Service Agreement - Getty Images Inc. and David Howard
(1) DAVID HOWARD
-- AND --
(2) GETTY IMAGES, INC.
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SERVICE AGREEMENT
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DATED 6 OCTOBER 1998
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THIS AGREEMENT is made the sixth day of October 1998
BETWEEN:
(1) DAVID HOWARD of 1 Chestnut Road, Twickenham, Middlesex, TW2 5QZ ("the
Executive") and
(2) GETTY IMAGES INC whose registered office is at 101 Bayham Street,
London, NW1 0AG ("the company").
WHEREBY it is agreed as follows:--
1. DEFINITIONS & INTERPRETATION
1.1 In this Agreement the following expressions shall unless the context
otherwise requires bear the following meanings: --
"the Act" the Employment Rights Act (1996)
"Associated Company" any company which for the time being is:
(a) a holding company (as defined in Section 736 of
the Companies Act 1985) of the Company; and/or
(b) a subsidiary (as defined in Section 736 of the
Companies Act 1985) of any such holding company
(other than the company) or of the Company; and/or
(c) any other company on behalf of which the
Executive carries out duties at the request of the
Company
"Group Operating Profit" operating profit before interest currency losses or
gains and tax
"Intellectual Property" rights in or to patents industrial designs
copyright trade secrets know-how and trademarks and
any other intangible property created through the
application of intellect to technical or commercial
matters and capable of proprietary distinction and
definition
"Chief Executive Officer
(CEO)" Jonathan Klein or whosoever is appointed his place
by the Company
"The Stock Exchange" The International Stock Exchange of the United
Kingdom and the Republic of Ireland Limited
Limited
1.2 Any reference in this Agreement to any statute or statutory provision
shall be construed as including a reference to that statute or statutory
provision as from time to time amended modified extended or re-enacted whether
before or after the date of this Agreement and to all statutory instruments
orders and regulations for the time being made pursuant to it or deriving
validity from it.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa and words denoting any one gender shall
include all genders and words denoting persons shall include bodies corporate
unincorporated associations partnerships and individuals.
1.4 Unless otherwise stated references to clauses, sub-clauses, paragraphs
and sub-paragraphs relate to this Agreement.
1.5 Clause headings do not affect the interpretation of this Agreement.
2. APPOINTMENT
2.1 The Company shall employ the Executive and the Executive shall serve
the Company as Group Brands and Communications Director commencing on a date to
be agreed and shall continue thereafter until
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this Agreement is terminated in accordance with Clause 11 hereof or by either
party giving to the other not less than three calendar months' notice.
3. DUTIES OF EMPLOYMENT
3.1 The Executive shall unless prevented by ill health or other incapacity
devote the whole of his time and attention to the performance of his duties
hereunder and shall faithfully and diligently exercise such powers and perform
such duties in relation to the Company or any Associates Company as may from
time to time be vested in or assigned to him by the CEO at such place or places
within the United Kingdom as the CEO shall determine and shall obey and comply
with all proper orders and directions from time to time given or made by the
CEO. The Executive's normal place of work shall be 101 Bayham Street, London,
NW1 0AG or such other place as the Company shall reasonably require. The
Executive may be required to travel on business from time to time subject to
Clause 6.1.
3.2 If the Company requires the Executive to work at a place which would
reasonably oblige the Executive to move permanently from his then normal place
of residence, the Company shall reimburse the Executive (on production of the
necessary receipts or vouchers) for all removal and relocation expenses directly
and reasonably incurred as a result of the Company's requirements in accordance
with the Company's then current policy for relocation of executives.
3.3 The Executive's hours of work are the normal hours of the Company being
9.15 am to 5.15 pm Monday to Friday each week together with such additional
hours as may be necessary properly to fulfil his duties.
4. SALARY
4.1 The Company shall pay to the Executive a salary at the rate of L80,000
(eighty thousand pounds) per annum such salary to be reviewed in April 2000 and
annually thereafter, and to accrue from day to day and to be payable by monthly
instalments in arrears on or before the last working day of each calendar month.
4.2 The Company shall if it deems it necessary to do so be entitled to
suspend the Executive but shall during such suspension continue to pay the
Executive in accordance with the provisions of this Clause.
5. BONUS SCHEME AND SHARE OPTIONS
5.1 The Executive shall be entitled to participate in a bonus scheme which
may be amended or varied from time to time at the Company's discretion.
5.2 For the time being, the Executive's bonus will be limited to a maximum
of 60% of the Executive's salary; 60% of which will be payable subject to
satisfactory completion of performance related targets as set by the SVP
Planning and 40% of which will be payable on the achievement of the budgeted
Company performance.
5.3 The Executive will be eligible to receive 15,000 Getty Images Inc.
options upon signing of this Agreement.
6. EXPENSES
6.1 The Company shall reimburse to the Executive, subject to the Executive
producing proper receipts or vouchers, all travelling hotel entertainment and
out of pocket expenses which may reasonably and properly be incurred in the
performance of the Executive's duties pursuant to this Agreement.
6.2 The Company shall pay to the Executive an annual allowance of L7,500 in
lieu of a car.
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7. PENSION AND ADDITIONAL BENEFITS
7.1 The Company will contribute 7.5% of the Executive's annual gross salary
to a private pension scheme or to the company pension scheme, effective from the
Executive's commencement date, as the Executive so chooses.
7.2 The Executive and his spouse and children shall be entitled to private
medical cover under the Company's Executive Healthcare Scheme.
8. HOLIDAYS
8.1 The Executive shall be entitled in addition to UK public holidays to 20
working days holiday in every calendar year taken at such time or times as may
be agreed between the Executive and the CEO.
8.2 For the holiday year commencing January 1998 the Executive will be
entitled to such proportion of his annual holiday entitlement as is equal to the
proportion of that holiday year during which the Executive is employed by the
Company.
8.3 The Executive may with the prior written consent of the company carry
forward any unused part of his holiday entitlement to a subsequent holiday year.
Holidays not taken in any calendar year and not carried forward will be lost.
8.4 The Executive's entitlement to holiday shall accrue pro rata through
each year of the appointment under this Agreement.
8.5 In the event of termination of his employment for whatever reason, the
Executive shall be entitled to pay in lieu of outstanding holiday entitlement.
The Executive will be required to repay the Company any holiday taken in excess
of his actual pro rata entitlement.
9. SICKNESS
9.1 If you are absent through sickness or injury, you must comply with the
company's requirements for reporting your absence, as explained in Annex 3 IF
YOU ARE SICK accompanying this statement and contained in the staff handbook.
You should familiarise yourself with these requirements.
9.2 During absence for illness (which includes injury or other disability)
you will be entitled to receive a sick pay allowance in accordance with, and
subject to, the provisions set out in Annex 3 IF YOU ARE SICK from the
information in the staff handbook under the heading PAYMENT DURING SICKNESS
ABSENCE.
10. PATERNITY LEAVE
Paternity Leave is provided by the Company.
11. TERMINATION
The Company may terminate summarily the employment of the Executive under
this Agreement without payment in lieu of notice:--
11.1 If the Executive shall have committed any serious breach or repeated
or continued (after warning) any material breach of any of the terms of this
Agreement;
11.2 If the Executive shall (whether or not in the course of his
employment) have been guilty of gross misconduct or conduct likely to bring the
business of the Company or any Associated Company into disrepute or of conduct
calculated or likely to prejudice the interests of the Company or any Associated
Company;
11.3 If the Executive shall have committed any act of bankruptcy or made
any composition or entered into any Agreement with his creditors generally;
11.4 If the Executive shall have been convicted of any criminal offence
punishable by a term of imprisonment.
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11.5 The Company shall have the right lawfully to terminate this Agreement
with immediate effect by giving notice of such termination and by paying to the
Executive, in lieu of salary and other benefits pursuant to this Agreement, an
amount equal to the basic salary which the Executive would have earned from then
until the first date upon which his employment could, apart from this Clause
11.5, have been lawfully terminated together with a further sum equivalent to
the value of benefits to which the Executive would have been entitled during
such period, to the extent that the Executive does not in fact receive those
benefits for the whole or part of such period. Any such payment to the Executive
will be subject to tax and other statutory deductions required from time to
time.
11.6 If this Agreement is terminated by notice given by either party to the
other, whether pursuant to Clause 2.1 or otherwise, or if the Executive wishes
to resign with immediate effect but the Company refuses to accept such
resignation and requires the due period of notice to be given by the Executive,
then:
11.6.1 the Company shall be under no obligation to vest in or
assign to the Executive any powers or duties or to provide work for the
Executive [but the Company may at its discretion provide suitable work
for the Executive to be undertaken at the Executive's home and the
Company may require the Executive to carry out special duties or
projects]; and
11.6.2 the Company may at any time or from time to time during
such notice period deny the Executive access to any premises of the
Company; and
11.6.3 salary and all benefits will not cease to be payable or
available to the Executive by reason only of that exclusion of the
Executive from any premises of the Company until the expiry of such
notice period.
11.7 On the termination of this Agreement for whatever reason the Executive
shall:
11.7.1 comply with the provision of Clause 13.1
11.7.2 immediately deliver to the company or to its order all
books, documents, papers (including copies) plan, prototypes, computer
software materials, keys and other property of or relating to the
business of the Company or its Associates Companies then in his
possession or which are or were last under his power or control.
11.8 The Executive shall not at any time after termination of this
Agreement wrongfully represent himself as being employed by or connected in any
way with the Company or any Associated Company.
12. RESTRICTIONS ON ACTIVITIES DURING EMPLOYMENT
The Executive shall not during the continuance of his employment hereunder
without the written consent of the Company be engaged or interested either
directly or indirectly in any capacity in any other trade business or occupation
whatsoever, provided that this provision shall not prohibit the Executive being
interested as a bona fide investor in any securities of any company listed or
dealt in on The Stock Exchange, the Unlisted Securities Market of The Stock
Exchange or any other recognised securities market provided that such interest
(together with that of his family being his spouse and children under the age of
18) shall not exceed 5% of those securities.
13. CONFIDENTIALITY
13.1 The Executive shall not during the continuance of his employment
hereunder or at any time thereafter use other than for the benefit of the
Company or any Associated Company nominated by the Company or as required by law
disclose or make accessible to any other person firm or company any of the
confidential information trade secrets formulae or methods of doing business of
the Company or any Associated Company or its or their customers and other
business associates. This restriction shall cease to apply to information or
knowledge which may legitimately come into the public domain.
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14. INTELLECTUAL PROPERTY
14.1 If the Executive shall while employed by the Company discover or
create any Intellectual Property whether alone or jointly with others which is
connected with or which in any way affects or relates to the business of the
Company or of any Associated Company or is capable of being used or adapted for
use therein or in connection therewith she shall forthwith disclose it to the
Company and subject to the rights of the Executive under the Copyright, Designs
and Patents Act 1988 such Intellectual Property shall belong to and be the
absolute property of the Company or such Associated Company as the Company may
nominate.
14.2 The Executive shall be entitled to a non-exclusive right to use, at
all times, such Intellectual Property belonging to the Company pursuant to
Clause 14.1
14.3 The Executive if and whenever required so to do (whether during or
after the termination of this Agreement) shall at the expense of the Company (or
its nominee) apply or join in applying or assist the Company to apply for
letters patent design registration or other similar protection in the United
Kingdom or any other part of the world for any such Intellectual Property and
execute instruments and do all things necessary for vesting the said letters
patent or other similar protection when obtained and all right title and
interest to and in the same in the Company (or its nominee) absolutely and as
sole beneficial owner or in such other person as may the Company shall require.
14.4 The Executive hereby agrees that neither during the currency of this
Agreement nor subsequently will he do any act or thing which may prejudice the
application for the grant or the validity of any patent design right or other
monopoly right in any Intellectual Property which is the property of the Company
or any Associated Company.
15. CONSEQUENCES OF TERMINATION
UPON the termination of this Agreement howsoever arising:-
15.1 such of the provisions of this Agreement as are expressed to have
effect after termination shall do so but without prejudice to any rights or
remedies of the parties whether accrued or arising on termination; and
15.2 the provisions of Clause 13 and 14 of this Agreement relating to
Confidentiality and Intellectual Property shall bind the Executive's personal
representatives.
16. RESTRICTIONS ON TERMINATION
The Executive covenants with the Company that he will not for the period of
twelve months after ceasing to be employed under this Agreement without the
prior written consent of the Company in connection with the carrying on of any
business in competition with the business of stock photography of the Company on
his own behalf or on behalf of any person firm or company directly:
16.1 seek to procure orders from or do business with any person firm or
company who has at any time during the twelve months immediately preceding such
cesser done business with the Company.
Provided that nothing in this Clause shall prohibit the seeking or
procuring of orders or the doing of business not relating or similar to the
business of the Company described above.
17. RECONSTRUCTION OR AMALGAMATION
If before the expiration of this Agreement the employment of the Executive
under this Agreement is terminated by reason of the liquidation of the Company
for the purpose of reconstruction or amalgamation and the Executive shall be
offered employment with any concern or undertaking resulting from such
reconstruction or amalgamation for a period not less than the unexpired term of
this Agreement and on terms and conditions not less favourable than the terms of
this Agreement then the Executive shall have no claim against the Company in
respect of the termination of his employment hereunder by reason of such
liquidation.
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18. NOTICES
Any notice to be given hereunder shall be in writing and shall be
sufficiently served if sent or delivered in the case of the Company to its
registered office for the time being and in the case of the Executive to her in
person or to her usual or last known place of residence and may be sent by
prepaid post or delivered by hand and proof of dispatch by one of these methods
shall be deemed to be proof of receipt in the case of notices sent by first
class prepaid post within the United Kingdom forty-eight hours after the time of
posting and otherwise in the normal course of delivery.
No form of notice by electronic means, cable or telex will be acceptable.
19. DISCIPLINARY AND GRIEVANCE PROCEDURES
19.1 The Executive is subject to the Company's disciplinary rules and
disciplinary procedures. These rules and procedures are non-contractual and may
be varied by the Company from time to time.
19.2 If the Executive has any grievance relating to his employment (other
than one relating to a disciplinary decision) he should refer such grievance to
the directors of the Company for resolution.
20. PREVIOUS AGREEMENTS
This Agreement supersedes all or any previous contract of service between
the company or any subsidiary or Holding Company and the Executive and any such
contracts shall be deemed to have been terminated by mutual consent as from the
date on which his employment hereunder shall commence.
21. STATUTORY STATEMENT
The information contained herein and in the schedule constitutes a written
statement of the terms of employment of the Executive in compliance with the
provisions of the Act.
22. LAW
This Agreement is governed by and shall be construed in accordance with the
laws of England.
IN WITNESS whereof the Company and the Executive have executed and
delivered this Agreement as a deed on the date first stated above.
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THE SCHEDULE
In accordance with the Employment Rights Act 1996 the following terms of
the Executive's employment apply on the date of the Agreement to which this is a
schedule.
1. COMMENCEMENT OF EMPLOYMENT
The Executive has been continuously in the employment of the Company since
a date to be agreed.
2. JOB TITLE AND SPECIFICATION
The Executive's job title is Group Brands and Communications Director.
The Executive's job specification is attached.
3. PRINCIPAL PLACE OF WORK
The Executive's principal place of work is 101 Bayham Street, London, NW1
0AG.
4. DISCIPLINARY PROCEDURE
The Executive has been notified where a copy is available for inspection of
the Company's Disciplinary Procedure which may be updated from time to time by
the Company.
5. GRIEVANCE AND APPEALS PROCEDURE
The Executive has been notified where a copy is available for inspection of
the Company's Grievance Procedure which may be updated from time to time by the
Company.
6. HOLIDAY
The Executive is entitled to 20 working days weeks holidays with pay -- see
Clause 8 of the Agreement. The Executive's entitlement to holiday will accrue
pro rata through each calendar year or part thereof of employment.
On the cessation of employment for whatsoever reason an adjustment shall be
made to the final payment of salary to the Executive by way of additional
payment of salary in respect of holidays accrued if appropriate.
7. REMUNERATION
See Clause 4.
8. HOURS OF WORK
The hours of work will be from 9.15 am to 5.15 pm, Monday to Friday, and
any such hours as may be necessary or required from time to time.
9. SICKNESS OR INJURY
The Executive is entitled to be paid during absence from work during
sickness or injury -- see Clause 9.
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10. NOTICES
See Clause 18.
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EXECUTED AND DELIVERED as a
deed by GETTY IMAGES, INC.
acting by
(a director)
and
(a director / secretary)
SIGNED AND DELIVERED as a deed
by the said DAVID HOWARD
in the presence of
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