Registration Rights Agreement - Getty Communications plc and The Schwartzberg Family LP
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 25, 1997 (the
"AGREEMENT"), between Getty Communications plc, a public limited company
organized under the laws of England and Wales (the "COMPANY") and The
Schwartzberg Family L.P., a California limited partnership (the "STOCKHOLDER").
WHEREAS, the Company, the Stockholder, Louis Schwartzberg ("MR.
SCHWARTZBERG") and Jan Ross ("MS. ROSS") are parties to that certain Stock
Purchaser Agreement dated as of July 25, 1997 pursuant to which the Company has
agreed to issue _____ Class A Ordinary Shares (the "SHARES") of the Company (the
"CLASS A SHARES," together with the Class B Ordinary Shares of the Company, the
"ORDINARY SHARES") to the Stockholder; and
WHEREAS, the parties each desire to make certain covenants and
agreements concerning the registration from time to time of the Registrable
Shares (as defined below) under the Securities Act (as defined below).
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:
"Affiliate" of the Stockholder shall mean Mr. Schwartzberg and Ms.
Ross and his or her spouse, his or her issue and/or a trust or trusts solely for
the benefit of his or her spouse and/or issue or a corporation all the capital
stock of which is owned beneficially and of record by the Stockholder, Mr.
Schwartzberg and/or Ms. Ross.
"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.
"Demand Registrable Shares" shall mean the total number of Registrable
Shares held by the Holder and its Affiliates at the time any Demand Right is
exercised.
"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.
"Exercise Period" shall mean the period beginning on the date of
mailing by the Company to its stockholders of its audited financial results for
the financial year ending December 31, 1998 and ending on the date on which the
Holders no longer own any Registrable Shares.
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"Holder" shall mean the Stockholder or any Affiliates thereof to whom
the rights under this Agreement are assigned by the Stockholder in accordance
with the provisions of Section 4.06 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.
"Registrable Shares" shall mean (i) the Shares, (ii) any Class A
Shares issued as (or issuable upon the conversion or exercise of any warrant,
right, option or other convertible security which is issued as) a dividend or
other distribution with respect to, or in exchange for, or in replacement of,
the Shares, and (iii) any Class A Shares issued by way of a stock split of the
Shares referred to in clause (i) or (ii), above. For purposes of this
Agreement, any Registrable Shares shall cease to be Registrable Shares when (x)
a registration statement covering such Registrable Shares has been declared
effective and such Registrable Shares have been disposed of pursuant to such
effective registration statement or (y) such Registrable Shares can be sold in
the public market by a person without registration under the Securities Act or
are sold by a person in a transaction in which the rights under the provisions
of this Agreement are not assigned.
"Securities Act" shall mean the United States Securities Act of 1933,
as amended.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Stockholder that it has been duly
organized and is an existing corporation in good standing under the laws of
England and Wales and that (i) it has all requisite corporate power and
authority, and has received all requisite approvals (including any necessary
approval of its Board of Directors) to complete the transactions contemplated
hereby and (ii) this Agreement has been duly authorized, executed and delivered
by it and constitutes a valid and binding agreement enforceable by the
Stockholder against it in accordance with its terms.
SECTION 2.02. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder represents and warrants to the Company that this Agreement has been
duly executed and delivered by the Stockholder and constitutes the legal, valid
and binding obligation of the Stockholder, enforceable against the Stockholder
in accordance with its terms.
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ARTICLE III
AGREEMENTS IN RESPECT OF THE REGISTRABLE SHARES
SECTION 3.01. DEMAND REGISTRATIONS. (a) Following the date hereof
for a period of ten (10) years (the "DEMAND PERIOD"), the Holders shall have the
right (the "DEMAND RIGHT") to require the Company to file a registration
statement under the Securities Act in respect of Registrable Shares held by such
Holder; PROVIDED, HOWEVER, that (i) such Demand Right may be exercised only
during the Exercise Period and (ii) the Holders shall be entitled to only two
(2) Demand Registrations hereunder. In exercising the Demand Right, a Holder
may only exercise it in respect of at least 50% of the Demand Registrable Shares
at that time and in no event shall a Holder be entitled to exercise the second
Demand Right hereunder until the date that is six (6) months after the date on
which the first Demand Registration hereunder is declared effective under the
Securities Act. As promptly as practicable, but in no event later than thirty
(30) days after the Company receives a written request from such Holder
demanding that the Company so register the number of Registrable Shares
specified in such request, the Company shall file with the Commission and
thereafter use its best efforts to cause to be declared effective promptly a
registration statement (a "DEMAND REGISTRATION") providing for the registration
of all Registrable Shares as such Holder shall have demanded be registered.
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(b) Anything in this Agreement to the contrary notwithstanding, the
Company shall be entitled to postpone and delay, until the earliest practicable
time at which such Demand Registration can reasonably be effective, but in no
event longer than one hundred twenty (120) days (the "BLACKOUT PERIOD"), the
filing of the Demand Registration if (i) the company is conducting or about to
conduct an underwritten public offering of securities in which the Holder is
entitled to join pursuant to Section 3.02 hereof, (ii) the Company is subject to
an existing contractual obligation with an underwriter not to engage in a public
offering, or (iii) the Company shall determine that any such filing or the
offering of any Registrable Shares would (x) in the good faith judgment of the
Board of Directors of the Company, impede, delay or otherwise interfere with any
pending or contemplated financing, acquisition, disposition, corporate
reorganization or other similar transaction involving the Company, (y) based
upon advice from the Company's investment banker or financial advisor, adversely
affect any pending or contemplated offering or sale of any class of securities
by the Company, or (z) require disclosure of material nonpublic information
which, if disclosed at such time, would be materially harmful to the interests
of the Company and its shareholders; PROVIDED, HOWEVER, that the Blackout Period
shall terminate upon the completion or abandonment of the relevant securities
offering or sale, the termination or expiration of the existing contractual
obligation to its underwriters not to engage in a public offering, the
completion or abandonment of the relevant financing, acquisition, corporate
reorganization or other similar transaction, such time as such Demand
Registration shall no longer affect the relevant pending or contemplated
offering of securities by the Company, or
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the public disclosure by the Company or public admission by the Company of
such material nonpublic information or such time as such material nonpublic
information shall be publicly disclosed, as the case may be. After the
expiration of any Blackout Period and without any further request from a
Holder, the Company shall effect the filing of the Demand Registration and
shall use its best efforts to cause any such Demand Registration to be
declared effective as promptly as practicable unless such Holder shall have,
prior to the effective date of such Demand Registration, withdrawn in writing
its initial request, in which case such withdrawn request shall not
constitute a Demand Registration for purposes of Section 3.01(a) hereunder.
In no event shall the Company be entitled to more than one (1) Blackout
Period hereunder in respect of any Demand Registration.
(c) Except with respect to any request by a Holder for a Demand
Registration which is subsequently withdrawn at the request of such Holder prior
to such Demand Registration becoming effective other than by reason of (i) a
material adverse change affecting the Company or capital markets generally, (ii)
notification by the Company of an intention to file a registration statement
with respect to the Class A Shares, or (iii) the circumstances described in
Section 3.01(b), such Holder shall pay all expenses relating to the preparation
of such withdrawn Demand Registration.
SECTION 3.02. INCIDENTAL REGISTRATION. (a) If, any time following
the date hereof and for a period of ten (10) years from the date hereof the
Company proposes to file a registration statement under the Securities Act with
respect to an offering of its Class A Shares (i) for its own account (other than
a registration statement on Form S-4 or S-8 (or any
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substitute form that may be adopted by the Commission)) or (ii) for the
account of any holders of its Class A Shares (including any pursuant to a
demand registration), the Company shall give written notice of such proposed
filing to each Holder as soon as practicable (but in any event not less than
thirty (30) days before the anticipated filing date), and such notice shall
offer each Holder the opportunity to register such number of Registrable
Shares as the Holder shall request. Upon the written direction of any
Holder, given within twenty (20) days following the receipt by such Holder of
any such written notice (which direction shall specify the number of
Registrable Shares intended to be disposed of by such Holder), the Company
shall include in such registration statement (an "INCIDENTAL REGISTRATION"
and, collectively with a Demand Registration, a "REGISTRATION") such number
of Registrable Shares as shall be set forth in such notice. Notwithstanding
anything contained herein, if the lead underwriter of an offering involving
Incidental Registration delivers a written opinion to the Company that the
inclusion of such Registrable Shares would (i) materially and adversely
affect the price of the Class A Shares to be offered or (ii) result in a
greater amount of Class A Shares being offered than the market could
reasonably absorb, then the number of Registrable Shares to be registered by
each party requesting Incidental Registration rights shall be reduced in
proportion to the number of securities originally requested to be registered
by each of them. Nothing contained herein shall require the Company to
reduce the number of Class A Shares proposed to be issued by the Company.
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(b) No Incidental Registration effected under this Section 3.02 shall
be deemed to have been effected pursuant to Section 3.01 hereof or shall release
the company of its obligations to effect a Demand Registration upon request as
provided under Section 3.01 hereof.
SECTION 3.03. REGISTRATION PROCEDURES. (a) In connection with each
Registration, and in accordance with the intended method or methods of
distribution of the Class A Shares as described in such Registration, the
Company shall, as soon as reasonably practicable (and, in any event, subject to
the terms of this Agreement, including, without limitation, Section 3.01(a)
hereof, 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 Shares and use its best efforts to cause such
registration statement to become and remain effective until the earlier of (A)
the completion of the distribution of such Registrable Shares thereunder or (B)
ninety (90) days;
(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 Shares covered by such
registration statement;
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(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 best efforts to register or qualify the Registrable
Shares 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 Shares
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 obliged to do so; and PROVIDED FURTHER that the Company shall not be
required to qualify such Registrable Shares in any jurisdiction in which the
securities regulatory authority requires that the Holder submit any of its
Registrable Shares to the terms, provisions and restrictions of any escrow,
lockup or similar agreement(s) for consent to sell Registrable Shares in such
jurisdiction unless such Holder agrees to do so;
(v) promptly notify each Holder, at any time when a prospectus
relating to the Registrable Shares 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
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in light of the circumstances under which they were made, and at the request
of any such Holder promptly prepare and furnish to such 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. Upon receipt of such notice, each
Holder shall forthwith discontinue disposition of such Registrable Shares
pursuant to the registration statement covering such Registrable Shares until
such Holder's receipt of notice from the Company that the use of the
applicable prospectus may be resumed or until such Holder's receipt of copies
of a supplement or an amendment;
(vi) furnish, at the request of any Holder requesting registration of
Registrable Shares pursuant to Section 3.01 or Section 3.02 hereof, if the
method of distribution is by means of an underwriting, on the date that the
Registrable Shares are delivered to the underwriters for sale pursuant to such
registration, or if such Registrable Shares are not being sold through
underwriters, on the date that the registration statement with respect to such
Registrable Shares 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
Shares are not being sold through underwriters, then to the Holders making such
request, as to such matters as such underwriters or the Holders holding a
majority of the Registrable Shares included in
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such registration, 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
Shares are not being sold through underwriters, then to the Holders making
such request and, if such accountants refuse to deliver such letters to such
Holders, then to the Company (i) 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 (ii) 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 if being given as such underwriters or the Holders holding a majority
of the Registrable Shares included in such registration, as the case maybe,
may reasonably request and as would be customary in such a transaction;
(vii) enter into customary agreement (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 Shares to be so
included in the registration statement;
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(viii) otherwise use its 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 statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(ix) use its best efforts to list the securities covered by such
registration statement with any securities exchange on which the securities are
then listed.
(b) Each Holder requesting registration shall furnish to the
Company in writing such information regarding such Holder and its intended
method of distribution of the Registrable Shares 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 Shares conforms to the applicable
requirements of the Securities Act and the rules and regulations thereunder.
Such Holder shall notify the Company as promptly as practical of any
inaccuracy or change in information previously furnished by such 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 Shares contains or would
contain an untrue statement of a material fact regarding such Holder or its
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intended method of distribution of such Registrable Shares or omits to state
any material fact regarding such Holder or its intended method of
distribution of such Registrable Shares required to be stated therein or
necessary to make the statements therein, in 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 such Holder or the intended method of distribution of the
Registrable Shares, 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 light of the circumstances under which they were made,
not misleading.
SECTION 3.05. REGISTRATION EXPENSES. Except as set forth in Section
3.01(c) above, all expenses excluding underwriters' discounts and commissions
and any stamp or transfer taxes 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), reasonable fees and expenses of one counsel for the Holders, 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, all fees and expenses of compliance with and/or
amendment or depositary and selected agreements as may be desirable in
connection with the sale and disposition of the Registrable Shares, and fees and
disbursements of counsel for the Company incurred in connection with each
registration shall be paid by the Company. Each Holder shall bear and pay the
underwriting commissions and discounts and any stamp or transfer tax or duty and
the fees and
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disbursements of counsel for the Holders incurred in connection with each
registration applicable to securities offered for its account in connection
with any registration, filings and qualifications made pursuant to this
Agreement.
SECTION 3.06. INDEMNIFICATION; CONTRIBUTION. (a) Indemnification by
the Company. The Company shall, and it hereby agrees to, indemnify and hold
harmless each Holder, such Holder's directors and officers, each person
controlling such Holder within the meaning of the Securities Act and each person
who participates as a placement or sales agent or as an underwriter in any
offering or sale of the Registered Shares, against any losses, claims, damages
or liabilities, joint or several, to which such Holder or such agent or
underwriter may become subject, insofar as such losses, claims, damages or
liabilities (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 any preliminary or final prospectus
contained therein, or any amendment or supplement thereto, or any document
incorporated by reference 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 no misleading, or any
violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and the Company shall, and it hereby agrees to, reimburse each such
Holder or any such agent or underwriter for any legal or other out-of-pocket
expenses reasonably incurred by them (but no in excess of expenses incurred in
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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, settling or
defending any such action, proceeding or claim; PROVIDED, HOWEVER, that the
indemnity agreement contained in this Section 3.06(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability 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,
claim, damage, liability 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 preliminary or final prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by such Holder or any agent, underwriter or
representative of such Holder expressly for use therein, or by such Holder's
failure to furnish the Company, upon request, with the information with respect
to such Holder, such Holder's director and officers, or any agent, underwriter
or representative of such Holder, or such Holder's intended method of
distribution, that is the subject of the untrue statement or omission or if such
Holder, such Holder's directors and officers, or such agent or underwriter sold
securities to the person alleging such loss, claim, damage or liability without
sending or giving, at or prior to the written confirmation of such sale, a copy
of the applicable prospectus (excluding any document incorporated by reference
therein) or of the applicable prospectus, as then amended or supplemented
(excluding any documents
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incorporated by reference therein) if the Company had previously furnished
copies thereof to the such 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 statement.
(b) INDEMNIFICATION BY THE HOLDER AND ANY AGENT OR UNDERWRITERS.
Each Holder requesting or joining in a Registration shall severally and not
jointly 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, claims, damages or
liabilities, 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, claims, damages or
liabilities (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, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
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by or on behalf of such Holder expressly for use in connection with such
Registration; and each such 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,
claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this Section 3.06(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such 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 3.06,
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 3.06(a) or Section 3.06(b) hereof
unless the indemnifying party was materially prejudiced by such failure of the
indemnified party to give such notice, and in no
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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 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 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
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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. Each Holder requesting or joining in a
Registration and the Company agree that if, for any reason, the indemnification
provisions contemplated by Section 3.06(a) or Section 3.06(b) hereof are
unavailable to or are insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (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, claims, damages or liabilities (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 3.06(d) were determined (i) by pro rate allocation
(even if the Holder or any agents for, or underwriters of, the Registrable
Shares, 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
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Section 3.06(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above shall be deemed to include
(subject to the limitations set forth in Section 3.06(c) hereof) any legal or
other fees or expenses reasonably incurred by such indemnified party in
connection with investigating, settling 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.
(e) BENEFICIARIES OF INDEMNIFICATION. The obligations of the Company
under this Section 3.06 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 each Holder requesting or joining in a
Registration and each agent and underwriter of the Registrable Shares and each
person, if any, who controls such Holder or any such agent or underwriter within
the meaning of the Securities Act, and the obligations of such Holder and any
agents or underwriters contemplated by this Section 3.06 shall be in addition to
any liability that such 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.
<PAGE>
22
SECTION 3.07. UNDERWRITERS. If any of the Registrable Shares 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, HOWEVER, that such
managing underwriter or underwriters must be of recognized international
standing.
SECTION 3.08. LOCKUP. Each Holder shall, in connection with any
registration of the Company's securities, upon the request of 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 Shares
(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 Shares
under the circumstances and pursuant to the terms set forth in this Section
3.08.
SECTION 3.09. 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.
ARTICLE IV
MISCELLANEOUS
<PAGE>
23
SECTION 4.01. TERM OF AGREEMENT; TERMINATION. The term of this
Agreement shall commence on the date hereof and such term and this Agreement
shall terminate on the expiry of ten (10) years from the date of this Agreement;
PROVIDED, HOWEVER, that if a registration of Registrable Shares is pending at
such expiry date, this Agreement shall continue until the Company has fulfilled
its obligation hereunder with respect to such registration.
SECTION 4.02. SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS. Each
of the parties hereto recognizes and acknowledges that a breach by a party or by
any assignee thereof of any covenants or other commitments contained in this
Agreement will cause the other party to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, each of the
parties hereto agrees that in the event of any such breach, the aggrieved party
shall be entitled to the remedy of specific performance of such covenants or
commitments and preliminary and permanent injunctive and other equitable relief
in addition to any other remedy to which it may be entitled, at law or in
equity, and the parties hereto hereby waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
SECTION 4.03. NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given and made if in
writing and if served by personal delivery upon the party for whom it is
intended or delivered by registered or certified mail, return receipt requested,
or if sent by telecopier, upon receipt of oral confirmation that such
transmission has been received, to the person at the address set
<PAGE>
24
forth below, or such other address as may be designated in writing hereafter,
in the same manner, by such person:
(a) If to the Company, addressed as follows:
Getty Communications plc
101 Bayham Street
London NW1 0AG England
Attention: The Company Secretary
Telecopier: 011-44-171-267-6540
with copies to:
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ, England
Attention: Michael Francies, Esq.
Telecopier: 011-44-171-600-5555
and
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Priscilla C. Hughes, Esq.
Telecopier: (212) 848-7179
(b) If to the Stockholder, addressed to it as follows:
The Schwartzberg Family L.P.
c/o Louis Schwartzberg and Jan Ross
3671 Berry Drive
Studio City, CA 91604
Telecopier: (818) 508-0340
<PAGE>
25
with a copy to:
Brobeck Phleger & Harrison, LLP
550 South Hope Street
Los Angeles, California 90071-2604
Attention: Kenneth R. Bender, Esq.
Telecopier: (213) 745-3345
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this Section 4.03. The date of receipt of
any such notice, request, consent, agreement or approval shall be deemed to be
the date of delivery thereof.
SECTION 4.04. SURVIVAL. The several indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or 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 Shares,
and the indemnification and contribution provisions set forth in Section 3.06
hereof shall survive termination of this Agreement.
SECTION 4.05. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
<PAGE>
26
SECTION 4.06. TRANSFER OF REGISTRATION RIGHTS. The registration
rights of the Stockholder in this Agreement with respect to any Registrable
Shares may be transferred by the Stockholder to an Affiliate of the Stockholder;
PROVIDED, HOWEVER, that the Company may deny such transfer if any condition in
the second to last sentence of this Section 4.06 is not met. Each such transfer
is contingent on the transferring person satisfying the following: (i) the
transferring person shall have given the Company written notice at or prior to
the time of such transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under this Agreement
are being transferred and (ii) such transferee shall have agreed in writing, in
form and substance reasonably satisfactory to the Company, to be bound by the
provisions of this Agreement.
SECTION 4.07. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto. Except as expressly provided in this Agreement, nothing in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
SECTION 4.08. GOVERNING LAW. This Agreement is governed by the laws
of the State of New York without regard to the principles thereof regarding
conflicts of laws.
SECTION 4.09. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the
other writings referred to herein or delivered pursuant hereto which form a part
hereof
<PAGE>
27
contain the entire understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and understandings
among the parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by each of the
parties, which shall be binding on all of the parties.
SECTION 4.10. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
<PAGE>
28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GETTY COMMUNICATIONS PLC
By: _________________________
Name:
Title:
THE SCHWARTZBERG FAMILY L.P.
By: The Schwartzberg Family Trust dated June
4, 1982, its general partner
By: ____________________
Louis Schwartzberg,
as co-trustee
By: ____________________
Jan Ross Schwartzberg,
as co-trustee
<PAGE>
REGISTRATION RIGHTS AGREEMENT AMENDMENT
REGISTRATION RIGHTS AGREEMENT AMENDMENT, dated as of January [__],
1997 (this "AMENDMENT"), among Getty Communications plc, a public limited
company organized under the laws of England and Wales ("GETTY COMMUNICATIONS"),
The Schwartzberg Family L.P., a California limited partnership (the "RIGHTS
HOLDER") and Getty Images, Inc., a Delaware corporation ("GETTY IMAGES").
WHEREAS, Getty Communications and the Rights Holder entered into the
Registration Rights Agreement dated as of July 25, 1997 (the "REGISTRATION
RIGHTS AGREEMENT") pursuant to which the Rights Holder was granted certain
registration rights with respect to Class A ordinary shares, nominal value one
pence per share ("GETTY CLASS A ORDINARY SHARES"), of Getty Communications held
by the Rights Holder, a copy of which is attached hereto as Exhibit A;
WHEREAS, pursuant to a merger agreement dated as of September 15, 1997
(the "MERGER AGREEMENT"), by and among Getty Images, Getty Communications,
PhotoDisc, Inc., a Washington corporation, and Print Merger, Inc., a Washington
corporation and a wholly owned subsidiary of Getty Images, Getty Images and
Getty Communications will enter into a scheme of arrangement (the "SCHEME OF
ARRANGEMENT") in accordance with the Companies Act of 1985 of Great Britain
(unless otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed thereto in the Merger Agreement);
WHEREAS, pursuant to the Scheme of Arrangement, each issued Class B
ordinary share, nominal value one pence per share ("GETTY CLASS B ORDINARY
SHARES", and, together with the Getty Class A Ordinary Shares, the "GETTY
ORDINARY SHARES"), of Getty Communications will be converted into one Getty
Class A Ordinary Share, each Getty Ordinary Share will be transferred to Getty
Images or its nominees and the holders of Getty Ordinary Shares will be issued
one share of Getty Images Common Stock for every two Getty Ordinary Shares held
of record by such holders, and Getty Communications will become a wholly owned
subsidiary of Getty Images;
WHEREAS, upon the consummation of the Scheme of Arrangement, the
Rights Holder will hold only Getty Images Shares; and
WHEREAS, the parties each desire to amend the Registration Rights
Agreement pursuant to Section 4.09 thereof and to make certain covenants and
agreements concerning the registration from time to time under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), of Getty Images Shares held by
the Rights Holder.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties and conditions contained herein, the parties agree
as follows:
<PAGE>
2
SECTION 1.01. AMENDMENT. Each of the parties agrees that, upon the
consummation of the Scheme of Arrangement, the Registration Rights Agreement
shall be amended such that (i) the "Company" as used therein shall refer to
Getty Images rather Getty Communications and (ii) "Registrable Shares" as used
therein shall include Getty Images Shares issued in the Scheme of Arrangement in
respect of Registrable Shares as defined in the Registration Rights Agreement.
The terms and conditions of the Registration Rights Agreement shall inure to the
benefit of Getty Images as the successor to Getty Communications and any rights
or obligations of Getty Communications shall become the sole obligation of Getty
Images.
IN WITNESS WHEREOF, each of Getty Communications, the Rights Holder
and Getty Images has duly executed, or has caused this Amendment to be duly
executed by its duly authorized representative, as of the date first written
above.
GETTY COMMUNICATIONS PLC
By:
------------------------------------
Name: Mark Getty
Title:
THE SCHWARTZBERG FAMILY L.P.
By:
------------------------------------
Name:
Title:
GETTY IMAGES, INC.
By:
------------------------------------
Name: Mark Torrance
Title: Co-Chairman