Separation Agreement - Photodisc Inc., Getty Images Inc., adn Robert J. Chamberlain
SEPARATION AGREEMENT
This separation agreement ("Separation Agreement") is entered into this
day of July, 1998 (the "Effective Date"), by and between PhotoDisc Inc.
("PhotoDisc"), Getty Images, Inc. ("Getty Images") and Robert J. Chamberlain
("Chamberlain").
I. RECITALS
A. Chamberlain is currently employed by PhotoDisc as Co-President. Getty
Images is the parent company of PhotoDisc.
B. The parties agree that it is in their mutual interest for Chamberlain
to resign from his employment with PhotoDisc.
C. The parties desire to agree on a separation package to aid
Chamberlain's transition to alternative employment.
II. AGREEMENT
In consideration of the foregoing recitals, the parties agree as follows:
1. SEPARATION OF EMPLOYMENT. Chamberlain resigns from his employment
with PhotoDisc effective July 1, 1998 (the "Separation Date").
2. SEPARATION PACKAGE. PhotoDisc and Getty Images agree to provide
Chamberlain with the following benefits:
a. Separation Pay. PhotoDisc and Getty Images agree that Chamberlain
shall continue to be paid his current regular salary from the Separation Date
through May 31, 1999. Any such salary continuation payments PhotoDisc and Getty
Images are obligated to make shall be paid, at Chamberlain's election either by
check or via direct deposit, in installments consistent with PhotoDisc's normal
payroll periods; provided, however, that the first payment shall not be made
until after the Effective Date of this Agreement.
b. Bonus. PhotoDisc and Getty Images agree to pay Chamberlain a bonus
equal to 20 percent of the salary continuation payments Chamberlain is entitled
to receive under this Separation Agreement. Such bonus shall be paid in two
equal installments, the first bonus installment to be included in the first
salary continuation payment made after the effective date of this Separation
Agreement, and the remaining bonus installment to be included in the final
salary continuation payment made under this Separation Agreement.
c. Health Insurance. PhotoDisc will provide Chamberlain and his
dependents with continued medical, dental and vision benefits under its current
health insurance policies for 18 months following the Separation Date ("COBRA"
benefits). If Chamberlain makes timely application for such COBRA benefits,
PhotoDisc agrees that it will pay the premiums for such coverage to the same
extent paid by the PhotoDisc immediately prior to the effective date of this
Separation Agreement through May 31, 1999 or the date on which Chamberlain
becomes eligible for health insurance coverage through a new employer, whichever
is earlier. If Chamberlain becomes reemployed with another employer prior to May
31, 1999, Chamberlain agrees to notify PhotoDisc within 30 days of becoming
eligible for health insurance benefits through his new employer. If Chamberlain
is not eligible for health insurance through another employer on May 31, 1999,
Chamberlain may continue coverage for himself and his dependents for the
remainder of the COBRA period at his own expense. It is the intent of the
parties that Chamberlain's COBRA rights begin to run on the Separation Date.
Chamberlain acknowledges the parties' agreement that the separation package
described above is designed to aid Chamberlain's transition to alternative
employment, and that the specified benefits do not constitute benefits to which
he would otherwise be entitled under existing employee benefit plans provided by
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PhotoDisc or under any pre-existing contract between Chamberlain and PhotoDisc
or between Chamberlain and Getty Images.
3. STOCK OPTIONS. The parties agree that stock options previously
granted Chamberlain via the Employment Agreement dated February 9, 1998 between
Chamberlain and PhotoDisc and/or via the Non-Qualified Stock Option Agreement
dated February 9, 1998 between Chamberlain and Getty Images shall continue to
vest through May 1, 1999. Such options shall remain outstanding until February
1, 2008. The options previously granted to Chamberlain by PhotoDisc shall
continue to vest through May 16, 1999, and shall remain outstanding for 10 years
following the date on which such options were granted.
4. ACCRUED VACATION. PhotoDisc agrees to pay Chamberlain for his accrued
but unused vacation as of the Effective Date of this Separation Agreement.
5. TAX WITHHOLDING. All payments made under this Separation Agreement
shall be subject to applicable federal income tax, social security and any other
required withholdings.
6. RELEASE. Chamberlain accepts the benefits contained in this
Separation Agreement in full satisfaction of all his rights and interests
relating to his employment with and separation from PhotoDisc 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 dated February 9, 1998 between Chamberlain and PhotoDisc and any and
all option agreements between Chamberlain and PhotoDisc or between Chamberlain
and Getty Images. In consideration therefore, Chamberlain hereby releases
PhotoDisc, its affiliates, its parent Getty Images, and their respective
successors, past and present officers, directors, agents, and employees (the
"PhotoDisc Affiliates") from all claims (other than claims for the payments
provided for under this Separation Agreement), causes of action or liabilities,
suspected or unsuspected and irrespective of any present lack of knowledge of
any possible claim or of any fact or circumstance pertaining thereto, which
Chamberlain may have or claim to have against PhotoDisc or any of the foregoing
arising from or during his employment or as a result of his separation from
employment. This release specifically covers, but is not limited to, any
workers' compensation 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 federal, state, or local law, rule, or
regulation; any contract or tort claims arising under federal, state, or local
law; any claims arising under federal, state or local law based on promises made
or allegedly made by PhotoDisc or the PhotoDisc Affiliates to Chamberlain; and
any claims under any express or implied contract or legal restrictions on
PhotoDisc's right to terminate its employees. Chamberlain hereby covenants not
to assert any such claims or causes of action.
7. OTHER CLAIMS OR LAWSUITS. Chamberlain represents that as of the date
of the Separation Agreement, he has not filed any complaints, charges or
lawsuits against PhotoDisc with any governmental agency or any court.
8. NO ADMISSION. Nothing in this Separation Agreement shall be construed
as any indication that PhotoDisc has acted wrongfully towards Chamberlain or any
other person.
9. NO DISPARAGEMENT. PhotoDisc and Chamberlain agree that neither will
make any derogatory or disparaging statements about the other party or, in the
case of Chamberlain, the PhotoDisc Affiliates, including, without limitation, in
any discussion with third parties, in a press release, or in any other similar
forum or manner. This prohibition specifically includes any statements about
Chamberlain if made by PhotoDisc through its officers or directors or those of
the PhotoDisc Affiliates, and any statements made about PhotoDisc or the
PhotoDisc Affiliates, their officers and/or directors, if made by Chamberlain.
This paragraph shall not in any way prohibit either party from making whatever
statements are necessary in order to defend itself in any third-party
litigation, or as otherwise required by law or legal process.
10. CHARACTERIZATION OF SEPARATION. PhotoDisc and Chamberlain agree that
PhotoDisc will announce Chamberlain's separation to PhotoDisc personnel via the
internal announcement attached to this Separation Agreement as Exhibit A. The
parties further agree, and PhotoDisc agrees on behalf of the PhotoDisc
Affiliates, to characterize Chamberlain's separation in a manner consistent with
said internal announcement in any discussions or communications with third
parties.
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11. INDEMNIFICATION. PhotoDisc agrees that nothing in this Separation
Agreement shall alter Chamberlain's entitlement to corporate officer
indemnification under PhotoDisc's corporate bylaws.
12. VOLUNTARY EXECUTION. Chamberlain represents that he has read,
considered, and fully understands this Separation Agreement and all its terms,
and executes it freely and voluntarily.
13. CONSTRUCTION OF AGREEMENT; GOVERNING LAW. Each party has had a full
and complete opportunity to review this Separation 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 Separation Agreement. Interpretation of this
Separation Agreement shall be under Washington law. If any such action is
necessary to enforce the terms of this Separation Agreement, the substantially
prevailing party shall be entitled to receive reasonable attorneys' fees and
costs.
14. NO REPRESENTATIONS. Chamberlain represents that in entering into this
Separation Agreement, he does not rely and has not relied upon any
representation or statement made by PhotoDisc or the PhotoDisc Affiliates or any
of their respective employees or agents concerning this Separation Agreement.
15. CONFIDENTIALITY. Chamberlain agrees to keep the terms of this
Separation Agreement confidential, except for communications about it with his
immediate family, attorney or accountants or other professional financial
advisors. Chamberlain 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 Separation Agreement. Chamberlain 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 PhotoDisc may be entitled.
16. COMPLETE AGREEMENT. This Separation Agreement constitutes a full and
final resolution of all matters in any way related to Chamberlain's employment
with and separation from PhotoDisc. This Separation Agreement supersedes any and
all other agreements between the parties including without limitation the
Employment Agreement dated February 9, 1998 between Chamberlain and PhotoDisc,
with the express exception of the following: Section 6 of the above-referenced
Employment Agreement is hereby incorporated by reference; provided, however,
that, in addition to the circumstances described in Section 6, paragraph (a)
(i)-(iii) of said Employment Agreement, the execution of this Separation
Agreement is sufficient to trigger the obligations owed under paragraphs (a)
through (f) of Section 6, and further provided that the "Restricted Period"
specified in paragraph (a) of Section 6 shall terminate effective May 31, 1999.
Consistent with the remainder of this Separation Agreement, the incorporated
portion of the February 9, 1998 Employment Agreement shall be interpreted in
accordance with Washington law. Except as provided in this Separation Agreement,
there are no other wages, bonuses or benefits of any kind owed by PhotoDisc or
Getty Images to Chamberlain.
17. AMENDMENT. The parties agree that no modification, change or amendment
of this Separation 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.
18. SEVERABILITY. If any provision of this Separation 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 Separation Agreement or portion thereof, and this Separation
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.
19. TITLES. The titles of the paragraphs of this Separation Agreement are
inserted merely for convenience and ease of reference and shall not affect or
modify the meaning of any of the terms, covenants or conditions of the
Separation Agreement.
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IN WITNESS WHEREOF, the parties have executed this Separation Agreement
effective as of the day and year first written above.
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<S> <C>
ROBERT J. CHAMBERLAIN
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Robert J. Chamberlain
PHOTODISC, INC.
By
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Its
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GETTY IMAGES, INC.
By
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Its
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