Employment Agreement - Getty Communications plc and Jonathan D. Klein
S&S DRAFT -- 12/21/97
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 NW1 OAG and JONATHAN D. KLEIN, an individual
residing at 34 Crediton Hill, London NW6 1HP (the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Executive is presently serving as the Chief Executive
Officer of Getty Communications plc ("GETTY"); and
WHEREAS, Getty 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 Sole Group Chief Executive of the Company. In such
capacity, the Executive shall report directly and only to the Executive
Committee, which in turn reports directly and only to the Board of Directors
of the Parent (the "BOARD"). The Executive's principal place of business
shall be 101 Bayham Street, London NW1 OAG and this agreement shall only be
in respect of the Executive's services to be provided and performed in the
United Kingdom.
(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
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shall devote his full business time to the performance of his duties
hereunder; shall faithfully serve the Company; shall in all respects conform
to and comply with the lawful and good faith directions and instructions
given to him by the Executive Committee and 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 Company. Specifically, the
Executive shall be solely responsible for the day-to-day operational
management of the Company, its subsidiaries and affiliates (hereinafter,
collectively the "GROUP"), provision of operational direction to the
Management Committee (including discussing, setting performance standards,
including sales targets, etc.) and oversight of corporate operations, sales,
marketing and finance, management of the Management Committee (including
"roadblock busting"), and professional development of all direct reports. In
addition, all employees of the Group (other than the Co-Chairmen) shall
report, either directly or indirectly, to the Executive.
(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 may continue to act as a non-executive
director of Hambros Bank Limited and of Getty Investments LLC. The company
recognizes that the Executive will be required to provide services for
approximately 50 percent of his working time under a consultancy agreemnet
between Getty Images, Inc. and Crediton Limited dated as of the date hereof
to the business and affairs of the Company and any Associated Company for
which he is required to perform duties.
(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.
(e) PAYMENT FOR SERVICES TO BE PERFORMED; OBLIGATIONS.
Compensation to be paid under this Agreement shall be made with regard only
to the Executive's services to be provided to the Company within the United
Kingdom pursuant to this Agreement. Any Payments with respect to services to
be provided by the Executive outside of the United Kingdom shall be paid
under the Services Agreement for the provision of the Executive's services
outside the United Kingdom.
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
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anniversary of the Effective Date.
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 [UK proportion of $325,000],
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 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 60% 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 [UK proportion of 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 [UK proportion of
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
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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.
(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.
(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
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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 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.
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 (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
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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 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
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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 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.
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(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 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.
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(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
(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 affecting 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 (whether or not by him) by or on behalf of the Company or any
Associated Company; and
2. shall observe the terms of any policy issued by the Company in
relation to Gratitities; 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).
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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.
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 NW1 0AG
England
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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: Jonathan D. Klein
34 Crediton Hill
London NW6 1HP
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
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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, other than the Services Agreements, 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 wiht 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.
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13
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first written above.
GETTY COMMUNICATIONS PLC
By:
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Name:
Title:
EXECUTIVE
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Jonathan D. Klein