Option Agreement - Getty Investments LLC, Getty Images Inc. and Getty Communications plc
RESTATED OPTION AGREEMENT
THE AGREEMENT, made as of the day of 1998 by and
between:
(1) GETTY INVESTMENTS LLC, a limited liability company organized and existing
under the laws of the State of Delaware, United States of America, with its
principal office at 1325 Airmotive Way, Reno, Nevada 89502 U.S.A
(hereinafter "GETTY INVESTMENTS"); and
(2) GETTY IMAGES, INC. a company incorporated and existing under the laws of
Delaware, with its principal office at 500 North Michigan Avenue, Suite
1700, Chicago, Illinois 60611, U.S.A., (hereinafter "GETTY IMAGES"); and
(3) GETTY COMMUNICATIONS PLC, a company incorporated under the laws of England
and Wales (registered number 3005770), with its registered office at 101
Bayham Street, Camden Town, London NW1 0AG, England (hereinafter "GETTY
COMMUNICATIONS").
WITNESSETH:
WHEREAS Getty Investments owns an interest of [ ]% in Getty Images;
WHEREAS ownership of Getty Investments resides in membership interests held by
trusts and other entities whose beneficial owners and beneficiaries are members
of the Getty family;
WHEREAS said members of the Getty family have consented to the use and
registration of the "Getty" name as a trade name, trademark and service mark by
Getty Images and the companies under its control and Getty Investments hereby
agrees to provide to the extent it is able to any written consent required to
achieve registration, where the rights or trade marks of the Getty family and
related companies are cited as obstacles in the prosecution of "Getty" Marks of
Getty Images;
WHEREAS Getty Images and its subsidiaries use or intend to use the trade names,
trademarks and service marks "Getty" and derivations thereof, including without
limitation the trade names, trade marks and service marks set forth in Schedule
A (hereinafter collectively the "GETTY MARKS" which term shall include any
future trade names, trademarks and service marks incorporating "Getty" and the
aforementioned design) for photograph library, stock film and video agency
services, and related goods and services;
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WHEREAS Getty Communications has applied for registration of the Getty Marks in
the United States, the United Kingdom, and the European Union and any other
jurisdiction; and
WHEREAS Getty Investments wishes to retain control over the Getty Marks in the
event that a third party acquires a Controlling Interest (as hereinafter
defined) of Getty Images,
NOW THEREFORE, in consideration of the mutual promises and covenants herein set
forth, the parties do hereby agree as follows:
1. GRANT OF OPTION
Subject to the terms and conditions set forth below, and for consideration
of $1 (the receipt and adequacy of which are hereby acknowledged) Getty
Images grants to Getty Investments the right and option to purchase all
right, title and interest in and to the Getty Marks, together with the
goodwill of the business symbolized by the marks, and all applications and
registrations for said marks, for the sum of $100. Getty Images shall not
sell, transfer [or encumber] the Getty Marks, or any interest therein,
without the prior written consent of Getty Investments.
2. EXERCISE OF OPTION
(a) Getty Investments shall have the right to exercise said option at any
time in the future, but only after a third party (or related third
party group) shall obtain a Controlling Interest in Getty Images.
For the purposes hereof, the phrase "Controlling Interest" shall mean
the ability to cast a majority of the total votes capable of being
cast at any meeting of the holders of shares in Getty Images. Getty
Investments shall have thirty (30) days after being notified in
writing that any such third party has obtained a Controlling Interest
in Getty Images in which to exercise this option by mailing, by
certified mail, return receipt requested, a written notice of its
exercise to Getty Images together with the payment of $100.
(b) Within thirty (30) days of the receipt of said notice and payment
Getty Images and Getty Communications shall execute and deliver to
Getty Investments an assignment of all right, title and interest in
and to the Getty Marks and all applications and registrations for said
marks. Said assignment shall be in a form suitable for recordal with
the appropriate governmental agencies of the United States, the United
Kingdom and the European Union and any other jurisdiction in which the
Getty Marks are registered or in which there are applications for
registration pending. In the event that the assignments supplied are
not in a
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form suitable for recordal with the appropriate governmental
agencies or further documentation is required, Getty Images and Getty
Communications undertake to execute any such further documents
reasonably required by Getty Investments to effect final recordal of
assignment.
3. PHASE-OUT PERIOD AND LICENSE
(a) Getty Images shall have one year from the date of the notice referred
to in Clause 2(b) above, to phase out all use by Getty Images and its
subsidiaries of all the Getty Marks (hereinafter "THE PHASE-OUT
PERIOD").
(b) During the term of the Phase-Out Period, Getty Investments grants to
Getty Images and its subsidiaries a written licence to use the Getty
Marks throughout the world in connection with the goods, services and
business of Getty Images and its subsidiaries, subject to the
following terms and conditions:
(i) The license shall become effective as of the date of the
assignment and shall expire one year from said date;
(ii) The license shall be royalty free;
(iii) All use of the Getty Marks by Getty Images and its
subsidiaries during the Phase-Out Period shall inure to the
benefit of Getty Investments, and all such uses shall bear
appropriate legal notices indicating that the marks are
being used under license from Getty Investments;
(iv) Getty Images shall maintain the same high standard of
quality for the goods and services offered for sale and
sold under the Getty Marks as it maintained while they
were under its ownership, and Getty Investments shall have
the right to make such inquiries, and to conduct such
investigations, as it reasonably deems necessary to insure
the continued maintenance by Getty Images of this high
standard of quality;
(v) Upon the expiration of the Phase-Out Period, Getty Images
and its subsidiaries shall immediately cease to use, in
any manner and for any purpose, directly or indirectly,
any of the Getty Marks, and
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promptly destroy all remaining inventory of materials
bearing any of the Getty Marks.
4. ADOPTION OF NEW NAMES AND MARKS
(a) During the Phase-Out Period, Getty Investments shall have the right to
determine that the new trade names, trademarks and service marks to be
used by Getty Images and its subsidiaries (hereinafter "NEW NAMES AND
MARKS") do not contain the Getty Marks nor be confusingly similar to
any of the Getty Marks.
(b) No later than ninety (90) days prior to the expiration of the Phase-Out
Period, Getty Images shall submit for the review of Getty Investments
its proposed new Names and Marks. Getty Investments shall have
thirty (30) days within which to object to such new Names and Marks.
If Getty Investments fails to respond in writing within this period,
Getty Investments shall have no further right to object.
(c) Upon the expiration of the Phase-Out Period, Getty Images and those of
its subsidiaries that use the Getty Marks in their corporate name
shall take all appropriate steps to change its corporate names, to
communicate this change to their customers, and shall cease to use the
Getty Marks.
5. FURTHER ASSURANCE
(a) Getty Images shall, if requested by Getty Investments, procure that
any subsidiary of it that uses the Getty Marks shall enter into an
agreement with Getty Investments in similar terms to this Agreement
(the "SUBSIDIARY AGREEMENT") save that if such subsidiary ceases to be
a subsidiary of Getty Images without also ceasing its use of the Getty
Marks and transferring any ownership rights to Getty Images, the Phase
Out Period in the Subsidiary Agreement shall be 10 days.
(b) Getty Images agrees that it will and will procure that its
subsidiaries will do and execute all necessary acts and documents to
give effect to this Agreement.
6. NOTICES
All notices or other communications required or permitted by this Agreement
shall be in writing and sent to the parties at the following addresses:
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TO GETTY INVESTMENTS:
Getty Investments L.L.C.
1325 Airmotive Way
Reno, Nevada 89502
USA
Attention: Jan Moehl/Mark Jenness
TO GETTY IMAGES:
Getty Images, Inc
101 Bayham Street
Camden Town, London
NW1 0AG England
Attention: Jonathan Klein
TO GETTY COMMUNICATIONS:
Getty Communications plc
101 Bayham Street
Camden Town, London
NW1 0AG England
Attention: Jonathan Klein
7. MISCELLANEOUS
(a) This agreement is governed exclusively by Delaware law.
(b) To the fullest extent permitted by law 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 under the auspices of and in accordance with
the rules, then obtaining, of the American Arbitration Association, to
the extent not inconsistent with the Delaware Uniform Arbitration Act
and judgment upon the award tendered may be entered in any court
having jurisdiction thereof. The reasonable fees, costs and expenses,
including legal fees, incurred in connection with such arbitration
shall be borne equally by the parties. Nothing in this paragraph 7(b)
shall limit any right that any party may otherwise have to seek to
obtain preliminary injunctive
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relief in order to preserve the status quo pending the disposition
of any such arbitration proceeding.
(c) In the event of an action for breach of this agreement, the parties
acknowledge that recovery of damages shall not be a sufficient remedy,
and the aggrieved party shall be entitled to specific performance
thereof in addition to other legal remedies to which it may be
entitled.
(d) Getty Investments shall have the right to record this agreement
against any and all applications and registrations of the Getty Marks
with the appropriate governmental agencies of the United States, the
United Kingdom and the European Union and any other jurisdictions.
(e) This agreement is binding upon the parties hereto, their subsidiaries,
divisions and all those acting in concert or in participation with
them or under their direction or control, and upon their successor and
assigns.
(f) In the event that a Getty Images subsidiary which has not executed
this agreement uses any of the Getty Marks at any time in the future,
such entity shall be required by Getty Images to execute this
agreement in counterpart, and Getty Investments shall be provided a
copy of said counterpart.
(g) This agreement embodies the entire agreement of the parties hereto and
supersedes all prior negotiations, understandings and agreements
whether written or oral. No part of this agreement may be varied by
any party hereto, except by a writing signed by each of the parties.
IN WITNESS THEREOF, the parties have caused this agreement to be executed by
their duly authorized officers.
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Date: GETTY INVESTMENTS LLC
By:
Name:
Title:
Date: GETTY IMAGES, INC
By:
Name:
Title:
Date: GETTY COMMUNICATIONS, PLC
By:
Name:
Title:
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SCHEDULE A
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