Registration Rights Agreement - Getty Communications plc, the October 1993 Trust and Crediton Ltd.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 3, 1996 (this
"Agreement"), between Getty Communications plc, a public limited company
organized under the laws of England and Wales (the "Company"), and each of
the trustees of the October 1993 Trust and Crediton Limited (together the
"Trusts" and each individually, a "Trust").
WHEREAS, the Company has determined that it is in the best interests of
the Company to offer Class A Ordinary Shares of the Company (the "Class A
Shares") in the form of American Depositary Shares in the United States (the
"Offering") pursuant to the filing of a Form F-1 Registration Statement under
the United States Securities Act of 1933, as amended (the "Securities Act");
and
WHEREAS, after the consummation of the Offering, the Trusts will own 18.8
percent of the total voting power of the Company in the form of 2,490,408
Class B Ordinary Shares of the Company (the "Class B Shares" and, together
with the Class A Shares, the "Ordinary Shares") which may, subject to certain
conditions, be converted into Class A Shares (upon conversion, the
"Conversion Shares"); and
WHEREAS, the parties each desire to make certain covenants and agreements
concerning the registration from time to time of the Registrable Shares (as
defined below) under the Securities Act.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties and conditions contained herein, 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.
"EXCHANGE ACT" shall mean the United States Securities Exchange
Act of 1934, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be amended from time to
time.
"HOLDER" shall mean each Trust or any transferee or assignee
thereof to whom the rights under this Agreement are assigned in accordance
with the provisions of Section 4.06 hereof.
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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.
"REGISTRABLE SHARES" shall mean (i) the Conversion Shares,
(ii) any Ordinary Shares issued as (or issuable upon the conversion or
exercise of any warrant, right, option or other convertible security which
is issued as) a dividend or other distribution with respect to, or in
exchange for, or in replacement of, the Conversion Shares, (iii) any
Ordinary Shares issued by way of a stock split or which otherwise reduces
the percentage holding at the date of the offering of the Conversion Shares
referred to in clauses (i) or (ii) above and (iv) any Ordinary Shares of
the Company acquired pursuant to the Shareholders' Agreement dated as of
July 8, 1996, among Getty Investments LLC and the Trusts (the
"Shareholders' Agreement"), only to the extent that such acquisition
increases the holding of the Class B Shares of a Trust beyond its holding
at the Offering Date. For purposes of this Agreement, any Registrable
Shares shall cease to be Registrable Shares when (x) a registration
statement covering such Registrable Shares has been declared effective and
such Registrable Shares have been disposed of pursuant to such effective
registration statement and (y) such Registrable Shares are sold freely in
the public market by a person in a transaction in which the rights under
the provisions of this Agreement are not assigned.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. REPRESENTATIONS AND WARRANTIES OF THE TRUSTS. Each Trust,
severally, hereby represents and warrants to the Company that it has all
requisite power and authority, and has received all requisite approvals to
complete the transactions contemplated hereby; this Agreement has been duly
authorized, executed and delivered by each Trust and constitutes a valid and
binding agreement enforceable against it in accordance with its terms.
SECTION 2.02. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Trust that it has been duly organized
and is an existing corporation in good standing under the laws of England and
Wales and that (i) it has all requisite corporate power and authority, and
has received all requisite approvals (including any necessary approval of its
board of directors) to complete the transactions contemplated hereby and (ii)
this Agreement has been duly authorized, executed and delivered by it and
constitutes a valid and binding agreement enforceable by each Trust against
it in accordance with its terms.
ARTICLE III
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AGREEMENTS IN RESPECT OF THE REGISTRABLE SHARES
SECTION 3.01. DEMAND REGISTRATIONS. (a) Within 90 days following the
date that Mr. Mark H. Getty, in the case of the trustees of the October 1993
Trust and its transferees or assignees, and within 90 days following the date
that Mr. Jonathan D. Klein, in the case of Crediton Limited and its
transferees or assignees, ceases to be employed by the Company, each such
Holder shall have the right (the "Demand Right") on one occasion to require
the Company to file a registration statement under the Securities Act in
respect of all the Registrable Shares held by such Holder; PROVIDED, HOWEVER,
that if such Holder is exercising such Demand Right together with any other
Holders, then it may be exercised if the Registrable Shares and the other
shares demanded by the other Holders shall exceed five percent of the
outstanding Ordinary Shares of the Company. As promptly as practicable, but
in no event later than 30 days after the Company receives a written request
from such Holder demanding that the Company so register the number of
Registrable Shares specified in such request, the Company shall file with the
Commission and thereafter use its best efforts to cause to be declared
effective promptly a registration statement (a "Demand Registration")
providing for the registration of all Registrable Shares as such Holder shall
have demanded be registered.
(b) Anything in this Agreement to the contrary notwithstanding, the
Company shall be entitled to postpone and delay, for a reasonable period of
time, not to exceed 45 days (the "Blackout Period"), the filing of any Demand
Registration if (i) the Company is conducting or about to conduct an
underwritten public offering of securities in which the Holder is entitled to
join pursuant to Section 3.02 hereof, (ii) the Company is subject to an
existing contractual obligation not to engage in a public offering, or (iii)
the Company shall determine that any such filing or the offering of any
Registrable Shares would (x) in the good faith judgment of the Board of
Directors of the Company, impede, delay or otherwise interfere with any
pending or contemplated financing, acquisition, corporate reorganization or
other similar transaction involving the Company, (y) based upon advice from
the Company's investment banker or financial advisor, adversely affect any
pending or contemplated offering or sale of any class of securities by the
Company, or (z) require disclosure of material nonpublic information which,
if disclosed at such time, would be materially harmful to the interests of
the Company and its shareholders; PROVIDED, HOWEVER, that the Blackout Period
shall terminate upon the completion or abandonment of the relevant securities
offering or sale, the termination or expiration of the existing contractual
obligation to its underwriters not to engage in a public offering, the
completion or abandonment of the relevant financing, acquisition, corporate
reorganization or other similar transaction, such time as such Demand
Registration shall no longer affect the relevant pending or contemplated
offering or sale of securities by the Company, or the public disclosure by
the Company or public admission by the Company of such material nonpublic
information or such time as such material nonpublic information shall be
publicly disclosed without breach of the last sentence of this subsection
(b), as the case may be. After the expiration of any Blackout Period and
without any further request from a Holder, the Company shall effect the
filing of the relevant Demand Registration and shall use its best efforts to
cause any such Demand Registration to be declared effective as promptly as
practicable unless such Holder shall
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have, prior to the effective date of such Demand Registration, withdrawn in
writing its initial request, in which case such withdrawn request shall not
constitute a Demand Registration for purposes of determining the number of
Demand Registrations to which such Holder is entitled to hereunder.
(c) Except with respect to any request by a Holder for a Demand
Registration which is subsequently withdrawn prior to such Demand
Registration becoming effective due to (i) a material adverse change
affecting the Company or capital markets generally, or (ii) a notification by
the Company of an intention to file a registration statement with respect to
the Class A Shares, such Holder shall share equally with the Company all
expenses relating to the preparation of such withdrawn Demand Registration.
SECTION 3.02. INCIDENTAL REGISTRATION. (a) If, at any time following
the date of the Offering and up to and including 30 days after, in the case
of the October 1993 Trust, Mr. Mark H. Getty ceases to be employed by the
Company or, in the case of Crediton Limited, Mr. Jonathan D. Klein ceases to
be employed by the Company, the Company proposes to file a registration
statement under the Securities Act with respect to an offering of its Class A
Shares (i) for its own account (other than a registration statement on Form
S-4 or S-8 (or any substitute form that may be adopted by the Commission)) or
(ii) for the account of any holders of its Class A Shares (including any
pursuant to a demand registration), the Company shall give written notice of
such proposed filing to each Holder as soon as practicable (but in any event
not less than 30 days before the anticipated filing date), and such notice
shall offer each Holder the opportunity to register such number of
Registrable Shares as the Holder shall request. Upon the written direction
of any Holder, given within 20 days following the receipt by such Holder of
any such written notice (which direction shall specify the number of
Registrable Shares intended to be disposed of by such Holder), the Company
shall include in such registration statement (an "Incidental Registration"
and, collectively with a Demand Registration, a "Registration") such number
of Registrable Shares as shall be set forth in such notice. Notwithstanding
anything contained herein, if the lead underwriter of an offering involving
an Incidental Registration delivers a written opinion to the Company that the
inclusion of such Registrable Shares would materially and adversely affect
the price of the Class A Shares to be offered or (ii) result in a greater
amount of Class A Shares being offered than the market could reasonably
absorb, then the number of Registrable Shares to be registered by each party
requesting Incidental Registration rights shall be reduced in proportion to
the number of securities originally requested to be registered by each of
them. Nothing contained herein shall require the Company to reduce the
number of Class A Shares proposed to be issued by the Company.
(b) No Incidental Registration effected under this Section 3.02 shall be
deemed to have been effected pursuant to Section 3.01 hereof or shall release
the Company of its obligations to effect any Demand Registration upon request
as provided under Section 3.01 hereof.
SECTION 3.03. REGISTRATION PROCEDURES. (a) In connection with each
Registration, and in accordance with the intended method or methods of
distribution of
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the Class A Shares as described in such Registration, the Company shall, as
soon as reasonably practicable (and, in any event, subject to the terms of
this Agreement, including, without limitation, Section 3.01(a) hereof, at or
before the time required by applicable laws and regulations):
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Shares and use its best efforts to cause
such registration statement to become and remain effective for the period
of the distribution contemplated thereby determined as provided hereafter;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
Shares covered by such registration statement;
(c) furnish to the Holder such numbers of copies of the registration
statement and the prospectus included therein (including each preliminary
prospectus and any amendments or supplements thereto), in conformity with
the requirements of the Securities Act and such other documents and
information as it may reasonably request;
(d) use its best efforts to register or qualify the Registrable
Shares covered by such registration statement under such other securities
or blue sky laws of such jurisdiction within the United States and Puerto
Rico as shall be reasonably appropriate for the distribution of the
Registrable Shares covered by the registration statement; PROVIDED,
HOWEVER, that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business in or to file a general
consent to service of process in any jurisdiction wherein it would not but
for the requirements of this paragraph (d) be obligated to do so; and
PROVIDED, FURTHER, that the Company shall not be required to qualify such
Registrable Shares in any jurisdiction in which the securities regulatory
authority requires that the Holder submit any of its Registrable Shares to
the terms, provisions and restrictions of any escrow, lockup or similar
agreement(s) for consent to sell Registrable Shares in such jurisdiction
unless such Holder agrees to do so;
(e) promptly notify each Holder, at any time when a prospectus
relating to the Registrable Shares is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made, and at the request of any such Holder promptly prepare and
furnish to such Holder a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue
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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;
(f) furnish, at the request of any Holder requesting registration of
Registrable Shares pursuant to Sections 3.01 or 3.02 hereof, if the method
of distribution is by means of an underwriting, on the date that the
Registrable Shares are delivered to the underwriters for sale pursuant to
such registration, or if such Registrable Shares are not being sold through
underwriters, on the date that the registration statement with respect to
such Registrable Shares becomes effective, (1) a signed opinion, dated such
date, of the independent legal counsel representing the Company for the
purpose of such registration, addressed to the underwriters, if any, and if
such Registrable Shares are not being sold through underwriters, then to
the Holders making such request, as to such matters as such underwriters or
the Holders holding a majority of the Registrable Shares included in such
registration, as the case may be, may reasonably request and as would be
customary in such a transaction; and (2) letters dated such date and the
date the offering is priced from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and if
such Registrable Shares are not being sold through underwriters, then to
the Holders making such request and, if such accountants refuse to deliver
such letters to such Holders, then to the Company (i) stating that they are
independent certified public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements and other financial data of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereto, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and (ii) covering such other
financial matters (including information as to the period ending not more
than five (5) business days prior to the date of such letters) with respect
to the registration in respect of which such letter is being given as such
underwriters or the Holders holding a majority of the Registrable Shares
included in such registration, as the case may be, may reasonably request
and as would be customary in such a transaction;
(g) 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 Shares
to be so included in the registration statement;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, but not later than eighteen
(18) months after the effective date of the registration statement, an
earnings statement covering the period of at least twelve (12) months
beginning with the first full month after the effective date of such
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
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(i) use its best efforts to list the Class A Shares covered by such
registration statement with any securities exchange on which the Class A
Shares are then listed.
(b) Each Holder requesting registration shall furnish to the Company in
writing such information regarding such Holder and its intended method of
distribution of the Registrable Shares as the Company may from time to time
reasonably request in writing, but only to the extent that such information
is required in order for the Company to comply with its obligations under all
applicable securities and other laws and to ensure that the prospectus
relating to such Registrable Shares conforms to the applicable requirements
of the Securities Act and the rules and regulations thereunder. Such Holder
shall notify the Company as promptly as practicable of any inaccuracy or
change in information previously furnished by such Holder to the Company or
of the occurrence of any event, in either case as a result of which any
prospectus relating to the Registrable Shares contains or would contain an
untrue statement of a material fact regarding such Holder or its intended
method of distribution of such Registrable Shares or omits to state any
material fact regarding such Holder or its intended method of distribution of
such Registrable Shares required to be stated therein or necessary to make
the statements therein, in 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 Holder or the intended method of distribution of the
Registrable Shares, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
SECTION 3.05. REGISTRATION EXPENSES. All expenses, 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 for the
Holders and fees and disbursements of counsel for the Company incurred in
connection with each registration shall be paid by the Company. Each Holder
shall bear and pay the underwriting commissions and discounts and any stamp
or transfer tax or duty and the fees and disbursements of counsel for the
Holders other than the one counsel referred to above incurred in connection
with such registration applicable to securities offered for its account in
connection with any registrations, filings and qualifications made pursuant
to this Agreement.
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SECTION 3.06. INDEMNIFICATION; CONTRIBUTION. (a) INDEMNIFICATION BY
THE COMPANY. The Company shall, and it hereby agrees to, indemnify and hold
harmless each Holder, such Holder's directors and officers, and each person
who participates as a placement or sales agent or as an underwriter in any
offering or sale of the Registered Shares, against any losses, claims,
damages or liabilities to which such Holder or such agent or underwriter may
become subject, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Registration, or any preliminary or final prospectus contained therein,
or any amendment or supplement thereto, or any document incorporated by
reference therein, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company
shall, and it hereby agrees to, reimburse each such Holder or any such agent
or underwriter for any legal or other out-of-pocket expenses reasonably
incurred by them (but 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 3.06(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company which consent shall
not be unreasonably withheld; PROVIDED, FURTHER, that the Company shall not
be liable to any such person in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration, or preliminary or final prospectus, or amendment
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such Holder or any agent, underwriter
or representative of such Holder expressly for use therein, or by such
Holder's failure to furnish the Company, upon request, with the information
with respect to such Holder, such Holder's directors and officers, or any
agent, underwriter or representative of such Holder, or such Holder's
intended method of distribution, that is the subject of the untrue statement
or omission or if the Company shall sustain the burden of proving that such
Holder, such Holder's directors and officers, or such agent or underwriter
sold securities to the person alleging such loss, claim, damage or liability
without sending or giving, at or prior to the written confirmation of such
sale, a copy of the applicable prospectus (excluding any 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 the such
Holder or such agent or underwriter, and such prospectus corrected such
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration.
(b) INDEMNIFICATION BY THE HOLDER AND ANY AGENT OR UNDERWRITERS. Each
Holder requesting or joining in a Registration severally and not jointly 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
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losses, claims, damages or liabilities, joint or several, to which the
Company or any such director, officer, controlling person, agent or
underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such registration
statement on the effective date thereof (including any prospectus filed under
Rule 424 under the Securities Act or any amendments or supplements thereto)
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such registration statement,
preliminary or final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished by or on
behalf of such Holder expressly for use in connection with such Registration;
and each such Holder shall reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
agent or underwriter (but not in excess of expenses incurred in respect of
one counsel for all of them unless there is an actual conflict of interest
between any indemnified parties, which indemnified parties may be represented
by separate counsel) in connection with investigating or defending any such
loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
indemnity agreement contained in this Section 3.06(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of such Holder
(which consent shall not be unreasonably withheld).
(c) NOTICE OF CLAIMS, ETC. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action or proceeding for which indemnification under subsection (a) or (b) may
be requested, such indemnified party shall, without regard to whether a claim in
respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of, or as contemplated by, this Section 3.06, notify
such indemnifying party in writing of the commencement of such action or
proceeding; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party in
respect of such action or proceeding on account of the indemnification
provisions of or contemplated by Section 3.06(a) or 3.06(b) hereof unless the
indemnifying party was materially prejudiced by such failure of the indemnified
party to give such notice, and in no 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
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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.
(d) CONTRIBUTION. Each Holder requesting or joining in a Registration
and the Company agree that if, for any reason, the indemnification provisions
contemplated by Section 3.06(a) or Section 3.06(b) hereof are unavailable to
or are insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative fault
of, and benefits derived by, the indemnifying party and the indemnified
party, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or
by such indemnified party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 3.06(d) were determined (i) by pro
rata allocation (even if the Holder or any agents for, or underwriters of,
the Registrable Shares, or all of them, were treated as one entity for such
purpose); or (ii) by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 3.06(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above shall be deemed to include (subject to the limitations set
forth in Section 3.06(c) hereof) any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action, proceeding or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(e) BENEFICIARIES OF INDEMNIFICATION. The obligations of the Company
under this Section 3.06 shall be in addition to any liability that it may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each
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Holder requesting or joining in a Registration and each agent and underwriter
of the Registrable Shares and each person, if any, who controls such Holder
or any such agent or underwriter within the meaning of the Securities Act;
and the obligations of such Holder and any agents or underwriters
contemplated by this Section 3.06 shall be in addition to any liability that
such Holder or its respective agent or underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his consent, is named
in any registration statement as about to become a director of the Company)
and to each person, if any, who controls the Company within the meaning of
the Securities Act.
SECTION 3.07. UNDERWRITERS. If any of the Registrable Shares are to be
sold pursuant to an underwritten offering, the investment banker or bankers and
the managing underwriter or underwriters thereof shall be selected by the
Company except in the case of a Demand Registration, in which case the managing
underwriter or underwriters shall be selected by the Holder requesting such
Registration after consultation with the Company and taking into account the
Company's reasonable requests, PROVIDED that such managing underwriter or
underwriters must be of recognized international standing.
SECTION 3.08. LOCKUP. Each Holder shall, in connection with any
registration of the Company's securities, upon the request of the Company or the
underwriters managing any underwritten offering of the Company's securities,
agree in writing not to effect any sale, disposition or distribution of any
Registrable Shares (other than that included in the registration) without the
prior written consent of the Company or such underwriters, as the case may be,
for such period of time not to exceed one hundred and eighty (180) days from the
effective date of such registration as the Company or the underwriters may
specify; PROVIDED, HOWEVER, that all executive officers and directors of the
Company shall also have agreed not to effect any sale, disposition or
distribution of any Registrable Shares under the circumstances and pursuant to
the terms set forth in this Section 3.08.
SECTION 3.09. LEGENDS. (a) Stop transfer restrictions will be given to
the Company's transfer agent(s) with respect to the Registrable Shares and there
will be placed on the certificate or instruments representing the Registrable
Shares, 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 Shares that are
transferred (i) pursuant to an effective registration statement under the
Securities Act, (ii) pursuant to Rule 144 under
<PAGE>
12
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 the Holder
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 the Holder to one
or more of its direct or indirect subsidiaries, or among such subsidiaries,
or by any such subsidiary to the Holder, 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 3.09 to be removed in
the event of any transfer as provided in clause (i) or (ii) above.
SECTION 3.10. PUBLIC INFORMATION. The Company covenants to make available
"adequate current public information" concerning the Company within the meaning
of Rule 144(c) under the Securities Act.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. TERM OF AGREEMENT; TERMINATION. The term of this Agreement
shall commence on the date hereof and such term and this Agreement shall
terminate on the earlier of ten years from the date of this Agreement or, in the
case of The October 1993 Trust, 31 days after Mr. Mark H. Getty ceases to be
employed by the Company or, in the case of Crediton Limited, 31 days after Mr.
Jonathan D. Klein ceases to be employed by the Company; PROVIDED, HOWEVER, that
a Demand Registration shall not have been demanded or registered and not yet
become effective.
SECTION 4.02. SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS. Each of
the parties hereto recognizes and acknowledges that a breach by a party or by
any assignee thereof of any covenants or other commitments contained in this
Agreement will cause the other party to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, each of the
parties hereto agrees that in the event of any such breach, the aggrieved party
shall be entitled to the remedy of specific performance of such covenants or
commitments and preliminary and permanent injunctive and other equitable relief
in addition to any other remedy to which it may be entitled, at law or in
equity, and the parties hereto hereby waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
SECTION 4.03. NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given and made if in
writing and if served by personal delivery upon the party for whom it is
intended or delivered by registered or certified mail, return receipt requested,
or if sent by telecopier, upon receipt of oral confirmation that such
transmission has been received, to the person
<PAGE>
13
at the address set forth below, or such other address as may be designated in
writing hereafter, in the same manner, by such person:
(a) If the Company, addressed as follows:
101 Bayham Street
London NW1 0AG
England
Attention:
Telecopier: 44-171-767-6540
with copies to:
Shearman & Sterling
199 Bishopsgate
London EC2M 3TY
Attention: Pamela M. Gibson
Telecopier: 44-171-920-9000
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
Attention: Michael Francies
Telecopier: 44-171-600-5555
(b) If to the trustees of the October 1993 Trust, addressed as follows:
The trustees of the October 1993 Trust
c/o Coopers & Lybrand
La Motte Chambers
St. Helier
Jersey
JE1 1BJ
Attention:
Telecopier:
<PAGE>
14
(c) If to Crediton Limited, addressed as follows:
Crediton Limited
12 Finch Road
Douglas
Isle of Man
IM1 2SA
Attention:
Telecopier:
or to such other address as the relevant party may from time to time advise
by notice in writing given pursuant to this Section 4.03. The date of
receipt of any such notice, request, consent, agreement or approval shall be
deemed to be the date of delivery thereof.
SECTION 4.04. SURVIVAL. The several indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made
by or on behalf of any party, any director or officer of such party, or any
controlling person of any of the foregoing, and shall survive the transfer of
any Registrable Shares by each Trust, and the indemnification and
contribution provisions set forth in Section 3.06 hereof shall survive
termination of this Agreement.
SECTION 4.05. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
SECTION 4.06. TRANSFER OF REGISTRATION RIGHTS. The registration rights
of each Trust in this Agreement with respect to any Registrable Shares may be
transferred (a) to any person acquiring all of the Registrable Shares held by
the Holder or (b) to a "Permitted Holder" as defined in the Articles of
Association of the Company or the Shareholders' Agreement; PROVIDED, HOWEVER,
that the Company may deny such transfer if (i) such Trust or the transferring
person has made three transfers with respect to the Registrable Shares or
(ii) such transfer relates to a sale or other transfer of some or all of the
Registrable Shares to a person who is a competitor of the Company or its
subsidiaries in the industry or (iii) any conditions in the second last
sentence of this Section 4.06 is not met. Each such transfer is contingent
on such Trust or the transferring person satisfying the following: (i) each
Trust or transferring person shall have given the Company written notice at
or prior to the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which the rights
under this Agreement are being transferred; (ii) such transferee shall have
agreed in writing, in form and substance reasonably satisfactory to the
Company, to be bound by the provisions of this Agreement; and (iii)
immediately following such transfer the further
<PAGE>
15
disposition of such securities by each transferee shall be restricted under
the Securities Act. Except as set forth in this Section 4.06, no transfer of
Registrable Shares shall cause such Registrable Shares to lose such status.
SECTION 4.07. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective successors and assigns of
the parties hereto. Except as expressly provided in this Agreement, nothing
in this Agreement, express or implied, is intended to confer upon any person
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
SECTION 4.08. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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 in accordance with the rules,
then obtaining, of the American Arbitration Association, and judgment upon
the award rendered may be entered in any court having jurisdiction thereof.
Reasonable fees, costs and expenses, including legal fees, incurred by any
party in connection with such arbitration shall be borne by such parties.
Nothing in this Section 4.08 shall limit any right that any party 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.
SECTION 4.9. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect is to its
subject matter. This Agreement supersedes all prior agreements and
understandings among the parties with respect to its subject matter. This
Agreement may be amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
each of the parties, which shall be binding on all of the parties.
SECTION 4.10. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
<PAGE>
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
GETTY COMMUNICATIONS PLC
By:
--------------------------------------------
Name:
Title:
THE TRUSTEES OF THE OCTOBER 1993 TRUST
By:
--------------------------------------------
Name:
Title:
CREDITON LIMITED
By:
--------------------------------------------
Name:
Title:
<PAGE>
REGISTRATION RIGHTS AGREEMENT AMENDMENT
REGISTRATION RIGHTS AGREEMENT AMENDMENT, dated as of January [__],
1997 (this "AMENDMENT"), among Getty Communications plc, a public limited
company organized under the laws of England and Wales ("GETTY
COMMUNICATIONS"), each of the trustees of the October 1993 Trust and Crediton
Limited (together the "RIGHTS HOLDERS" and each individually, a "RIGHTS
HOLDER") and Getty Images, Inc., a Delaware corporation ("GETTY IMAGES").
WHEREAS, Getty Communications and the Rights Holders entered into
the Registration Rights Agreement dated as of July 3, 1996 (the "REGISTRATION
RIGHTS AGREEMENT") pursuant to which the Rights Holders were granted certain
registration rights with respect to Class B ordinary shares, nominal value
one pence per share ("GETTY CLASS B ORDINARY SHARES"), of Getty
Communications held by the Rights Holders, a copy of which is attached hereto
as Exhibit A;
WHEREAS, pursuant to a merger agreement dated as of September 15,
1997 (the "MERGER AGREEMENT"), by and among Getty Images, Getty
Communications, PhotoDisc, Inc., a Washington corporation, and Print Merger,
Inc., a Washington corporation and a wholly owned subsidiary of Getty Images,
Getty Images and Getty Communications will enter into a scheme of arrangement
(the "SCHEME OF ARRANGEMENT") in accordance with the Companies Act of 1985 of
Great Britain (unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed thereto in the Merger Agreement);
WHEREAS, pursuant to the Scheme of Arrangement, each issued Class B
ordinary share, nominal value one pence per share ("GETTY CLASS B ORDINARY
SHARES") of Getty Communications will be converted into one Class A ordinary
share, par value one pence per share ("GETTY CLASS A ORDINARY SHARES", and,
together with the Getty Class B Ordinary Shares, the "GETTY ORDINARY
SHARES"), of Getty Communications, each Getty Ordinary Share will be
transferred to Getty Images or its nominees and the holders of Getty Ordinary
Shares will be issued one share of Getty Images Common Stock for every two
Getty Ordinary Shares held of record by such holders, and Getty
Communications will become a wholly owned subsidiary of Getty Images;
WHEREAS, upon the consummation of the Scheme of Arrangement, the
Rights Holders will hold only Getty Images Shares; and
WHEREAS, the parties each desire to amend the Registration Rights
Agreement pursuant to Section 4.9 thereof and to make certain covenants and
agreements concerning the registration from time to time under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), of Getty Images Shares held
by the Rights Holders.
<PAGE>
2
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties and conditions contained herein, the parties agree
as follows:
SECTION 1.01. AMENDMENT. Each of the parties agrees that, upon the
consummation of the Scheme of Arrangement, the Registration Rights Agreement
shall be amended such that (i) the "Company" as used therein shall refer to
Getty Images rather Getty Communications and (ii) "Registrable Shares" as used
therein shall include Getty Images Shares issued in the Scheme of Arrangement in
respect of Registrable Shares as defined in the Registration Rights Agreement.
The terms and conditions of the Registration Rights Agreement shall inure to the
benefit of Getty Images as the successor to Getty Communications and any rights
or obligations of Getty Communications shall become the sole obligation of Getty
Images.
IN WITNESS WHEREOF, each of Getty Communications, the Rights Holders
and Getty Images has duly executed, or has caused this Amendment to be duly
executed by its duly authorized representative, as of the date first written
above.
GETTY
COMMUNICATIONS PLC
By:
------------------------------------
Name: Mark Getty
Title:
THE TRUSTEES OF THE OCTOBER 1993 TRUST
By:
------------------------------------
Name:
Title:
CREDITON LIMITED
By:
------------------------------------
Name:
Title:
<PAGE>
3
GETTY IMAGES, INC.
By:
------------------------------------
Name: Mark Torrance
Title: Co-Chairman