Registration Rights Agreement - Getty Images Inc., Deutsche Bank Securities Inc., and Goldman, Sachs & Co.
REGISTRATION RIGHTS AGREEMENT
among
GETTY IMAGES, INC.,
as Issuer,
and
DEUTSCHE BANK SECURITIES INC.
GOLDMAN, SACHS & CO.,
as Initial Purchasers
Dated as of June 9, 2003
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REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of June 9, 2003
among Getty Images, Inc., a Delaware corporation (the "Issuer") and Deutsche
Bank Securities Inc., and Goldman, Sachs & Co. (collectively, the "Initial
Purchasers") delivered pursuant to the Purchase Agreement dated June 3, 2003
(the "Purchase Agreement"), among the Issuer and the Initial Purchasers. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Issuer has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
The Issuer agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the beneficial owners (including
the Initial Purchasers) from time to time of the Debentures (as defined herein)
and the beneficial owners from time to time of the Underlying Common Stock (as
defined herein) issued upon conversion of the Debentures (each of the foregoing
a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
"Affiliate" means with respect to any specified person, an "affiliate," as
defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Common Stock" means the shares of common stock, par value $.01 per share,
of the Issuer and any other shares of common stock as may constitute "Common
Stock" for purposes of the Indenture, including the Underlying Common Stock.
"Damages Accrual Period" has the meaning set forth in Section 2(e) hereof.
"Damages Payment Date" means each June 9th and December 9th.
"Debentures" means the 0.5% Convertible Subordinated Debentures Due 2023 of
the Issuer to be purchased pursuant to the Purchase Agreement.
"Deferral Notice" has the meaning set forth in Section 3(h) hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
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"Effective Conversion Price" has the meaning assigned such term in the
Indenture.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means the period commencing on the date hereof and
ending on the date that all Registrable Securities have ceased to be Registrable
Securities.
"Event" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a) hereof.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Indenture" means the Indenture, dated as of June 9, 2003, between the
Issuer and The Bank of New York, as trustee, pursuant to which the Debentures
are being issued.
"Initial Purchasers" has the meaning set forth in the preamble hereof.
"Indemnified Holder" has the meaning set forth in Section 6(a) hereof.
"Indemnified Issuers" has the meaning set forth in Section 6(b) hereof.
"Initial Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Issue Date" means June 9, 2003.
"Issuer" has the meaning set forth in the preamble hereof.
"Liquidated Damages Amount" has the meaning set forth in Section 2(e)
hereof.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Notice and Questionnaire" means a written notice delivered to the Issuer
containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Issuer dated June 3, 2003 relating to the Debentures.
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"Notice Holder" means, on any date, any Holder that has delivered a Notice
and Questionnaire to the Issuer on or prior to such date.
"Purchase Agreement" has the meaning set forth in the preamble hereof.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.
"Record Holder" means with respect to any Damages Payment Date relating to
any Debentures as to which any Liquidated Damages Amount has accrued, the
registered holder of such Debenture on the June 1 immediately preceding a
Damages Payment Date occurring on a June 9th, and on the December 1st
immediately preceding a Damages Payment Date occurring on a December 9th.
"Registrable Securities" means the Debentures until such Debentures have
been converted into the Underlying Common Stock and, at all times subsequent to
any such conversion, the Underlying Common Stock and any securities into or for
which such Underlying Common Stock has been converted or exchanged, and any
security issued with respect thereto upon any stock dividend, split or similar
event until, in the case of any such security the earliest of (i) its resale in
accordance with the Registration Statement covering sales and offers of such
securities by Holders thereof, (ii) expiration of the holding period that would
be applicable thereto under Rule 144(k) to a sale by a non-Affiliate of the
Issuer, and (iii) its sale to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the Securities Act.
"Registrable Debentures" means any of the Debentures until the earliest of
(i) such Debenture's resale in accordance with the Registration Statement
covering sales and offers of such securities by Holders thereof, (ii) expiration
of the holding period that would be applicable thereto under Rule 144(k) to a
sale by a non-Affiliate of the Issuer, and (iii) its sale to the public pursuant
to Rule 144 (or any similar provision then in force, but not Rule 144A) under
the Securities Act.
"Registration Statement" means any registration statement of the Issuer
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
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"Restricted Securities" means "Restricted Securities" as defined in Rule
144.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section 2(a)
hereof.
"Special Counsel" means a nationally recognized law firm experienced in
securities law matters designated by the Issuer, with the written consent of the
Initial Purchasers (which shall not be unreasonably withheld), the reasonable
fees and expenses of which will be paid by the Issuer pursuant to Section 5
hereof, or one such other successor counsel as shall be specified by the Holders
of a majority of the Registrable Securities. For purposes of determining the
holders of a majority of the Registrable Securities in this definition, Holders
of Debentures shall be deemed to be the Holders of the number of shares of
Underlying Common Stock into which such Debentures are or would be convertible
as of the date the consent is requested.
"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means The Bank of New York, the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which the Debentures
are convertible or issued upon any such conversion.
Section 2. Shelf Registration. (a) The Issuer shall prepare and file or
cause to be prepared and filed with the SEC, as soon as practicable but in any
event by the date (the "Filing Deadline Date") that is ninety (90) days after
the Issue Date, a Registration Statement for an offering to be made on a delayed
or continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration Statement") registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the "Initial Shelf Registration
Statement"). The Initial Shelf Registration Statement shall be on Form S-3 or
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another appropriate form permitting registration of such Registrable Securities
for resale by such Holders in accordance with the methods of distribution
elected by the Holders and set forth in the Initial Shelf Registration
Statement. The Issuer shall use its reasonable best efforts to cause the Initial
Shelf Registration Statement to be declared effective under the Securities Act
as promptly as is practicable but in any event by the date (the "Effectiveness
Deadline Date") that is one hundred eighty (180) days after the Issue Date, and,
subject to Section 3(h), to keep the Initial Shelf Registration Statement (or
any Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time the
Initial Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date ten (10) Business Days prior to
such time of effectiveness shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law. No holders of a security issued by
the Issuer (other than the Holders of Registrable Securities) shall have the
right to include any such security in the Shelf Registration Statement. On or
after the date hereof, the Issuer agrees to use its reasonable best efforts to
obtain a waiver from Getty Investments L.L.C. ("Getty Investments") to comply
with the foregoing, if necessary, with respect to the registration rights of
Getty Investments pursuant to the Registration Rights Agreement, dated February
9, 1998, between Getty Investments and the Issuer.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Issuer shall use its
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within thirty (30) days of
such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Issuer shall use its
reasonable best efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep
such Registration Statement (or subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
(c) The Issuer shall supplement and amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Issuer for such Shelf Registration Statement, if
required by the Securities Act or as necessary to name a Notice Holder as a
selling securityholder pursuant to Section (d) below.
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(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 2(d) and Section 3(h). Following
the date that the Initial Shelf Registration Statement is declared effective,
each Holder wishing to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus agrees to deliver a Notice and
Questionnaire to the Issuer at least fifteen (15) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement. Each Holder who elects to sell Registrable Securities pursuant to a
Shelf Registration Statement agrees, by submitting a Notice and Questionnaire to
the Issuer, that it will be bound by the terms and conditions of the Notice and
Questionnaire and this Agreement. From and after the date the Initial Shelf
Registration Statement is declared effective, the Issuer shall, as promptly as
practicable after the date a Notice and Questionnaire is delivered pursuant to
Section 8(c) hereof, and in any event upon the later of (x) fifteen (15)
Business Days after such date or (y) five (5) Business Days after the expiration
of any Deferral Period in effect when the Notice and Questionnaire is delivered:
(i) if required by applicable law, file with the SEC a post-effective
amendment to the Shelf Registration Statement or prepare and, if required
by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference
or file any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to
permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the Issuer
shall file a post-effective amendment to the Shelf Registration Statement,
use its reasonable best efforts to cause such post-effective amendment to
be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the "Amendment Effectiveness
Deadline Date") that is forty-five (45) days after the date such
post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant to
Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(d)(i);
provided, that if such Notice and Questionnaire is delivered during a Deferral
Period, the Issuer shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
3(h). Notwithstanding anything contained herein to the contrary, (i) the Issuer
shall not
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be under any obligation to name any Holder that is not a Notice Holder
as a selling securityholder in any Registration Statement or related Prospectus
and (ii) the Amendment Effectiveness Deadline Date shall be extended by up to
ten (10) Business Days from the expiration of a Deferral Period (and the Issuer
shall incur no obligation to pay Liquidated Damages during such extension or
during such Deferral Period) if such Deferral Period shall be in effect on the
Amendment Effectiveness Deadline Date.
(e) The parties hereto agree that the Holders of Registrable Debentures
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if, other than as permitted hereunder,
(i) the Initial Shelf Registration Statement has not been filed on or
prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness
Deadline Date,
(iii) the Issuer failed to perform its obligations set forth in
Section 2(d)(i) within the time period required therein,
(iv) any post-effective amendment to a Shelf Registration Statement
filed pursuant to Section 2(d)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline Date, or
(v) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section
3(h) hereof.
Each event described in any of the foregoing clauses (i) through (v) is
individually referred to herein as an "Event." For purposes of this Agreement,
each Event set forth above shall begin and end on the dates set forth in the
table set forth below:
Type of
Event by Beginning Ending
Clause Date Date
-------- ------------------------------- -----------------------------------
(i) Filing Deadline Date the date the Initial Shelf
Registration Statement is filed
(ii) Effectiveness Deadline Date the date the Initial Shelf
Registration Statement becomes
effective under the Securities Act
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Type of
Event by Beginning Ending
Clause Date Date
-------- ------------------------------- -----------------------------------
(iii) the date by which the Issuer is the date the Issuer performs its
required to perform its obligations set forth in Section
obligations under Section 2(d) 2(d)
(iv) the Amendment Effectiveness the date the applicable
Deadline Date post-effective amendment to a Shelf
Registration Statement becomes
effective under the Securities Act
(v) the date on which the aggregate termination of the Deferral Period
duration of Deferral Periods in that caused the limit on the
any period exceeds the number aggregate duration of Deferral
of days permitted by Section Periods to be exceeded
3(h)
Subject to Section 3(h), for purposes of this Agreement, Events shall begin on
the dates set forth in the table above and shall continue until the ending dates
set forth in the table above.
Commencing on (and including) any date that an Event has begun and ending
on (but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Damages Accrual Period"), the Issuer shall pay, as
liquidated damages and not as a penalty, to Record Holders of Registrable
Debentures an amount (the "Liquidated Damages Amount") accruing, for each day in
the Damages Accrual Period, in respect of any Debenture, at a rate per annum
equal to 0.50% on the aggregate principal amount of such Debenture; provided
that in the case of a Damages Accrual Period that is in effect solely as a
result of an Event of the type described in clause (iii), (iv) or (v) of the
preceding paragraph, such Liquidated Damages Amount shall be paid only to the
Holders (as set forth in the succeeding paragraph) that have delivered Notices
and Questionnaires that caused the Issuer to incur the obligations set forth in
Section 2(d) the non-performance of which is the basis of such Event.
Notwithstanding the foregoing, no Liquidated Damages Amount shall accrue as to
any Registrable Debenture from and after the earlier of (x) the date such
Debenture is no longer a Registrable Debenture and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events.
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The Liquidated Damages Amount shall accrue from the first day of the
applicable Damages Accrual Period, and shall be payable on each Damages Payment
Date during the Damage Accrual Period to the Record Holders of the Registrable
Debentures entitled thereto; provided that if the Damage Accrual Period does not
end on a Damages Payment Date, the Liquidated Damages Amount shall be payable to
the Record Holders as of the date on which such Damage Accrual Period ends;
provided further that any Liquidated Damages Amount accrued with respect to any
Debenture or portion thereof redeemed or repurchased by the Issuer on a
redemption date or a purchase date or converted for Underlying Common Stock on a
conversion date prior to the Damages Payment Date, shall, in any such event, be
paid instead to the Holder who submitted such Debenture or portion thereof for
redemption, repurchase or conversion on the applicable redemption date, purchase
date or conversion date, as the case may be, on such date (or promptly following
the conversion date, in the case of conversion); provided further, that, in the
case of an Event of the type described in clause (iii), (iv) or (v) of the first
paragraph of this Section 2(e), such Liquidated Damages Amount shall be paid
only to the Holders entitled thereto pursuant to such first paragraph by check
mailed to the address set forth in the Notice and Questionnaire delivered by
such Holder. The Trustee shall be entitled, on behalf of registered holders of
Debentures, to seek any available remedy for the enforcement of this Agreement,
including for the payment of such Liquidated Damages Amount. Notwithstanding the
foregoing, the parties agree that the sole damages payable for a violation of
the terms of this Agreement with respect to which liquidated damages are
expressly provided shall be such liquidated damages. Nothing shall preclude any
Holder from pursuing or obtaining specific performance or other equitable relief
with respect to this Agreement.
The obligation of the Issuer to pay any Liquidated Damages Amount as
described in this Section 2(e) shall be subordinated in right of payment, to the
same extent and in same the manner as provided in Article 5 of the Indenture as
if such obligations were Indebtedness (as defined in the Indenture) evidenced by
the Securities (as defined in the Indenture), to the payment when due of all
Senior Indebtedness (as defined in the Indenture) of the Issuer. The parties
hereto agree and acknowledge that such subordination is for the benefit of and
enforceable by the holders of Senior Indebtedness. Such Indebtedness shall in
all respects rank pari passu with all other Subordinated Indebtedness (as
defined in the Indenture) of the Issuer, and only Indebtedness of the Issuer
that is Senior Indebtedness will rank senior to such Indebtedness in accordance
with the provisions set forth in the Indenture as if such Indebtedness were
Indebtedness evidenced by the Securities.
All of the Issuer's obligations set forth in this Section 2(e) that are
outstanding with respect to any Registrable Debenture at the time such Debenture
ceases to be a Registrable Debenture shall survive until such time as all such
obligations with respect to such Debenture have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(k)).
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The parties hereto agree that the liquidated damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Debentures by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Debentures in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with the registration
obligations of the Issuer under Section 2 hereof, during the Effectiveness
Period, the Issuer shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof
in accordance with the intended method or methods of distribution thereof,
and use its reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided that before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC (but excluding reports filed
with the SEC under the Exchange Act), furnish to the Initial Purchasers and
the Special Counsel of such offering, if any, copies of all such documents
proposed to be filed at least three (3) Business Days prior to the filing
of such Registration Statement or amendment thereto or Prospectus or
supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement continuously effective
for the applicable period specified in Section 2(a); cause the related
Prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and use its reasonable best
efforts to comply with the provisions of the Securities Act applicable to
it with respect to the disposition of all securities covered by such
Registration Statement during the Effectiveness Period in accordance with
the intended methods of disposition by the sellers thereof set forth in
such Registration Statement as so amended or such Prospectus as so
supplemented.
(c) As promptly as practicable give notice to the Notice Holders, the
Initial Purchasers and the Special Counsel, if any, (i) when any
Prospectus, prospectus supplement, Registration Statement or post-effective
amendment to a Registration Statement has been filed with the SEC and, with
respect to a Registration Statement or any post-effective amendment, when
the same has been declared effective, (ii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order
suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceedings for that
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purpose, (iii) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (iv) of the occurrence of, but not the nature of or details
concerning, a Material Event and (v) of the determination by the Issuer
that a post-effective amendment to a Registration Statement will be filed
with the SEC, which notice may, at the discretion of the Issuer (or as
required pursuant to Section 3(h)), state that it constitutes a Deferral
Notice, in which event the provisions of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case at
the earliest possible moment, and provide notice as promptly as practicable
to each Notice Holder and the Initial Purchasers of the withdrawal of any
such order.
(e) As promptly as reasonably practicable furnish to each Notice
Holder, the Special Counsel, if any, and the Initial Purchasers, upon
request and without charge, at least one (1) conformed copy of the
Registration Statement and any amendment thereto, including exhibits and if
requested, all documents incorporated or deemed to be incorporated therein
by reference.
(f) During the Effectiveness Period, deliver to each Notice Holder,
the Special Counsel, if any, and the Initial Purchasers, in connection with
any sale of Registrable Securities pursuant to a Registration Statement,
without charge, as many copies of the Prospectus or Prospectuses relating
to such Registrable Securities (including each preliminary prospectus) and
any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Issuer hereby consents (except during such periods that a
Deferral Notice is outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto in the manner set
forth therein.
(g) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its reasonable best efforts to
register or qualify or cooperate with the Notice Holders and the Special
Counsel, if any, in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably
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requests in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use its reasonable best
efforts to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period in connection with
such Notice Holder's offer and sale of Registrable Securities pursuant to
such registration or qualification (or exemption therefrom) and do any and
all other acts or things necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set
forth in the relevant Registration Statement and the related Prospectus;
provided that the Issuer will not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to qualify but for this Agreement or (ii) take
any action that would subject it to general service of process in suits or
to taxation in any such jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact (a "Material Event") as a result of which any
Registration Statement shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
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, or (C) the occurrence or existence of any pending or
prospective corporate development that, in the reasonable discretion of the
Issuer, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other
required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration
Statement does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and such
Prospectus does not contain any untrue statement of a material fact or
omit to state any 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, as
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thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, and, in the case of a post-effective amendment
to a Registration Statement, subject to the next sentence, use its
reasonable best efforts to cause it to be declared effective as
promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special Counsel,
if any, that the availability of the Shelf Registration Statement is
suspended (a "Deferral Notice") and, upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by
Issuer that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus.
The Issuer will use its reasonable best efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is
practicable, (y) in the case of clause (B) above, as soon as, in the sole
judgment of the Issuer, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Issuer or, if necessary to
avoid unreasonable burden or expense, as soon as practicable thereafter and (z)
in the case of clause (C) above, as soon as in the sole judgment of the Issuer,
such suspension is no longer appropriate. The Issuer shall be entitled to
exercise its rights under this Section 3(h) to suspend the availability of the
Shelf Registration Statement or any Prospectus, without incurring or accruing
any obligation to pay liquidated damages pursuant to Section 2(e) (the "Deferral
Period"); provided that the aggregate duration of any Deferral Periods shall not
exceed an aggregate of 30 days in any three month period or an aggregate of 90
days in any twelve (12) month period.
(i) If reasonably requested in writing in connection with a
disposition of Registrable Securities pursuant to a Registration Statement,
make reasonably available for inspection during normal business hours by a
representative for the Notice Holders of such Registrable Securities, any
broker-dealers, attorneys and accountants retained by such Notice Holders,
and any attorneys or other agents retained by a broker-dealer engaged by
such Notice Holders, all relevant financial and other records and pertinent
corporate documents and properties of the Issuer and its subsidiaries, and
cause the appropriate officers, directors and employees of the Issuer and
its subsidiaries to make reasonably available for inspection during normal
business hours on reasonable notice all relevant information reasonably
requested by such representative for the Notice Holders, or any such
broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar "due diligence"
examinations; provided that such persons shall first agree in writing with
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the Issuer that any information that is reasonably designated by the Issuer
as confidential at the time of delivery of such information shall be kept
confidential by such persons and shall be used solely for the purposes of
exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any
Registration Statement or the use of any prospectus referred to in this
Agreement), (iii) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard by
any such person or (iv) such information becomes available to any such
person from a source other than the Issuer and such source is not bound by
a confidentiality agreement; provided further that the foregoing inspection
and information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Notice Holders and the other parties
entitled thereto by the counsel referred to in Section 5; and provided
further that the Issuer shall not be required to disclose any information
subject to the attorney-client or attorney work product privilege if and to
the extent that such disclosure would constitute a waiver of such
privilege. Any person legally compelled to disclose any such confidential
information made available for inspection shall provide the Issuer with
prompt prior written notice of such requirement so that the Issuer may seek
a protective order or other appropriate remedy.
(j) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) for a twelve (12) month period commencing on the
first day of the first fiscal quarter of the Issuer commencing after the
effective date of a Registration Statement, which statements shall be made
available no later than forty-five (45) days after the end of the twelve
(12) month period or ninety (90) days if the twelve (12) month period
coincides with the fiscal year of the Issuer.
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities sold or to be sold pursuant to a Registration Statement, which
certificates shall not bear any restrictive legends, cause such Registrable
Securities that are Debentures to be in such denominations as are permitted
by the Indenture and cause such Registrable Securities to be registered in
such names as such Notice Holder may request, at least two (2) Business
Days prior to any sale of such Registrable Securities, in writing.
(l) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of
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such Registration Statement and provide the Trustee and the transfer agent
for the Common Stock with printed certificates for the Registrable
Securities that are in a form eligible for deposit with The Depository
Trust Company.
(m) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(n) Upon (i) the filing of the Initial Shelf Registration Statement
and (ii) the effectiveness of the Initial Shelf Registration Statement,
announce the same, in each case by release to Reuters Economic Services and
Bloomberg Business News or other reasonable means of distribution.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Issuer with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Notice Holder agrees
promptly to furnish to the Issuer all information required to be disclosed in
order to make the information previously furnished to the Issuer by such Notice
Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Registrable Securities as the Issuer may from time to
time reasonably request. Any sale of any Registrable Securities by any Holder
shall constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set forth
in the Prospectus delivered by such Holder in connection with such disposition,
that such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading.
Section 5. Registration Expenses. The Issuer shall bear all fees and
expenses incurred in connection with the performance by the Issuer of its
obligations under Sections 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel, if
any, in connection with Blue Sky qualifications of the Registrable Securities
under the laws of such jurisdictions as Notice Holders of a majority of the
Registrable Securities being
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sold pursuant to a Registration Statement may designate), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company), (iii) duplication expenses relating to copies of any Registration
Statement or Prospectus delivered to any Holders hereunder, (iv) fees and
disbursements of counsel for the Issuer in connection with the Shelf
Registration Statement, (v) reasonable fees and disbursements of the Trustee and
its counsel and of the registrar and transfer agent for the Common Stock and
(vi) any Securities Act liability insurance obtained by the Issuer in its sole
discretion. In addition, the Issuer shall pay the internal expenses of the
Issuer (including, without limitation, all salaries and expenses of officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing by the
Issuer of the Registrable Securities on any securities exchange on which similar
securities of the Issuer are then listed and the fees and expenses of any
person, including special experts, retained by the Issuer. Notwithstanding the
provisions of this Section 5, each seller of Registrable Securities shall pay
selling expenses, including any underwriting discount and commissions, and all
registration expenses to the extent required by applicable law.
Section 6. Indemnification and Contribution.
(a) Indemnification by the Issuer. In the event of a Registration
Statement, the Issuer shall indemnify and hold harmless each Notice Holder, its
Affiliates, each person who controls such Holder or such Affiliates within the
meaning of the Securities Act or Exchange Act and their respective officers,
directors, employees, representatives and agents (collectively referred to for
purposes of this Section 6 as a "Indemnified Holder") from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of Registrable Securities), to which that
Indemnified Holder may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and shall reimburse each Indemnified Holder promptly upon demand for
any legal or other expenses reasonably incurred by that Indemnified Holder in
connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Issuer shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, an
untrue statement or alleged untrue
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statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with any information included in any
Registration Statement in reliance upon or in conformity with written
information furnished to the Issuer by or on behalf of any Holder specifically
for use therein; and provided further, however, that with respect to any such
untrue statement in or omission from any related preliminary prospectus (as
amended or supplemented) or, if amended or supplemented, any related final
prospectus (excluding the correcting amendment or supplement), the indemnity
agreement contained in this Section 6(a) shall not inure to the benefit of any
such Indemnified Holder from whom the person asserting any such loss, claim,
damage, liability or action received Registrable Securities to the extent that
such loss, claim, damage, liability or action of or with respect to such
Indemnified Holder results from the fact that both (A) a copy of the final
prospectus (together with any correcting amendments or supplements) was not sent
or given to such person at or prior to the written confirmation of the sale of
such Registrable Securities to such person and (B) the untrue statement in or
omission from any related preliminary prospectus (as amended or supplemented)
or, if amended or supplemented, any related final prospectus (excluding the
correcting amendment or supplement) was corrected in the final prospectus or, if
applicable, an amendment or supplement thereto and the final prospectus (as
amended or supplemented) does not contain any other untrue statement or omission
or alleged untrue statement or omission of a material fact unless, in either
case, such failure to deliver the final prospectus was a result of
non-compliance by the Issuer with Section 3(e) or 3(f).
(b) Indemnification by Holders. In the event of a Registration Statement,
each Holder, severally and not jointly, shall indemnify and hold harmless the
Issuer, its respective Affiliates, each person who controls the Issuer, as the
case may be, or any such Affiliates within the meaning of the Securities Act or
Exchange Act and their respective officers, directors, employees,
representatives and agents (collectively referred to for purposes of this
Section 6(b) and Section 6(d) as the "Indemnified Issuers"), from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Indemnified Issuers may become subject, whether commenced
or threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any such Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any information included in any
Registration Statement in reliance upon or in conformity with written
information furnished to
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the Issuer by or on behalf of any Holder specifically for use therein, and shall
reimburse the Indemnified Issuers for any legal or other expenses reasonably
incurred by the Indemnified Issuers in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that no such Holder shall be liable
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Registration Statement.
(c) Conduct of Indemnification Proceedings. Promptly after receipt by an
indemnified party under this Section 6 of notice of any claim or the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party pursuant to Section 6(a) or
6(b), notify the indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 6 except to the extent that it has been materially prejudiced by such
failure; and provided further, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or
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parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 6(a) and 6(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Issuer from the offering and sale of the Registrable
Securities, on the one hand, and a Holder with respect to the sale by such
Holder of Registrable Securities, on the other, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Issuer on the one hand
and such Holder on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Issuer shall be deemed to be equal to the total net proceeds
from the initial placement pursuant to the Purchase Agreement (before deducting
expenses) of the Registrable Securities to which such losses, claims, damages or
liabilities relate. The relative benefits received by any Holder shall be deemed
to be equal to the value of receiving Registrable Securities that are registered
under the Securities Act. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to the Issuer or information supplied by the Issuer, on the one hand, or
to any information included in any Registration Statement in reliance upon or in
conformity with written information furnished to the Issuer by or on behalf of
any Holder specifically for use therein supplied by such Holder, on the
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other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 6(d) shall be
deemed to include, for purposes of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 6(d), an indemnifying party that
is a Holder of Registrable Securities shall not be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities sold by such indemnifying party to any purchaser exceeds the amount
of any damages which such indemnifying party has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. 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) The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to an
indemnified party at law or in equity, hereunder, under the Purchase Agreement
or otherwise.
(f) The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder, any person controlling any Holder or any Affiliate of any Holder or
by or on behalf of the Issuer, its respective officers or directors or any
person controlling the Issuer and (iii) the sale of any Registrable Securities
by any Holder.
Section 7. Information Requirements. The Issuer covenants that, if at any
time before the end of the Effectiveness Period the Issuer is not subject to the
reporting requirements of the Exchange Act, it will cooperate with any Holder
and take such further reasonable action as any Holder may reasonably request in
writing (including, without limitation, making such reasonable representations
as any such Holder may reasonably request), all to the extent required from time
to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A under the Securities Act and customarily
taken in connection with sales pursuant to such exemptions. Upon the written
request of any Holder, the Issuer shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements, unless
such a statement has been included in the Issuer's most recent report filed
pursuant to Section 13 or Section 15(d) of
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Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Issuer to register any of its securities (other than the
Common Stock) under any section of the Exchange Act.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Issuer represents, warrants and agrees
that (i) it has not entered into, and shall not, on or after the date of this
Agreement, enter into, any agreement that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof, (ii) it has not previously entered into any agreement which
remains in effect granting any registration rights with respect to any of its
debt securities to any person and (iii) without limiting the generality of the
foregoing, without the written consent of the Holders of a majority of the then
outstanding Underlying Common Stock constituting Registrable Securities (with
Holders of Debentures deemed to be the Holders, for purposes of this Section, of
the number of outstanding shares of Underlying Common Stock into which such
Debentures are or would be convertible as of the date on which such consent is
requested), it shall not grant to any person the right to request the Issuer to
register any debt securities of the Issuer under the Securities Act unless the
rights so granted are not in conflict or inconsistent with the provisions of
this Agreement.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Issuer has obtained the written consent of Holders of a majority of
the then outstanding Underlying Common Stock constituting Registrable Securities
(with Holders of Debentures deemed to be the Holders, for purposes of this
Section, of the number of outstanding shares of Underlying Common Stock into
which such Debentures are or would be convertible as of the date on which such
consent is requested). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold pursuant to
a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b), whether or
not any notice, writing or marketing indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
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(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, and shall be deemed
given (i) when made, if made by hand delivery, (ii) upon confirmation, if made
by telecopier, (iii) one (1) Business Day after being deposited with such
courier, if made by overnight courier or (iv) five (5) Business Days after being
deposited in the mail, if made by first-class mail, to the parties as follows:
(i) if to a Holder, at the most current address given by such Holder
to the Issuer in a Notice and Questionnaire or any amendment thereto;
(ii) if to the Issuer, to:
Getty Images, Inc.
601 N 34th Street
Seattle, Washington 98103
Attention: Jeffery L. Beyle
Fax No.: (206) 925-5623
with a copy to:
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway, 5th Floor
Redwood Shores, California 94065
Attention: Craig W. Adas
Fax No.: (650) 802-3100
(iii) if to the Initial Purchasers, to:
Deutsche Bank Securities Inc.
31 West 52nd Street
New York, New York 10019
Attention: Elizabeth Chang
Fax No.: (646) 324-7551
with a copy to:
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101
Attention: Andrew Bor
Fax No.: (206) 583-8500
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
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(d) Approval of Holders. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Issuer or any of its Affiliates (as such term
is defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent Holders if such subsequent Holders are deemed to be
such Affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities, provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Indenture. If any transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities,
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such person shall
be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by facsimile) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAW PROVISIONS THEREOF TO THE EXTENT OF THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
(i) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such
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term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights granted by the
Issuer with respect to the Registrable Securities. Except as provided in the
Purchase Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Issuer with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party hereto
shall have any rights, duties or obligations other than those specifically set
forth in this Agreement. In no event will such methods of distribution take the
form of an underwritten offering of the Registrable Securities without the prior
agreement of the Issuer.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
GETTY IMAGES, INC.
By: /s/ Elizabeth J. Huebner
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Name: Elizabeth J. Huebner
Title: Senior Vice President and
Chief Financial Officer
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Confirmed and accepted as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
By: /s/ Eric Maurus
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Name: Eric Maurus
Title: Director
GOLDMAN, SACHS & CO.
By: /s/ Cameron Poetzscher
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Name: Cameron Poetzscher
Title: Vice President
For itself and on behalf of the Initial Purchasers.