Consulting Agreement - Getty Images Inc. and Crediton Ltd.
DATED 1997
GETTY IMAGES, INC.
- AND -
CREDITON LIMITED
AGREEMENT
CLIFFORD CHANCE
200 ALDERSGATE STREET
LONDON EC1A 4JJ
0171 600 1000
REF: RJXD/
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THIS AGREEMENT is made the day of 1998
BETWEEN
(1) GETTY IMAGES, INC. whose registered office is at [address] ("the
Company"); and
(2) CREDITON LIMITED of [address] ("the Consultant")
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement the following words and expressions shall have the
following meanings ascribed to them save where the context otherwise
appears:
"Board" the Board of Directors from time to time of
the Company.
"Confidential Information" all information details and data of any kind
in connection with the business or finances
of the Company or any Group Company.
"Group Company" any holding company and subsidiary of the
Company within the meaning of the Companies
Act 1985 (as amended) and any other company
in which the Company or any holding company
or subsidiary of the Company is a holder of
more than 25% of the issued equity share
capital as defined in such section.
1.2. References to Clauses and sub-Clauses are references to Clauses and
sub-Clauses in this Agreement.
1.3. The headings contained in this Agreement are for the purpose of
convenience only and do not form part of and shall not affect the
construction of this Agreement or any part hereof.
2. APPOINTMENT OF CONSULTANT
2.1. The Company hereby engages the Consultant and the Consultant hereby
accepts such engagement upon the terms and conditions contained in this
Agreement to supply the services specified in Clause 3 of this Agreement
to the Company or at the direction of the Company.
2.2. Subject to termination as hereinafter provided, such engagement shall
take effect from 1 January 1998 for an initial term of two years and
shall continue thereafter unless and until terminated either by the
Consultant giving to the Company 12 month's notice in writing or by the
Company giving to the Consultant 12 month's notice in writing expiring at
any time after 31 December 2000 [or a payment of [ ] month(s) fee due
hereunder in lieu of such notice].
2.3. Upon the termination of the engagement by notice or upon proper
termination of this Agreement as hereinafter provided the Consultant
shall not have any claims against the Company or against any Group
Company for damages or compensation of any nature
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whatsoever and shall merely be entitled to any outstanding fees due to it
pursuant to Clause 4 of this Agreement.
3. CONSULTANT'S OBLIGATIONS
3.1. The Consultant shall make available to the Company the services of
Jonathan David Klein (or such other person as the Company may agree in
writing) to perform the role of Sole Chief Executive provided that the
Executive shall not be required to provide the services for more than 49
weeks in any calendar year and provided further that the Company shall
not require the Executive to perform services in [the UK].
3.2. The Consultant shall procure that the Executive renders the services
specified above in this Clause to the best of his skill and ability and
shall unless prevented by ill-health or accident holds himself available
to render these services and to assist generally in connection with the
business of the Company or of any Group Company for up to 50 per cent of
his working time in each calendar year commencing from the 1 January
1998.
3.3. The Consultant shall procure that the Executive shall:
(a) comply with all reasonable directions from time to time given to
him by the Board in connection with the provision of his services
hereunder;
(b) travel to such places other than [(the UK)] and in such manner
and on such occasions as the Board may from time to time require;
(c) use his best endeavours to promote the interests of the Company
and any Group Company and to maintain and enhance its or their
reputation;
(d) not without the prior written consent of the Board undertake any
engagement or activity which is liable to detract from his
ability to render his services hereunder or which would conflict
with or be detrimental to the interests and operation of the
Company or any Group Company in connection with its or their
business;
(e) promptly to give to the Board or to whomsoever the Board may
lawfully direct (in writing if so requested) all such information
and reports as it may reasonably require in connection with
matters relating to the provision of his services hereunder
and/or with the business of the Company or any Group Company;
(f) keep the Company reasonably informed of his whereabouts and
telephone number at or other means by which the Executive can be
contacted most easily at the shortest possible notice.
4. FEE
4.1. The Company shall pay to the Consultant a fee (which fee shall be
inclusive of director's fees [and cover all office expenses such as
secretarial, correspondence, telephone, telex, rates and utility costs
incurred by the Consultant in providing the services specified in
Clause 3 hereof]) of [$162,500] per annum [inclusive/exclusive of VAT]
which sum shall accrue month by month during the course of the year
commencing from [the date of this Agreement] and shall
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be paid by equal monthly instalments in arrear on the last day of each
month.
[SHOULD FEE BE INCREASED TO TAKE ACCOUNT OF BENEFITS OR SHOULD CONTRACT
SPECIFY FOR REIMBURSEMENTS OF PMI, PHI ETC]
4.2. The fee paid pursuant to clause 4.1 above shall be reviewed annually on 1
April in every year the first such review being on 1 April 1999. Each
such review shall only be capable of leaving the fee the same or
increasing it, not of reducing it.
5. EXPENSES
5.1. The Company shall reimburse to the Consultant all travelling hotel
entertainment and other out-of-pocket expenses [(save for the office
expenses referred to in Clause 4)] which the Executive may from time to
time reasonably and properly incur in connection with the provision of
the services specified in Clause 3 of this Agreement.
5.2. All such expenses shall be set out in reasonably complete detail in
written statements to be submitted by the Consultant to the Company as
soon as practicable following the last working day of each calendar month
in which such expenses were incurred and the Consultant shall if so
requested by the Company provide the Company with such vouchers or other
evidence of such expenses as the Company may reasonably require.
6. WARRANTY
The contractor warrants that the Executive is engaged by the Contractor
under a contract of employment.
7. STATUS
7.1. This Agreement constitutes a contract for the provision of services only
and not a contract of employment and accordingly the Consultant shall be
fully responsible for and shall indemnify the Company and each and every
Group Company in respect of the Executive's income tax and National
Insurance contributions and any other liability assessment or claim
arising from or made in connection with the performance of this Agreement
or otherwise by reason of the Executive being employed by the Contractor
and shall further indemnify the Company against all reasonable costs and
expenses and any penalty fine or interest incurred or payable by the
Company in connection with any such liability assessment or claim. The
Company may at its option satisfy such indemnity (in whole or in part) by
way of deduction from payments to be made (if any) by the Company under
this Agreement.
7.2. Nothing in this Agreement shall constitute or be construed as
constituting or establishing any partnership or joint venture between the
parties hereto for any purpose whatsoever.
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8. CONFIDENTIALITY
8.1. The Consultant shall not disclose (and shall use all reasonable efforts
to prevent disclosure) and shall procure that the Executive does not
disclose in any way or form and at any time (whether before or after
termination of this Agreement and howsoever such termination shall come
about) to any person firm or company any of the Confidential Information
save to employees of the Company or any Group Company whose duties
require such disclosure to be made and the Consultant shall not and shall
procure that the Executive shall not use for his own purposes nor for any
purpose other than those of the Company or any Group Company any such
Confidential Information PROVIDED THAT the Consultant or the Executive
may disclose Confidential Information to the extent specifically
authorised by the Board or such Confidential Information as is necessary
in the ordinary course of business.
8.2. The Consultant shall not and shall procure that the Executive shall not
without the authority of the Board make or keep possession of copies of
any documents memoranda or other media on which any Confidential
Information is recorded or stored.
8.3. The restriction contained in this Clause shall cease to apply to any
information or knowledge which may come into the public domain otherwise
than by way of breach of this Clause.
8.4. In the event that the Company or any Group Company shall have obtained
any confidential information from any third party under an agreement or
obligation that includes any restriction on disclosure which restriction
shall be known to the Consultant or the Executive, the Consultant shall
not and shall procure that the Executive does not without the consent of
the Company at any time infringe such restriction.
9. TERMINATION
9.1. The Company shall be entitled to terminate this Agreement immediately
upon the giving of written notice to the Consultant in the following
circumstances:-
(a) if the Executive shall cease to render his services specified in
Clause 3 for any reason other than ill health or accident; or
(b) if the Executive shall cease to be available to render the
services specified in Clause 3 for a continuous period of 26
weeks by reason of ill health or accident; or
(c) if the Contractor of the Executive is guilty of serious
misconduct;
(d) If the Consultant or the Executive is convicted of a criminal
offence (other than a motoring or traffic offence not involving
imprisonment); [or
(e) if the Executive shall resign as a director of the Company or of
any other company in which he holds office of director pursuant
to/in consequence of this Agreement.
9.2. Either the Company or the Consultant shall be entitled to determine this
Agreement immediately upon the giving of written notice to the other if
the other shall have committed a serious or persistent breach of a term
or terms of this Agreement and (if such breach shall be capable of
remedy) shall have failed to remedy the same within [30] days of
the service of
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written notice specifying details of the breach complained
of and requesting remedy thereof.
9.3. This Agreement shall automatically and immediately terminate if the
Consultant or the Executive shall be adjudged bankrupt or take advantage
of any statute for the time being in force offering relief for insolvent
debtors or if the service agreement between Getty Communications plc and
Jonathan David Klein shall terminate.
9.4. Upon termination of this Agreement as provided above in this Clause the
Consultant shall be entitled to receive the fee only to the end of the
month in which termination occurs together with reimbursement of properly
documented expenses as provided in Clause 5.
9.5. The Consultant shall not and shall procure that the Executive shall not
following the termination for any reason of this Agreement represent
himself as being connected with the Company or any Group Company.
9.6. Upon termination of this Agreement howsoever caused, the Consultant shall
deliver to the Company all letters books of account drawings designs
plans documents memoranda and other media which may have been prepared by
the Executive or come into his possession solely under or solely by
virtue of the Consultant's engagement under this Agreement and shall not
without the prior written consent of the Board be entitled to and shall
not retain any copies thereof and the Consultant hereby agrees and
acknowledges that title and all copyright and all other intellectual
property therein shall at all times be and remain vested in the Company
and insofar as may be necessary the Consultant hereby assigns or shall
procure that the Executive assigns to the Company as beneficial owner any
future copyright which may subsist in all or any letters books of account
drawings designs plans reports memoranda and other media produced by the
Executive in the performance of services under this Agreement and the
Consultant further agrees that it shall at the request and expense of the
Company enter into or procure that the Executive enters into such
documents or do any such thing as may be necessary to perfect or secure
any of the Company's said rights.
10. TERMINATION OF DIRECTORSHIPS
Upon termination for whatever reason and whether or not in breach of this
Agreement the Consultant shall at the request of the Company procure that
the Executive immediately resigns from office as a director of the
Company and of any other company in which he holds office of director
pursuant to/ in consequence of this Agreement without claim for
compensation [and in the event of his failure to do so the Company is
hereby irrevocably authorised to appoint some person in his name and on
his behalf to sign and deliver such resignation or resignations to the
Company and to the other companies.]
11. CONSULTANT'S COVENANTS
11.1. The Consultant acknowledges that during the course of this engagement
with the Company the Consultant and the Executive will receive and have
access to confidential information of the Company and its Associated
Companies (including without limitation those matters specified in Clause
12.3 of this Agreement) and they will also receive and have access to
detailed client/customer lists and information relating to the operations
and business requirements of those clients/customers and accordingly the
Consultant is willing to enter into the covenants described in Clause
14.2 in order to provide the Company and its Associated Companies with
what it considers to be reasonable protection for those interests.
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11.2. The Consultant hereby covenants with the Company that it will not and it
will procure that the Executive will not for the period of twelve months
after the termination of his employment without the prior written consent
of the Board either alone or jointly with or on behalf of any person
directly or indirectly:-
(a) carry on or be engaged concerned or interested in any other
business trade or occupation which is similar to or in
competition with the business of the Company or any Associated
Company except as a holder directly or through nominees of not
more than 10% in aggregate of any class of shares debentures or
other securities in issue from time to time of any company which
are for the time being quoted or dealt in or any recognised
investment exchange (as defined by Section 207(1) of the
Financial Services Act 1986); or
(b) solicit or entice away or endeavour to solicit or entice away
from the Company or any Associated Company any person who at the
date of termination of his employment is employed or engaged by
the Company or any Associated Company in a senior capacity and
with whom the Executive shall have had contact during the course
of providing his services (whether or not such person would
commit a breach of his contract of employment by so doing).
11.3. The Consultant hereby agrees that it will at the cost of the Company
enter into a direct agreement or undertaking with any Associated Company
whereby it will accept restrictions and provisions corresponding to the
restrictions and provisions in Clause 14.2 above with such Associated
Company.
12. MISCELLANEOUS
12.1. Any notice required or authorised to be given by any party under the
provisions of this Agreement shall be in writing and any notice or
document relating to this Agreement may be served or delivered to the
party to be served at its address given in this Agreement or at such
address as may be duly notified for such purpose from time to time. Any
notice given by posting will be deemed to have been served 48 hours after
it shall have been posted and any notice given by telex shall be deemed
to have been served 24 hours after it shall have been despatched.
12.2. The parties to this Agreement shall pay their own legal professional and
other costs in connection with the preparation and completion of this
Agreement.
[12.3. The Company shall be entitled to assign the benefit of this Agreement
to any Group Company.]
12.4. This Agreement shall be governed and construed in accordance with the
Laws of [ ] but may be enforced in any court of competent
jurisdiction.
12.5. This Agreement constitutes the entire agreement between the parties to it
with respect to its subject matter and shall have effect to the
exclusion of any other memorandum agreement or understanding of any kind
between the parties hereto preceding the date of this Agreement and
touching and concerning its subject matter.
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IN WITNESS whereof this deed has been executed by the parties hereto and is
intended to be and is hereby delivered as a deed on the day and year first above
written
Executed as a Deed by )
)
GETTY IMAGES, INC. )
Director
Director/Secretary
Signed as a deed by )
JONATHAN DAVID KLEIN )
in the presence of:- )