Voting Agreement - Getty Communications (USA) Inc. and Photodisc Inc.
VOTING AGREEMENT, dated as of September 15, 1997 (this "AGREEMENT"),
among Getty Communications (USA), Inc., a Delaware corporation ("GETTY IMAGES")
and the stockholders (the "VOTING STOCKHOLDERS") of PhotoDisc, Inc., a
Washington corporation ("PHOTODISC"), identified on the signature pages of this
Agreement.
W I T N E S S E T H:
WHEREAS, Getty Images, Getty Communications plc, a public limited
company organized under the laws of England and Wales, PhotoDisc, Inc., a
Washington corporation ("PHOTODISC"), and Print Merger, Inc., a Washington
corporation and wholly owned subsidiary of Getty Images ("MERGER SUB"), propose
to enter into a Merger Agreement, dated as of the date hereof (the "MERGER
AGREEMENT"), which provides, among other things, that Merger Sub will merge with
and into PhotoDisc (the "MERGER") upon the terms and subject to the conditions
set forth in the Merger Agreement (a copy of which is attached hereto as Exhibit
A);
WHEREAS, as of the date hereof, the Voting Stockholders collectively
own 7,175,230 shares of common stock, par value $0.01 per share, of PhotoDisc
("PHOTODISC COMMON STOCK") and 1,181,861 shares of Series A Preferred Stock, par
value $0.01 per share, of PhotoDisc ("SERIES A PREFERRED STOCK"); and
WHEREAS, as a condition to the willingness of Getty Images to enter
into the Merger Agreement, Getty Images has required that each of the Voting
Stockholders agrees, and in order to induce Getty Images to enter into the
Merger Agreement, each of the Voting Stockholders has agreed, to enter into this
Agreement with respect to all the shares of PhotoDisc Common Stock and Series A
Preferred Stock now owned and which may hereafter be acquired by the Voting
Stockholders (the "SHARES");
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, indemnities and agreements set forth
herein, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
VOTING OF SHARES
SECTION 1.01. NO DISPOSITION OR ENCUMBRANCE OF SHARES. Each Voting
Stockholder hereby covenants and agrees, severally and not jointly, that such
Voting Stockholder shall not, and shall not offer or agree to, sell, transfer,
tender, assign, hypothecate or otherwise dispose of, or create or permit to
exist any security interest, lien, claim, pledge, option, right of first
refusal, agreement, limitation on such Voting Stockholder's voting rights,
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charge or other encumbrance of any nature whatsoever with respect to the Shares
now owned or that may hereafter be acquired by such Voting Stockholder at any
time to the termination of this Agreement.
SECTION 1.02. VOTING OF SHARES; FURTHER ASSURANCES. Each Voting
Stockholder, by this Agreement, does hereby constitute and appoint Getty Images,
or any nominee of Getty Images, with full power of substitution, during and for
the term of this Agreement, as such Voting Stockholder's true and lawful
attorney and proxy, for and in such Voting Stockholder's name, place and stead,
to vote each of the Voting Stockholder's Shares as such Voting Stockholder's
proxy, at every annual, special or adjourned meeting of shareholders of
PhotoDisc (including the right to sign such Voting Stockholder's name (as
stockholder) to any consent, certificate or other document relating to PhotoDisc
that the law of the State of Washington may permit or require) (i) in favor of
the adoption of the Merger Agreement and approval of the Merger and the other
transactions contemplated by the Merger Agreement, (ii) against any proposal for
any recapitalization, merger, sale of assets or other business combination
between PhotoDisc and any person or entity (other than the Merger) and (iii) in
favor of any other matter necessary to effect the consummation of the
transactions contemplated by the Merger Agreement.
SECTION 1.03. NO INCONSISTENT AGREEMENTS. Each Voting Stockholder
hereby covenants and agrees that, except as contemplated by this Agreement and
the Merger Agreement, the Voting Stockholder shall not enter into any voting
agreement or grant a proxy or power of attorney with respect to the Shares which
is inconsistent with this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE VOTING STOCKHOLDERS
Each of the Voting Stockholders, severally and not jointly, hereby
represents and warrants to Getty Images as follows:
SECTION 2.01. AUTHORITY OF VOTING STOCKHOLDERS. Such Voting
Stockholder has all necessary capacity, power and authority to enter into this
Agreement, to carry out such Voting Stockholder's obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by such Voting Stockholder, the performance by such Voting
Stockholder of such Voting Stockholder's obligations hereunder and the
consummation by such Voting Stockholder of the transactions contemplated hereby
have been duly authorized by all requisite action on the part of such Voting
Stockholder. This Agreement has been duly executed and delivered by such Voting
Stockholder and (assuming the due authorization, execution and delivery by Getty
Images) this Agreement constitutes a
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legal, valid and binding obligation of such Voting Stockholder enforceable
against such Voting Stockholder in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding thereof may be
brought.
SECTION 2.02. NO CONFLICT. The execution, delivery and performance
of this Agreement by such Voting Stockholder do not and will not (i) violate,
conflict with or result in the breach of any provision of the charter or by-laws
or operating agreement (or equivalent organizational documents) of such Voting
Stockholder, (ii) conflict with or violate (or cause an event which reasonably
could be expected to have a material adverse effect on such Voting Stockholder
as a result of) any law, rule, regulation, order, judgment or decree applicable
to such Voting Stockholder or by which the Shares are bound or affected or
(iii) conflict with, result in any breach of, constitute a default (or an event
that, with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of
termination, amendment, acceleration, suspension, revocation or cancellation of,
or result in the creation of a lien or encumbrance on any of the Shares pursuant
to, any material note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which
such Voting Stockholder is a party or by which such Voting Stockholder or the
Shares are bound or affected.
SECTION 2.03. OWNERSHIP OF SHARES. Such Voting Stockholder owns of
record and beneficially, free and clear of all Encumbrances (as defined in the
Merger Agreement), the number of shares of PhotoDisc Common Stock or Series A
Preferred Stock set forth opposite the name of such Voting Stockholder in
Section 3.03(d) of the PhotoDisc Disclosure Schedule (as defined in the Merger
Agreement). Such Voting Stockholder has not appointed or granted any proxy,
which appointment or grant is still effective, with respect to the Shares.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. TERMINATION. This Agreement shall terminate upon the
termination of the Merger Agreement.
SECTION 3.02. NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by
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cable, by facsimile, by telegram, by telex, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 3.02):
(a) if to Getty Images:
c/o of Getty Communications plc
101 Bayham Street
London NW1 0AG England
Facsimile: (44171) 267-6540
Attention: Nick Evans-Lombe
with a copy to each of:
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ England
Facsimile: (44171) 600-5555
Attention: Michael Francies
Shearman & Sterling
555 California Street
San Francisco, California 94104
Facsimile: (415) 616-1199
Attention: Christopher D. Dillon
(b) if to any Voting Stockholders to the address set forth underneath
their signature;
with a copy to:
Heller Ehrman White & McAuliffe
6100 Columbia Center
701 Fifth Avenue
Seattle, Washington 98104
Telecopy: (206) 447-0849
Attention: Thomas S. Hodge
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SECTION 3.03. PUBLIC ANNOUNCEMENTS. No party to this Agreement shall
make, or cause to be made, any press release or public announcement in respect
of this Agreement or the transactions contemplated hereby or otherwise
communicate with any news media without prior consent of the other party (except
to the extent that such disclosure is required by law or the rules of the Nasdaq
National Market), and, to the extent practicable, the parties shall cooperate as
to the timing and contents of any such press release or public announcement.
SECTION 3.04. HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 3.05. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the terms
of this Agreement remain as originally contemplated to the greatest extent
possible.
SECTION 3.06. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between Getty Images and the Voting Stockholders with respect
to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between Getty Images and the Voting
Stockholders with respect to the subject matter hereof.
SECTION 3.07. ASSIGNMENT. This Agreement may not be assigned by
operation of law or otherwise without the express written consent of the other
parties hereto (which consent may be granted or withheld in the sole discretion
of such parties).
SECTION 3.08. NO THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns, and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 3.09. AMENDMENT. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, the
parties hereto.
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SECTION 3.10. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed entirely within that state. All
actions and proceedings arising out of or related to this Agreement shall be
heard and determined in any Delaware state or federal court sitting in the State
of Delaware.
SECTION 3.11. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 3.12. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
IN WITNESS WHEREOF, each of Getty Images and the Voting Stockholders
has duly executed, or has caused this Agreement to be duly executed by its duly
authorized representative, as of the date first written above.
GETTY COMMUNICATIONS (USA), INC.
By:
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Name:
Title:
PDI, L.L.C.
By:
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Name:
Title:
Address: c/o PhotoDisc, Inc.
2013 Fourth Avenue
4th Floor
Seattle, WA 98121
Facsimile: (206) 441-9379
Attention: Mark Torrance
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Mark Torrance
Address:
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Facsimile:
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Chris Birkeland
Address:
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Facsimile:
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Sally von Bargen
Address:
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Facsimile:
ADVENT VII L.P.
By:
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Name:
Title:
Address:
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Facsimile:
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Attention:
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ADVENT ATLANTIC AND
PACIFIC III, L.L.P.
By:
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Name:
Title:
Address:
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Facsimile:
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Attention:
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ADVENT NEW YORK L.P.
By:
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Name:
Title:
Address:
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Facsimile:
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Attention:
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TA VENTURE INVESTORS LIMITED PARTNERSHIP
By:
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Name:
Title:
Address:
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Address:
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Facsimile:
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Attention:
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EXHIBIT A
[MERGER AGREEMENT]