Voting Agreement - Getty Communications (USA) Inc., Getty Communications plc, Photodisc Inc. and Carlton Communications
VOTING AGREEMENT, dated as of September 16, 1997 (this "AGREEMENT"),
among Getty Communications (USA), Inc., a Delaware corporation ("Getty Images"),
Getty Communications plc, an English corporation ("GETTY"), PhotoDisc, Inc., a
Washington corporation ("PHOTODISC") and Carlton Communications, a Netherlands
corporation ("Carlton").
WITNESSETH
WHEREAS, Getty Images, GETTY COMMUNICATIONS plc, a public limited
company organized under the laws of England and Wales, PhotoDisc, Inc., a
Washington corporation ("PhotoDisc"), and Print MERGER, Inc. a Washington
corporation and wholly owned subsidiary of Getty Images ("MERGER SUB"), propose
to enter into a Merger Agreement, dated as of the date hereof (the "MERGER
AGREEMENT"), which provides, among other things, that MERGER SUB will merge with
and into PhotoDisc (the "MERGER") upon the terms and subject to the conditions
set forth in the Merger Agreement and that Getty Images will acquire all the
shares of Getty pursuant to a Scheme of Arrangement (the "Scheme of
Arrangement") as described below:
1. Each existing Class A Ordinary Share of Getty shall be cancelled and
reissued by way of capitalization of reserves to Getty Images.
2. In consideration of the issues of shares in paragraph 1 above to Getty
Images, Getty images shall issue to each holder of Class A Ordinary Shares
of Getty, credited as fully paid, one share of common stock of Getty Images
for every two Class A Ordinary Shares of Getty held.
3. Each existing Class B Ordinary Share of Getty shall be cancelled and
reissued as a Class A Ordinary Share by way of capitalization of reserves
to Getty Images.
4. In consideration of the issue of shares in paragraph 3 above to Getty
Images, Getty Images shall issue to each holder of Class B Ordinary Shares
of Getty, credited as fully paid, one share of common stock of Getty Images
for every two Class B Ordinary Shares of Getty held.
5. All shares of common stock of Getty Images shall rank pari passu in all
respects and in particular shall each have one vote per share of common
stock.
WHEREAS, as of the date hereof, Carlton owns 3,238,772 Class A
ordinary shares par value 1p per share of Getty ("Getty Class A Shares") and
WHEREAS, as a condition to the willingness of Getty Images, Getty and
PhotoDisc to enter into the Merger Agreement and the Scheme of Arrangement,
Getty Images, Getty and PhotoDisc have required that Carlton agrees, and in
order to induce those parties to enter into the Merger Agreement and the Scheme
of Arrangement, Carlton has agreed, to enter into this Agreement with respect to
all the Getty Class A Shares now owned and which may hereafter be acquired by
Carlton (the "SHARES"):
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NOW THEREFORE, in consideration of the foregoing and the respective
agreements set forth herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
VOTING OF SHARES
SECTION 1.01. VOTING OF SHARES; FURTHER ASSURANCES. Carlton hereby
agrees, in respect of all the Shares to be bound (or to procure that the
registered holder is so bound) by the Scheme of Arrangement and to undertake to
the High Court on the hearing of the petition to sanction the Scheme of
Arrangement, to be bound (and to procure that the registered holder is so bound)
thereby and to execute and do and to procure to be executed and done all such
documents, acts and things as may be reasonably necessary or desirable to be
executed or done by it or any holder of the Shares for the purpose of giving
effect to the Scheme of Arrangement; and vote, if requested by PhotoDisc, in
favor of all resolutions to be proposed at any Extraordinary General Meeting of
the holders of Ordinary Shares of Getty or Separate Class Meeting of the holders
of Class A Ordinary Shares of Getty convened to approve the Scheme of
Arrangement and related matters (including any adjournment of any such meeting)
to the extent the passing of such resolution is required to implement the Scheme
of Arrangement and related matters and the other transactions contemplated by
the Merger Agreement and the Scheme of Arrangement; and to vote against any
proposal for any recapitalization, merger, sale of assets or other business
combination between Getty and any person or entity (other than the Merger) and
to deliver valid and duly completed forms of proxy appointing the Chairman of
any such meeting as Carlton's proxy to vote in favor of all such resolutions at
least 5 business days prior to the last date for delivery of such proxies; and
in favor of any other matter NECESSARY TO EFFECT THE consummation of the
transactions contemplated by the Merger Agreement and the Scheme of Arrangement.
SECTION 1.02. NO INCONSISTENT AGREEMENTS. Carlton hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement and the Scheme of Arrangement, Carlton shall not enter into any voting
agreement or grant a proxy or power of attorney with respect to the Shares which
is inconsistent with this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CARLTON
Carlton hereby represents and warrants to Getty Images, Getty and
PhotoDisc as follows:
SECTION 2.01. AUTHORITY OF CARLTON. Carlton has all the necessary
capacity, power and authority to enter into this Agreement, to carry out
Carlton's obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Carlton, the
performance by Carlton of Carlton's obligations hereunder and the consummation
by Carlton of the transactions contemplated hereby have been duly authorized by
all requisite action on the part of Carlton. This Agreement has been duly
executed and delivered by Carlton and (assuming the due authorization, execution
and delivery by Getty Images, Getty and PhotoDisc) this Agreement constitutes a
legal, valid and binding obligation of Carlton enforceable against Carlton in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency or other similar laws
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affecting the enforcement of creditors' rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding thereof may be
brought.
SECTION 2.02 NO CONFLICT. The execution, delivery and performance of
this Agreement by Carlton do not and will not, (i) violate, conflict with or
result in the breach of any provision of the charter or by-laws or operating
agreement (or equivalent organizational documents) of Carlton, (ii) conflict
with or violate (or cause an event which reasonably could be expected to have a
material adverse effect on Carlton as a result of) any law, rule, regulation,
order, judgment or decree applicable to Carlton or by which the Shares are bound
or affected or (iii) conflict with, result in any breach of, constitute a
default (or an event that, with the giving of notice or lapse of time, or both,
would become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Shares pursuant to, any material note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which Carlton is a party or by which such Carlton
or the Shares are bound or affected.
SECTION 2.03 OWNERSHIP OF SHARES. Carlton owns of record and
beneficially, free and clear of all encumbrances the number of Class A Ordinary
Shares of Getty set forth above. Carlton has not appointed or granted any
proxy, which appointment or grant is still effective, with respect to the
Shares.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 TERMINATION. This Agreement shall terminate upon the
termination of the Merger Agreement.
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 or 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 Getty or Getty Images:
c/o of Getty Communications plc
101 Bayham Street
London NW1 England
Facsimile: (44171) 267-6540
Attention: Nick Evans-Lombe
with a copy to each of:
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ England
Facsimile: (44171) 600-5555
Attention: Michael Francies
Shearman & Sterling
555 California Street
San Francisco, California 94104
Facsimile: (415) 616-1199
Attention: Christopher D. Dillon
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(b) if to PhotoDisc:
PhotoDisc, Inc.
2013 Fourth Avenue
4th Floor
Seattle, WA 98121
Facsimile: (206) 441-9379
Attention: Mark Torrance
with a copy to:
Heller Ehrman White & McAuliffe
6100 Columbia Centre
701 Fifth Avenue
Seattle, Washington 98104
Telecopy: (206) 447-0849
Attention: Thomas S. Hodge
(c) if to Carlton:
Vossenbeemd 51
5705 CL Helmond
The Netherlands
Facsimile: 31492 552505
Attention: Han von Eijden
with a copy to:
Carlton Communications Plc
25 Knightsbridge
London SW1X 7RZ
Facsimile: 171 663 6300
Attention: David Abdoo
SECTION 3.03 PUBLIC ANNOUNCEMENTS. No party to this Agreement shall
make, or cause to be made, any press release or public announcement in respect
of this Agreement or the transactions contemplated hereby or otherwise
communicate with any news media without prior consent of the other party (except
to the extent that such disclosure is required by law or the rules of the Nasdaq
National Market), and, to the extent practicable, the parties shall cooperate as
to the timing and contents of any such press release or public announcement.
SECTION 3.04 HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 3.05 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other terms and
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provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner in order that the terms of this Agreement remain as originally
contemplated to the greatest extent possible.
SECTION 3.06 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Getty Images and the Voting Stockholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between Getty Images and the Voting Stockholders with
respect to the subject matter hereof.
SECTION 3.07. ASSIGNMENT. This Agreement may not be assigned by
operation of law or otherwise without the express written consent of the other
parties hereto (which consent may be granted or withheld in the sole discretion
of such parties).
SECTION 3.08 NO THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns, and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 3.09 AMENDMENT. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, the
parties hereto.
SECTION 3.10 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed entirely within that state. All
actions and proceedings arising out of OR related to this Agreement shall be
heard and determined in any Delaware state or federal court sitting in the State
of Delaware.
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 when executed shall be deemed to be an original but all of which
taken 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 that any provision of this Agreement
is 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.
IN WITNESS WHEREOF, each of the parties has duly executed, or has
caused this Agreement to be duly executed by its duly authorized representative,
as of the date first written above.
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GETTY COMMUNICATIONS (USA), INC.
By:
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Name:
Title:
GETTY COMMUNICATIONS PLC
By:
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Name:
Title:
PHOTODISC, INC.
By:
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Name:
Title:
CARLTON COMMUNICATIONS BV
By:
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Name:
Title: