Shareholders Agreement - Getty Investments LLC and Getty Images Inc.
(1) GETTY INVESTMENTS L.L.C.
(2) THE INVESTORS NAMED HEREIN
(3) GETTY IMAGES, INC.
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RESTATED SHAREHOLDERS AGREEMENT
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CONTENTS
CLAUSE PAGE
1. INTERPRETATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2. VOTING ARRANGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . .4
3. PLEDGE OF COMMON STOCK. . . . . . . . . . . . . . . . . . . . . . . . . .4
4. PERMITTED TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . . .4
5. TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
6. TRANSFERS - GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . .6
7. LOCK-UP - CREDITON. . . . . . . . . . . . . . . . . . . . . . . . . . . .7
8. LOCK-UP - OCTOBER TRUST . . . . . . . . . . . . . . . . . . . . . . . . .8
9. STOCK CERTIFICATE LEGEND. . . . . . . . . . . . . . . . . . . . . . . . 10
10. NON-COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11. APPOINTMENT OF CHAIRMAN OF GETTY IMAGES . . . . . . . . . . . . . . . . 10
12. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
13. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14. CONSEQUENCES OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . 11
15. FURTHER ASSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17. RESTRICTIVE TRADE PRACTICES ACT . . . . . . . . . . . . . . . . . . . . 12
18. SATISFACTION OF LEGAL REQUIREMENTS. . . . . . . . . . . . . . . . . . . 12
19. ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
20. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
21. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
22. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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23. POWER TO APPOINT, REMOVE AND REPLACE A DIRECTOR OF GETTY INVESTMENTS. . 13
24. CHAIRMAN OF BOARD OF GETTY INVESTMENTS. . . . . . . . . . . . . . . . . 14
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THIS AGREEMENT is made on 1998
BETWEEN:
(1) GETTY INVESTMENTS L.L.C. a limited liability company organised pursuant
to the Delaware Limited Liability Company Act whose principal office is
at 1325 Airmotive Way, Reno, Nevada 89502-3240 ("GETTY INVESTMENTS");
(2) THOSE PERSONS whose names and addresses are set out in Exhibit A hereto
(the "INVESTORS"); AND
(3) 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. ("GETTY IMAGES").
WHEREAS
(A) On 8 July 1996 Getty Investments and the Investors entered into a
Shareholders Agreement as amended by a Supplemental Agreement dated 1
November 1996 (collectively the "ORIGINAL SHAREHOLDERS AGREEMENT") to
regulate the conduct of Getty Investments and the Investors in relation
to their direct and indirect investments in Getty Communications plc
("GETTY COMMUNICATIONS").
(B) The share capital of Getty Communications was divided into A Shares and B
Shares. The A Shares and the B Shares had identical rights attached to
them apart from the voting rights where the B Shares had ten votes per
share and the A Shares had one vote per share.
(C) Getty Investments and the Investors owned 100% of the issued and
allotted B Shares in Getty Communications.
(D) On 15 September 1997 Getty Communications entered into a merger
agreement (the "MERGER AGREEMENT") with PhotoDisc, Inc ("PHOTODISC").
Pursuant to the terms of the Merger Agreement Getty Images was formed
and (i) pursuant to a scheme of arrangement (the "SCHEME OF
ARRANGEMENT") each issued B Share of Getty Communications was converted
into one A Share of Getty Communications, each A Share of Getty
Communications was then transferred to Getty Images and the holders of
Getty Communications A Shares were issued one share of Common Stock for
every two Getty Communications A Shares held and Getty Communications
became a wholly owned subsidiary of Getty Images; and (ii) PhotoDisc
was merged with and into a wholly owned subsidiary of Getty Images
("MERGERSUB") with MergerSub as the surviving corporation.
(E) Following completion of the Merger Agreement Getty Investments has,
through its ownership of Common Stock, a [ ]% interest in Getty Images.
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(F) THIS AGREEMENT is intended to regulate the conduct of Getty Investments
and the Investors in relation to their direct and indirect investments
in Getty Images. By this Agreement the parties wish to restate the
Original Shareholders Agreement in full.
THE PARTIES AGREE in consideration of the mutual terms, covenants and conditions
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, as follows:
1. INTERPRETATION
1.1 In this Agreement:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly Controlling, directly or indirectly Controlled
by or under direct or indirect common Control with such Person;
"CLOSING PRICE" means with respect to Common Stock, the last reported
sale price on a Trading Day or, in case no such sale takes place on
such day, the average of the reported closing bid and asked prices as
reported on the New York Stock Exchange Composite Tape, or, if such
sales are not so reported, the reported last sale price or, if no such
sale takes place on such day, the average of the reported closing bid
and asked prices on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or if not listed or
admitted to trading on any national securities exchange, on the
National Association of Securities Dealer Automated Quotations
("NASDAQ") National Market System, or if the Common Stock is not quoted
on such National Market System, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected by Getty Images for that
purpose;
"COMMON STOCK" means the shares of Common Stock, par value $0.01 per
share of Getty Images;
"CONTROL" means, with respect to any Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the
management or policies of the controlled Person, whether through equity
ownership, by contract or otherwise;
"CONTROLLING PERSON" means, as to any Person, any one or more Persons who
Control such Person;
"CREDITON" means Crediton Limited and the "Permitted Transferees" of the
Common Stock held by Crediton (if any) pursuant to this Agreement;
"GETTY INVESTMENTS" means Getty Investments and the "Permitted
Transferees" of the Common Stock held by Getty Investments (if any)
pursuant to this Agreement;
"GROUP" means Getty Images and each Subsidiary thereof;
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"INVESTORS" means the Investors listed in Exhibit A hereto, together with
the respective Permitted Transferees of the Common Stock held by such
Persons (if any) pursuant to this Agreement;
"OCTOBER TRUST" means the Trustees of the October 1993 Trust and the
"Permitted Transferees" of the Common Stock held by the October Trust
(if any) pursuant to this Agreement; October Trust is the beneficial
owner of the Common Stock which is registered in the name of Abacus
C.I. Limited as trustee of the October 1993 Trust ("ABACUS");
"PARTY" means any party to this Agreement or a Person who becomes a Party
pursuant to the provisions of this Agreement;
"PERMITTED TRANSFEREE" means a Person who is a "permitted transferee" of
Common Stock as set forth in clauses (iii) (with reference to members of
the Getty Group only) and (iv) of the definition of Permitted Transferee
under the Stockholders' Agreement;
"PERSON" means an individual, corporation, general or limited
partnership, limited or unlimited liability company, trust,
association, unincorporated organisation, government or any authority,
agency or body thereof, or other entity and any legal personnel
representative successors and lawful assigns of any of them;
"REGISTRATION RIGHTS AGREEMENTS" means the Registration Rights Agreements
dated - among Getty Images, October Trust, Crediton, Getty Investments
[and -];
"STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement dated -
between Getty Images and (a) Getty Investments, Mark Getty, Jonathan
Klein, Crediton Limited and October 1993 Trust and (b) PDI, L.L.C.,
Mark Torrance and Wade Torrance;
"TRADING DAY" means a weekday (except for public holidays and Sundays)
on which the New York Stock Exchange is open for business; and
"TRANSFER" means to sell, assign, pledge, grant a security interest in,
otherwise dispose of, of agree to do any of the foregoing with respect to
the Common Stock.
1.2 In this Agreement, a reference to:
1.2.1 a "SUBSIDIARY" or "HOLDING COMPANY" is to be construed in accordance
with section 736 of the Companies Act 1985;
1.2.2 a statutory provision includes a reference to the statutory provision
as modified or re-enacted or both from time to time whether before or
after the date of this Agreement and any subordinate legislation made
under the statutory provision whether before or after the date of this
Agreement;
1.2.3 a clause or schedule, unless the context otherwise requires, is a
reference to a clause of or schedule to this Agreement; and
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1.2.4 a document is a reference to that document as from time to time
supplemented or varied.
1.3 The headings in this Agreement do not affect its interpretation.
2. VOTING ARRANGEMENTS
The Parties hereto hereby agree that they shall exercise the voting
rights associated with their Common Stock in such manner as they shall
be directed to do so by the Board of Directors of Getty Investments
from time to time.
2.1 Such direction shall be given by notice in writing sent by Getty
Investments to the Party in question. Any such notice may require the
Party in question to appoint any Person nominated by Getty Investments as
such Party's proxy to attend and vote the Common Stock on behalf of such
Party at any shareholders' meeting of Getty Images.
3. PLEDGE OF COMMON STOCK
No Party shall, except with the prior written consent of the other
Parties (such consent not to be unreasonably withheld), pledge,
mortgage, charge or otherwise encumber any Common Stock or any interest
in any Common Stock, or grant an option over any Common Stock or any
interest in any Common Stock.
4. PERMITTED TRANSFERS
4.1 A Party may at any time Transfer all/or any of its Common Stock (the
"RELEVANT STOCK") to a Permitted Transferee. The Permitted Transferee
may at any time Transfer all the Relevant Stock back to the said Party
or another Permitted Transferee of the said Party.
4.2 If Relevant Stock has been Transferred under Clause 4.1 (whether
directly or by a series of Transfers) by a Party (the "TRANSFEROR"
which expression shall include a second or subsequent Transferor in the
case of a series of Transfers) to its Permitted Transferee (the
"TRANSFEREE") and subsequently the Transferee ceases to be a Permitted
Transferee pursuant to this Agreement then the Transferee shall
forthwith Transfer the Relevant Stock back to the Transferor or at the
Transferor's option to another Permitted Transferee. If the Transferee
fails to Transfer the Relevant Stock within thirty days of the
Transferee ceasing to be a Permitted Transferee then the Transferee
shall be deemed to have served a Transfer Notice pursuant to Clause 5
in respect of all the Relevant Stock, with the Transfer Price being
determined pursuant to Clause 5.2.3. The Transfer Notice shall not be
withdrawn in any circumstances.
5. TRANSFERS
5.1 Subject to Clause 4, a Party (the "VENDOR") who wishes to Transfer any
Common Stock or any interest in any Common Stock shall give notice in
writing (the "TRANSFER NOTICE") to Getty Investments of its desire to do
so.
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5.2 The Transfer Notice:
5.2.1 shall specify the identity of a bona fide purchaser (the "PURCHASER")
or that the Common Stock is to be Transferred pursuant to the exercise of
rights under the Registration Rights Agreement or other securities law
exemption;
5.2.2 shall specify the number of shares desired to be Transferred (the
"OFFERED STOCK");
5.2.3 shall specify the bona fide price per share which the Purchaser is
willing to pay for the Offered Stock or in the case of a Transfer
pursuant to the exercise of rights under the Registration Rights
Agreement the average of the Closing Prices on the ten previous Trading
Days;
5.2.4 shall, without prejudice to the right of Getty Investments to purchase
all or any part thereof, constitute Getty Investments by its Directors
as the Vendor's agents to offer and sell the Offered Stock in accordance
with the terms of this Agreement at the price per share specified in the
Transfer Notice; and
5.2.5 shall not be withdrawn except as provided in paragraph 5.5.2(a).
5.3 Getty Investments shall serve a copy of the Transfer Notice on each of
the Parties hereto (other than the Vendor) which are then stockholders
of Getty Images ("MEMBER") which term shall include Getty Investments if
it is then a member of Getty Images with the request that each Member
informs Getty Investments in writing within 7 days whether it wishes to
purchase any of the Offered Stock. Each such Member shall be entitled
to accept (either itself or by nominating one or more Permitted
Transferees) such number of the Offered Stock as bears the same
proportion to the total Offered Stock as the number of shares of Common
Stock already held by such Member calculated as a percentage of the
total Common Stock held by all Members (other than those held by the
Vendor). Any balance of the Offered Stock not so accepted shall be
offered again to the remaining Members who wish to accept (either
themselves or through their nominating one or more Permitted
Transferees) Offered Stock on a similar basis.
5.4 For the purpose of Clauses 5.4 to 5.6, the term "the Offer" relates to
any offer pursuant to Clause 5.3 and the term "Stockholder" includes any
Person who accepts an offer pursuant to Clause 5.3. If the Offer is
accepted in respect of all of the Offered Stock Getty Investments shall
forthwith give notice (the "ALLOCATION NOTICE") of the acceptance of the
Offer to the Vendor and to each Stockholder. The Allocation Notice
shall specify:
5.4.1 the price of the Offered Stock (the "TRANSFER PRICE");
5.4.2 the number of shares of Offered Stock to be transferred to each
Stockholder to whom the Offered Stock has been allocated; and
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5.4.3 the place and time (being not earlier than fourteen and not later than
twenty-eight days after the date of the Allocation Notice) at which the
Transfer Price is to be paid by the Stockholders and the Offered Stock is
to be transferred by the Vendor.
5.5 If the Members or their nominees do not accept the Offer to purchase all
of the Offered Stock in accordance with Clauses 5.2 and 5.3, then the
following provisions shall apply:
5.5.1 Getty Investments shall notify that fact to the Vendor; and
5.5.2 the Vendor may either:
(a) withdraw the Transfer Notice and cancel Getty Investments'
authority to sell the Offered Stock by delivering to Getty
Investments a written notice of withdrawal but where applicable may
continue to sell the Offered Stock pursuant to the Registration
Rights Agreement; or
(b) may before the expiration of 30 days after receiving the
notification referred to in paragraph 5.5.1 elect by notice in
writing to Getty Investments to Transfer the Offered Stock which
Members or their nominees have accepted to such Members or their
Nominees in the amounts which they have respectively accepted and
with regard the remainder to the Purchaser at the Transfer Price
and otherwise on terms no more favourable than those offered to the
relevant Members and subject to the condition that the Purchaser
must enter into a deed with the Parties hereto agreeing to
discharge in full any outstanding obligations of the Vendor towards
the Parties hereto and otherwise in accordance with Clause 6.3; and
in all cases the Vendor shall be bound by the applicable provisions of
the Stockholders Agreement.
5.6 The Vendor shall be bound to Transfer such number of the shares of
Offered Stock as have been allocated pursuant to paragraph 5.4 above
against tender of the Transfer Price in accordance with the terms of
the Allocation Notice.
6. TRANSFERS - GENERAL
6.1 An obligation to Transfer an Common Stock pursuant to these provisions
shall be deemed to be an obligation to Transfer the entire legal and
beneficial interest in the Common Stock free from all liens, mortgages,
charges, encumbrances and other third party rights of whatever nature.
6.2 The Directors of Getty Images shall register the Transfer of Common
Stock to any Person only if the Transfer has been carried out in
accordance with this Agreement and the Stockholders' Agreement and in
no other circumstances.
6.3 The Parties shall procure that any Transfer or pledge or grant of any
option over Common Stock in accordance with this Agreement and, in the
case of Permitted
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Transferees, the Stockholders' Agreement shall be subject to the
following conditions which must be satisfied prior to such Transfer,
pledge or grant:
6.3.1 the Transferee, pledgee or grantee shall execute a deed confirming to
the other Parties that it shall be bound by this Agreement and, in the
case of Permitted Transferees, the Stockholders' Agreement in respect
of the Common Stock Transferred, pledged or granted as if it was a
Party; and
6.3.2 the Transferring, pledging or granting Party (which expression shall
include a second or subsequent Transferor, pledgee or grantee in a
series of Transfers, pledges or grants) shall be jointly and severally
liable with the Transferee for its obligations pursuant to this
Agreement and, in the case of Permitted Transferees, the Stockholders'
Agreement.
7. LOCK-UP - CREDITON
7.1 Subject to Clause 7.2, in respect of the 50% of the number of shares of
Common Stock set opposite its name in Exhibit A hereto (the "CREDITON
LOCK-UP STOCK"), Crediton agrees not to Transfer (other than to a
Permitted Transferee in accordance with this Agreement) any of the
Crediton Lock-up Stock until 8 July 2001 and thereafter for a further
period of two years not to Transfer (other than to a Permitted
Transferee in accordance with this Agreement) more than 50% of the
Crediton Lock-up Stock.
7.2 The following exceptions to Clause 7.1 are hereby agreed:
(a) if Jonathan D. Klein ceases to be employed by the Group then
Crediton will be released from its obligations in Clause 7.1;
(b) if any Party other than the October Trust Transfers (other than to
a Permitted Transferee in accordance with this Agreement) any
Common Stock then Crediton will be released from its obligations
under Clause 7.1 in respect of such Common Stock that is the same
percentage of all the Creditor Lock-up Stock (or after 8 July 2001
the same percentage as half the Crediton Lock-up Stock), as the
percentage that the Common Stock being sold is of all the Common
Stock held by the Parties other than Crediton and October Trust; and
(c) if the Common Stock held by the Parties (other than Crediton and the
October Trust) ceases to represent 10% or more of the total Common
Stock of Getty
Images outstanding from time to time then Crediton shall be released
from its obligations under Clause 7.1.
7.3 In consideration of the agreement set forth above:
(a) Getty Investments will pay to Crediton an annual fee according to
the Schedule provided in paragraph (b).
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(b) The fees payable under paragraph (a) shall be as follows:
YEAR BEGINNING FEE AMOUNT
08/07/97 L267,500 multiplied by (1+2/3 RPI increase
from May 1996 to May 1997)
08/07/98 Fee payable at 08/07/97 multiplied by (1+2/3
RPI increase from May 1997 to May 1998)
08/07/99 Fee payable at 08/07/98 multiplied by
97,000/267,500 and further multiplied by (1+2/3
RPI increase from May 1998 to May 1999)
08/07/00 Fee payable at 08/07/99 multiplied by (1+2/3
RPI increase from May 1999 to May 2000)
08/07/01 Fee payable at 08/07/00 multiplied by (1+2/3
RPI increase from May 2000 to May 2001)
08/07/02 Fee payable at 08/07/01 multiplied by (1+2/3
RPI increase from May 2001 to May 2002)
(c) Such annual fee will be payable in advance on 8 July of each year.
8. LOCK-UP - OCTOBER TRUST
8.1 Subject to Clause 8.2, in respect of 50% of the number of shares of
Common Stock set opposite its name in Exhibit A hereto (the "OCTOBER
LOCK-UP STOCK"), the October Trust agrees not to Transfer (other than
to a Permitted Transferee in accordance with this Agreement) any of the
October Lock-up Stock until 8 July 2001 and thereafter for a further
period of two years not to Transfer (other than to a Permitted
Transferee in accordance with this Agreement) more than 50% of the
October Lock-up Stock.
8.2 The following exceptions to Clause 8.1 are hereby agreed:
(a) if Mark H. Getty ceases to be employed by - then the October Trust
will be released from its obligations in Clause 8.1;
(b) if any Party other than Crediton Transfers (other than to a
Permitted Transferee in accordance with this Agreement) any Common
Stock then the October Trust will be released from its obligations
under Clause 8.1 in respect of the Common Stock that is the same
percentage of all the October Trust Lock-up Stock (or after 8 July
2001 the same percentage as half the October Trust Lock-up Stock)
as the percentage that the Common Stock being sold is
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of all the Common Stock held by the Parties other than Crediton and
October Trust; and
(c) if the Common Stock held by the Parties (other than Crediton and
the October 1993 Trust and their Permitted Transferees) ceases to
represent 10% or more of the total Common Stock of Getty Images
outstanding from time to time then the October Trust shall be
released from its obligations under Clause 8.1
8.3 In consideration of the agreement set forth above:
(a) Getty Investments will pay to the October Trust an annual fee
according to the schedule provided in paragraph (b).
(b) The fees payable under paragraph (a) shall be as follows:
YEAR BEGINNING FEE AMOUNT
08/07/97 L77,500 multiplied by (1+2/3 RPI increase from
May 1996 to May 1997)
08/07/98 Fee payable at 08/07/97 multiplied by (1+2/3
RPI increase from May 1997 to May 1998)
08/07/99 Fee payable at 08/07/98 multiplied by
28,000/77,500 and further multiplied by (1+2/3
RPI increase from May 1998 to May 1999)
08/07/00 Fee payable at 08/07/99 multiplied by (1+2/3
RPI increase from May 1999 to May 2000)
08/07/01 Fee payable at 08/07/00 multiplied by (1+2/3
RPI increase from May 2000 to May 2001)
08/07/02 Fee payable at 08/07/01 multiplied by (1+2/3
RPI increase from May 2001 to May 2002)
(c) such annual fee will be payable in advance on 8 July of each year.
9. STOCK CERTIFICATE LEGEND
All certificates representing shares of Common Stock shall bear, in
addition to other legends required under applicable securities laws, the
following legend:
"The shares represented by this certificate are subject to the provisions
of the Getty Parties Shareholders' Agreement dated as of - 1998 among
certain stockholders of Getty Images, Inc."
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10. NON-COMPETITION
10.1 RESTRICTIONS ON COMPETITION BY GETTY INVESTMENTS
Getty Investments agrees that neither it nor any Affiliates in which it
has a controlling interest shall (i) own directly or indirectly assets
comprising a visual content business as described in the Prospectus
other than through its relationship with Getty Images or (ii) acquire
an equity interest in any Person if at the time of such acquisition
such Person directly or indirectly through one or more Affiliates in
which it has a controlling interest owns any visual content business as
described in the Prospectus.
10.2 Nothing contained in this clause 10 shall prohibit or otherwise
restrict the ownership or acquisition of 10% or less of the outstanding
equity of a Person that engages in the visual content business directly
or indirectly as described in the Prospectus.
11. APPOINTMENT OF CHAIRMAN OF GETTY IMAGES
Getty Images hereby agrees that,. subject to the terms of the
Stockholders' Agreement, it shall take all necessary steps to ensure
the appointment of any person nominated to be chairman of Getty Images
by Getty Investments pursuant to the by laws of Getty Images provided
that for so long as either Mark Torrance or Mark Getty are co-chairman
of the board such right shall not be in effect.
12. TERM
This Agreement has a term of seven years from 8 July 1996 (the "INITIAL
TERM"), unless terminated earlier pursuant to clause 11.
13. TERMINATION
13.1 CESSATION OF OWNERSHIP
This Agreement shall be terminated with immediate effect in respect of
any Party when it and its Permitted Transferees cease to be Members of
Getty Images; or
13.2 REDUCTION IN HOLDING OF GETTY IMAGES
This Agreement shall be terminated with immediate effect if the Common
Stock held by the Parties ceases to represent 10% or more of the total
Common Stock of Getty Images outstanding from time to time.
13.3 For the purposes of this clause 13, Getty Images shall include any
corporation into which Getty Images may merge into or consolidate with
and in such case the term Common Stock shall mean and include the
shares of stock of such successor entity exchanged for such Common
Stock.
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14. CONSEQUENCES OF TERMINATION
14.1 Subject to clause 14.2, each Party's further rights and obligations
cease immediately on termination of this Agreement, but termination
does not affect a Party's accrued rights and obligations at the date of
termination.
14.2 Upon the occurrence of the termination of this Agreement pursuant to
clause 13.1 or 13.2 an event set out in Clause 13 above, Getty
Investments shall pay to Crediton and October Trust respectively any
outstanding fees together with all fees payable by Getty Investments in
respect of the entire period of the Agreement.
15. FURTHER ASSURANCE
Each party shall at its own cost do and execute, or arrange for the
doing and executing of, each necessary act, document and thing
reasonably within its power to implement this Agreement.
16. GENERAL
16.1 This Agreement and any document referred to in this Agreement and other
documents constitute the entire agreement, and supersede any previous
agreement, between the parties relating to the subject matter of this
Agreement.
16.2 A variation of this Agreement is valid only if it is in writing and
signed by or on behalf of each party.
16.3 The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not constitute a waiver of
the right or remedy or a waiver of other rights or remedies. No single
or partial exercise of a right or remedy provided by this Agreement or
by law prevents further exercise of the right or remedy or the exercise
of another right or remedy.
16.4 No provision of this Agreement creates a partnership between the
parties or makes a party the agent of the other party for any purpose.
A party has no authority or power to bind, to contract in the name of,
or to create a liability for the other party in any way or for any
purpose.
17. RESTRICTIVE TRADE PRACTICES ACT
Any provision contained in this Agreement or in any arrangement of which
this Agreement forms part by virtue of which this Agreement or such
arrangement is subject to registration under the Restrictive Trade
Practices Acts 1976 and 1977 shall not come into effect until the day
following the date on which particulars of this Agreement and of any such
arrangement have been furnished to the Office of the Director General of
Fair Trading in accordance with the requirements of such Acts.
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18. SATISFACTION OF LEGAL REQUIREMENTS
Notwithstanding any other provision of this Agreement, no Stockholder
may Transfer any Common Stock unless it has complied with all
applicable legal requirements, including without limitation applicable
United States federal and state securities laws.
19. ASSIGNMENT
19.1 A Party may not assign or transfer or purport to assign or transfer a
right or obligation under this Agreement except to a Permitted
Transferee. Each Party is entering into this Agreement for its benefit
and not for the benefit of another Person.
20. NOTICES
20.1 A notice or other communication under or in connection with this
Agreement shall be in writing and may be delivered personally or sent
by first class post or by fax, as follows:
20.1.1 if to Getty Investments to:
Address: 1325 Airmotive Way
Reno
Nevada 89502-3240
Fax: + 1 702 786 5414
Marked for the attention of Jan Moehl and Mark Jenness
20.1.2 If to the Investors to the address specified for such Person in
Exhibit A hereto with a copy to:
Address: Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
Fax: + 44 171 956 0181
Marked for the attention of: Michael Francies
20.1.3 If to Getty Images to:
Address: 101 Bayham Street
London
NW1 0AG
England
Fax: + 44 171 267 6540
Marked for the attention of Jonathan Klein
or to another Person, address or fax number specified by a party by
written notice to the other.
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20.2 In the absence of evidence of earlier receipt, a notice or other
communication is deemed given:
20.2.1 if delivered personally, when left at the address referred to in
clause 20.1
20.2.2 if sent by fax, one hour after its despatch.
21. GOVERNING LAW
21.1 This Agreement is governed exclusively by Delaware law.
21.2 Arbitration - 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 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 rendered may be entered in any court having
jurisdiction thereof. Reasonable fees, costs and expenses, including
legal fees, incurred by any Party in connection with such arbitration
shall be borne by Getty Investments. Nothing in this paragraph 19.2
shall limit any right that any Party may otherwise have to seek (on its
own behalf or in the right of Getty Investments) to obtain preliminary
injunctive relief in order to preserve the status quo pending the
disposition of any such arbitration proceeding.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed and delivered is an original, but all the
counterparts together constitute the same document.
23. POWER TO APPOINT, REMOVE AND REPLACE A DIRECTOR OF GETTY INVESTMENTS
23.1 Each of Crediton and the October Trust shall have the right to nominate
one Person who is willing so to act, as a director of Getty Investments
and to nominate for removal and replacement the Person so nominated by
each of them.
23.2 Any nomination pursuant to Clause 23.1 shall be effected by notice to
Getty Investments signed by or on behalf of the nominator. The notice
shall be left at or sent by post or facsimile transmission to the
office or such other place designated by the board for the purpose.
The nomination shall take effect as of the deposit of the notice or
such later date (if any) specified in the notice. The first director
nominated by the October Trust shall be Mark H. Getty and the first
director nominated by Crediton shall be Jonathan D. Klein.
<PAGE>
24. CHAIRMAN OF BOARD OF GETTY INVESTMENTS
24.1 The October Trust shall have the right to nominate, out of the
directors of Getty Investments from time to time, a Person who is
willing so to act, as Chairman of Getty Investments and to removal and
replacement of the Person that is nominated as Chairman by it. The
first person nominated Chairman by October Trust shall be Mark H. Getty.
24.2 Any nomination as Chairman pursuant to Clause 24.1 shall be effected by
notice to Getty Investments signed by or on its behalf. The notice
shall be left at or sent by post or facsimile transmission to the
office or such other place designated by the board for the purpose.
The nomination shall take effect immediately on deposit of the notice
or on such later date (if any) specified in any notice.
<PAGE>
EXECUTED by the parties as follows:
Signed by )
a duly authorised )
representative for and )
on behalf of )
Crediton Limited )
Signature
-------------------------
Signed by )
a duly authorised )
representative for and )
on behalf of )
Abacus (C.I.) Limited as the )
Trustee of The October )
1993 Trust )
Signature
-------------------------
Signed by )
a duly authorised )
representative for and )
on behalf of )
Getty Investments L.L.C. )
Signature
-------------------------
Signed by )
a duly authorised )
representative for and )
on behalf of )
Getty Images, Inc. )
Signature
-------------------------
<PAGE>
EXHIBIT A
THE INVESTORS
NOTICE ADDRESS
NAME NOTICE ADDRESS NO. OF SHARES
CREDITON LIMITED 60 Circular Road -
Douglas
Isle of Man
IM1 2SA
Abacus (C.I.) Limited as the
TRUSTEE OF THE OCTOBER
1993 TRUST
c/o Coopers & Lybrand -
La Motte Chambers
St Helier
Jersey
JE1 1BJ