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Separation and Consultancy Agreement - Getty Images inc. and Suzanne L. Page
SEPARATION AND CONSULTANCY AGREEMENT
This Separation and Consultancy Agreement ("Agreement") is entered into
this 31st day of August, 2000 (the "Effective Date"), by and between Getty
Images, Inc. of 701 N. 34th Street, 4th Floor, Seattle, WA 98103 ("Getty"), and
Suzanne L. Page of 3223 Conkling Place West, Seattle, WA 98119 ("Page").
In consideration of the mutual covenants set forth below, the parties
agree as follows:
1. Separation of Employment. Page resigns from her current position and
corporate offices of Senior Vice President, General Counsel and Corporate
Secretary with Getty, and all other officer positions she holds with Getty's
affiliates, effective September 7, 2000 (the "Separation Date"). Page and Getty
will announce this resignation no sooner than September 7, 2000. From September
8, 2000 through March 8, 2002, she will remain on Getty's payroll as a part-time
employee, but shall only receive compensation and benefits as set forth in this
Agreement.
2. Separation Package. Getty agrees to provide Page with the following
severance benefits:
(a) Separation Pay. Getty agrees that Page shall be paid 12 months
base salary in a lump sum ($210,000.00), as separation pay, on or before October
1, 2000, regardless of whether she begins other employment with a new employer
prior to October 1, 2000.
(b) Final Bonus. Getty agrees to pay Page a final bonus equal to
thirty percent (30%) of her former base salary ($210,000) for fifteen (15)
months (the "Bonus"). The Bonus shall equal Seventy-Eight Thousand Seven Hundred
Fifty Dollars ($78,750) and shall be paid on or before October 1, 2000.
(c) COBRA and Other Benefits. Getty will pay Page's COBRA premium
for October 2000 through March 2002, unless Page becomes eligible for
substantially similar group health insurance benefits through a new employer
prior to that date. If Page exercises any individual conversion options in other
Getty-sponsored group insurance plans in which she participated, Getty will pay
her premiums for such converted individual coverage from October 2000 through
September 2001. Getty will pay Page a lump sum equal to 12 months health club
dues at Sound Mind and Body no later than October 1, 2000. Getty will pay Page
One Thousand Five Hundred Dollars ($1,500) on or before October 1, 2000, to
collectively cover her bar dues for the states of Illinois, California and
Washington. Getty will also pay Page Five Thousand Dollars ($5,000) on or before
October 1, 2000 toward the cost of outplacement counseling service. Page's
employer-paid parking will end September 7, 2000. These payments shall not be
subject to withholding.
(d) Stock Options. The parties agree that any of Page's remaining
unexercised stock options from the 40,000 shares granted on January 13, 1999,
the 10,000 shares granted on August 3, 1999, the 10,000 shares granted on
October 13, 1999, the 7,500 shares granted on October 22, 1999 and the 5,000
shares granted on October 22, 1999, shall continue to
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SEPARATION AGREEMENT
vest according to their terms through March 8, 2002. Page may continue to
exercise her vested stock options any time between September 8, 2000, and the
close of business on June 7, 2002. Any and all non-vested stock options as of
March 8, 2002, however, will be cancelled. The parties hereby incorporate by
reference Section 3(d) of their December 10, 1999 Employment Agreement, as to
its provisions regarding the acceleration of stock options in the event of a
"change in control," into this Agreement.
(e) Accrued Vacation. Getty agrees to pay Page for 103.26 hours of
accrued but unused vacation, in the amount of Ten Thousand Four Hundred
Twenty-Five Dollars and Twenty-Nine Cents ($10,425.29). Payment shall be made
with the paycheck corresponding to her Separation Date. Page shall earn no
further vacation benefits after her Separation Date.
(f) Tax Withholding. All severance and bonus payments, as well as
the Consultancy Payments for part-time employment that are made under this
Agreement, shall be subject to applicable federal income tax, social security
and any other required withholdings.
(g) 401(k) Plan. Page may continue her contributions to Getty's
401(k) Plan through March 8, 2002 if allowed under the Plan terms. If Page is
eligible to continue such contributions, Getty will make any employer
contributions required by the Plan terms during this same period. After March 8,
2002, Page will be eligible to receive whatever accrued and vested amounts she
is entitled to receive according to the terms of that Plan.
(h) References. Getty may internally distribute a memo, drafted by
Page and approved by Jonathan Klein ("Klein"), acknowledging Page's resignation
from the aforementioned position and offices. Getty and Page will also work out
mutually agreeable procedures and terms concerning Page's continued use of a
voice mailbox and administrative assistant until she obtains new employment.
Getty will give Page a mutually agreeable, jointly drafted letter of reference
signed by Klein. Page will refer her prospective employers to Klein for
references. In response to reference requests from Page's prospective employers,
Klein will affirm only the information contained in this letter of reference. If
prospective employers contact Getty's Human Resources Department for a reference
on Page, it will follow its usual practice which confirms/provides dates of
employment, final position, final base salary and the fact Page resigned, though
she continues to "consult with the Company."
(i) Business Expense Reimbursement. Page will submit her final
request for reimbursement of reasonable business expenses incurred prior to her
Separation Date, to Getty no later than thirty (30) days after her Separation
Date. If Page incurs reasonable business expenses (like parking, airfare, hotel,
meals, etc.) in connection with her consulting services to Getty under Section 4
of this Agreement, such expenses will be reimbursed to her within thirty (30)
days of Getty's receipt of her itemized statements for such reimbursements.
3. D&O Coverage. Getty warrants that Page has been, and will continue to
be, protected under Getty's D&O insurance policies, for acts or omissions
committed while employed by Getty in a covered position on or before September
7, 2000.
4. Consultancy Payment. In addition to the payments under Section 2
above, subject to Page's full compliance with the terms of this Agreement, and
in consideration of Page serving
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SEPARATION AGREEMENT
as a part-time employee-consultant from September 8, 2000, through March 8,
2002, Page shall receive a monthly salary of One Thousand One Hundred Dollars
($1,100) (the "Consultancy Payment"). In exchange for this Consultancy Payment,
Page will make herself available for brief consultations to answer questions
concerning matters she previously handled or was familiar with. Getty shall give
Page reasonable notice of any consultations it may require, and Page's
consultations shall not exceed five (5) hours per month, except by mutual
agreement. Should Getty require Page's services for a greater number of hours,
Getty shall remit additional compensation in the sum of Two Hundred Fifty
Dollars ($250.00) per hour, payable to Page within thirty (30) days of the
receipt of an itemized statement for such from Page.
5. Releases. Page accepts the Separation Package and Consultancy Payment
contained in this Agreement in full satisfaction of all her rights and interests
relating to her employment with and separation from Getty and in full
satisfaction of all her rights and interests arising under any pre-existing
agreements between the parties including, without limitation, the Employment
Agreement and the amendment thereto dated December 10, 1999, and April 1, 2000,
respectively, and any and all option agreements between Page and Getty or
between Page and Getty Images. In consideration therefore, Page and her heirs,
executors, successors and assigns, hereby releases and forever discharges Getty
and its respective affiliates, subsidiaries, successors, past and present
officers, directors, agents, employee benefit plans, plan trustees, and
employees from any and all claims, causes of action or liabilities, at law or in
equity, judicial or administrative, debts, sums of money, accounts, judgments or
demands, suspected or unsuspected and irrespective of any present lack of
knowledge of any possible claim or of any fact or circumstance pertaining
thereto, which have arisen or may arise related to Page's employment, or
separation from employment, with Getty on or before the Effective Date of this
Agreement.
This release specifically covers, but is not limited to, any claims of
discrimination or harassment based on race, color, national origin, sex, marital
status, or physical or mental disability under any federal, state, or local law,
rule, or regulation; any contract or tort claims arising under federal, state,
or local law; any claims arising under federal, state or local law based on
promises made or allegedly made by Getty to Page; any claims under any express
or implied contract or legal restrictions on Getty's right to terminate its
employees; any claims of unfair dismissal pursuant to the laws of the United
States, the United Kingdom or any other foreign country. Page hereby covenants
not to assert any such claims or causes of action.
Getty and its respective affiliates, subsidiaries, successors, past and
present officers, directors, agents, and employees, hereby releases and forever
discharges Page and her heirs, executors, successors and assigns from any and
all claims, causes of action or liabilities, at law or in equity, judicial or
administrative, debts, sums of money, accounts, judgments or demands, suspected
or unsuspected and irrespective of any present lack of knowledge of any possible
claim or of any fact or circumstance pertaining thereto, which have arisen or
may arise related to Page's employment, or separation from employment, with
Getty on or before the Effective Date of this Agreement.
6. Non-Disparagement. Page and Getty agree for themselves and all others
acting on their behalf, either directly or indirectly, not to take, support,
encourage, induce or voluntarily participate in any action or attempted action
that would negatively comment on, disparage, or
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SEPARATION AGREEMENT
call into question the business operations, policies, or conduct of the other,
or any parent, subsidiaries, affiliates, officers or employees thereof, or to
act in any way with respect to such business operations, policies or conduct
that would damage the other's reputation, business relationships, or present or
future business, or the reputation of any past or present directors, executives,
officers, agents, employees or parents, affiliates and subsidiaries of the
other. Each party agrees that they will not comment about the other party to any
person or entity, including but not limited to current or former employees,
officers or customers, concerning such business operations, policies or conduct
except as required or permitted by law or as necessary for that party to defend
itself in any civil, criminal, administrative, judicial, arbitral, or
administrative proceeding. Each party further agrees that from this point
forward it will not state, comment or suggest to any persons any false reasons
for Page's separation from employment with Getty. Nothing in this paragraph
shall prevent Page from commenting about her work experience at Getty in
connection with any bona fide efforts at seeking employment, but in such event,
she will not disparage Getty in any way.
7. Proprietary Rights. The parties hereby incorporate by reference
Section 6 of their December 10, 1999, Employment Agreement, and Page reaffirms
her obligations set forth therein to protect Getty's described interests during
the defined "Restrictive Period"; provided, however, that Page may keep the fax
machine, cell phone and lap top computer, provided the cell phone billing is
transferred to Page effective September 8, 2000, and the lap top has been
inspected to remove Getty's licensed software and any "confidential
information."
8. Confidentiality. Page and Getty agree to keep the terms of this
Agreement confidential, except for communications about it by Page with her
immediate family, attorney or accountants or other professional financial
advisors, or communications by Getty with its attorneys, financial advisors, or
executive management personnel with a bona fide need to know. Page and Getty
further agree to take all reasonable steps necessary to ensure that
confidentiality is maintained by any of the individuals referenced above to whom
disclosure is authorized, and agree to accept responsibility for any breach of
confidentiality by any individual to whom the terms of the Agreement are
disclosed. The parties agree that damages for breach of this Confidentiality
provision would be difficult to determine and therefore agree that this
provision may be enforced by temporary or permanent injunction. The right to
such injunctive relief shall be in addition to and not in place of any further
remedies to which the non-breaching party may be entitled.
9. Complete Agreement. This Agreement constitutes a full and final
resolution of all matters in any way related to Page's employment with, and
separation from, Getty. This Agreement supersedes any and all other agreements
between the parties including without limitation her Employment Agreement and
Amendments thereto dated December 10, 1999, and April 1, 2000, respectively.
Except as provided in this Agreement, there are no other wages, bonuses or
benefits of any kind owed by Getty to Page.
10. No Admission. Nothing in this Agreement shall be construed as any
indication that Getty has acted wrongfully towards Page or any other person, or
that Page has committed any misconduct or impropriety.
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SEPARATION AGREEMENT
11. Voluntary Execution. Page represents that she has read, considered,
and fully understands this Agreement and all its terms, and executes it freely
and voluntarily. Page represents that in entering into this Agreement, she does
not rely and has not relied upon any representation or statement made by Getty
or any of their respective employees or agents concerning this Agreement.
12. Construction of Agreement; Governing Law, Venue. Each party has had
a full and complete opportunity to review this Agreement, and has been given the
opportunity to have counsel review it. Accordingly, the parties agree that the
common law principles of construing ambiguities against the drafter shall have
no application to this Agreement. Interpretation of this Agreement shall be
under Washington law. Any action to determine the construction, validity or
performance of this Agreement will be settled by adjudication before the
Superior Courts of the State of Washington in King County or the Federal
District Courts of the Western District of Washington (as permitted by law) and
each party hereby consents to the jurisdiction of such courts for all disputes,
controversies and claims and waives any venue or non conveniens argument.
13. Amendment. The parties agree that no modification, change or
amendment of this Agreement or any of its provisions shall be valid, unless in
writing and signed by the party against whom such claimed modification, change
or amendment is sought to be enforced.
14. Severability. If any provision of this Agreement, or portion
thereof, shall be held invalid or unenforceable by a court of competent
jurisdiction or in any arbitration proceeding, such invalidity or
unenforceability shall attach only to such provision or portion thereof, and
shall not in any way affect or render invalid or unenforceable any other
provision of this Agreement or portion thereof, and this Agreement shall be
carried out as if any such invalid or unenforceable provision or portion thereof
were not contained herein. In addition, any such invalid or unenforceable
provision shall be deemed, without further action on the part of the parties,
modified, amended or limited to the extent necessary to render the same valid
and enforceable.
15. Attorney's Fees. In the event any proceeding or lawsuit is brought
in connection with this Agreement, the prevailing party in such proceeding shall
be entitled to receive its costs, expert witness fees and reasonable attorneys'
fees, including costs and fees on appeal. The parties will each bear their own
costs and attorney's fees incurred in reviewing and negotiating this Agreement.
16. Counterparts. This Agreement may be executed via facsimile and in
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same document.
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SEPARATION AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first written above.
SUZANNE L. PAGE
____________________________________
Suzanne L. Page
GETTY IMAGES, INC.
By _________________________________
Jonathan Klein, CEO