Registration Rights Agreement - Getty Images Inc. and Art.com Inc.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of May
__, 1999, between Getty Images, Inc., a Delaware corporation ("Company"), and
the stockholders of Art.com, Inc., a Delaware corporation ("Target") listed on
Exhibit A attached hereto (each an "Individual Stockholder," and collectively,
the "Individual Stockholders"). All stockholders of Target at the Effective Time
(as defined in the Merger Agreement) shall be entitled to enter into this
Agreement by executing and delivering a copy of the signature page hereof. In
addition, from time to time, any current director of Target not otherwise party
hereto who received any options to purchase stock of Target, the exercise of
which is not covered by a Registration Statement on Form S-8, shall be entitled
to become a party to this Agreement on the same terms.
R E C I T A L S
WHEREAS, the Company, Print Corp., a Delaware corporation
("Merger Sub") and the Target propose to enter into, simultaneously herewith, an
Agreement and Plan of Merger, dated as of May 4, 1999, (the "Merger Agreement";
terms used but not defined in this Agreement shall have the meanings ascribed to
them in the Merger Agreement), providing for the merger of Merger Sub with and
into the Target (the "Merger"); and
WHEREAS, it is a condition to the consummation of the
transactions contemplated by the Merger Agreement that the parties hereto enter
into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties and conditions set forth in this Agreement, the
parties hereto agree as follows:
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, $0.01 par
value, of the Company.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, 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.
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"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 or
Company Common Stock underlying options issued to a Individual
Stockholder pursuant to the Merger Agreement (including as or in
connection with the Contingent Deferred Payment) and all 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 covering such Registrable Securities has been
declared effective and such Registrable Securities have been disposed of
pursuant to such effective registration statement, (ii) such Registrable
Securities are sold by a person in a transaction in which no rights
under the provisions of this Agreement are assigned or (iii) such
Registrable Securities shall have ceased to be outstanding and no
options with respect thereto remain outstanding.
"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, as amended, 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.
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ARTICLE II
AGREEMENTS IN RESPECT OF THE REGISTRABLE SECURITIES
SECTION 2.01. Shelf Registration. The Company shall, as promptly
as practicable after the Effective Time and in any event within [____] business
days of the Effective Time, prepare and file with the Commission a Registration
Statement (a "Shelf Registration") providing for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Securities
held by all of the Individual Stockholders and an amount equal to the maximum
amount of all Registrable Securities which may be issued as or in connection
with the Contingent Deferred Payment under the Merger Agreement. After such
Shelf Registration is filed with the Commission, the Company shall use its best
efforts to cause the Shelf Registration to be declared effective as soon as
practicable and to keep the Shelf Registration continuously effective under the
Securities Act until the date which is two years after the date the Shelf
Registration is filed, or such earlier date when (i) all Registrable Securities
covered by the Shelf Registration have been sold, or (ii) as to any applicable
Individual Stockholders all Registrable Securities held by such Individual
Stockholder can be sold within a three month period under Rule 144 under the
Securities Act.
SECTION 2.02. Incidental Registration. (a) If, at any time
following the Effective Time, the Company proposes to file a Registration
Statement other than the Shelf Registration (an "Incidental Registration") 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
filing on any substitute form that may be adopted by the Commission for a
transaction for which Form S-4 or S-8 is currently available)) or (ii) the
account of any holder of Company Common Stock, the Company shall give written
notice of such proposed filing (including the proposed date thereof) to each
Individual Stockholder as soon as practicable (but in any event not less than
the lesser of (A) 30 days before the anticipated filing date or (B) the number
of days until the date the Company plans to file such registration), and such
notice shall offer each Individual Stockholder the opportunity to register such
number of Registrable Securities as such Individual Stockholder shall request.
Upon the written direction of any such Individual Stockholder, given within 20
days following the receipt by such Individual Stockholder of any such written
notice in the case of (A) above or given within the number of days (rounded up)
equal to half the time between the date notice in the case of (B) above is
received by such Individual Stockholder and the date such Incidental
Registration is proposed to be
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filed (which direction shall specify the number of Registrable Securities
intended to be disposed of by such Individual Stockholder), the Company shall
use its best efforts to cause to be registered under the Securities Act all of
the Registrable Securities that each such Individual Stockholder has requested
to be registered provided, that, if the Company does not file such registration
statement by the proposed filing date, the Company shall again comply with the
notice provisions of this Section 2.02 prior to filing such registration
statement. Notwithstanding anything contained herein, if the lead underwriter of
an offering involving an Incidental Registration notifies 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
such Individual Stockholder shall be reduced to the extent that, in the lead
underwriter's reasonable judgment, 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 and any reduction in the amount of an
Individual Stockholder's Registrable Securities to be included in an Incidental
Registration shall be made on a pro rata basis with other holders of
registration rights participating in such Incidental Registration.
(b) Anything in this Agreement to the contrary notwithstanding,
the Company shall be entitled (subject to the provisions of Section 2.02(c)
hereof) to postpone or suspend, for a reasonable period of time (the "Blackout
Period"), the filing, effectiveness or use of any Registration Statement if the
Company shall determine that any such filing or the offering of any Registrable
Securities would
(i) in the good faith judgment of the Board of
Directors of the Company, materially impede, delay or interfere
with any material pending or proposed financing, acquisition,
corporate reorganization or other similar transaction involving
the Company for which the Board of Directors of the Company has
authorized negotiations;
(ii) based upon advice from the Company's
investment banker, materially adversely impair the ability to
consummate any pending or proposed material offering or sale of
any class of securities by the Company; or
(iii) in the good faith judgment of the Board of
Directors of the Company, require disclosure of material
nonpublic information which, if disclosed at such time, would be
materially harmful to the interests of the Company and its
stockholders;
provided, however, that the Company shall only be entitled to exercise its
rights with respect to all Blackout Periods for a total of 90 days (plus an
additional 90 days under Section 2.02(c) below) during any 12 month period and
shall only be entitled to exercise its rights with respect to Section
2.02(b)(iii) twice during any 12-month period and then only as to separate
events.
(c) If the Company has exercised its rights pursuant to Section
2.02(b) hereof for a cumulative total of 90 days during any 12 month period,
then, commencing immediately thereafter, the Company shall only be entitled to
postpone or suspend, for a reasonable period of time (subject to the overall
limitation described in the preceding sentence), the filing, effectiveness or
use of any Registration Statement in the event that (i) there shall be a
proposed material, merger, acquisition or financing (collectively "Corporate
Opportunities") as to which the Company has entered into a definitive heads of
agreement, letter of intent, term sheet or other similar arrangement (provided
that such agreement, letter of intent, term sheet or other arrangement need not
be disclosable pursuant to applicable securities laws) and (ii) the Board of
Directors of Parent shall have received the written opinion of a nationally
recognized investment banking firm that disclosure required in the applicable
Registration Statement with respect to such Corporate Opportunity would
materially jeopardize the benefit to the Company presented by such Corporate
Opportunity and that the failure to pursue such Corporate Opportunity at such
time would materially adversely affect the Company's business.
(d) The Company shall use its best efforts to minimize the
duration of any Blackout Period at all times and make appropriate public
disclosure as soon as practicable consistent with the foregoing. Each Blackout
Period shall terminate upon the earliest of completion or abandonment of the
applicable transaction, public disclosure of the proposal to enter into such
merger, acquisition or financing, when public disclosure would no longer be
materially adverse to the Company, and the 90th
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or 180th day of the aggregate Blackout Periods (as the case may be as provided
in Section 2.02(b) above) in any 12-month period. At the expiration of any
Blackout Period and without any further request from the Individual
Stockholders, the Company shall effect its obligations pursuant to Sections 2.01
and 2.02 of this Agreement.
SECTION 2.03. Underwriting Requirements. In connection with any
underwritten offering, the Company shall not be required under Section 2.02 of
this Agreement to include shares of Registrable Securities in such underwritten
offering unless the holder of such shares of Registrable Securities accept the
terms of the underwriting of such offering that have been reasonably agreed upon
between the Company and the underwriters selected by the Company.
SECTION 2.04. Registration Procedures. (a) In connection with
either the Shelf Registration or an Incidental Registration, and in accordance
with the intended method or methods of distribution of the Registrable
Securities 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 best efforts to
cause such Registration Statement to become and remain effective for the
period of the distribution contemplated;
(ii) promptly 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 each Individual Stockholder 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
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 an Individual Stockholder 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 such Individual Stockholder agrees to do so;
(v) promptly notify each Individual Stockholder, 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
<PAGE> 6
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 an
Individual Stockholder promptly prepare and furnish (subject to the
Company's rights in connection with a Blackout Period) to each
Individual Stockholder 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) furnish, to the Individual Stockholders (i) at the effective
date of the Shelf Registration and (ii) at the request of an Individual
Stockholder requesting registration of Registrable Securities pursuant
to Section 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, (a) 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 Individual Stockholders, as to such matters as such underwriters or
the Individual Stockholders, as the case may be, may reasonably request
and as would be customary in an underwritten distribution; and (b)
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 Individual Stockholders
and, if such accountants refuse to deliver such letters to the
Individual Stockholders, then to the Company (1) 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 (2)
covering such other financial matters (including information as to the
period ending not more than five 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 Individual
Stockholders, as the case may be, may reasonably request and as would be
customary in an underwritten distribution.
(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;
(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 months after the effective date of the Registration
Statement, an earnings statement covering the period of at least twelve
months beginning with the first full
<PAGE> 7
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 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) Each Individual Stockholder shall furnish to the Company in
writing such information regarding such Individual Stockholder 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. Each Individual
Stockholder shall notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such Individual
Stockholder 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 such
Individual Stockholder or its intended method of distribution of such
Registrable Securities or omits to state any material fact regarding such
Individual Stockholder 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 such
Individual Stockholder 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 2.05. Registration Expenses. All expenses incurred in
connection with all registrations pursuant to Section 2.01 and Section 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 chosen by the Individual
Stockholders collectively and fees and disbursements of counsel for the Company
incurred in connection with each registration shall be paid by the Company. Each
Individual Stockholder shall bear and pay the underwriting commissions and
discounts and any stamp or transfer tax or duty and the fees and disbursements
of such counsel for the Individual Stockholders 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 2.06. Indemnification; Contribution.
(a) Indemnification by the Company. The Company shall, and it
hereby agrees to, indemnify and hold harmless each Individual Stockholder, such
Individual Stockholder's directors and
<PAGE> 8
officers, each person, if any, who controls, is subject to control of or who is
in common control with such Individual Stockholder (an "Affiliate"), 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 such Individual Stockholder, Affiliate, agent or underwriter
may become subject under Securities Act or otherwise, 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 such
Individual Stockholder 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 2.06(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 such Individual Stockholder or any agent, underwriter or
representative of such Individual Stockholder expressly for use therein, or by
such Individual Stockholder's failure to furnish the Company, upon request, with
the information with respect to such Individual Stockholder, such Individual
Stockholder's directors and officers, or any agent, underwriter or
representative of such Individual Stockholder, or such Individual Stockholder'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 such
Individual Stockholder, such Individual Stockholder'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 such Individual Stockholder
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 Individual Stockholders and Any Agent or
Underwriters. Each Individual Stockholder 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
<PAGE> 9
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 such Individual
Stockholder expressly for use in connection with such Registration Statement or
Prospectus, or by such Individual Stockholder's failure to furnish the Company,
upon request, with the information with respect to the Individual Stockholder,
such Individual Stockholder's directors and officers, or any agent, underwriter
or representative of such Individual Stockholder, or such Individual
Stockholder's intended method of distribution, that is the subject of the untrue
statement or omission; and such Individual Stockholder 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 2.06(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 Individual Stockholder 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 2.06, 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 2.06(a) or Section
2.06(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 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.
<PAGE> 10
(d) Contribution. Each Individual Stockholder and the Company
agree that if, for any reason, the indemnification provisions contemplated by
Section 2.06(a) or Section 2.06(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 2.06(d)
were determined (i) by pro rata allocation (even if the Individual Stockholder
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 2.06(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 2.06(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.
(e) Beneficiaries of Indemnification. The obligations of the
Company under this Section 2.06 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, partner and member of each Individual Stockholder requesting
or joining in a registration and each agent and underwriter of the Registrable
Securities and each person, if any, who controls such Individual Stockholder or
any such agent or underwriter within the meaning of the Securities Act; and the
obligations of such Individual Stockholder and any agents or underwriters
contemplated by this Section 2.06 shall be in addition to any liability that
such Individual Stockholder 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 2.07. 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) as to
an Individual Stockholder, the date that the Registrable Securities held by such
Individual Stockholder can be sold within a three month period under Rule 144
under the Securities Act; (ii) if the Company has not exercised Blackout Period
rights pursuant to Section 2.02(c) hereof then on the second anniversary of the
filing date of the Shelf Registration regardless of the tradeability of any
Registrable Securities held by such Individual Stockholder or (iii), if the
Company has exercised Blackout Period rights pursuant to Section 2.02(c) hereof,
on the date which is the number of days after the second anniversary of the
filing date of the Shelf Registration
<PAGE> 11
<PAGE> 12
equal to the aggregate number of days of the duration of all Blackout Periods
pursuant to Section 2.02(c) hereof.
SECTION 2.08. 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 Individual Stockholders, provided,
that such managing underwriter or underwriters must be of recognized standing.
SECTION 2.09. Lockup. Each Individual Stockholder shall, in
connection with any registration of the Company's securities in which it
participates, upon the request of the underwriters managing such underwritten
offering, agree in writing (in a form satisfactory to such underwriter) 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 such underwriters for such period of time not to exceed one hundred and
eighty (180) days from the effective date of such registration as 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 2.09.
SECTION 2.10. Legends. (a) Stop transfer restrictions will be
given to the Company's transfer agent(s) with respect to the Registrable
Securities and there will be placed on the certificate or instruments
representing the Registrable Securities, and on any certificate or instrument
delivered in substitution or exchange therefor, a legend stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO SUCH REGISTRATION OR IN
ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.
(b) The Company hereby agrees that it will cause stop transfer
restrictions to be released with respect to any Registrable Securities that are
transferred (i) pursuant to an effective Registration Statement under the
Securities Act, (ii) pursuant to Rule 144 under the Securities Act, or (iii)
pursuant to another exemption from the registration requirements of the
Securities Act; provided, however, that in the case of any transfer pursuant to
clause (ii) or (iii) above, the request for transfer is accompanied by a written
statement signed by such Individual Stockholder confirming compliance with the
requirements of the relevant exemption from registration; and provided, further,
that in the case of any transfer pursuant to clause (iii) above, other than any
transfer by such Individual Stockholder to one or more of its direct or indirect
subsidiaries, or among such subsidiaries, or by any such subsidiary to such
Individual Stockholder, the Company shall have received a written opinion of
counsel reasonably satisfactory to the Company that such registration is not
required. The Company further agrees that it will cause the legend described in
subsection (a) of this Section 2.10 to be removed in the event of any transfer
as provided in clause (i) or (ii) above.
SECTION 2.11. Transfer of Registration Rights. An Individual
Stockholder may not transfer its rights under this Agreement without the written
consent of the Company; provided,
<PAGE> 13
however, that an Individual Stockholder may transfer such Individual
Stockholder's rights in whole and not in part without the Company's consent to a
Permitted Transferee (as defined below) if (i) the transferring Individual
Stockholder gives the Company written notice, whether or not the Company's
consent is necessary to effect such transfer, 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 agrees in writing, in form and substance
reasonably satisfactory to the Company, to be bound as an Individual Stockholder
by the provisions of this Agreement. Any transfer of Registrable Securities not
in compliance with this Section 2.11 shall cause such Registrable Securities to
lose such status. For purposes of this Section 2.11, "Permitted Transferee"
shall mean (i) in the case of any Individual Stockholder who is a natural
person, a Person to whom Registrable Securities are transferred from such
Individual Stockholder by gift, will or the laws of descent and distribution and
(ii) any "affiliate" of any Individual Stockholder, including, without
limitation, any trust, partnership or limited liability company that an
Individual Stockholder controls or is a beneficiary of, or any person that is a
member of any Individual Stockholder or a beneficiary of any such trust, and any
partnership or limited liability company controlled by two or more of such
trusts or beneficiaries of such trust or trusts.
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 so long as an Individual
Stockholder holds any Registrable Securities.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. 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 3.02. 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
3.02):
(a) if to the Company:
Getty Images, Inc.
2101 Fourth Avenue
Fifth Floor
Seattle, Washington 98121
Facsimile: (206) 695-3447
Attention: Heather Redman
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with a copy to:
Shearman & Sterling
555 California Street
San Francisco, California 94104
Facsimile: (415) 616-1199
Attention: William H. Hinman, Jr.
(b) if to an Individual Stockholder, then to the
address for such Individual Stockholder as it appears on
the books of the Company at the time of such notice.
with a copy to:
Altheimer & Gray
10 South Wacker Drive
Chicago, Illinois 60608
Facsimile: (312) 715-4800
Attention: Peter H. Lieberman
or as such Individual Stockholder shall otherwise request
in writing.
SECTION 3.03. 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 3.04. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
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 and shall in no way be affected, impaired or
invalidated.
SECTION 3.05. Entire Agreement. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all 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 3.06. 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.
SECTION 3.07. 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.
<PAGE> 15
SECTION 3.08. 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 3.10 of this
Agreement.
SECTION 3.09. Waiver. Any party to this Agreement may as to it
(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 3.10. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed in that state and without regard to
any applicable conflicts of law. All actions and proceedings arising out of or
relating to this Agreement may be heard and determined in the federal court for
the Western District of Washington or the Northern District of Illinois or the
Southern District of New York. Each of the parties to this Agreement (a)
consents to submit itself to the non-exclusive personal jurisdiction of the
federal court for the District of Western and the Northern District of Illinois
and the Southern District of New York in the event any dispute arises out of
this Agreement or any of the transactions contemplated by this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and (c) agrees that it
will not bring any action in relation to this Agreement, the Merger or any of
the other transactions contemplated by this Agreement in any court other than
the federal court of the Western District of Washington or the Northern District
of Illinois or the Southern District of New York.
SECTION 3.11. 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 3.12. 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.
SECTION 3.13. 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 Individual Stockholder, and the indemnification and
contribution provisions set forth in Section 2.08 hereof shall survive
termination of this Agreement.
<PAGE> 16
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:
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By:
Name:
Title:
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By:
Name:
Title:
[ ]
By:
Name:
Title: