment Agreement.
7. Non-Disparagement of Zumwalt by Company. The Company agrees for
itself and all others acting on its behalf, either directly or indirectly, not
to take, support, encourage, induce or voluntarily participate in any action or
attempted action that would negatively comment on, disparage, or call into
question the business conduct of Zumwalt or to act in any way with respect to
such business conduct that would damage Zumwalt's reputation, business
relationships, or present or future business, except as required or permitted by
law or as necessary for Company to defend itself in any civil, criminal,
administrative, judicial, arbitral, or administrative proceeding. The Company
further agrees that from this point forward it will not state, comment or
suggest to any persons any false reasons for Zumwalt's separation from
employment with the Company.
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8. Confidentiality. Zumwalt agrees to keep the terms of this Agreement
confidential, except for communications about it with his immediate family,
attorney or accountants or other professional financial advisors. Zumwalt
further agrees to take all reasonable steps necessary to ensure that
confidentiality is maintained by any of the individuals referenced above to whom
disclosure is authorized, and agrees to accept responsibility for any breach of
confidentiality by any individual to whom he disclosed the terms of the
Agreement. Zumwalt agrees that damages for breach of this Confidentiality
provision would be difficult to determine and therefore agrees that this
provision may be enforced by temporary or permanent injunction. The right to
such injunctive relief shall be in addition to and not in place of any further
remedies to which the Company may be entitled.
9. Complete Agreement. This Agreement constitutes a full and final
resolution of all matters in any way related to Zumwalt's separation from the
Company. Except as provided in this Agreement, there are no other salary, wages,
bonuses or benefits of any kind owed by the Company to Zumwalt.
10. No Admission. Nothing in this Agreement shall be construed as any
indication that the Company has acted wrongfully towards Zumwalt or any other
person.
11. Voluntary Execution. Zumwalt represents that he has read,
considered, and fully understands this Agreement and all its terms, and executes
it freely and voluntarily. Zumwalt represents that in entering into this
Agreement, he does not rely and has not relied upon any representation or
statement made by the Company or any of its respective employees or agents
concerning this Agreement.
12. Construction of Agreement; Governing Law. Each party has had a full
and complete opportunity to review this Agreement, and has been given the
opportunity to have counsel review it. Accordingly, the parties agree that the
common law principles of construing ambiguities against the drafter shall have
no application to this Agreement. Interpretation of this Agreement shall be
under Delaware law.
13. Amendment. The parties agree that no modification, change or
amendment of this Agreement or any of its provisions shall be valid, unless in
writing and signed by the party against whom such claimed modification, change
or amendment is sought to be enforced.
14. Severability. If any provision of this Agreement, or portion
thereof, shall be held invalid or unenforceable by a court of competent
jurisdiction or in any arbitration proceeding, such invalidity or
unenforceability shall attach only to such provision or portion thereof, and
shall not in any way affect or render invalid or unenforceable any other
provision of this Agreement or portion thereof, and this Agreement shall be
carried out as if any such invalid or unenforceable provision or portion thereof
were not contained herein. In addition, any such invalid or unenforceable
provision shall be deemed, without further action on the part of the parties,
modified, amended or limited to the extent necessary to render the same valid
and enforceable.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first written above.
BRADLEY E. ZUMWALT
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Bradley E. Zumwalt
EYEWIRE SERVICES, INC.
By
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Its
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GETTY IMAGES, INC.
By
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Its
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