Registration Rights Agreement - Getty Images Inc., Getty Communications plc, Photodisc Inc. and Carlton Communications BV
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January [__], 1998 (this
"Agreement"), among Getty Images, Inc., a Delaware corporation (the "Company"),
Getty Communications plc, a public limited company organized under the laws of
England and Wales ("Getty Communications"), PhotoDisc, Inc., a Washington
corporation ("PhotoDisc"), and Carlton Communications BV, a company organized
under the laws of The Netherlands ("Carlton").
WHEREAS, the Company, Getty Communications, PhotoDisc and Print
Merger, Inc., a Washington corporation and a wholly owned subsidiary of the
Company ("Merger Sub"), are parties to the Merger Agreement (the "Merger
Agreement") dated as of September 15, 1997, pursuant to which and subject to the
terms and conditions contained therein, (i) the Company and Getty Communications
will enter into a scheme of arrangement in accordance with the Companies Act of
1985 of Great Britain (the "Scheme of Arrangement") and (ii) Merger Sub will be
merged with PhotoDisc (the "Merger", and together with the Scheme of
Arrangement, the "Transactions"); and
WHEREAS, Getty Communications and Carlton are parties to the
Subscription Agreement (the "Subscription Agreement"), dated as of December 10,
1996;
WHEREAS, Getty Communications and Carlton are parties to the
Registration Rights Agreement (the "Old Carlton Registration Rights Agreement"),
dated as of December 10, 1996;
WHEREAS, the Company, Getty Communications, PhotoDisc and Carlton are
parties to the Voting Agreement (the "Carlton Voting Agreement"), dated as of
September 16, 1997; and
WHEREAS, the parties hereto desire to terminate the Subscription
Agreement, the Old Registration Rights Agreement, the Carlton Voting Agreement
and the Letter Agreement, and to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties and conditions contained herein, the parties hereto
agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. As used in this Agreement, the following terms shall
have the following respective meanings:
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or any other United States federal agency at the time
administering the Securities Act or the Exchange Act, as applicable,
whichever is the relevant statute.
"COMPANY COMMON STOCK" shall mean the common stock, par value
$0.01 per share, of the Company.
"EXCHANGE ACT" shall mean the United States Securities Exchange
Act of 1934, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be amended from time to
time.
"HOLDER" shall mean Carlton or any transferee or assignee
thereof to whom the rights under this Agreement are assigned in accordance
with the provisions of Section 3.11 hereof.
"PERSON" shall mean a corporation, association, partnership,
organization, group (as such term is used in Rule 13d-5 under the Exchange
Act), business, individual, government or political subdivision thereof,
governmental agency or other entity.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus
supplement with respect of the terms of the offering of any security of the
Company covered by such Registration Statement and all other amendments or
supplements to the prospectus, including post-effective amendments, and all
material incorporated, or deemed to be incorporated, by reference in such
prospectus.
"REGISTRABLE SECURITIES" shall mean any Company Common Stock
issued to Carlton pursuant to the Scheme of Arrangement or securities which
may be issued or distributed in respect thereof by way of stock dividend or
stock split or other distribution, recapitalization, or reclassification.
For purposes of this Agreement, any Registrable Securities shall cease to
be Registrable Securities when (i) a Registration Statement with respect to
the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such Registration Statement, (ii) such Registrable
Securities are sold by a person in a transaction in which the rights under
the provisions of this Agreement are not assigned, or (iii) such
Registrable Securities shall have ceased to be outstanding.
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"REGISTRATION STATEMENT" shall mean any registration statement
under the Securities Act filed by the Company, including the Prospectus
contained therein, any amendments and supplements to such registration
statement, including post-effective amendments, and all exhibits and all
material incorporated, or deemed to be incorporated, by reference in such
registration statement.
"SECURITIES ACT" shall mean the United States Securities Act of
1933, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be amended from time to time.
ARTICLE II
AGREEMENTS IN RESPECT OF THE REGISTRABLE SECURITIES
SECTION 2.01. INCIDENTAL REGISTRATION. If, at any time following the
completion of the Transactions, the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering of Company Common
Stock (i) for its own account (other than a Registration Statement on Form S-4
or S-8 (or any substitute form that may be adopted by the Commission)) or (ii)
for the account of any holders of Company Common Stock, the Company shall give
written notice of such proposed filing to the Holder as soon as practicable (but
in any event not less than 30 days before the anticipated filing date), and such
notice shall offer the Holder the opportunity to register such number of
Registrable Securities as the Holder shall request. Upon the written direction
of the Holder, given within 20 days following the receipt by the Holder of any
such written notice (which direction shall specify the number of Registrable
Securities intended to be disposed of by the Holder), the Company shall include
in such Registration Statement (an "Incidental Registration") such number of
Registrable Securities as shall be set forth in such notice. Notwithstanding
anything contained herein, if the lead underwriter of an offering involving an
Incidental Registration delivers a written opinion to the Company that the
inclusion of such Registrable Securities would (i) materially and adversely
affect the price of the Company Common Stock to be offered or (ii) result in a
greater amount of Company Common Stock being offered than the market could
reasonably absorb, then the number of Registrable Securities to be registered by
the Holder shall be reduced to the extent that, in the lead underwriter's
opinion, neither of the effects in the foregoing clauses (i) and (ii) would
result from the number of shares of Company Common Stock proposed to be issued
by the Company. Nothing contained herein shall require the Company to reduce
the number of shares of Company Common Stock proposed to be issued by the
Company.
SECTION 2.02. SHELF REGISTRATION. In the event that the Company
shall not have filed with the Commission on or prior to March 31, 1998 a
Registration Statement in which the Holder has been entitled to participate in
accordance with Section 2.01, the Company agrees it shall, as promptly as
practicable after March 31, 1998, prepare and file
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with the Commission a Registration Statement (a "Shelf Registration" and,
collectively with an Incidental Registration, a "Registration") providing for
an offering to be made on a continuous basis pursuant to Rule 415 covering
all of the Registrable Securities held by the Holder; PROVIDED, HOWEVER, that
if (i) the Company is then using its reasonable best efforts to file an
Incidental Registration with the Commission pursuant to Section 2.01, the
Company need not file a Shelf Registration with the Commission until the
earlier of (i) 14 days after a decision is taken not to proceed with such
Incidental Registration and (ii) June 30, 1998. After such Shelf
Registration is filed with the Commission, the Company shall use its
reasonable best efforts to cause such Shelf Registration to be declared
effective promptly and to keep the Shelf Registration continuously effective
under the Securities Act until the date which is one year after the Closing
of the Transactions under the Merger Agreement, or such earliest date when
(i) all Registrable Securities covered by the Shelf Registration have been
sold, (ii) the Holder shall have sold Registrable Securities pursuant to the
Shelf Registration in two Sales Periods (as defined in Section 2.03 hereof)
or (iii) all Registrable Securities held by the Holder can be sold within a
three month period under Rule 144 under the Securities Act. The Company may,
if its executive officers determine in the good faith exercise of their
reasonable judgment that it would be inadvisable to effect the Shelf
Registration, or to permit the commencement of any Sales Period, defer such
Shelf Registration or the commencement of such Sales Period.
SECTION 2.03. LIMITATION ON METHOD OF SALES. The Holder agrees, and
the Shelf Registration shall provide in its plan of distribution, that the
Holder will sell such Registrable Securities only in accordance with this
Section 2.03. No sales of Company Common Stock included in the Shelf
Registration shall be made except during the 30 day period ("Sales Period")
commencing five days after the public announcement by the Company of quarterly
or annual operating results; PROVIDED that sales pursuant to the Shelf
Registration may be made only during two Sales Periods and not more than that
number of shares having an aggregate market value of $[___] shall be sold in any
one Sales Period; and PROVIDED, FURTHER, that any Sales Period commenced by
notification pursuant to this Section 2.04 shall count as one of the two Sales
Periods permitted by this Section 2.03 whether or not sales are in fact made
during such Sales Period. Sales of Registrable Securities included in the Shelf
Registration shall be made through the facilities of the Nasdaq National Market
("Nasdaq") through any of three Nasdaq member firms designated by and mutually
acceptable to the Company and the Holder. The Company and the Holder agree that
[____], [_____] and [____] are acceptable Nasdaq member firms.
SECTION 2.04. NOTIFICATION OF SALES. If the Holder intends to sell
some or all of its Registrable Securities during a Sales Period pursuant to
Section 2.02 or 2.03, the Holder shall give notice in writing to the Company ten
trading days prior to making any sale of Registrable Securities pursuant to the
Shelf Registration during any Sales Period. Such notice shall constitute
commencement of one of the two Sales Periods during which the Holder may dispose
of Registrable Securities pursuant to the Shelf Registration unless the Holder
is unable to sell Registrable Securities pursuant to the Shelf Registration for
at least ten trading days during such Sales Period as a result of (a) such
determination, pursuant to Section 2.02 hereof, by the Company not to effect the
Shelf Registration or permit the commencement of a Sales
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Period or to defer the Shelf Registration or commencement of such Sales
Period or (b) a notification under Section 2.05(v) hereof. The Holder shall
advise the Company on a weekly basis of sales pursuant to the Shelf
Registration.
SECTION 2.05. REGISTRATION PROCEDURES. (a) In connection with each
Registration, and in accordance with the intended method or methods of
distribution of the Company Common Stock as described in such Registration, the
Company shall, as soon as reasonably practicable (and, in any event, subject to
the terms of this Agreement, at or before the time required by applicable laws
and regulations):
(i) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities and use its reasonable best
efforts to cause such Registration Statement to become and remain effective
for the period of the distribution contemplated thereby determined as
provided hereafter; PROVIDED, HOWEVER, that the Company shall use its
reasonable best efforts to cause a Registration Statement on Form S-3 to
remain effective until the earlier of (i) the disposition of all the
Registrable Securities registered thereto, and (ii) the expiration of the
90-day period commencing on the first day of the effectiveness of such
Registration;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
Securities covered by such Registration Statement;
(iii) furnish to the Holder such numbers of copies of the
Registration Statement and the Prospectus included therein (including each
preliminary prospectus and any amendments or supplements thereto), in
conformity with the requirements of the Securities Act and such other
documents and information as it may reasonably request;
(iv) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdiction within the United
States and Puerto Rico as shall be reasonably appropriate for the
distribution of the Registrable Securities covered by the Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business in
or to file a general consent to service of process in any jurisdiction
wherein it would not but for the requirements of this paragraph (iv) be
obligated to do so; and PROVIDED, FURTHER, that the Company shall not be
required to qualify such Registrable Securities in any jurisdiction in
which the securities regulatory authority requires that the Holder submit
any of its Registrable Securities to the terms, provisions and restrictions
of any escrow, lockup or similar agreement(s) for consent to sell
Registrable Securities in such jurisdiction unless the Holder agrees to do
so;
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(v) promptly notify the Holder, at any time when a Prospectus
relating to the Registrable Securities is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made, and at the request of the Holder promptly prepare and
furnish to the Holder a reasonable number of copies of a supplement to or
an amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such Prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made;
(vi) use its reasonable best efforts to furnish, at the request of the
Holder requesting Registration of Registrable Securities pursuant to
Sections 2.01 or 2.02 hereof, if the method of distribution is by means of
an underwriting, on the date that the Registrable Securities are delivered
to the underwriters for sale pursuant to such registration, or if such
Registrable Securities are not being sold through underwriters, on the date
that the Registration Statement with respect to such Registrable Securities
becomes effective, (1) a signed opinion, dated such date, of the
independent legal counsel representing the Company for the purpose of such
registration, addressed to the underwriters, if any, and if such
Registrable Securities are not being sold through underwriters, then to the
Holder making such request, as to such matters as such underwriters or the
Holder, as the case may be, may reasonably request and as would be
customary in such a transaction; and (2) letters dated such date and the
date the offering is priced from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and if
such Registrable Securities are not being sold through underwriters, then
to the Holder and, if such accountants refuse to deliver such letters to
the Holder, then to the Company (A) stating that they are independent
certified public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements and
other financial data of the Company included in the Registration Statement
or the Prospectus, or any amendment or supplement thereto, comply as to
form in all material respects with the applicable accounting requirements
of the Securities Act and (B) covering such other financial matters
(including information as to the period ending not more than five (5)
business days prior to the date of such letters) with respect to the
Registration in respect of which such letter is being given as such
underwriters or the Holder, as the case may be, may reasonably request and
as would be customary in such a transaction;
(vii) enter into customary agreements (including if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of the Registrable
Securities to be so included in the Registration Statement;
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(viii) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, but not later than
eighteen (18) months after the effective date of the Registration
Statement, an earnings statement covering the period of at least
twelve (12) months beginning with the first full month after the effective
date of such Registration Statement, which earnings statements shall
satisfy the provisions of Section 11(a) of the Securities Act; and
(ix) use its reasonable best efforts to list the Company Common Stock
covered by such Registration Statement with any securities exchange on
which the Company Common Stock are then listed.
(b) The Holder shall furnish to the Company in writing such
information regarding the Holder and its intended method of distribution of the
Registrable Securities as the Company may from time to time reasonably request
in writing, but only to the extent that such information is required in order
for the Company to comply with its obligations under all applicable securities
and other laws and to ensure that the Prospectus relating to such Registrable
Securities conforms to the applicable requirements of the Securities Act and the
rules and regulations thereunder. The Holder shall notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by the Holder to the Company or of the occurrence of any event, in
either case as a result of which any Prospectus relating to the Registrable
Securities contains or would contain an untrue statement of a material fact
regarding the Holder or its intended method of distribution of such Registrable
Securities or omits to state any material fact regarding the Holder or its
intended method of distribution of such Registrable Securities required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and promptly furnish
to the Company any additional information required to correct and update any
previously furnished information, or required so that such prospectus shall not
contain, with respect to the Holder or the intended method of distribution of
the Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
SECTION 2.06. REGISTRATION EXPENSES. All expenses incurred in
connection with a Registration pursuant to Sections 2.01 and 2.02 of this
Agreement, excluding underwriters' discounts and commissions and any stamp or
transfer tax or duty, but including without limitation all registration, filing
and qualification fees, word processing, duplicating, printers' and accounting
fees (including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance), fees of the
National Association of Securities Dealers, Inc. or listing fees, messenger and
delivery expenses, all fees and expenses of complying with state securities or
blue sky laws, fees and disbursements of one counsel for the Holders and fees
and disbursements of counsel for the Company incurred in connection with each
registration shall be paid by the Company. The Holder shall bear and pay the
underwriting commissions and discounts and any stamp or transfer tax or
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duty and the fees and disbursements of counsel for the Holder other than the
one counsel referred to above incurred in connection with the Shelf
Registration applicable to securities offered for its account in connection
with any Registrations, filings and qualifications made pursuant to this
Agreement.
SECTION 2.07. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, and it hereby
agrees to, indemnify and hold harmless the Holder, the Holder's directors and
officers, and each person who participates as a placement or sales agent or as
an underwriter (within the meaning of the Securities Act) in any offering or
sale of the Registered Securities, against any losses, claims, damages or
liabilities ("Losses") to which the Holder or such agent or underwriter may
become subject, insofar as such Losses (or actions or proceedings in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus contained therein or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the Company
shall, and it hereby agrees to, reimburse the Holder or any such agent or
underwriter for any legal or other out-of-pocket expenses reasonably incurred by
them (but not in excess of expenses incurred in respect of one counsel for all
of them unless there is an actual conflict of interest between any indemnified
parties, which indemnified parties may be represented by separate counsel) in
connection with investigating or defending any such action, proceeding or claim;
PROVIDED, HOWEVER, that the indemnity agreement contained in this Section
2.07(a) shall not apply to amounts paid in settlement of any such Loss or action
if such settlement is effected without the consent of the Company which consent
shall not be unreasonably withheld; PROVIDED, FURTHER, that the Company shall
not be liable to any such person in any such case to the extent that any such
Loss or expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement or Prospectus contained therein, in reliance upon and in conformity
with written information furnished to the Company by the Holder or any agent,
underwriter or representative of the Holder expressly for use therein, or by the
Holder's failure to furnish the Company, upon request, with the information with
respect to the Holder, the Holder's directors and officers, or any agent,
underwriter or representative of the Holder, or the Holder's intended method of
distribution, that is the subject of the untrue statement or omission or if the
Company shall sustain the burden of proving that the Holder, the Holder's
directors and officers, or such agent or underwriter sold securities to the
person alleging such Loss without sending or giving, at or prior to the written
confirmation of such sale, a copy of the applicable Prospectus (excluding any
documents incorporated by reference therein) or of the applicable Prospectus, as
then amended or supplemented (excluding any documents incorporated by reference
therein) if the Company had previously furnished copies thereof to the Holder or
such agent or underwriter, and such Prospectus corrected such untrue statement
or alleged untrue statement or omission or alleged omission made in such
Registration.
(b) INDEMNIFICATION BY THE HOLDER AND ANY AGENT OR UNDERWRITERS. The
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Holder shall indemnify and hold harmless the Company, each of its directors and
officers, each person, if any, who controls the Company within the meaning of
the Securities Act, and each agent and any underwriter for the Company (within
the meaning of the Securities Act) against any Losses, joint or several, to
which the Company or any such director, officer, controlling person, agent or
underwriter may become subject, under the Securities Act or otherwise, insofar
as such Losses (or proceedings in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement on the effective date thereof
(including any Prospectus filed under Rule 424 under the Securities Act or any
amendments or supplements thereto) or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
Registration Statement or Prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished by or on
behalf of the Holder expressly for use in connection with such Registration
Statement or Prospectus, or by the Holder's failure to furnish the Company, upon
request, with the information with respect to the Holder, the Holder's directors
and officers, or any agent, underwriter or representative of the Holder, or the
Holder's intended method of distribution, that is the subject of the untrue
statement or omission; and the Holder shall reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer,
controlling person, agent or underwriter (but not in excess of expenses incurred
in respect of one counsel for all of them unless there is an actual conflict of
interest between any indemnified parties, which indemnified parties may be
represented by separate counsel) in connection with investigating or defending
any such Loss or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 2.07(b) shall not apply to amounts paid in settlement
of any such Loss or action if such settlement is effected without the consent of
the Holder which consent shall not be unreasonably withheld.
(c) NOTICE OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action or proceeding for which indemnification under subsection (a) or (b)
may be requested, such indemnified party shall, without regard to whether a
claim in respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of, or as contemplated by, this Section 2.07,
notify such indemnifying party in writing of the commencement of such action or
proceeding; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party in
respect of such action or proceeding on account of the indemnification
provisions of or contemplated by Section 2.07(a) or 2.07(b) hereof unless the
indemnifying party was materially prejudiced by such failure of the indemnified
party to give such notice, and in no event shall such omission relieve the
indemnifying party from any other liability it may have to such indemnified
party. In case any such action or proceeding shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall determine, jointly with any other indemnifying party
similarly notified, to assume the defense
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thereof, with counsel reasonably satisfactory to such indemnified party, and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not
be liable to such indemnified party for any legal or any other expenses
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation (unless such
indemnified party reasonably objects to such assumption on the grounds that
there may be defenses available to it which are different from or in addition
to the defenses available to such indemnifying party, in which event the
indemnified party shall have the right to control its defense and shall be
reimbursed by the indemnifying party for the expenses incurred in connection
with retaining separate counsel). If the indemnifying party is not entitled
to, or elects not to, assume the defense of a claim, it will not be obligated
to pay the fees and expenses of more than one counsel (in addition to local
counsel) for each indemnified party with respect to such claim. The
indemnifying party will not be subject to any liability for any settlement
made without its consent, which consent shall not be unreasonably withheld or
delayed. No indemnifying party will consent to entry of any judgment or
enter into any settlement agreement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation.
(d) CONTRIBUTION. The Holder and the Company agree that if, for any
reason, the indemnification provisions contemplated by Section 2.07(a) or
Section 2.07(b) hereof are unavailable to or are insufficient to hold harmless
an indemnified party in respect of any Losses (or actions or proceedings in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such Losses (or actions or proceedings in respect thereof) in such proportion
as is appropriate to reflect the relative fault of, and benefits derived by, the
indemnifying party and the indemnified party, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 2.07(d) were determined
(i) by pro rata allocation (even if the Holder or any agents for, or
underwriters of, the Registrable Securities, or all of them, were treated as one
entity for such purpose); or (ii) by any other method of allocation which does
not take account of the equitable considerations referred to in this Section
2.07(d). The amount paid or payable by an indemnified party as a result of the
Losses (or actions or proceedings in respect thereof) referred to above shall be
deemed to include (subject to the limitations set forth in Section 2.07(c)
hereof) any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action,
proceeding or claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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(e) BENEFICIARIES OF INDEMNIFICATION. The obligations of the Company
under this Section 2.07 shall be in addition to any liability that it may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of the Holder requesting or joining in a
Registration and each agent and underwriter of the Registrable Securities and
each person, if any, who controls the Holder or any such agent or underwriter
within the meaning of the Securities Act; and the obligations of the Holder and
any agents or underwriters contemplated by this Section 2.07 shall be in
addition to any liability that the Holder or its respective agent or underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent,
is named in any Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Securities Act.
SECTION 2.08. TERMINATION OF REGISTRATION RIGHTS. Notwithstanding
any other provisions of this Agreement to the contrary, the registration rights
granted pursuant to this Agreement shall terminate on the earlier of: (i) the
date that the Registrable Securities held by such Holder can be sold within a
three month period under Rule 144 under the Securities Act; or (ii) on the
first anniversary of the date of this Agreement, regardless of the tradeability
of any Registrable Securities held by the Holder.
SECTION 2.09. UNDERWRITERS. If any of the Registrable Securities are
to be sold pursuant to an underwritten offering, the investment banker or
bankers and the managing underwriter or underwriters thereof shall be selected
by the Company after consultation with the Holder, PROVIDED, that such managing
underwriter or underwriters must be of recognized international standing.
SECTION 2.10. LOCKUP. The Holder shall, in connection with any
Registration of the Company's securities, upon the request of the Company or the
underwriters managing any underwritten offering of the Company's securities,
agree in writing not to effect any sale, disposition or distribution of any
Registrable Securities (other than that included in the Registration) without
the prior written consent of the Company or such underwriters, as the case may
be, for such period of time not to exceed one hundred and eighty (180) days from
the effective date of such Registration as the Company or the underwriters may
specify; PROVIDED, HOWEVER, that all executive officers and directors of the
Company shall also have agreed not to effect any sale, disposition or
distribution of any Registrable Securities under the circumstances and pursuant
to the terms set forth in this Section 2.10.
SECTION 2.11. TRANSFER OF REGISTRATION RIGHTS. The Holder may not
transfer its rights under this Agreement without the written consent of the
Company.
SECTION 2.12. PUBLIC INFORMATION. The Company covenants to make
available "adequate current public information" concerning the Company within
the meaning of Rule 144(c) under the Securities Act.
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ARTICLE III
TERMINATION OF PRIOR AGREEMENTS
SECTION 3.01. TERMINATION OF PRIOR AGREEMENTS. Each of the
Subscription Agreement, the Old Carlton Registration Rights Agreement and the
Carlton Voting Agreement is hereby terminated.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. EXPENSES. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
SECTION 4.02. NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given and made upon receipt) by delivery
in person, by courier service, by cable, by facsimile, by telegram, by telex, or
by registered or certified mail (postage prepaid, return receipt requested) to
the respective parties at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section
4.02):
(a) if to the Company:
Getty Images, Inc.
500 North Michigan Avenue, Suite 1700
Chicago, Illinois 60611
Facsimile: [_______]
Attention: [_______]
with copies to:
Clifford Chance
200 Aldersgate
London EC1A 4JJ
Facsimile: (44171) 600-5555
Attention: Michael Francies
Shearman & Sterling
555 California Street
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San Francisco, California 94104
Facsimile: (415) 616-1199
Attention: Christopher D. Dillon
(b) if to the Holder:
Carlton Communications B.V.
Vossenbeomd 51
5705 CL Helmond
The Netherlands
Facsimile: [_______]
Attention: [_______]
with a copy to:
Carlton Communications B.V.
25 Knightsbridge
London SW1X 7RZ
SECTION 4.03. PUBLIC ANNOUNCEMENTS. No party to this Agreement
shall make, or cause to be made, any press release or public announcement in
respect of this Agreement or the transactions contemplated hereby or otherwise
communicate with any news media without the prior written consent of the other
party (except to the extent that such disclosure is required by law or the rules
of the Nasdaq National Market), and, to the extent practicable, the parties
shall cooperate as to the timing and contents of any such press release or
public announcement.
SECTION 4.04. HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 4.05. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule of law
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
SECTION 4.06. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all
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prior agreements and undertakings, both written and oral, among the parties
hereto with respect to the subject matter hereof, except as otherwise
expressly provided herein.
SECTION 4.07. ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns; PROVIDED, HOWEVER, that this Agreement shall
not inure to the benefit of any transferee unless such transferee shall have
complied with the terms of Section 2.11. No Holder may assign any of its rights
hereunder to any Person other than a transferee that has complied with the
requirements of Section 2.11 in all respects.
SECTION 4.08. NO THIRD PARTY BENEFICIARY. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 4.09. AMENDMENT. This Agreement may not be amended or
modified except (a) by an instrument in writing signed by, or on behalf of, the
parties hereto or (b) by a waiver in accordance with Section 4.10 of this
Agreement.
SECTION 4.10. WAIVER. Any party to this Agreement may (a) extend the
time for the performance of any obligations or other acts of any other party
hereto or (b) waive compliance with any agreements or conditions contained
herein. Any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the party to be bound thereby. Any waiver of
any term or condition shall not be construed as a waiver of any subsequent
breach or a subsequent waiver of the same term or condition, or as a waiver of
any other term or condition, of this Agreement. The failure of any party to
assert any of its rights hereunder shall not constitute a waiver of any of such
rights.
SECTION 4.11. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed entirely within that State. All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined in any Delaware state or federal court sitting in the State
of Delaware.
SECTION 4.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
SECTION 4.13. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
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SECTION 4.14. SURVIVAL. The several indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
and made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any party, any director or officer of such party, or any controlling person of
any of the foregoing, and shall survive the transfer of any Registrable
Securities by the Holder, and the indemnification and contribution provisions
set forth in Section 2.07 hereof shall survive termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized or in their individual capacities, as applicable.
GETTY IMAGES, INC.
By:
Name:
Title:
GETTY COMMUNICATIONS PLC
By:
Name:
Title:
PHOTODISC, INC.
By:
Name:
Title:
CARLTON COMMUNICATIONS BV
By:
Name:
Title: