Registration Rights Agreement - Getty Communications plc, Lawrence J. Gould, Simon C. Thornley, Brian K. Wolske, Mark H. Getty and Jonathan D. Klein
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 3, 1996 (this "Agreement"),
between Getty Communications plc, a public limited company organized under the
laws of England and Wales (the "Company"), and each of Lawrence J. Gould, Simon
C. Thornley, Brian K. Wolske, Mark H. Getty and Jonathan D. Klein (the
"Directors").
WHEREAS, the Company has determined that it is in the best interests of the
Company to offer Class A Ordinary Shares of the Company (the "Class A Shares"
and, together with the Class B Ordinary Shares of the Company, the "Ordinary
Shares") in the form of American Depositary Shares in the United States (the
"Offering") pursuant to the filing of a Form F-1 Registration Statement under
the United States Securities Act of 1933, as amended (the "Securities Act"); and
WHEREAS, after the consummation of the Offering, the Directors will own
2,272,906 Class A Shares (the "Remaining Shares") and 2,490,408 Class B Shares
(the "Conversion Shares"); and
WHEREAS, the parties each desire to make certain covenants and agreements
concerning the registration from time to time of the Registrable Shares (as
defined below) under the Securities Act.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties and conditions contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. As used in this Agreement, the following terms shall have
the following respective meanings:
"AFFILIATE" of a Holder shall mean a direct or indirect
subsidiary of such Holder or if such Holder is an individual, the spouse or
children (or a trust exclusively for the benefit of a spouse and/or
children) of such Holder.
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or any other United States federal agency at the time
administering the Securities Act or the Exchange Act, as applicable,
whichever is the relevant statute.
"EXCHANGE ACT" shall mean the United States Securities Exchange
Act of 1934, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be amended from time to
time.
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"HOLDER" shall mean, with respect to a Tax Demand Right (as
defined in Section 3.01 hereunder) each Director, or any transferee or
assignee thereof to whom the rights under this Agreement are assigned by
each such Director in accordance with the provisions of Section 4.06
hereof, and with respect to any other Demand Right, Mr. Lawrence J. Gould,
Mr. Simon C. Thornley and Mr. Brian K. Wolske or any transferee or assignee
thereof to whom the rights under this Agreement are assigned by each such
Director in accordance with the provisions of Section 4.06 hereof.
"PERSON" shall mean a corporation, association, partnership,
organization, group (as such term is used in Rule 13d-5 under the Exchange
Act), business, individual, government or political subdivision thereof,
governmental agency or other entity.
"REGISTRABLE SHARES" shall mean (i) the Remaining Shares and the
Conversion Shares, (ii) any Ordinary Shares issued as (or issuable upon the
conversion or exercise of any warrant, right, option or other convertible
security which is issued as) a dividend or other distribution with respect
to, or in exchange for, or in replacement of, the Remaining Shares and the
Conversion Shares and (iii) any Ordinary Shares issued by way of a stock
split of the Remaining Shares and the Conversion Shares referred to in
clauses (i) or (ii) above. For purposes of this Agreement, any Registrable
Shares shall cease to be Registrable Shares when (x) a registration
statement covering such Registrable Shares have been declared effective and
such Registrable Shares have been disposed of pursuant to such effective
registration statement and (y) such Registrable Shares are sold freely in
the public market by a person in a transaction in which the rights under
the provisions of this Agreement are not assigned.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. REPRESENTATIONS AND WARRANTIES OF EACH DIRECTOR. Each
Director, severally, hereby represents and warrants to the Company that this
Agreement has been duly authorized, executed and delivered by each such Director
and constitutes a valid and binding agreement enforceable against it in
accordance with its terms.
SECTION 2.02. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Director that it has been duly organized and is
an existing corporation in good standing under the laws of England and Wales and
that (i) it has all requisite corporate power and authority, and has received
all requisite approvals (including any necessary approval of its board of
directors) to complete the transactions contemplated hereby and (ii) this
Agreement has been duly authorized, executed and delivered by it and constitutes
a valid and binding agreement enforceable by each Director against it in
accordance with its terms.
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ARTICLE III
AGREEMENTS IN RESPECT OF THE REGISTRABLE SHARES
SECTION 3.01. DEMAND REGISTRATIONS. (a) The Holder shall have the right
(the "Demand Right") on (i) one occasion in July 1997 in respect of Mr. Lawrence
J. Gould, Mr. Simon C. Thornley or Mr. Brian K. Wolske or within 12 months of
the date of exercise of any stock options in respect of Mr. Jonathan D. Klein
and Mr. Mark H. Getty, in order to sell Registrable Shares to raise an amount
equal to or less than the tax payable on the exercise of their stock options of
the Company (the "Tax Demand Right"), and (ii) one occasion within 90 days
following the date that Mr. Lawrence J. Gould, Mr. Simon C. Thornley, Mr. Brian
K. Wolske, Mr. Jonathan D. Klein or Mr. Mark H. Getty, as the case may be,
ceases to be employed by the Company, to require the Company to file a
registration statement under the Securities Act in respect of all of the
Registrable Shares held by such Holder; PROVIDED, HOWEVER, that if such Holder
is exercising such Demand Right together with any other Holder's demand right,
then it may be exercised if the Registrable Shares and the other shares demanded
by the other Holders shall exceed five percent of the outstanding Ordinary
Shares of the Company. As promptly as practicable, but in no event later than
30 days after the Company receives a written request from such Holder demanding
that the Company so register the number of Registrable Shares specified in such
request, the Company shall file with the Commission and thereafter use its best
efforts to cause to be declared effective promptly a registration statement (a
"Demand Registration") providing for the registration of all Registrable Shares
as such Holder shall have demanded be registered.
(b) Anything in this Agreement to the contrary notwithstanding, the
Company shall be entitled to postpone and delay, for a reasonable period of
time, not to exceed 45 days (the "Blackout Period"), the filing of any Demand
Registration if (i) the Company is conducting or about to conduct an
underwritten public offering of securities in which the Holder is entitled to
join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing
contractual obligation not to engage in a public offering, or (iii) the Company
shall determine that any such filing or the offering of any Registrable Shares
would (x) in the good faith judgment of the Board of Directors of the Company,
impede, delay or otherwise interfere with any pending or contemplated financing,
acquisition, corporate reorganization or other similar transaction involving the
Company, (y) based upon advice from the Company's investment banker or financial
advisor, adversely affect any pending or contemplated offering or sale of any
class of securities by the Company, or (z) require disclosure of material
nonpublic information which, if disclosed at such time, would be materially
harmful to the interests of the Company and its shareholders; PROVIDED, HOWEVER,
that the Blackout Period shall terminate upon the completion or abandonment of
the relevant securities offering or sale, the termination or expiration of the
existing contractual obligation to its underwriters not to engage in a public
offering, the completion or abandonment of the relevant financing, acquisition,
corporate reorganization or other similar transaction, such time as such Demand
Registration shall no longer affect the relevant pending or contemplated
offering of
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securities by the Company, or the public disclosure by the Company or public
admission by the Company of such material nonpublic information or such time as
such material nonpublic information shall be publicly disclosed without breach
of the last sentence of this subsection (b), as the case may be. After the
expiration of any Blackout Period and without any further request from a Holder,
the Company shall effect the filing of the relevant Demand Registration and
shall use its best efforts to cause any such Demand Registration to be declared
effective as promptly as practicable unless such Holder shall have, prior to the
effective date of such Demand Registration, withdrawn in writing its initial
request, in which case such withdrawn request shall not constitute a Demand
Registration for purposes of determining the number of Demand Registrations to
which such Holder is entitled to hereunder.
(c) Except with respect to any request by a Holder for a Demand
Registration which is subsequently withdrawn prior to such Demand Registration
becoming due to (i) a material adverse change affecting the Company or capital
markets generally, or (ii) a notification by the Company of an intention to file
a registration statement with respect to the Class A Shares, such Holder shall
share equally with the Company all expenses relating to the preparation of such
withdrawn Demand Registration.
SECTION 3.02. INCIDENTAL REGISTRATION. (a) If, at any time following the
date of the Offering and up to and including 30 days after the date that Mr.
Lawrence J. Gould, Mr. Simon C. Thornley or Mr. Brian K. Wolske, as the case may
be, ceases to be employed by the Company, the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
its Class A Shares (i) for its own account (other than a registration statement
on Form S-4 or S-8 (or any substitute form that may be adopted by the
Commission)) or (ii) for the account of any holders of its Class A Shares
(including any pursuant to a demand registration), the Company shall give
written notice of such proposed filing to each Holder as soon as practicable
(but in any event not less than 30 days before the anticipated filing date), and
such notice shall offer each Holder the opportunity to register such number of
Registrable Shares as the Holder shall request. Upon the written direction of
any Holder, given within 20 days following the receipt by such Holder of any
such written notice (which direction shall specify the number of Registrable
Shares intended to be disposed of by such Holder), the Company shall include in
such registration statement (an "Incidental Registration" and, collectively with
a Demand Registration, a "Registration") such number of Registrable Shares as
shall be set forth in such notice. Notwithstanding anything contained herein,
if the lead underwriter of an offering involving an Incidental Registration
delivers a written opinion to the Company that the inclusion of such Registrable
Shares would (i) materially and adversely affect the price of the Class A Shares
to be offered or (ii) result in a greater amount of Class A Shares being offered
than the market could reasonably absorb, then the number of Registrable Shares
to be registered by each party requesting Incidental Registration rights shall
be reduced in proportion to the number of securities originally requested to be
registered by each of them. Nothing contained herein shall require the Company
to reduce the number of Class A Shares proposed to be issued by the Company.
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(b) No Incidental Registration effected under this Section 3.02 shall be
deemed to have been effected pursuant to Section 3.01 hereof or shall release
the Company of its obligations to effect any Demand Registration upon request as
provided under Section 3.01 hereof.
SECTION 3.03. REGISTRATION PROCEDURES. (a) In connection with each
Registration, and in accordance with the intended method or methods of
distribution of the Class A Shares as described in such Registration, the
Company shall, as soon as reasonably practicable (and, in any event, subject to
the terms of this Agreement, including, without limitation, Section 3.01(a)
hereof, at or before the time required by applicable laws and regulations):
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Shares and use its best efforts to cause
such registration statement to become and remain effective for the period
of the distribution contemplated thereby determined as provided hereafter;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
Shares covered by such registration statement;
(c) furnish to the Holder such numbers of copies of the registration
statement and the prospectus included therein (including each preliminary
prospectus and any amendments or supplements thereto), in conformity with
the requirements of the Securities Act and such other documents and
information as it may reasonably request;
(d) use its best efforts to register or qualify the Registrable
Shares covered by such registration statement under such other securities
or blue sky laws of such jurisdiction within the United States and Puerto
Rico as shall be reasonably appropriate for the distribution of the
Registrable Shares covered by the registration statement; PROVIDED,
HOWEVER, that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business in or to file a general
consent to service of process in any jurisdiction wherein it would not but
for the requirements of this paragraph (d) be obligated to do so; and
PROVIDED, FURTHER, that the Company shall not be required to qualify such
Registrable Shares in any jurisdiction in which the securities regulatory
authority requires that the Holder submit any of its Registrable Shares to
the terms, provisions and restrictions of any escrow, lockup or similar
agreement(s) for consent to sell Registrable Shares in such jurisdiction
unless such Holder agrees to do so;
(e) promptly notify each Holder, at any time when a prospectus
relating to the Registrable Shares is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such
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registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made, and at the request of any
such Holder promptly prepare and furnish to such Holder a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made;
(f) furnish, at the request of any Holder requesting registration of
Registrable Shares pursuant to Sections 3.01 or 3.02 hereof, if the method
of distribution is by means of an underwriting, on the date that the
Registrable Shares are delivered to the underwriters for sale pursuant to
such registration, or if such Registrable Shares are not being sold through
underwriters, on the date that the registration statement with respect to
such Registrable Shares becomes effective, (1) a signed opinion, dated such
date, of the independent legal counsel representing the Company for the
purpose of such registration, addressed to the underwriters, if any, and if
such Registrable Shares are not being sold through underwriters, then to
the Holders making such request, as to such matters as such underwriters or
the Holders holding a majority of the Registrable Shares included in such
registration, as the case may be, may reasonably request and as would be
customary in such a transaction; and (2) letters dated such date and the
date the offering is priced from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and if
such Registrable Shares are not being sold through underwriters, then to
the Holders making such request and, if such accountants refuse to deliver
such letters to such Holders, then to the Company (i) stating that they are
independent certified public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements and other financial data of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereto, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and (ii) covering such other
financial matters (including information as to the period ending not more
than five (5) business days prior to the date of such letters) with respect
to the registration in respect of which such letter is being given as such
underwriters or the Holders holding a majority of the Registrable Shares
included in such registration, as the case may be, may reasonably request
and as would be customary in such a transaction;
(g) enter into customary agreements (including if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of the Registrable Shares
to be so included in the registration statement;
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(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, but not later than eighteen
(18) months after the effective date of the registration statement, an
earnings statement covering the period of at least twelve (12) months
beginning with the first full month after the effective date of such
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(i) use its best efforts to list the Class A Shares covered by such
registration statement with any securities exchange on which the Class A
Shares are then listed.
(b) Each Holder requesting registration shall furnish to the Company in
writing such information regarding such Holder and its intended method of
distribution of the Registrable Shares as the Company may from time to time
reasonably request in writing, but only to the extent that such information is
required in order for the Company to comply with its obligations under all
applicable securities and other laws and to ensure that the prospectus relating
to such Registrable Shares conforms to the applicable requirements of the
Securities Act and the rules and regulations thereunder. Such Holder shall
notify the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Holder to the Company or of the
occurrence of any event, in either case as a result of which any prospectus
relating to the Registrable Shares contains or would contain an untrue statement
of a material fact regarding such Holder or its intended method of distribution
of such Registrable Shares or omits to state any material fact regarding such
Holder or its intended method of distribution of such Registrable Shares
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
promptly furnish to the Company any additional information required to correct
and update any previously furnished information, or required so that such
prospectus shall not contain, with respect to such Holder or the intended method
of distribution of the Registrable Shares, an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
SECTION 3.05. REGISTRATION EXPENSES. All expenses, excluding
underwriters' discounts and commissions and any stamp or transfer taxes or duty,
but including without limitation all registration, filing and qualification
fees, word processing, duplicating, printers' and accounting fees (including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance), fees of the National Association of
Securities Dealers, Inc. or listing fees, messenger and delivery expenses, all
fees and expenses of complying with state securities or blue sky laws, fees and
disbursements of one counsel for the Holders and fees and disbursements of
counsel for the Company incurred in connection with each registration shall be
paid by the Company. Each Holder shall bear and pay the underwriting
commissions and discounts and any stamp or transfer tax or duty and the fees and
disbursements of counsel for the Holders other than the one counsel referred to
above incurred in connection with each
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registration applicable to securities offered for its account in connection with
any registrations, filings and qualifications made pursuant to this Agreement.
SECTION 3.06. INDEMNIFICATION; CONTRIBUTION. (a) INDEMNIFICATION BY THE
COMPANY. The Company shall, and it hereby agrees to, indemnify and hold
harmless each Holder, such Holder's directors and officers, and each person who
participates as a placement or sales agent or as an underwriter in any offering
or sale of the Registered Shares, against any losses, claims, damages or
liabilities to which such Holder or such agent or underwriter may become
subject, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Registration, or any preliminary or final prospectus contained therein, or any
amendment or supplement thereto, or any document incorporated by reference
therein, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company shall, and it hereby
agrees to, reimburse each such Holder or any such agent or underwriter for any
legal or other out-of-pocket expenses reasonably incurred by them (but not in
excess of expenses incurred in respect of one counsel for all of them unless
there is an actual conflict of interest between any indemnified parties, which
indemnified parties may be represented by separate counsel) in connection with
investigating or defending any such action, proceeding or claim; PROVIDED,
HOWEVER, that the indemnity agreement contained in this Section 3.06(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company which consent shall not be unreasonably withheld; PROVIDED, FURTHER,
that the Company shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration, or preliminary or final prospectus,
or amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such Holder or any agent,
underwriter or representative of such Holder expressly for use therein, or by
such Holder's failure to furnish the Company, upon request, with the information
with respect to such Holder, such Holder's directors and officers, or any agent,
underwriter or representative of such Holder, or such Holder's intended method
of distribution, that is the subject of the untrue statement or omission or if
the Company shall sustain the burden of proving that such Holder, such Holder's
directors and officers, or such agent or underwriter sold securities to the
person alleging such loss, claim, damage or liability without sending or giving,
at or prior to the written confirmation of such sale, a copy of the applicable
prospectus (excluding any documents incorporated by reference therein) or of the
applicable prospectus, as then amended or supplemented (excluding any documents
incorporated by reference therein) if the Company had previously furnished
copies thereof to the such Holder or such agent or underwriter, and such
prospectus corrected such untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration.
(b) INDEMNIFICATION BY THE HOLDER AND ANY AGENT OR UNDERWRITERS. Each
Holder requesting or joining in a Registration shall severally and not jointly
indemnify
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and hold harmless the Company, each of its directors and officers, each person,
if any, who controls the Company within the meaning of the Securities Act, and
each agent and any underwriter for the Company (within the meaning of the
Securities Act) against any losses, claims, damages or liabilities, joint or
several, to which the Company or any such director, officer, controlling person,
agent or underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in such registration statement
on the effective date thereof (including any prospectus filed under Rule 424
under the Securities Act or any amendments or supplements thereto) or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary or final
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished by or on behalf of such Holder
expressly for use in connection with such Registration; and each such Holder
shall reimburse any legal or other expenses reasonably incurred by the Company
or any such director, officer, controlling person, agent or underwriter (but not
in excess of expenses incurred in respect of one counsel for all of them unless
there is an actual conflict of interest between any indemnified parties, which
indemnified parties may be represented by separate counsel) in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the indemnity agreement contained in this
Section 3.06(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of such Holder (which consent shall not be unreasonably withheld).
(c) NOTICE OF CLAIMS, ETC. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action or proceeding for which indemnification under subsection (a) or (b) may
be requested, such indemnified party shall, without regard to whether a claim in
respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of, or as contemplated by, this Section 3.06, notify
such indemnifying party in writing of the commencement of such action or
proceeding; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party in
respect of such action or proceeding on account of the indemnification
provisions of or contemplated by Section 3.06(a) or 3.06(b) hereof unless the
indemnifying party was materially prejudiced by such failure of the indemnified
party to give such notice, and in no event shall such omission relieve the
indemnifying party from any other liability it may have to such indemnified
party. In case any such action or proceeding shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall determine, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such
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indemnifying party shall not be liable to such indemnified party for any legal
or any other expenses subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation
(unless such indemnified party reasonably objects to such assumption on the
grounds that there may be defenses available to it which are different from or
in addition to the defenses available to such indemnifying party, in which event
the indemnified party shall have the right to control its defense and shall be
reimbursed by the indemnifying party for the expenses incurred in connection
with retaining separate counsel). If the indemnifying party is not entitled to,
or elects not to, assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one counsel (in addition to local counsel)
for each indemnified party with respect to such claim. The indemnifying party
will not be subject to any liability for any settlement made without its
consent, which consent shall not be unreasonably withheld or delayed. No
indemnifying party will consent to entry of any judgment or enter into any
settlement agreement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such claim or litigation.
(d) CONTRIBUTION. Each Holder requesting or joining in a Registration and
the Company agree that if, for any reason, the indemnification provisions
contemplated by Section 3.06(a) or Section 3.06(b) hereof are unavailable to or
are insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of, and benefits
derived by, the indemnifying party and the indemnified party, as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 3.06(d) were determined (i) by pro rata allocation (even if the
Holder or any agents for, or underwriters of, the Registrable Shares, or all of
them, were treated as one entity for such purpose); or (ii) by any other method
of allocation which does not take account of the equitable considerations
referred to in this Section 3.06(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to above shall be deemed to
include (subject to the limitations set forth in Section 3.06(c) hereof) any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action, proceeding or claim.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
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(e) BENEFICIARIES OF INDEMNIFICATION. The obligations of the Company
under this Section 3.06 shall be in addition to any liability that it may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of the each Holder requesting or joining in a
Registration and each agent and underwriter of the Registrable Shares and each
person, if any, who controls such Holder or any such agent or underwriter within
the meaning of the Securities Act; and the obligations of such Holder and any
agents or underwriters contemplated by this Section 3.06 shall be in addition to
any liability that such Holder or its respective agent or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent,
is named in any registration statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Securities Act.
SECTION 3.07. UNDERWRITERS. If any of the Registrable Shares are to be
sold pursuant to an underwritten offering, the investment banker or bankers and
the managing underwriter or underwriters thereof shall be selected by the
Company except in the case of a Demand Registration, in which case the managing
underwriter or underwriters shall be selected by the Holder requesting such
Registration after consultation with the Company and taking into account the
Company's reasonable requests, PROVIDED that such managing underwriter or
underwriters must be of recognized international standing.
SECTION 3.08. LOCKUP. Each Holder shall, in connection with any
registration of the Company's securities, upon the request of the Company or the
underwriters managing any underwritten offering of the Company's securities,
agree in writing not to effect any sale, disposition or distribution of any
Registrable Shares (other than that included in the registration) without the
prior written consent of the Company or such underwriters, as the case may be,
for such period of time not to exceed one hundred and eighty (180) days from the
effective date of such registration as the Company or the underwriters may
specify; PROVIDED, HOWEVER, that all executive officers and directors of the
Company shall also have agreed not to effect any sale, disposition or
distribution of any Registrable Shares under the circumstances and pursuant to
the terms set forth in this Section 3.08.
SECTION 3.09. LEGENDS. (a) Stop transfer restrictions will be given to
the Company's transfer agent(s) with respect to the Registrable Shares and there
will be placed on the certificate or instruments representing the Registrable
Shares, and on any certificate or instrument delivered in substitution or
exchange therefor, a legend stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO SUCH REGISTRATION OR IN ACCORDANCE WITH AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
<PAGE>
12
(b) The Company hereby agrees that it will cause stop transfer
restrictions to be released with respect to any Registrable Shares that are
transferred (i) pursuant to an effective registration statement under the
Securities Act, (ii) pursuant to Rule 144 under the Securities Act, or (iii)
pursuant to another exemption from the registration requirements of the
Securities Act; PROVIDED, HOWEVER, that in the case of any transfer pursuant to
clause (ii) or (iii) above, the request for transfer is accompanied by a written
statement signed by the Holder confirming compliance with the requirements of
the relevant exemption from registration; and PROVIDED, FURTHER, that in the
case of any transfer pursuant to clause (iii) above, other than any transfer by
the Holder to one or more of its direct or indirect subsidiaries, or among such
subsidiaries, or by any such subsidiary to the Holder, the Company shall have
received a written opinion of counsel reasonably satisfactory to the Company
that such registration is not required. The Company further agrees that it will
cause the legend described in subsection (a) of this Section 3.09 to be removed
in the event of any transfer as provided in clause (i) or (ii) above.
SECTION 3.10. PUBLIC INFORMATION. The Company covenants to make available
"adequate current public information" concerning the Company within the meaning
of Rule 144(c) under the Securities Act.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. TERM OF AGREEMENT; TERMINATION. The term of this Agreement
shall commence on the date hereof and such term and this Agreement shall
terminate on the earlier of ten years from the date of this Agreement or the
date that Mr. Lawrence J. Gould, Mr. Simon C. Thornley or Mr. Brian K. Wolske,
as the case may be, ceases to be employed by the Company; PROVIDED, HOWEVER,
that a Demand Registration shall not have been demanded or registered and not
yet become effective.
SECTION 4.02. SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS. Each of
the parties hereto recognizes and acknowledges that a breach by a party or by
any assignee thereof of any covenants or other commitments contained in this
Agreement will cause the other party to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, each of the
parties hereto agrees that in the event of any such breach, the aggrieved party
shall be entitled to the remedy of specific performance of such covenants or
commitments and preliminary and permanent injunctive and other equitable relief
in addition to any other remedy to which it may be entitled, at law or in
equity, and the parties hereto hereby waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
SECTION 4.03. NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given and made if in
writing and if served by personal delivery upon the party for whom it is
intended or
<PAGE>
13
delivered by registered or certified mail, return receipt requested, or if sent
by telecopier, upon receipt of oral confirmation that such transmission has been
received, to the person at the address set forth below, or such other address as
may be designated in writing hereafter, in the same manner, by such person:
(a) If to the Company, addressed as follows:
101 Bayham Street
London NW1 0AG
England
Attention:
Telecopier: 44-171-767-6540
with a copy to:
Shearman & Sterling
199 Bishopsgate
London EC2M 3TY
Attention: Pamela M. Gibson
Telecopier: 44-171-920-9000
(b) If to the Directors, addressed as described in Schedule I hereto;
with a copy to:
Clifford chance
200 Aldersgate
London EC1A 4JJ
Attention: Michael Francies
Telecopier: 44-171-600-5555
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this Section 4.03. The date of receipt of
any such notice, request, consent, agreement or approval shall be deemed to be
the date of delivery thereof.
SECTION 4.04. SURVIVAL. The several indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any party, any director or officer of such party, or any controlling person of
any of the foregoing, and shall survive the transfer of any Registrable Shares
by each Director, and the indemnification and contribution provisions set forth
in Section 3.06 hereof shall survive termination of this Agreement.
<PAGE>
14
SECTION 4.05. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
SECTION 4.06. TRANSFER OF REGISTRATION RIGHTS. The registration rights of
each Director in this Agreement with respect to any Registrable Shares may be
transferred (a) to any person acquiring all of the Registrable Shares held by
the Holder or (b) to an Affiliate of such Holder; PROVIDED, HOWEVER, that the
Company may deny such transfer if (i) such Director or the transferring person
has made three transfers with respect to the Registrable Shares or (ii) such
transfer relates to a sale or other transfer of some or all of the Registrable
Shares to a person who is a competitor of the Company or its subsidiaries in the
industry or (iii) any conditions in the second last sentence of this Section
4.06 is not met. Each such transfer is contingent on such Director or the
transferring person satisfying the following: (i) such Director or transferring
person shall have given the Company written notice at or prior to the time of
such transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this Agreement are being
transferred; (ii) such transferee shall have agreed in writing, in form and
substance reasonably satisfactory to the Company, to be bound by the provisions
of this Agreement; and (iii) immediately following such transfer the further
disposition of such securities by each transferee shall be restricted under the
Securities Act. Except as set forth in this Section 4.06, no transfer of
Registrable Shares shall cause such Registrable Shares to lose such status.
SECTION 4.07. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto. Except as expressly provided in this Agreement, nothing in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
SECTION 4.08. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof shall be settled by mandatory final and binding arbitration
in New York City, New York, USA in accordance with the rules, then obtaining, of
the American Arbitration Association, and judgment upon the award rendered may
be entered in any court having jurisdiction thereof. Reasonable fees, costs and
expenses, including legal fees, incurred by any party in connection with such
arbitration shall be borne by such party. Nothing in this Section 4.08 shall
limit any right that any party may otherwise have to seek to obtain preliminary
injunctive relief in order to preserve the status quo pending the disposition of
any such arbitration proceeding.
<PAGE>
15
SECTION 4.9. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect is to its
subject matter. This Agreement supersedes all prior agreements and
understandings among the parties with respect to its subject matter. This
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by each of the
parties, which shall be binding on all of the parties.
SECTION 4.10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
<PAGE>
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GETTY COMMUNICATIONS PLC
By:
---------------------------------------
Name:
Title:
MARK H. GETTY
By:
------------------------------------------
Name:
Title:
JONATHAN D. KLEIN
By:
------------------------------------------
Name:
Title:
LAWRENCE J. GOULD
By:
----------------------------------------
Name:
Title:
<PAGE>
17
Schedule I
DIRECTOR ADDRESS
Mark H. Getty
Jonathan D. Klein
Lawrence J. Gould
Simon C. Thornley
Brian K. Wolske
<PAGE>
REGISTRATION RIGHTS AGREEMENT AMENDMENT
REGISTRATION RIGHTS AGREEMENT AMENDMENT, dated as of January [__],
1997 (this "AMENDMENT"), among Getty Communications plc, a public limited
company organized under the laws of England and Wales ("GETTY COMMUNICATIONS"),
each of Lawrence J. Gould, Mark H. Getty and Jonathan D. Klein (together the
"RIGHTS HOLDERS" and each individually, a "RIGHTS HOLDER") and Getty Images,
Inc., a Delaware corporation ("GETTY IMAGES").
WHEREAS, Getty Communications, the Rights Holders, Simon C. Thornley
and Brian K. Wolske entered into the Registration Rights Agreement dated as of
July 3, 1996 (the "REGISTRATION RIGHTS AGREEMENT") pursuant to which the Rights
Holders were granted certain registration rights with respect to Class A
ordinary shares, nominal value one pence per share ("GETTY CLASS A ORDINARY
SHARES"), of Getty Communications held by the Rights Holders or which may be
issued to the Rights Holders upon the exercised of any options, a copy of which
is attached hereto as Exhibit A;
WHEREAS, pursuant to a merger agreement dated as of September 15, 1997
(the "MERGER AGREEMENT"), by and among Getty Images, Getty Communications,
PhotoDisc, Inc., a Washington corporation, and Print Merger, Inc., a Washington
corporation and a wholly owned subsidiary of Getty Images, Getty Images and
Getty Communications will enter into a scheme of arrangement (the "SCHEME OF
ARRANGEMENT") in accordance with the Companies Act of 1985 of Great Britain
(unless otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed thereto in the Merger Agreement);
WHEREAS, pursuant to the Scheme of Arrangement, each issued Class B
ordinary share, nominal value one pence per share ("GETTY CLASS B ORDINARY
SHARES", and, together with the Getty Class A Ordinary Shares, the "GETTY
ORDINARY SHARES"), of Getty Communications will be converted into one Getty
Class A Ordinary Share, each Getty Ordinary Share will be transferred to Getty
Images or its nominees and the holders of Getty Ordinary Shares will be issued
one share of Getty Images Common Stock for every two Getty Ordinary Shares held
of record by such holders, and Getty Communications will become a wholly owned
subsidiary of Getty Images;
WHEREAS, upon the consummation of the Scheme of Arrangement, the
Rights Holders will hold only Getty Images Shares;
WHEREAS, the rights of Simon C. Thornley and Brian K. Wolske under the
Registration Rights Agreement have terminated in accordance with the terms of
the Registration Rights Agreement; and
WHEREAS, the parties each desire to amend the Registration Rights
Agreement pursuant to Section 4.9 thereof and to make certain covenants and
agreements
<PAGE>
2
concerning the registration from time to time under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), of Getty Images Shares held by
the Rights Holders.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties and conditions contained herein, the parties agree
as follows:
SECTION 1.01. AMENDMENT. Each of the parties agrees that, upon the
consummation of the Scheme of Arrangement, the Registration Rights Agreement
shall be amended such that (i) the "Company" as used therein shall refer to
Getty Images rather Getty Communications and (ii) "Registrable Shares" as used
therein shall include Getty Images Shares issued in the Scheme of Arrangement in
respect of Registrable Shares as defined in the Registration Rights Agreement.
The terms and conditions of the Registration Rights Agreement shall inure to the
benefit of Getty Images as the successor to Getty Communications and any rights
or obligations of Getty Communications shall become the sole obligation of Getty
Images.
IN WITNESS WHEREOF, each of Getty Communications, the Rights Holders
and Getty Images has duly executed, or has caused this Amendment to be duly
executed by its duly authorized representative, as of the date first written
above.
GETTY
COMMUNICATIONS PLC
By:
------------------------------------
Name: Mark Getty
Title:
------------------------------------
Lawrence J. Gould
------------------------------------
Mark H. Getty
<PAGE>
3
------------------------------------
Jonathan D. Klein
GETTY IMAGES, INC.
By:
------------------------------------
Name: Mark Torrance
Title: Co-Chairman