Employment Agreement - Getty Images Inc. and Mark Torrance
S&S DRAFT -- 12/21/97
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of this [___] day of January, 1998, by and
between GETTY IMAGES, INC., a Delaware corporation (the "COMPANY"), whose
principal executive offices are located at 500 North Michigan Avenue, Suite
1700, Chicago Illinois 60611 and MARK TORRANCE, an individual residing at
[ ] (the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Executive is presently serving as Chairman of the
Board and Chief Executive Officer of PhotoDisc, Inc. ("PHOTODISC"); and
WHEREAS, Getty Communications, plc, the predecessor to the Company,
is a party to a merger agreement dated as of September 15, 1997 (the "MERGER
AGREEMENT"), pursuant to which PhotoDisc shall merge into a merger subsidiary
of the Company; and
WHEREAS, the Company seeks to employ the Executive and the
Executive seeks to become 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 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 Company (the "BOARD"). In such
capacity, the Executive shall report directly and only to the Board. The
Executive's principal place of business shall be _________________.
(b) SERVICES AND DUTIES. For so long as the Executive is employed
by the Company, the Executive 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 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 share equal duties and authority with his Co-Chairman and
Chief Executive
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Officer for the financial performance of the Company, the management of the
Company'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 Company. The Executive shall have a special
emphasis on technology and corporate culture.
(c) NO OTHER EMPLOYMENT. 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.
(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.
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
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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
Company pursuant to the terms of the Company'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 Company 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 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.
(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).
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(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. 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(b) 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.
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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) 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) the Executive files
for personal bankruptcy under the United States Bankruptcy Code.
(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 180 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
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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 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
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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 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.
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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.
(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.
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(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, entertainmnet 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 of the Company 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).
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.
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(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 Images, Inc.
500 North Michigan Avenue
Suite 1700
Chicago, Illinois 60611
With copies to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attn.: John J. Cannon, III, Esq.
Shearman & Sterling
555 California Street
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 Torrance
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[Address]
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 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.
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(j) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (determined
without regard to the choice of law provisions thereof).
(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.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the day and year first written above.
GETTY IMAGES, INC.
By:
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Name:
Title:
EXECUTIVE
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Mark Torrance