Employment Agreement - Getty Communications plc and Mark H. Getty
S&S DRAFT -- 12/21/97 G
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of this [___] day of January, 1998, by and
between GETTY COMMUNICATIONS PLC, a company organized under the laws of England
and Wales (the "COMPANY"), which is a subsidiary of Getty Images, Inc., a
Delaware Corporation (the "PARENT"), and whose registered office is at 101
Bayham Street, London NWI OAG and MARK H. GETTY, an individual residing at
Flat 2, 32 Queensgate Gardens, London SWI (the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Executive is presently serving as the Executive Chairman
of the Board of Directors of Getty Communications plc ("GETTY"); and
WHEREAS, Getty, the predecessor to the Parent, is a party to a merger
agreement dated as of September 15, 1997 (the "MERGER AGREEMENT"), pursuant to
which PhotoDisc, Inc. shall merge into a merger subsidiary of the Parent and,
following the consummation of which, the Company shall be a subsidiary of the
Parent; and
WHEREAS, the Company seeks to continue to employ the Executive and
the Executive seeks to continue to be employed by the Company; and
WHEREAS, both parties desire that the terms and conditions of the
Executive's employment with the Company be governed by the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) GENERAL. The Company hereby employs the Executive, effective
as of the closing of the transactions contemplated by the Merger Agreement
(the "EFFECTIVE DATE"), and the Executive's period of continuous employment
for statutory purposes began on March 14, 1995, and the Executive agrees upon
the terms and conditions herein set forth to serve, effective as of the
Effective Date, as Co-Chairman of the Board of Directors of the Parent (the
"BOARD"). In such capacity, the Executive shall report directly and only to
the Board. The Executive's principal place of business shall be 101 Bayham
Street, London NWI OAG.
(b) SERVICES AND DUTIES. For so long as the Executive is employed
hereunder, and except as otherwise expressly provided in Section 1(c) below, the
Executive
<PAGE>
2
shall devote his full business time to the performance of his duties
hereunder; shall faithfully serve the Parent and the Company; shall in all
respects conform to and comply with the lawful and good faith directions and
instructions given to him by the Board as the same are consistent with his
status and the terms hereof; and shall use his best efforts to promote and
serve the interests of the Parent and the Company. Specifically, the
Executive shall share equal duties and authority with his Co-Chairman and
Chief Executive Officer for the financial performance of the Parent and the
Company, the management of the Parent's shareholders, developing strategic
alliances and partnerships and maximizing their commercial benefits,
communications to both internal and external audiences and external
relationships with business, industry and academic communities, strategic
leadership, and the provision of visible leadership and direction to the
front line. In addition, the Executive shall be jointly responsible with his
Co-Chairman for chairing the Board and managing relationships with members
and provide leadership for the research and development function of the
Parent and the Company. The Executive shall have a special emphasis on
acquisitions and corporate development.
(c) NO OTHER EMPLOYMENT. Except as provided below, for so long as
the Executive is employed by the Company, he shall not, directly or
indirectly, render services to any other person or organization for which he
receives compensation without the prior approval of the Board. No such
approval will be required if the Executive seeks to perform inconsequential
services without direct compensation therefor in connection with the
management of personal investments or in connection with the performance of
charitable and civic activities, provided that such activities do not
contravene the provisions of Section 5 hereof. In addition, the Company
expressly agrees that the Executive shall be permitted to continue to perform
external activities as necessary to perform his obligations as President of
Remainderman, Inc. (or its successor) or otherwise in relation to Getty
family business affairs and is permitted to act as a non-executive director
of Getty Investments LLC.
(d) BOARD MEMBERSHIP. The Executive shall be a member of the Board
and of the Executive Committee and the Strategy Committee thereof. In addition,
the Executive shall be entitled to attend the meetings of all other committees
of the Board, such as the Audit Committee and the Compensation Committee. After
his initial term as director, the Company shall nominate the Executive for
reelection to the Board and shall use all reasonable efforts to cause the
Executive to be elected to such term.
2. TERM OF EMPLOYMENT. The term of the Executive's employment under
this Agreement (the "TERM") shall commence on the Effective Date and continue
until the second anniversary date of the Effective Date. Thereafter, the Term
shall continue until it is terminated by either party giving the other at least
twelve months' written notice of termination of the Term, with no such notice to
be given so as to expire before the third anniversary of the Effective Date.
<PAGE>
3
3. COMPENSATION AND OTHER BENEFITS. Subject to the provisions of
this Agreement, the Company shall pay and provide the following compensation and
other benefits to the Executive during the Term as compensation for all services
rendered hereunder:
(a) SALARY. The Company shall pay to the Executive an annual salary
(the "SALARY") at the initial rate of $275,000, payable to the Executive in
accordance with the normal payroll practices of the Company for its executive
officers as are in effect from time to time. The amount of the Executive's
Salary shall be reviewed annually by the Board on or about March 1 of each year
during the Term and may be increased, but not decreased below such amount, on
the basis of such review and then-current market practices.
(b) ANNUAL BONUS. During the Term, the Executive shall be eligible
for each calendar year that begins within the Term to participate in an annual
incentive bonus program established by the Company in accordance with the
policies of the Company, its subsidiaries and affiliates (hereinafter,
collectively the "GROUP") and subject to such terms and conditions as may be
approved annually by the Compensation Committee of the Board (the "COMPENSATION
COMMITTEE"). Under the terms of the annual incentive bonus program, the
Executive will be afforded the opportunity to earn up to 50% of his Salary in
effect for the applicable calendar year if the Company achieves the performance
targets established by the Compensation Committee for that year.
(c) STOCK OPTIONS. Effective as of the Closing Date (as defined in
the Merger Agreement), the Company shall grant the Executive an option (the
"DEAL OPTION") to purchase 75,000 shares of the common stock of the Parent
pursuant to the terms of the Parent's 1998 Stock Incentive Plan (the "OPTION
PLAN"). The per share exercise price of the Deal Option shall equal the fair
market value of a share of Common Stock on the Closing Date, as determined in
accordance with the terms of the Option Plan. The Deal Option shall vest and
become exercisable in full one year from the date of grant. Also effective
as of the Effective Date, the Company shall grant the Executive an option
(the "OPTION") to purchase 500,000 shares of the common stock of the Parent
pursuant to the terms of the Option Plan. The per share exercise price of the
Option shall equal the fair market value of a share of Common Stock on the
Closing Date, as determined in accordance with the terms of the Option Plan.
The Option shall vest and become exercisable as to 25% one year after the
date of grant; the remainder of the Option shall vest ratably each month over
the following three years. Both the Deal Option and the Option shall be
subject to the terms of the Option Plan and to such other terms and
conditions as may be specified by the Compensation Committee in the form of a
standard option agreement between the Company and the Executive; PROVIDED,
HOWEVER, that in the event that the Executive ceases to be an employee of the
Company for any reason other than for Cause, the vesting under both the Deal
Option and the Option shall accelerate and all options thereunder shall
become immediately exercisable and the Executive shall be entitled to retain
such options, for the remainder of their respective terms, as if he had
remained an employee of the Company. In the event that the Executive ceases
to be an employee of the Company for Cause, then the Executive shall be
entitled to retain vested options as if he had remained an employee of the
Company but unvested options shall lapse.
<PAGE>
4
(d) PENSION SCHEME AND LIFE INSURANCE. During the Term, the Company
shall pay an amount equal to 20% of the Executive's Salary through equal monthly
contributions in arrears into a personal pension scheme for the benefit of the
Executive, or, at the Executive's sole discretion, the Company shall pay such
amount to him as additional compensation. In addition, during the Term, the
Company shall maintain a life insurance policy on the life of the Executive for
the benefit of the Executive's estate providing a benefit equal to the greater
of (i) $750,000 and (ii) four times the Executive's Salary (and maximum bonus).
(e) COMPANY AUTOMOBILE. During the Term, the Company will provide
the Executive with an automobile of such make and model as the Board deems
appropriate and suitable for his status with the Company for his sole use and
will reimburse the Executive for all costs and expenses incurred by the
Executive in connection with the use of that vehicle, or, at the Executive's
sole discretion, the Company shall pay an equivalent amount to him as additional
compensation.
(f) OTHER SPECIFIC BENEFITS. The Company shall install and pay the
rental and unit charges attributable to a dedicated business telephone line at
his home. During the Term, the Company shall also pay for the Executive's
purchase, line charges, rental and unit charges for a mobile phone. The Company
shall provide the Executive with a fax machine and computer modem to be
installed at the Executive's home and a suitable desktop and laptop computer, as
well as all ancillary equipment and maintenance therefor. In addition, the
Company will pay for the cost of the Executive's membership in or subscriptions
to the internet service provider of his choice, and such professional
memberships and journals as are appropriate to his duties under this Agreement.
(g) EXPENSES. The Company shall pay or reimburse the Executive for
all reasonable out-of-pocket expenses incurred by the Executive in connection
with his employment hereunder. Such expenses shall be paid upon the periodic
submission of invoices and shall be paid reasonably promptly after the date of
such invoice. The reimbursement of expenses under this Section 3(g) shall be
subject to the Executive's providing the Company with such documentation of the
expenses as the Company may from time to time reasonably request in accordance
with the policies of the Group.
(h) PENSION, WELFARE AND FRINGE BENEFITS. During the Term, the
Executive shall be eligible to participate in the Company's pension, medical,
disability and life insurance plans applicable to senior officers of the Company
in accordance with the terms of such plans as in effect from time to time.
Specifically, the Executive, his spouse and his children who are under the age
of 18 shall participate in the British United Provident Association, providing
benefits at London Teaching Hospital Rates, or such other private insurance
scheme providing equivalent benefits. In addition, the Executive shall
participate in the Company's permanent health insurance plan or receive payment
for his personal permanent health insurance plan, at
<PAGE>
5
his sole discretion. The Executive shall participate in any disability plan
of the Company that replaces his Salary under this Agreement in the event
that he suffers a Disability (as defined in Section 4(d) below).
(i) LONG-TERM INCENTIVE PROGRAM. During the Term, the Executive
shall participate in all long-term incentive plans and programs of the Company
that are applicable to its senior officers in accordance with their terms and in
a manner consistent with his position with the Company.
(j) HOLIDAYS. In addition to the usual public and bank holidays, the
Executive shall be entitled to thirty days' paid vacation annually, which shall
be taken at such times as are approved by the Board or the Executive Committee.
4. TERMINATION OF EMPLOYMENT. Subject to the notice and other
provisions of this Section 4, the Company shall have the right to terminate the
Executive's employment hereunder, and he shall have the right to resign, at any
time for any reason or for no stated reason.
(a) TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON. (i)
If, prior to the expiration of the Term, the Executive's employment is
terminated by the Company for Cause or if the Executive resigns from his
employment hereunder other than for Good Reason, he shall be entitled to
payment of the pro rata portion of his Salary and accrued Bonus through and
including the date of termination or resignation as well as any unreimbursed
expenses. Except to the extent required by the terms of any applicable grant
to the Executive in accordance with Section 3(c) above, by the terms of
Section 3(d), Section 3(h) or applicable law, the Executive shall have no
rights under this Agreement or otherwise to receive any other compensation or
to participate in any other plan, program or arrangement after such
termination or resignation of employment with respect to the year of such
termination or resignation and later years.
(ii) Termination for "CAUSE" shall mean termination of the
Executive's employment with the Company because of (A) willful, material and
repeated non-performance of the Executive's duties to the Company or the
Parent (other than by reason of the incapacity of the Executive due to
physical or mental illness) after notice by the Board of such failure and the
Executive's non-performance and continued, willful, material and repeated
non-performance after such notice, (B) the indictment of the Executive for a
[serious] felony offense, (C) the commission by the Executive of fraud
against the Group or any other action that brings the reputation of the Group
into serious disrepute or causes the Executive to cease to be able to perform
his duties, (D) any other material breach by the Executive of any material
term of this Agreement, or (E) is adjudged
<PAGE>
6
bankrupt or makes any arrangement or composition with his creditors or has an
interim order made against him pursuant to Section 252 of the Insolvency Act
1986.
(iii) Termination of the Executive's employment for Cause shall be
communicated by delivery to the Executive of a written notice from the Company
stating that the Executive has been terminated for Cause, specifying the
particulars thereof and the effective date of such termination. The date of a
resignation by the Executive without Good Reason shall be the date specified in
a written notice of resignation from the Executive to the Company. The
Executive shall provide at least 90 days' advance written notice of resignation
without Good Reason.
(b) INVOLUNTARY TERMINATION. (i) If, prior to the expiration of
the Term, the Company terminates the Executive's employment for any reason
other than Disability or Cause or Executive resigns from his employment
hereunder for Good Reason (collectively hereinafter referred to as an
"INVOLUNTARY TERMINATION"), the Company shall pay to the Executive his Salary
and Bonus accrued up to and including the date of such Involuntary
Termination, as well as any unreimbursed expenses. In addition, the Company
shall pay to the Executive as severance (the "SEVERANCE PAYMENTS") within 30
days after the date of termination a lump sum payment in an amount equal to
the sum of his Salary, at the rate in effect immediately prior to such
Involuntary Termination, and his maximum bonus as described in Section 3(b),
in each case for the remainder of the Term. Anything in this Agreement to
the contrary notwithstanding, no amounts shall be payable under this Section
4(b) if the Executive's employment with the Company ends at the expiration of
the Term in accordance with Section 2.
(ii) In the event of the Executive's Involuntary Termination, the
Executive shall continue to participate on the same terms and conditions as are
in effect immediately prior to such termination or resignation in the Company's
health and medical plans provided to the Executive pursuant to Section 3(h)
above at the time of such Involuntary Termination for a period of two years
following the Involuntary Termination (the "CONTINUATION PERIOD"). Anything
herein to the contrary notwithstanding, the Company shall have no obligation to
continue to maintain during the Continuation Period any plan or program solely
as a result of the provisions of this Agreement but this obligation shall
apply in respect of any substitute or replacement plan.
(iii) Resignation for "GOOD REASON" shall mean resignation by
Executive because of (A) an adverse and material change in the Executive's
duties, titles and reporting responsibilities, (B) a material breach by the
Company of any term of the Agreement, (C) a reduction in the Executive's Salary
or bonus opportunity or the failure of the Company to pay the Executive any
material amount of compensation when due, (D) failure by the Company or the
Parent to nominate the Executive for reelection to the Board, or (E) a
relocation of the
<PAGE>
7
Executive's principal place of business without his prior written consent. The
Company shall have 30 business days from the date of receipt of such notice to
effect a cure of the material breach described therein and, upon cure thereof by
the Company to the reasonable satisfaction of the Executive, such material
breach shall no longer constitute Good Reason for purposes of this Agreement.
(iv) The date of termination of employment without Cause shall be the
date specified in a written notice of termination to the Executive. The date of
resignation for Good Reason shall be the date specified in a written notice of
resignation from the Executive to the Company; PROVIDED, HOWEVER, that no such
written notice shall be effective unless the cure period specified in Section
4(b)(iii) above has expired without the Company having corrected, to the
reasonable satisfaction of the Executive, the event or events subject to cure.
(c) TERMINATION FOLLOWING A CHANGE IN CONTROL. In the event of a
Change in Control (defined as it is for purposes of the Option Plan), the
Executive shall have the right to resign his employment with the Company and
will be entitled to receive within 30 days a lump sum payment in an amount
equal to the Executive's Salary, at the rate in effect immediately prior to
such Involuntary Termination, plus his maximum bonus as described in Section
3(b), in each case for the remainder of the Term.
(d) TERMINATION DUE TO DISABILITY. In the event of the Executive's
Disability (as hereinafter defined), the Company shall be entitled to
terminate his employment upon providing the Executive with six months' prior
written notice. In the case that the Company terminates the Executive's
employment due to Disability, the Executive shall be entitled to a lump sum
payment on the same basis as set out in Section 4(c) but after deducting any
sums paid to the Executive under any Disability Plan of the Company. As used
in this Section 4(d), the term "DISABILITY" shall mean a physical or mental
incapacity that substantially prevents the Executive from performing his
duties hereunder and that has continued for at least six of the last twelve
months and that can reasonably be expected to continue indefinitely. Any
dispute as to whether or not the Executive is disabled within the meaning of
the preceding sentence shall be resolved by a physician reasonably
satisfactory to the Executive and the Company, and the determination of such
physician shall be final and binding upon both the Executive and the Company.
(e) DEATH. Except as provided in Sections 3(d), 3(h) and this
Section 4(d), no Salary or benefits shall be payable under this Agreement
following the date of the Executive's death. In the event of the Executive's
death, the Executive's Beneficiary shall be entitled to a lump sum payment on
the same basis as Section 4(c) but after deducting
<PAGE>
8
any death benefits which are provided to the Executive's Beneficiary under
the terms of any plan, program or arrangement referred to in Section 3(d) or
(h) applicable to the Executive at the time of death.
(f) BENEFICIARY. For purposes of this Agreement, except as provided
in Section 3(d) or 3(h), "BENEFICIARY" shall mean the person or persons
designated in writing by the Executive to receive benefits under a plan, program
or arrangement or to receive the balance of the Severance Payments, if any, in
the event of the Executive's death, or, if no such person or persons are
designated by the Executive, the Executive's estate. No Beneficiary designation
shall be effective unless it is in writing and received by the Company prior to
the date of the Executive's death.
5. PROTECTION OF THE COMPANY'S INTERESTS.
(a) NO COMPETING EMPLOYMENT. For so long as the Executive is
employed by the Company and in circumstances where the Executive receives a
payment pursuant to Section 4(b) or 4(c) or his employment is terminated for
Cause, and in no other circumstances continuing for a one year period
following his termination (such period being referred to hereinafter as the
"RESTRICTED PERIOD"), the Executive shall not, without the prior written
consent of the Board, directly or indirectly, own an interest in, manage,
operate, join, control, lend money or render financial or other assistance to
or participate in or be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, any individual, partnership, firm,
corporation or other business organization or entity that competes with the
Group; PROVIDED, HOWEVER, that this Section 5(a) shall not proscribe the
Executive's ownership, either directly or indirectly, of less than five
percent of any class of securities which are listed on a national securities
exchange or quoted on the automated quotation system of the National
Association of Securities Dealers, Inc.
(b) NO INTERFERENCE. During the Restricted Period in circumstances
where the Executive receives a payment pursuant to Section 4(b) or 4(c) or
his employment is terminated for Cause, and in no other circumstances, the
Executive shall not, whether for his own account or for the account of any
other individual, partnership, firm, corporation or other business
organization (other than the Company), intentionally solicit, endeavor to
entice away from the Group, or otherwise interfere with the relationship of
the Group with, any person who is employed by or otherwise engaged to perform
services for the Group, or any person or entity who is, or was within the
then most recent twelve-month period, a customer, client or supplier of the
Group.
<PAGE>
9
(c) SECRECY. The Executive recognizes that the services to be
performed by him hereunder are special, unique and extraordinary in that, by
reason of his employment hereunder, he may acquire confidential information and
trade secrets concerning the operation of the Group, the use or disclosure of
which could cause the Group substantial losses and damages which could not be
readily calculated and for which no remedy at law would be adequate.
Accordingly, the Executive covenants and agrees with the Company that he will
not at any time, except in performance of the Executive's obligations to the
Company hereunder or with the prior written consent of the Board, directly or
indirectly disclose to any person any secret or confidential information that he
may learn or has learned by reason of his association with the Group. The term
"CONFIDENTIAL INFORMATION" means any information not previously disclosed to the
public or to the trade by the Company's management with respect to the Group's
products, facilities and methods, trade secrets and other intellectual property,
systems, procedures, manuals, confidential reports, product price lists,
customer lists, financial information (including the revenues, costs or profits
associated with any of the Group's products), business plans, prospects or
opportunities.
(d) EXCLUSIVE PROPERTY. The Executive confirms that all confidential
information is and shall remain the exclusive property of the Group. All
business records, papers and documents kept or made by the Executive relating to
the business of the Group shall be and remain the property of the Group. Upon
the termination of his employment with the Company or upon the request of the
Company at any time, the Executive shall promptly deliver to the Company, and
shall not without the consent of the Board retain copies of, any written
materials not previously made available to the public, or records and documents
made by the Executive or coming into his possession concerning the business or
affairs of the Group; PROVIDED, HOWEVER, that subsequent to any such
termination, the Company shall provide the Executive with copies (the cost of
which shall be borne by the Executive) of any documents which are requested by
the Executive and which the Executive has determined in good faith are
(i) required to establish a defense to a claim that the Executive has not
complied with his duties hereunder or (ii) necessary to the Executive in order
to comply with applicable law.
(e) INJUNCTIVE RELIEF. Without intending to limit the remedies
available to the Company, the Executive acknowledges that a breach of any of the
covenants contained in this Section 5 may result in material irreparable injury
to the Group for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, the Company shall be entitled to obtain a
temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section
5 or such other relief as may be required to specifically enforce any of the
covenants in this Section 5. Without intending to limit the remedies available
to the Executive, the Executive shall be entitled to seek specific performance
of the Company's obligations under this Agreement.
(f) The Executive shall during the continuance of his employment
(and shall procure that his spouse or partner and his minor children shall
comply) comply with all applicable rules of law, stock exchange regulations
and codes of conduct of the Company and any Associated Company for the time
being in force in relation to dealings in shares, debentures or other
securities of the Company or any Associated Company or any unpublished price
sensitive information affecting the securities of any other company (provided
that the Executive shall be entitled to exercise any options granted to him
under any share option scheme established by the or any unpublished price
sensitive information affectiong the securities of any Company or any
Associated Company subject to the rules of any such scheme).
(g) The Executive shall in relation to any dealings in securities
of overseas companies comply with all laws of any foreign state affecting
dealings in the securities of such companies and all regulations of any
relevant stock exchange on which such dealings take place.
(h) During the continuance of his employment, the Executive:-
1. shall not directly or indirectly procure, accept or obtain for his
own benefit (or for the benefit of any other person) any payment,
rebate, discount, vouchers, gift, entertainment or other benefit
("Gratuities") from any third party in respect of any business
transaction or proposed to be transacted (wether or not by him) by or
on behalf og the Compoany or any Associated Company; and
2. shall observe the terms of any policy issued by the Company in
relation to Gratuities; and
3. shall immediately disclose and account to the Company for any
Gratuities received by him (or by any other person on his behalf or
at his instruction.)
<PAGE>
10
6. GENERAL PROVISIONS.
(a) SOURCE OF PAYMENTS. All payments provided under this Agreement,
other than payments made pursuant to a plan which provides otherwise, shall be
paid in cash from the general funds of the Company, and no special or separate
fund shall be established, and no other segregation of assets made, to assure
payment. The Executive shall have no right, title or interest whatever in or to
any investments which the Company may make to aid the Company in meeting its
obligations hereunder. To the extent that any person acquires a right to
receive payments from the Company hereunder, such right shall be no greater than
the right of an unsecured creditor of the Company; PROVIDED, HOWEVER, that this
provision shall not be deemed to waive or abrogate any preferential or other
rights to payment accruing to the Executive under applicable bankruptcy laws by
virtue of the Executive's status as an employee of the Company.
(b) NO OTHER SEVERANCE BENEFITS. Except as specifically set forth in
this Agreement, the Executive covenants and agrees that he shall not be entitled
to any other form of severance benefits from the Company, including, without
limitation, benefits otherwise payable under any of the Company's regular
severance policies, in the event his employment hereunder ends for any reason
and, except with respect to obligations of the Company expressly provided for
herein, the Executive unconditionally releases the Company and its subsidiaries
and affiliates, and their respective directors, officers, employees and
stockholders, or any of them, from any and all claims, liabilities or
obligations under this Agreement or under any severance or termination
arrangements of the Company or any of its subsidiaries or affiliates for
compensation or benefits in connection with his employment or the termination
thereof.
(c) TAX WITHHOLDING. Payments to the Executive of all compensation
contemplated under this Agreement shall be subject to all applicable tax
withholding.
(d) NOTICES. Any notice hereunder by either party to the other shall
be given in writing by personal delivery, or certified mail, return receipt
requested, or (if to the Company) by telex or facsimile, in any case delivered
to the applicable address set forth below:
(i) To the Company: Getty Communications plc
101 Bayham Street
London NWI OAG
England
<PAGE>
11
With copies to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attn.: John J. Cannon, III, Esq.
Shearman & Sterling
555 California Street
Suite 2000
San Francisco, CA 94104
Attn.: Christopher D. Dillon, Esq.
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ England
Attn.: Michael Francies
(ii) To the Executive: Mark H. Getty
Flat 2, 32 Queensgate
Gardens, London SWI
or to such other persons or other addresses as either party may specify to the
other in writing.
(e) REPRESENTATION BY THE EXECUTIVE. The Executive represents and
warrants that his entering into this Agreement does not, and that his
performance under this Agreement and consummation of the transactions
contemplated hereby will not, violate the provisions of any agreement or
instrument to which the Executive is a party, or any decree, judgment or order
to which the Executive is subject, and that this Agreement constitutes a valid
and binding obligation of the Executive in accordance with its terms. Breach of
this representation will render all of the Company's obligations under this
Agreement void AB INITIO.
(f) LIMITED WAIVER. The waiver by the Company or the Executive of a
violation of any of the provisions of this Agreement, whether express or
implied, shall not operate or be construed as a waiver of any subsequent
violation of any such provision.
(g) ASSIGNMENT; ASSUMPTION OF AGREEMENT. No right, benefit or
interest hereunder shall be subject to assignment, encumbrance, charge, pledge,
hypothecation or setoff by the Executive in respect of any claim, debt,
obligation or similar process. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to assume expressly
and to agree to perform this Agreement in the same manner and to the
<PAGE>
12
same extent that the Company would be required to perform it if no such
succession had taken place.
(h) AMENDMENT; ACTIONS BY THE COMPANY. This Agreement may not be
amended, modified or canceled except by written agreement of the Executive and
the Company. Any and all determinations, judgments, reviews, verifications,
adjustments, approvals, consents, waivers or other actions of the Company
required or permitted under this Agreement shall be effective only if undertaken
by the Company pursuant to authority granted by a resolution duly adopted by the
Board; PROVIDED, HOWEVER, that by resolution duly adopted in accordance with
this Section 6(h), the Board may delegate its responsibilities hereunder to one
or more of its members other than the Executive.
(i) SEVERABILITY. If any term or provision hereof is determined to
be invalid or unenforceable in a final court or arbitration proceeding, (i) the
remaining terms and provisions hereof shall be unimpaired and (ii) the invalid
or unenforceable term or provision shall be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
(j) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of England and the parties to this Agreement hereby
submit to the jurisdiction of the English courts.
(k) ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the matters covered
hereby and supersedes all prior agreements and understandings of the parties
with respect to the subject matter hereof.
(l) HEADINGS. The headings and captions of the sections of this
Agreement are included solely for convenience of reference and shall not control
the meaning or interpretation of any provisions of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed by the parties
hereto in counterparts, each of which shall be deemed an original, but both such
counterparts shall together constitute one and the same document.
(n) If the employment of the Executive is terminated by reason of
the liquidation of the Company for the purpose of reconstruction or
amalgamation or as part of any arrangement for the amalgamation or
reconstruction of the Company not involving insolvency and the Executive is
offered employment with any concern or undertaking resulting from the
reconstruction or amalgamation on terms and conditions which taken as a whole
are not less favourable than the terms of this Agreement then the Executive
shall have no claim against the Company in respect of such termination.
(o) Disciplinary and Grievance Procedures. For statutory purposes,
there is no formal disciplinary procedure in relation to the Executive's
employment. The Executive shall be expected to maintain the highest
standards of integrity and behaviour. If the Executive is not satisfied with
any disciplinary procedure taken in relation to him he may apply in writing
within 14 days of that decision to the Board whose decision shall be final.
If the Executive has any grievance in relation to his employment he may raise
it in writing with the Board whose decision shall be final.
(p) Directorship. The removal of the Executive from the office of
director of the Company or the failure of the Company in general meeting to
re-elect the Executive as a director of the Company (if he shall be obliged
to retire by rotation or otherwise pursuant to the articles of association of
the Company) shall terminate the Executive's employment under this Agreement
and such termination shall be without prejudice to any claim which the
Executive may have for damages for breach of this Agreement provided that the
Company was not entitled at the time of such removal or failure to re-elect
to terminate his employment.
<PAGE>
13
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first written above.
GETTY COMMUNICATIONS PLC
By:
-----------------------------------
Name:
Title:
EXECUTIVE
-----------------------------------
Mark H. Getty