Indemnity Agreement - Getty Images Inc.
INDEMNITY AGREEMENT
INDEMNITY AGREEMENT, dated as of January , 1998 (this
"AGREEMENT"), by and between Getty Images, Inc. (the "COMPANY"), a Delaware
corporation, and [ ] (the "DIRECTOR").
W I T N E S S E T H:
WHEREAS, the Company desires to attract and retain the services of
able persons to serve as directors of the Company and to indemnify certain of
its directors to the fullest extent of the law;
WHEREAS, the Director is willing to serve, continue to serve and
take on additional service for or on behalf of the Corporation on the
condition that he be indemnified as herein provided; and
WHEREAS, neither the Director nor the Company regards statutory
indemnification protection as adequate given the present circumstances;
NOW, THEREFORE, the Company and the Director hereby agree as follows:
ARTICLE I
INDEMNIFICATION
SECTION 1.01. THIRD-PARTY PROCEEDINGS. The Company shall indemnify
the Director, if the Director was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that he is or
was a director, officer, employee or agent of the Company or any subsidiary
thereof ("GETTY IMAGES"), or is or was serving at the request of Getty Images
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of Getty Images, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction, or upon a plea of
NOLO CONTENDERE or its equivalent, shall not, of itself, create a presumption
that the Director did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of Getty
Images, and, with respect to any criminal action or proceeding, had
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reasonable cause to believe that his conduct was unlawful.
SECTION 1.02. DERIVATIVE ACTIONS. The Company shall indemnify the
Director, if the Director was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of Getty Images to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of Getty
Images, or is or was serving at the request of Getty Images as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of Getty Images; PROVIDED, HOWEVER, that no indemnification shall be made in
respect of any claim, issue or matter as to which the Director shall have
been adjudged to be liable to Getty Images unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 1.03. SUCCESSFUL DEFENSE. To the extent that the Director
has been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in Sections 1.01 and 1.02 above, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
SECTION 1.04. PROCEEDINGS INITIATED BY ANY PERSON. Notwithstanding
anything to the contrary contained in Section 1.01 or 1.02 above, except for
proceedings to enforce rights to indemnification, the Company shall not be
obligated to indemnify the Director in connection with a proceeding (or part
thereof) initiated by him unless such proceeding (or part thereof) was
authorized in advance, or unanimously consented to, by the Board of Directors
of the Company (the "BOARD OF DIRECTORS").
SECTION 1.05. ADVANCEMENT OF EXPENSES. Expenses (including
attorneys' fees) incurred by the Director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by
the Company in advance of the final disposition of such action, suit or
proceeding, as authorized by the Board of Directors in the specific case,
upon receipt of an undertaking in form and substance satisfactory to the
Corporation by or on behalf of the Director to repay such amount unless it
shall ultimately be determined that the Director is entitled to be
indemnified by the Company pursuant to this Agreement.
SECTION 1.06. RIGHTS NOT EXCLUSIVE. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Agreement
shall not be deemed exclusive of any other rights to which the Director, when
seeking indemnification or advancement of
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expenses, may be entitled under any law, certificate of incorporation, bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding such office.
SECTION 1.07. INSURANCE. The Company may purchase and maintain
insurance on behalf of the Director against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
an officer, employee or agent of Getty Images or another corporation,
partnership, joint venture, trust or other enterprise serving at the request
of Getty Images, whether or not the Company would have the power to indemnify
such person against such liability under the provisions of this Agreement.
SECTION 1.08. CONTINUATION OF RIGHTS. The indemnification,
advancement of expenses and other agreements provided by, or granted pursuant
to, this Agreement shall, continue regardless of whether the Director has
ceased to be a director of the Company.
SECTION 1.09. MERGER OR CONSOLIDATION. In the event that the
Company shall be a constituent corporation in a merger, consolidation or
other reorganization, the Company shall require as a condition thereto, (a)
if it shall not be the surviving, resulting or other corporation therein, the
surviving, resulting or acquiring corporation to agree to indemnify the
Director to the full extent provided herein, and (b) whether or not the
Company is the surviving, resulting or acquiring corporation therein, the
Director shall also stand in the same position under this Agreement with
respect to the surviving, resulting or acquiring corporation as he would
have with respect to the Company if its separate existence had continued.
ARTICLE II
MUTUAL ACKNOWLEDGEMENT
SECTION 2.01. MUTUAL ACKNOWLEDGMENT. Both the Company and the
Director acknowledge that in certain instances federal law or public policy
may override applicable state law and prohibit the Company from indemnifying
its directors under this Agreement or otherwise. For example, the Company
and the Director acknowledge that the Securities and Exchange Commission (the
"SEC") has taken the position that indemnification is not permissible for
liabilities arising under certain federal securities laws, and federal
legislation prohibits indemnification for certain ERISA violations. The
Director understands and acknowledges that the Company has undertaken or may
be required in the future to undertake with the SEC to submit the question of
indemnification to a court in certain circumstances for a determination of
the Company's right under public policy to indemnify the Director.
ARTICLE III
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MISCELLANEOUS
SECTION 3.01. NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
duly given or made (and shall be deemed to have been duly given or made upon
receipt) by delivered in person, by courier service, by cable, by facsimile,
by telegram, by telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 4.01:
(a) if to Getty Images:
Getty Images, Inc.
101 Bayham Street
London NW1 0AG England
Facsimile: (44171) 267-6540
Attention: Nick Evans-Lombe
with a copy to each of:
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ England
Facsimile: (44171) 600-5555
Attention: Michael Francies
Shearman & Sterling
555 California Street
San Francisco, CA 94104
Facsimile: (415) 616-1199
Attention: Christopher D. Dillon
(b) if to the Director:
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Facsimile:
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Attention:
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with a copy to:
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Facsimile:
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Attention:
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SECTION 3.02. PUBLIC ANNOUNCEMENTS. No party to this Agreement
shall make, or cause to be made, any press release or public announcement in
respect of this Agreement or the transactions contemplated hereby or
otherwise communicate with any news media without prior consent of the other
party (except to the extent that such disclosure is required by law or the
rules of the Nasdaq National Market), and, to the extent practicable, the
parties shall cooperate as to the timing and contents of any such press
release or public announcement.
SECTION 3.03. HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 3.04. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transaction contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
SECTION 3.05. ASSIGNMENT. This Agreement may not be assigned by
operation of law or otherwise without the express written consent of the
other parties hereto (which consent may be greated or withheld in the sole
discretion of such party).
SECTION 3.06. THIRD-PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted successors and assigns (including any direct or indirect successor
by purchase, merger, consolidation or otherwise of all or substantially all
of the business or assets of the Company), spouses, heirs and personal and
legal representatives.
SECTION 3.07. AMENDMENT. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, the
parties hereto.
SECTION 3.08. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the state of Delaware
applicable to contracts
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executed in and to be performed entirely within that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any Delaware state or federal court sitting in the State of
Delaware.
SECTION 3.09. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
SECTION 3.10. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law of equity.
SECTION 3.11. SURVIVAL. This Agreement shall survive the death,
disability or incapacity of the Director or the termination of the Director's
service as a director or officer of the Company and shall inure to the
benefit of the Director's heirs, executors and administrators.
IN WITNESS WHEREOF, each of Getty Images and [ ]
has duly executed, or has caused this Agreement to be duly executed by its
duly authorized representative, as of the date first written above.
GETTY IMAGES, INC.
By:
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Name: Mark Getty
Title: President
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[ ]