Contingent Deferred Payment - Getty Images Inc. and Art.com Inc.
CONTINGENT DEFERRED PAYMENT
Section 1. The Merger. Getty Images, Inc., a Delaware
corporation ("Parent"), Print Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), and Art.com, Inc., a Delaware corporation
("Company") have entered into an Agreement and Plan of Merger, dated as of May
4, 1999 (the "Merger Agreement") pursuant to which Merger Sub will merge with
and into Company (the "Merger"). Capitalized terms used but not defined herein
shall have the meaning ascribed to such terms in the Merger Agreement. Pursuant
to the Merger, holders of Shares (individually a "Holder" and collectively the
"Holders") and holders of Company Stock Options ("Optionholders"), in each case
immediately prior to the Effective Time, may receive a contingent deferred
payment ("Deferred Payment") in respect of all Shares held (or all shares of
Company Common Stock underlying a Company Stock Option) if the conditions set
forth herein are met. Optionholders who exercise options after the Effective
Time but prior to the Maturity Date shall be treated as Holders hereunder.
Section 2. Optionholders. If any Deferred Payment is required to
be made hereunder, Parent shall adjust the Substitute Stock Options of each
Optionholder to the extent necessary to give such Optionholder the benefit of
any Deferred Payment. Under no circumstances shall Optionholders receive, prior
to exercise of their options (at which time they shall be treated as Holders),
any cash payment or any shares of Parent Common Stock. The adjustment required
by this Section 2 shall be made in accordance with Section 2.04 of the Merger
Agreement.
Section 3. Holders. If any Deferred Payment is required to be
made hereunder, Parent shall deliver to each Holder that number of shares of
Parent Common Stock, or that amount of cash, or that combination of shares of
Parent Common Stock and cash, in each case deliverable to a Holder (but not an
Optionholder) as described herein.
Section 4. Payment Date. Any Deferred Payment will become due
and payable, if at all, on August 4, 1999 (the "Maturity Date") and payment
thereof as provided hereby shall be made no later than 10 business days
following the Election Deadline.
Section 5. Calculation of Deferred Payment. (a) The amount of
this Deferred Payment shall be an amount equal to the quotient obtained by
dividing (i) the Net Deferred Payment Amount (as defined below) by (ii) the
Fully Diluted Share Amount (such amount being the "Per Share Payment Amount").
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(b) As used herein, the following terms shall have the following
meanings:
"Gross Deferred Payment Amount" shall mean an amount equal to
the product of (i) .11 and (ii) the Market Capitalization Increase; provided,
however, that such amount shall be $0.0 (and no Deferred Payment shall be made)
if the Market Capitalization Increase is less than or equal to the product of
(A) .20 and (B) the Base Market Capitalization; provided, further, that, in no
case shall the Gross Deferred Payment Amount exceed $84,000,000.
"Net Deferred Payment Amount" shall mean an amount equal to the
Gross Deferred Payment Amount, less the amount, if any, that Parent is entitled
to and does set-off against the Gross Deferred Payment pursuant to the
indemnification provisions contained in Section 9.01 of the Merger Agreement.
"Base Market Capitalization" shall mean an amount equal to the
product of (i) $25 and (ii) 30,817,946.
"Maturity Date Market Capitalization" shall mean an amount equal
to the product of (i) the Maturity Date Stock Price and (ii) 30,817,946.
"Market Capitalization Increase" shall mean an amount equal to
the Maturity Date Market Capitalization minus the Base Market Capitalization.
"Maturity Date Stock Price" shall mean an amount equal to the
average of the average of the daily closing bid and ask price per share of
Parent Common Stock as listed on the NASDAQ for the 30 consecutive trading days
immediately preceding (and including) the Maturity Date; provided, however, that
if the Maturity Date Stock Price as so computed would result in a Gross Deferred
Payment Amount which exceeds $84,000,000, the Maturity Date Stock Price shall be
deemed to be that Maturity Date Stock Price which would result in the Gross
Deferred Payment Amount equaling $84,000,000.
Section 6. Determination of Available Shares. (a) The total
number of shares of Parent Common Stock available for issuance by Parent as
consideration payable in respect of the Net Deferred Payment Amount shall be an
amount equal to (i) the product of (A) .199 and (B) 30,817,946, less (ii)
4,510,000 (such resulting amount being the "Available Parent Shares"). Parent
may at any time adjust downward the number of Available Parent Shares to the
minimum extent it reasonably determines is necessary to comply with its
obligations pursuant to Section 4.04 of the Merger Agreement (the "Share
Adjustment"). Except as provided below, no Share Adjustment shall be made if, as
a consequence of making such adjustment, the Aggregate Cash Payment (as defined
below) would, after giving effect to Section 9 hereof and any payments to be
made thereunder, exceed $18 million or such lesser amount as would result in the
Merger failing to qualify as a tax-free reorganization (the
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"Maximum Cash Amount"). In the event Parent seeks to make a Share Adjustment
that would result in the Maximum Cash Amount being exceeded, Parent may do so
provided that (i) Parent shall first use its best efforts to obtain the
necessary approval of Parent's stockholders for the issuance of Parent Common
Stock in connection with the Contingent Deferred Payment and the settlement of
the entire Net Deferred Payment Amount in shares of Parent Common Stock (and if
such approval is obtained, such Net Deferred Payment Amount shall be so settled
entirely in Parent Common Stock) and (ii) if such stockholder approval shall not
be obtained after such best efforts, Parent may make such Share Adjustment and
settle the Net Deferred Payment Amount in shares of Parent Common Stock as
contemplated by such Share Adjustment and cash, provided Parent shall
simultaneously therewith make such additional cash payments to Holders as shall
be appropriate to fully indemnify and hold harmless Holders for any consequences
of such a cash payment in excess of the Minimum Cash Amount and such resulting
Share Adjustment, including without limitation any adverse tax consequences as a
result thereof (including without limitation, a failure of the Merger to qualify
as a tax-free reorganization as a result of the amount of total cash that is
paid to Holders) or as a result of any such indemnity payments. As soon as
practicable after the Maturity Date (but in any event within five business
days), Parent shall determine the number of Available Parent Shares to be used
as consideration for the Net Deferred Payment Amount and provide written notice
(by facsimile to a number provided by each Holder) of such amount to each Holder
(the "Payment Notice"; the date on which the Payment Notice is sent being the
"Notice Date"). The Payment Notice shall also state (i) the Gross Deferred
Payment Amount, (ii) the Net Deferred Payment Amount and (iii) the Per Share
Payment Amount payable to each Holder in respect of each Share held.
Section 7. Elections. Subject to the allocation and proration
procedures set forth in Section 8, each Holder will be entitled to designate, on
a form of election (the "Election Form"), whether such Holder wishes to receive
in cash the Per Share Payment Amount payable in respect of any of his Shares.
Shares for which a cash election has been made (the "Cash Election Shares") may
or may not receive any cash in respect of such Shares (as will be determined in
accordance with the allocation and proration procedures set forth in Section 8).
Holders of Shares who indicate on their Election Form their desire to receive
the Per Share Payment Amount payable in respect of their Shares in the form of
Parent Common Stock (the "Stock Election Shares") may or may not receive cash in
respect of such shares (as will be determined pursuant to the allocation and pro
rata procedures set forth in Section 8). Parent shall provide Election Forms to
each Holder at the same time it distributes the Payment Notice. In order to make
an election hereunder, Holders must return their Election Forms to Parent no
later than five business days following the Notice Date (the "Election
Deadline"). Holders who fail to return to Parent their Election Forms prior to
the Election Deadline and Holders who return to Parent a defective Election Form
will be deemed to have elected to receive Parent Common Stock, but such Holders
may receive cash in respect of such shares (as
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will be determined in accordance with the allocation and proration
procedures set forth in Section 8).
Section 8. Payment, Allocation and Proration. (a) If the amount
resulting from the product of (i) the Available Parent Shares and (ii) the
Maturity Date Stock Price (such amount being referred to herein as the
"Available Share Value") is greater than or equal to the Net Deferred Payment
Amount, then Parent shall deliver to each Holder of a Stock Election Share and
each Holder of a Cash Election Share (regardless of such election) in respect of
such Share, the number of shares of Parent Common Stock determined by dividing
(x) the Per Share Payment Amount by (y) the Maturity Date Stock Price (such
number of shares being referred to herein as the "Stock Consideration").
(b) If the Available Share Value is less than the Net
Deferred Payment Amount and the Aggregate Cash Payment (as defined below) is
equal to or less than the Aggregate Cash Election Amount (as defined below),
then Parent shall (i) deliver the Stock Consideration to each Holder of a Stock
Election Share in respect of such Share and (ii) (A) pay in cash to each Holder
of a Cash Election Share in respect thereof an amount equal to a fraction, the
numerator of which is the Aggregate Cash Payment and the denominator of which is
the Cash Election Number (as defined below) and (B) deliver to each Holder of a
Cash Election Share in respect of such Share the number of shares of Parent
Common Stock equal to a fraction, the numerator of which is the Per Share
Payment Amount less the amount of cash payable pursuant to clause (ii)(A)
hereof, and the denominator of which is the Maturity Date Stock Price.
(c) If the Available Share Value is less than the Net
Deferred Payment Amount and the Aggregate Cash Payment is greater than the
Aggregate Cash Election Amount, then Parent shall (i) pay in cash to each Holder
of a Cash Election Share in respect of such Share an amount equal to the Per
Share Payment Amount and (ii) (A) pay in cash to each Holder of a Stock Election
Share in respect of such Share an amount equal to a fraction, the numerator of
which is the Aggregate Cash Payment less the Aggregate Cash Election Amount, and
the denominator of which is the Stock Election Number and (B) deliver to each
Holder of a Stock Election Share in respect of such Share the number of shares
of Parent Common Stock derived from a fraction, the numerator of which is the
Per Share Payment Amount less the amount of cash payable in connection with
clause (ii)(A) hereof, and the denominator of which is the Maturity Date Stock
Price.
(d) As used herein, the following terms shall have the
following meanings:
"Aggregate Cash Election Amount" shall mean an amount equal to
the product of (i) the Cash Election Number and (ii) the Per Share Payment
Amount.
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"Aggregate Cash Payment" shall mean an amount of cash equal to
the Net Deferred Payment Amount less the Available Share Value.
"Cash Election Number" shall mean the total number of Cash
Election Shares.
"Stock Election Number" shall mean the total number of Stock
Election Shares.
Section 9. Additional Cash Payment. Any Holder who receives a
portion of the Per Share Payment Amount in cash (such amount for purposes of
this Section 9 being the "Initial Cash Payment"), in full or partial
satisfaction of the Per Share Payment Amount payable to such Holder, shall also
receive an additional cash payment (the "Additional Cash Payment") from Parent
equal to the product of (i) .4 and (ii) the Initial Cash Payment. Such
Additional Cash Payment shall be made by Parent to Holder simultaneously upon
payment of the Per Share Payment Amount.
Section 10. Reservation of Shares. Parent hereby agrees that
there shall be reserved for issuance and delivery upon the Maturity Date
hereunder all shares of Parent Common Stock issuable hereunder. All such shares
shall be duly authorized and, when issued in accordance with the terms hereof,
shall be validly issued, fully paid and nonassessable, free and clear of all
liens, security interests, charges and other encumbrances or restrictions on
sale (other than as provided in Parent's Certificate of Incorporation and any
restrictions on sale pursuant to applicable federal and state securities laws)
and free and clear of all preemptive rights.
Section 11. Fractional Shares. Parent shall not be required to
issue fractional shares of Parent Common Stock with respect to the Deferred
Payment held by a single Holder. If any fraction of a share of Parent Common
Stock would, after aggregating the total number of shares of Parent Common Stock
payable to a single Holder (except for the provisions of this Section 11), be
issuable to such Holder, (i) in the case of a Deferred Payment pursuant to
Section 8(a) hereof, such fractional share shall be rounded up to the nearest
whole share and (ii) in the case of a Deferred Payment pursuant to Section 8(b)
or Section 8(c) hereof, no payment shall be made in respect of such fractional
share and the Deferred Payment shall be deemed not to include the right to
receive such fractional share.
Section 12. Rights of the Holder. The Holder shall not, by
virtue hereof, be entitled to any rights of a stockholder in Parent, either at
law or in equity provided, that as of the Election Deadline, the Holder shall
become a stockholder of Parent with respect to such number of shares of Parent
Common Stock to which the Holder may become entitled hereunder.
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Section 13. Reclassification, Reorganization, Consolidation or
Merger. (a) In the event of (i) any reclassification, capital reorganization or
other change of outstanding shares of Parent Common Stock (other than a
subdivision or combination of the outstanding Parent Common Stock and other than
a change in the par value of Parent Common Stock) or (ii) in the event of any
consolidation or merger of Parent with or into another corporation (other than
the Merger or a merger in which Parent is the continuing corporation and that
does not result in any reclassification, capital reorganization or other change
of outstanding shares of Parent Common Stock) or (iii) in the event of any sale,
lease, transfer or conveyance to another corporation of the property and assets
of Parent as an entirety or substantially as an entirety, Parent shall, as a
condition precedent to such transaction, cause effective provisions to be made
so that such other corporation shall assume all obligations of Parent hereunder
and the Holder shall have the right thereafter to receive the kind and amount of
shares of stock and other securities and property (including cash) receivable
upon such reclassification, capital reorganization and other change,
consolidation, merger, sale, lease or conveyance by a Holder of the number of
shares of Parent Common Stock that might have been received as part of a
Deferred Payment immediately prior to such reclassification, capital
reorganization, change, consolidation, merger, sale, lease or conveyance. The
foregoing provisions of this Section 13 shall similarly apply to successive
reclassification, capital reorganizations and changes of shares of Parent Common
Stock and to successive consolidations, mergers, sale, lease, transfers or
conveyances. In the event of any adjustment in respect of an event described in
clause (i) above that fails to provide the same economic benefit to Holders that
they would have received had such an event not taken place or in the event of a
circumstance described in clause (ii) or (iii) above, then for purposes of
determining such number of Parent Common Stock receivable as part of the
Deferred Payment, it shall be assumed that the Gross Deferred Payment Amount was
equal to $84 million and, notwithstanding anything to the contrary herein, the
Net Deferred Payment Amount was settled entirely in shares of Parent Common
Stock.
(b) In the event of a subdivision (including, without
limitation, by stock split or stock dividend) or combination (including, without
limitation, by reverse stock split) of the outstanding Parent Common Stock, the
provisions hereof shall be adjusted, including without limitation, the number of
Available Parent Shares and the shares of Parent Common Stock that might
otherwise have been received as part of a Deferred Payment, in order to provide
the same economic benefit to Holders that they would have received had such an
event not taken place.
Section 14. Governing Law. The Deferred Payments shall be
governed by the laws of the State of Delaware.
Section 15. Assignment; Binding Effect; Benefit. Holder may not
assign, delegate or otherwise transfer a Contingent Deferred Payment or any of
such Holder's rights,
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interests or obligations hereunder (except as provided by will or applicable
laws of descent) without the prior written consent of Parent and any attempt to
transfer a Contingent Deferred Payment shall be null and void.
Section 16. Securities Law Matters. (a) The issuance and
subscription of the Parent Common Stock to be issued to Holders hereunder have
not been, and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and the Parent Common Stock will be issued to
Holders in a transaction that is exempt from the registration requirements of
the Securities Act. Such Parent Common Stock cannot be offered or resold except
pursuant to registration under the Securities Act or an available exemption from
registration and Holders shall not resell such Parent Common Stock except in
compliance with applicable securities laws. Such shares of Parent Common Stock
are "restricted securities" under the federal securities laws and must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available.
(b) By accepting shares of Parent Common Stock pursuant
hereto, each Holder acknowledges and agrees to the provisions of Section 16(a)
hereof and each of the following:
(i) Investment Intent; Certain Restrictions. The Holder is
purchasing the Parent Common Stock for his or her own account for
investment and not with a view to, or for resale in connection with, the
distribution hereof, and he or she has no present intention of
distributing any thereof, except in each case in accordance with the
terms of this Agreement and that certain Registration Rights Agreement
contemplated by the Merger Agreement. The Holder understands that the
shares of Parent Common Stock have not been registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things,
the bona fide nature of his or her investment intent as expressed
herein. He has had the opportunity to discuss the terms hereof and the
Merger Agreement and the transactions contemplated thereby and has been
advised by counsel as to his obligations under applicable securities
laws in connection therewith.
(ii) Knowledge. The Holder has such knowledge and experience
in financial and business matters that he or she is capable of
evaluating the merits and risks of his or her investment in Parent
Common Stock pursuant to the Merger Agreement and protecting his or her
own interests in connection with this transaction.
(iii) Economic Risk. The Holder has the financial ability to
bear the economic risk of his or her investment in Parent Common Stock
pursuant to the Merger Agreement, the Holder is aware that he or she may
be required to bear the economic risk of its investment in Parent Common
Stock for an indefinite period of time, he or she has no need for
liquidity with respect to his or her investment therein at this time,
and he or
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she has adequate means of providing for his or her current needs and
personal contingencies.
(iv) Parent Disclosure. The Holder has had an opportunity to
discuss Parent's business, management and financial affairs with
Parent's management and has had the opportunity to review financial and
other information related to Parent.
(v) Restrictive Legend. The Holder understands and
acknowledges that all certificates representing Parent Common Stock
shall bear, in addition to any other legends required under applicable
securities laws, the following legend:
"The shares represented by this certificate have not been
registered under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), and may not be transferred except
pursuant to registration under the Securities Act or pursuant to
an available exemption from registration."
(vi) Status. The Holder is an "accredited investor," as such
term is defined in Rule 501(a) of Regulation D under the Securities Act.