Indemnity Agreement - Getty Images Inc., 525 Investments Ltd. and Getty Investments LLC
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is made on __ January 1998
BETWEEN:
(1) GETTY IMAGES, INC., a Delaware corporation whose registered office is at
101 Bayham Street, London NW1 OAG, England ("Getty Images"); and
(2) THOSE PERSONS whose names and addresses are set out in Exhibit A hereto
(the "Investors").
NOW THE PARTIES HEREBY AGREE as follows:
1. Definitions
a. In this Agreement:
"Action" means any actual or threatened legal action, claim,
proceeding or investigation.
"Affiliate" means, with respect to any specified Person, the
directors, officers, trustees, managers and partners of such Person,
and any other Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control
with, such specified Person.
"Companies Act" means the Companies Act of 1985 of Great Britain.
"control" (including the terms "controlled by" and "under common
control with"), with respect to the relationship between or among two
or more Persons, means the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the direction of
the affairs or management of a Person, whether through the ownership
of voting securities, as trustee or executor, by contract or
otherwise. Control shall be conclusively presumed when any Person
directly or indirectly owns 50% or more of the voting securities of
another Person.
"Disclosure Documents" means any preliminary prospectus, prospectus,
registration statement, scheme circular and any amendment or
supplement thereto, filed, distributed or used at any time in
connection with the Transactions (and including any exhibits to the
foregoing documents).
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"Investors" means those person listed in Exhibit A hereto, together
with their respective Affiliates, agents and representatives.
"Merger" means the merger of Print Merger, Inc., a Washington
corporation and a wholly owned subsidiary of Getty Images, and
PhotoDisc, Inc., a Washington corporation.
"Person" means an individual, corporation, general or limited
partnership, limited or unlimited liability company, trust,
association, unincorporated organization, government or any authority,
agency or body thereof, or other entity and any legal personal
representative, successor and lawful assignee of any of them.
"Scheme of Arrangement" means the scheme of arrangement in accordance
with the Companies Act between Getty Images and Getty Communications
plc, a company organized under the laws of England and Wales.
"Transactions" means the Scheme of Arrangement and the Merger.
b. In this Agreement, a reference to:
(1) a "subsidiary" means any and all corporations, partnerships,
joint ventures, associations and other entities controlled by
Getty Images directly or indirectly through one or more
intermediaries;
(2) a statutory provision includes a reference to the statutory
provision as modified or re-enacted or both from time to time
whether before or after the date of this Agreement and any
subordinate legislation made under the statutory provision
whether before or after the date of this Agreement;
(3) a clause or schedule, unless the context otherwise requires, is a
reference to a clause of or schedule to this Agreement; and
(4) a document is a reference to that document as from time to time
supplemented or varied.
c. The headings in this Agreement do not affect its interpretation.
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2. Indemnity
a. Getty Images hereby undertakes that it will indemnify and hold
harmless each Investor against any losses, claims, damages or
liabilities to which such Investor may become subject, arising
directly or indirectly out of the Disclosure Documents and Getty
Images will reimburse each Investor for any legal or other expenses
reasonably incurred by such Investor in connection with investigating
or defending any Action in respect thereof as such expenses are
incurred, provided that, Getty Images shall have no liability under
this Clause to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in any of the
Disclosure Documents in reliance upon and in conformity with, in the
case of each Investor, information provided by such Investor.
b. Promptly after receipt by any Investor of notice of the commencement
of any action or any written notice of any threat of any Action, it
shall, if a claim in respect thereof is to be made against Getty
Images under this Clause, notify Getty Images and the other Investors
in writing of the commencement thereof; but the omission so to notify
Getty Images shall not relieve Getty Images from any liability which
it may have to such Investor. If any such Action shall be brought
against any Investor and it shall notify Getty Images of the
commencement thereof, Getty Images shall, subject to its agreeing to
indemnify the Investors against all judgments and other liabilities
resulting from such Action (and so far as permitted by any insurance
policy of such Investors), be entitled to participate therein and, to
the extent that it shall wish, to assume the defense thereof, with
counsel satisfactory to such Investor (which shall not, except with
the consent of such Investor, be counsel to Getty Images), and, after
notice from Getty Images to such Investor of its election so as to
assume the defense thereof, Getty Images shall not be liable to such
Investor under this Clause for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
Investor, in connection with the defense thereof other than reasonable
costs of investigation. Getty Images shall not, without the written
consent of the relevant Investor effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any
Action in respect of which indemnification or contribution may be
sought hereunder (whether or not such Investor is an actual or
potential party to such Action) unless such settlement, compromise or
judgment (i) includes a full and unconditional release of such
Investor from all liability arising out of such Action, and (ii) does
not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of any Investor. In the event that
Getty Images wishes to assume the defense of any
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Action but is not permitted by the insurance policy of the relevant
Investor to do so, such Investor shall use all reasonable endeavors to
procure that its insurers and their legal advisers shall consult and
cooperate with Getty Images in respect of such defense and (except
insofar as such Investor shall certify to Getty Images that the
requirement to obtain the written consent of Getty Images as referred
to below would invalidate the relevant insurance policy, in which case
such requirement shall not apply) shall not settle, compromise or
consent to the entry of any judgment with respect to such Action
without the written consent of Getty Images, such consent not to be
unreasonably withheld or delayed.
c. If the indemnification provided for in this Clause 2 is unavailable to
or insufficient to hold harmless any Investor under the foregoing
provisions of this Clause in respect of any losses, claims, damages or
liabilities (or Actions in respect thereof) referred to therein, then
Getty Images shall contribute to the amount paid or payable by the
relevant Investor as a result of such losses, claims, damages or
liabilities (or Actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by that Investor
on the one hand and Getty Images on the other from the Transactions.
If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the relevant
Investor failed to give the notice required under sub-Clause b. above,
then Getty Images shall contribute to such amount paid or payable by
such Investor in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of such Investor on
the one hand and Getty Images on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or Actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Investors in the aggregate on the one hand and Getty Images on the
other shall be deemed to be in the proportion 99 per cent, to Getty
Images and 1 per cent, to the Investors. The relative fault shall be
determined by reference to, among other things, whether the claim
relates to information supplied by Getty Images or the Investors and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
relevant Investors agree with Getty Images that it would not be just
and equitable if contributions pursuant to this sub-Clause c. were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred
to above in this sub-Clause c. The amount paid or payable by the
relevant Investor as a result of the losses, claims, damages or
liabilities (or Actions in respect thereof) referred to above in this
sub-Clause c. shall be deemed to include any legal or other expenses
reasonably incurred by it in connection with investigating or
defending any such action or claim. No
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person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
d. If any taxing authority brings into charge to taxation any sum payable
under the indemnity contained in this Clause 2, the amount so payable
shall be grossed up by such amount as will ensure that after deduction
of the tax so chargeable (after giving credit for any tax relief
available to the indemnified party) there shall remain a sum equal to
the amount that would otherwise have been payable under this Clause.
e. The obligations of Getty Images under this Clause 2 shall be in
addition to any liability which Getty Images may otherwise have.
3. Survival of Obligations
The indemnities, agreements, representations, warranties and other
statements of Getty Images contained in this Agreement or made by or on
behalf of it pursuant to this Agreement shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of Getty Investments, and shall survive the
completion of the Transactions.
4. Assignment and Further Assurance
a. This Agreement shall be binding upon, and the benefit of this
Agreement shall inure solely to the Investors and Getty Images and
their respective successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No
purchaser of any shares from any Investor shall be deemed a successor
or assign by reason merely of such purchase.
b. Getty Images shall, if requested by any of the Investors, procure that
any of its subsidiaries nominated by any of the Investors shall enter
into an agreement with the Investors on similar terms to this
Agreement, save that any such subsidiary shall be the party giving the
indemnification thereunder in place of Getty Images.
5. Time of the Essence
Time shall be of the essence of this Agreement.
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6. Choice of Law
a. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
b. To the fullest extent permitted by law, any controversy or claim
arising out of or relating to this Agreement, or the breach thereof,
shall be settled by mandatory, final and binding arbitration in New
York City, New York, USA under the auspices of and in accordance with
the rules, then pertaining, of the American Arbitration Association,
to the extent not inconsistent with the Delaware Uniform Arbitration
Act and judgment upon the award rendered may be entered in any court
having jurisdiction thereof. Nothing in this paragraph 6.b. shall
limit any right that any Person may otherwise have to seek to obtain
preliminary judgment upon the award rendered may be entered in any
court having jurisdiction thereof. Nothing in this paragraph 6.b.
shall limit any right that any Person may otherwise have to seek to
obtain preliminary injunctive relief in order to preserve the status
quo pending the disposition of any such arbitration proceeding.
c. In the event of any dispute, claim, arbitration or litigation with
regard to this Agreement, the prevailing party shall be entitled to
receive from the non-prevailing party, and the non-prevailing party
shall promptly pay, all reasonable fees and expenses of counsel for
the prevailing party incurred in connection with such dispute, claim,
arbitration or litigation.
7. Severability
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
8. No Personal Liability of Trustees
The parties hereto agree that with respect to the Cheyne Walk Trust, the
Ronald Family Trust A, the Ronald Family Trust B and the Gordon P. Getty
Family Trust, the respective trustees thereof have executed this Agreement
solely in their representative capacities as trustees and not individually,
and that any liability arising from this Agreement shall be satisfied
solely from the assets of the trust of which such person is trustee, and
not from such person individually.
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9. Counterparts
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed by their
duly authorized representatives as of the day and year first mentioned above.
The Trustees of the Cheyne Walk Trust
By: ______________________________
Name:
Title:
The Trustees of the Ronald Family Trust A
By: ______________________________
Name:
Title:
The Trustees of the Ronald Family Trust B
By: ______________________________
Name:
Title:
525 Investments Limited
By: ______________________________
Name:
Title:
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The Trustees of the Gordon P. Getty Family Trust
By: ______________________________
Name:
Title:
Getty Investments, L.L.C.
By: ______________________________
Name:
Title:
Getty Images, Inc.
By: ______________________________
Name:
Title:
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EXHIBIT A
Name Notice Address
---- ------ -------
Trustees of the Cheyne Walk Trust Attn: Jan D. Moehl
1325 Airmotive Way, Suite 262
Reno, Nevada 89502
Trustees of the Ronald Family Trust A Attn: Thomas E. Woodhouse
1325 Airmotive Way, Suite 264
Reno, Nevada 89502
Trustees of the Ronald Family Trust B Attn: Jan D. Moehl
1325 Airmotive Way, Suite 262
Reno, Nevada 89502
525 Investments Limited c/o Coopers & Lybrand
La Motte Chambers
St Helier
Jersey JE1 1BJ
Trustees of the Gordon P. Getty Attn: Thomas E. Woodhouse
Family Trust 1325 Airmotive Way, Suite 264
Reno, Nevada 89502
Getty Investments L.L.C. Attn: Jan D. Moehl
1325 Airmotive Way, Suite 262
Reno, Nevada 89502