Registration Rights Agreement - Getty Images Inc., PDI LLC and Mark Torrance
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January [__], 1998 (this
"Agreement"), between Getty Images, Inc., a Delaware corporation (the
"Company"), PDI, L.L.C., a Washington limited liability company ("PDI"), and
Mark Torrance ("Mr. Torrance", and together with PDI, the "PDI Shareholders").
WHEREAS, the Company, Getty Communications plc, a public limited
company organized under the laws of England and Wales ("Getty Communications"),
PhotoDisc, Inc., a Washington corporation ("PhotoDisc") and Print Merger, Inc.,
a Washington corporation and a wholly owned subsidiary of the Company ("Merger
Sub"), are parties to the Merger Agreement (the "Merger Agreement") dated as of
September 15, 1997, pursuant to which and subject to the terms and conditions
contained therein, (i) the Company and Getty Communications will enter into a
scheme of arrangement in accordance with the Companies Act of 1985 of Great
Britain (the "Scheme of Arrangement") and (ii) Merger Sub will be merged with
PhotoDisc (the "Merger", and together with the Scheme of Arrangement, the
"Transactions"); and
WHEREAS, it is a condition to the consummation of the transactions
provided for in the Merger Agreement, including the Scheme of Arrangement and
the Merger, that the parties hereto enter into this Agreement;
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:
"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.
"COMPANY COMMON STOCK" shall mean the common stock, par value
$0.01 per share, of the Company.
"HOLDERS' REPRESENTATIVE" shall mean PDI or such other Person or
Persons designated by PDI.
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"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.
"HOLDER" shall mean a PDI Shareholder or any transferee or
assignee thereof to whom the rights under this Agreement are assigned in
accordance with the provisions of Section 2.11 hereof.
"PERSON" shall mean an individual, corporation, association,
partnership, limited liability company, trust, organization, group (as such
term is used in Rule 13d-5 under the Exchange Act), business, government or
political subdivision thereof, governmental agency or other entity.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus
supplement with respect of the terms of the offering of any security of the
Company covered by such Registration Statement and all other amendments or
supplements to the prospectus, including post-effective amendments, and all
material incorporated, or deemed to be incorporated, by reference in such
prospectus.
"REGISTRABLE SECURITIES" shall mean any Company Common Stock
(except Escrow Shares (as defined in the Escrow Agreement dated as of
January [__], 1998, among the Company, certain shareholders of PhotoDisc,
and Citibank, as escrow agent) while such shares are held in escrow
pursuant to such Escrow Agreement) issued pursuant to the Merger Agreement
or securities which may be issued or distributed in respect thereof by way
of stock dividend or stock split or other distribution, exchange,
recapitalization, or reclassification. For purposes of this Agreement, any
Registrable Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such Registration Statement, (ii)
such Registrable Securities are sold by a person in a transaction in which
the rights under the provisions of this Agreement are not assigned, or
(iii) such Registrable Securities shall have ceased to be outstanding.
"REGISTRATION STATEMENT" shall mean any registration statement
under the Securities Act filed by the Company, including the Prospectus
contained therein, any amendments and supplements to such registration
statement, including post-effective amendments, and all exhibits and all
material incorporated, or deemed to be incorporated, by reference in such
registration statement.
"SECURITIES ACT" shall mean the United States Securities Act of
1933, or any similar federal statute, and the rules and regulations of the
Commission thereunder,
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all as the same shall be amended from time to time.
"STOCKHOLDERS' AGREEMENT" shall mean the Stockholders' Agreement
dated the date hereof among the Company, Getty Investments L.L.C., Mark
Getty, Jonathan Klein, Crediton Limited, October 1993 Trust, PDI, L.L.C.,
Mark Torrance and Wade Torrance.
ARTICLE II
AGREEMENTS IN RESPECT OF THE REGISTRABLE SECURITIES
SECTION 2.01. DEMAND REGISTRATIONS. (a) Subject to the
limitations set forth below, the Holders' Representative, on behalf of the
Holders of Registrable Securities, shall have the right (a "Demand Right") to
require the Company to file a Registration Statement under the Securities Act
in respect of Registrable Securities held by such Initiating Holders. If at
the time that a Demand Right is exercised by the Holders' Representative on
behalf of Holders, the Company is not eligible to use Form S-3, such Demand
Right shall be a "Long-Form Demand Right". If at the time that a Demand
Right is exercised by the Holders' Representative on behalf of Holders, the
Company is eligible to use Form S-3, such Demand Right shall be a "Short-Form
Demand Right". Together, the Holders shall be entitled to exercise a Demand
Right on up to five occasions; PROVIDED, HOWEVER, that the Holders may not
require the Company to file a registration statement on a form other than
Form S-3 on more than three occasions. Each Long-Form Demand Right must be
exercised in respect of a number of Registrable Securities greater than the
number (subject to equitable adjustment in the event of stock splits, stock
dividends and similar events) equal to 25% of the Registrable Securities
issued to the PDI Shareholders at the effective time of the Merger (the
"Effective Time"). Each Short-Form Demand Right must be exercised in respect
of at least 350,000 Registrable Securities (subject to equitable adjustment
in the event of stock splits, stock dividends and similar events). No Demand
Right may be exercised within one year after the date that the registration
of Registrable Securities pursuant to a prior exercise of a Demand Right was
declared effective.
(b) As promptly as practicable, but in no event later than 45 days
after the Company receives a written request from the Holders' Representative
demanding that the Company so register the number of Registrable Securities
specified in such request, the Company shall file with the Commission and
thereafter use its best effects to cause to be declared effective promptly a
Registration Statement (a "Demand Registration") providing for the registration
of all Registrable Securities as the the Holders' Representative shall have
demanded be registered on behalf of Holders.
(c) Anything in this Agreement to the contrary notwithstanding, the
Company shall be entitled to postpone and delay, for a reasonable period of time
(the "Blackout Period"), not to exceed 60 days after the exercise of a Demand
Right in the case of
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subsections (i) and (iii) below, the filing of any Demand Registration if:
(i) the Company will be filing, within 30 days after the
exercise of a Demand Right, a Registration Statement pertaining to a public
offering of Company Common Stock in which the Holders are entitled to join
pursuant to Section 2.02 hereof;
(ii) the Company is subject to an existing contractual obligation
to its underwriters not to engage in a public offering;
(iii) the Company shall determine that any such filing or the
offering of any Registrable Securities would
(A) in the good faith judgement 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 or its wholly owned
subsidiaries;
(B) 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
(C) in the good faith judgement of the Board of Directors
of the Company, require disclosure of material nonpublic information
which, if disclosed at such time, would be materially harmful to the
interests of the Company and its stockholders;
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 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 or sale of securities by the Company, 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 not in breach of confidentiality obligations, as the case may
be. After the expiration of any Blackout Period and without any further request
from the Holders' Representative of Holders, 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 the Holders' Representative shall have, prior to the effective date of
such Demand Registration, withdrawn in writing the 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 the Holders
are entitled hereunder. The Company may not exercise its right to postpone or
delay the filing of any Demand Registration pursuant to this subsection (c)
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more than twice during any 12 month period.
(d) Any request by the Holders' Representative on behalf of Holders
for a Demand Registration which is subsequently withdrawn prior to such
Demand Registration becoming effective shall not constitute a Demand
Registration for purposes of determining the number of Demand Registrations
to which the Holders are entitled if such withdrawal (i) is due to a material
adverse change affecting the Company, (ii) is due to a notification by the
Company of an intention to file a Registration Statement with respect to
Company Common Stock or (iii) is made in accordance with the penultimate
sentence of Section 2.01(c).
(e) The Company shall be entitled to include authorized but unissued
shares of Company Common Stock in any Demand Registration, subject to Section
2.02. Notwithstanding anything contained herein, if the lead underwriter of an
offering involving a Demand Registration delivers a written opinion to the
Holders' Representative (a copy of which shall be provided to the Company) that
the number of shares of Company Common Stock included in such Demand
Registration would (i) materially and adversely affect the price of the Company
Common Stock to be offered or (ii) result in a greater amount of Company Common
Stock being offered than the market could reasonably absorb, then the number of
Registrable Securities to be registered by the Company and the number of shares
of Company Common Stock to be included in such Demand Registration by other
holders of shares of Company Common Stock pursuant to contractual incidental
registration rights, shall be reduced in proportion to the number of securities
originally requested to be registered by each of them to the extent that, in the
lead underwriter's opinion, neither of the effects in the foregoing clauses (i)
and (ii) would result from the number of shares of Company Common Stock included
in such Demand Registration.
SECTION 2.02. INCIDENTAL REGISTRATION. (a) If, at any time
following the Effective Time, the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering of Company Common
Stock (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 Company Common Stock (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 Securities 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 Securities 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 Securities as shall
be set forth in such written direction. Notwithstanding anything contained
herein, if the lead underwriter of an offering involving an Incidental
Registration delivers a written opinion to the Company (a copy of which shall be
provided to the Holders) that the number of shares of Company Common Stock
included in such Registration would (i) materially and adversely affect the
price of the Company Common
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Stock to be offered or (ii) result in a greater amount of Company Common
Stock being offered than the market could reasonably absorb, then the number
of Registrable Securities to be registered by each party requesting
Incidental Registration rights hereunder, and the number of shares of Company
Common Stock to be included in such Registration by other holders of shares
of Company Common Stock pursuant to contractual incidental registration
rights, shall be reduced in proportion to the number of securities originally
requested to be registered by each of them to the extent that, in the lead
underwriter's opinion, neither of the effects in the foregoing clauses (i)
and (ii) would result from the number of shares of Company Common Stock
included in such Registration. Nothing contained herein shall require the
Company to reduce the number of shares of Company Common Stock proposed to be
issued by the Company in a Registration initiated by the Company with respect
to an offering of Company Common Stock for its own account.
(b) No Incidental Registration effected under this Section 2.02 shall
be deemed to have been effected pursuant to Section 2.01 hereof or shall release
the Company of its obligations to effect any Demand Registration upon request as
provided under Section 2.01 hereof.
SECTION 2.03. REGISTRATION PROCEDURES. (a) In connection with each
Registration, and in accordance with the intended method or methods of
distribution of the Company Common Stock 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 2.01(a)
hereof, at or before the time required by applicable laws and regulations):
(i) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities, which, if the method of
distribution is by means of an underwriting, shall be in form and substance
reasonably acceptable to the underwriters for such underwriting, and use
its best efforts to cause such Registration Statement to become and remain
effective for the period of the distribution contemplated thereby;
PROVIDED, HOWEVER, that the Company shall use its best efforts to cause a
Registration Statement on Form S-3 to remain effective until the earlier of
(i) the disposition of all the Registrable Securities registered
thereunder, and (ii) the expiration of the 90-day period commencing on the
first day of the effectiveness of such Registration;
(ii) 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
Securities covered by such Registration Statement;
(iii) 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
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the Securities Act and such other documents and information as it may
reasonably request;
(iv) (A) make available for inspection by the Holder and its counsel
and financial advisors such financial and other information as shall be
reasonably requested by them, and provide such Holder and its counsel and
financial advisors the opportunity to discuss the business affairs of the
Company with its principal executives and accountants, for the purposes of
enabling the Holder to exercise its due diligence responsibilities under
the Securities Act and (B) before the Registration Statement (and any
amendments or supplements thereto) is filed, provide copies thereof to the
Holder and its counsel and provide them with adequate time to review and
comment thereon;
(v) use its best efforts to register or qualify the Registrable
Securities 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 Securities 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 (v) be obligated to do so; and
PROVIDED, FURTHER, that the Company shall not be required to qualify such
Registrable Securities in any jurisdiction in which the securities
regulatory authority requires that the Holder submit any of its Registrable
Securities to the terms, provisions and restrictions of any escrow, lockup
or similar agreement(s) for consent to sell Registrable Securities in such
jurisdiction unless such Holder agrees to do so;
(vi) promptly notify each Holder, at any time when a Prospectus
relating to the Registrable Securities 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 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;
(vii) furnish, at the request of any Holder requesting
Registration of Registrable Securities pursuant to Sections 2.01 or 2.02
hereof, if the method of distribution is by means of an underwriting, on
the date that the Registrable Securities are delivered to the underwriters
for sale pursuant to such registration, or if such
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Registrable Securities are not being sold through underwriters, on the date
that the Registration Statement with respect to such Registrable
Securities 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 Securities 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 Securities 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 Securities 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 (A) 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 (B) 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 Securities included in such Registration, as the case may
be, may reasonably request and as would be customary in such a
transaction;
(viii) 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
Securities to be so included in the Registration Statement;
(ix) 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
(x) use its best efforts to list the Company Common Stock covered by
such Registration Statement with any securities exchange or recognized
trading market on which the Company Common Stock 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 Securities as the Company may from time to time
reasonably request in writing,
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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
Securities 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 Securities contains or would contain an untrue statement of a
material fact regarding such Holder or its intended method of distribution of
such Registrable Securities or omits to state any material fact regarding
such Holder or its intended method of distribution of such Registrable
Securities 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 Securities,
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 2.04. REGISTRATION EXPENSES. All expenses incurred in
connection with each Registration pursuant to Sections 2.01 and 2.02 of this
Agreement, excluding underwriters' discounts and commissions and any stamp or
transfer tax 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 (selected
by the Holders) and fees and disbursements of counsel for the Company incurred
in connection with each registration shall be paid by the Company; PROVIDED,
HOWEVER, that if a registration request pursuant to Section 2.01 of this
Agreement is subsequently withdrawn at the request of the Holders'
Representative on behalf of Holders of a number of shares of Registrable
Securities such that the remaining Holders requesting registration would not
have been able to request registration under the provisions of Section 2.01 of
this Agreement and the provisions of Section 2.01(d) do not apply, such
withdrawing Holders shall bear such expenses (in proportion to the number of
shares orginally included in such Registration by such Holders) and the Company
shall not be required to pay any of such expenses, unless the Holders shall
forfeit their right to one requested registration pursuant to Section 2.01 of
this Agreement. 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 Registration applicable to securities offered for its
account in connection with any Registrations, filings and qualifications made
pursuant to this Agreement.
SECTION 2.05. UNDERWRITING REQUIREMENTS. In connection with any
underwritten offering, the Company shall not be required under Section 2.02 of
this
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Agreement to include shares of Registrable Securities in such underwritten
offering unless the Holders of such shares of Registrable Securities accept
the terms of the underwriting of such offering that have been reasonably
agreed upon between the Company and the underwriters selected by the Company.
SECTION 2.06. 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,
officers, partners, managers, members and trustees and each Person who
participates as a placement or sales agent or as an underwriter (within the
meaning of the Securities Act) in any offering or sale of the Registered
Securities, against any losses, claims, damages or liabilities ("Losses") to
which such Holder, such Holder's directors, officers, partners, managers,
members and trustees or such agent or underwriter may become subject, insofar as
such Losses (or actions, proceedings or investigations 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 Statement or Prospectus contained
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, such Holder's directors, officers,
partners, managers, members and trustees 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 investigation;
PROVIDED, HOWEVER, that the indemnity agreement contained in this Section
2.06(a) shall not apply to amounts paid in settlement of any such Loss, action,
proceeding or investigation 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 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 Statement or Prospectus contained therein, 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,
officers, partners, managers, members and trustees, 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, in the case of such
agent or underwriter, if the Company shall sustain the burden of proving that
such agent or underwriter sold securities to the person alleging such Loss
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 such agent or underwriter,
and such Prospectus corrected such untrue statement or
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alleged untrue statement or omission or alleged omission made in such
Registration.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENT OR UNDERWRITERS.
Each Holder requesting or joining in a Registration shall severally and not
jointly indemnify 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, 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 (or actions, proceedings or investigations
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 or
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 Statement or
Prospectus, or by such Holder's failure to furnish the Company, upon request,
with the information with respect to such Holder, such Holder's directors,
officers, partners, managers, members and trustees 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; 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 or action, proceeding or investigation; PROVIDED, HOWEVER, that the
indemnity agreement contained in this Section 2.06(b) shall not apply to
amounts paid in settlement of any such Loss, action, proceeding or
investigation if such settlement is effected without the consent of such
Holder which consent shall not be unreasonably withheld and in no event shall
a Holder be liable under this Section 2.06(b) for an amount in excess of the
gross proceeds received by such Holder from the sale of securities pursuant
to such Registration.
(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 2.06,
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
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respect of such action or proceeding on account of the indemnification
provisions of or contemplated by Section 2.06(a) or 2.06(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 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 2.06(a) or Section 2.06(b) hereof are
unavailable to or are insufficient to hold harmless an indemnified party in
respect of any Losses (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 (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 2.06(d) were determined (i) by pro rata allocation
(even if the Holder or any agents for, or underwriters of, the Registrable
Securities, 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 2.06(d). The
<PAGE>
amount paid or payable by an indemnified party as a result of the Losses (or
actions or proceedings in respect thereof) referred to above shall be deemed
to include (subject to the limitations set forth in Section 2.06(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.
(e) BENEFICIARIES OF INDEMNIFICATION. The obligations of the
Company under this Section 2.06 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, partner, manager, member and trustee of each Holder
requesting or joining in a Registration and each agent and underwriter of the
Registrable Securities 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 2.06 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 2.07. TERMINATION OF REGISTRATION RIGHTS. Notwithstanding
any other provisions of this Agreement to the contrary, the registration
rights granted pursuant to this Agreement shall terminate with respect to a
Holder on the earlier of: (i) the date that the Registrable Securities held
by such Holder can be sold within a three month period under the volume
limitation of Rule 144(e) under the Securities Act (or other similar rule),
regardless of whether at the time of such sales the Holder is entitled to
rely upon paragraph (k) of Rule 144; or (ii) on the 15th anniversary of the
date of this Agreement, regardless of the tradeability of any Registrable
Securities held by such Holder.
SECTION 2.08. UNDERWRITERS. If any of the Registrable Securities
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 after consultation with the Holders participating in
such Registration, PROVIDED, that such managing underwriter or underwriters
must be of recognized international standing.
SECTION 2.09. LOCKUP. Each Holder shall, in connection with any
Registration of the Company's securities, upon the request of 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 Securities (other than that included in the Registration
[or, if reasonably acceptable to such managing underwriters,] sales in
accordance with Rule 144 under the Securities Act and within the volume
limitation of Rule 144(e) under the Securities Act, regardless of whether at
the time of such sales the Holder is entitled to rely upon paragraph (k) of
Rule 144]) without the prior written consent of the Company or such
<PAGE>
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 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 Securities under the
circumstances and pursuant to the terms set forth in this Section 2.09.
SECTION 2.10. LEGENDS. (a) Stop transfer restrictions will be
given to the Company's transfer agent(s) with respect to the Registrable
Securities and there will be placed on the certificate or instruments
representing the Registrable Securities, 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.
(b) The Company hereby agrees that it will cause stop transfer
restrictions to be released with respect to any Registrable Securities 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 2.10 to be removed
in the event of any transfer as provided in clause (i) or (ii) above.
SECTION 2.11. TRANSFER OF REGISTRATION RIGHTS. The Holders may not
transfer their rights under this Agreement without the written consent of the
Company; PROVIDED, HOWEVER, that a Holder may transfer such Holder's rights
without the Company's consent to a Permitted Transferee (as defined below) if
(i) the transferring Holder gives the Company written notice, whether or not the
Company's consent is necessary to effect such transfer, 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 and (ii) such transferee agrees in writing, in form and substance
reasonably satisfactory to the Company, to be bound as a Holder by the
provisions of this Agreement. Any transfer of Registrable Securities not in
compliance with this Section 2.11 shall cause
<PAGE>
such Registrable Securities to lose such status. For purposes of this
Section 2.11, "Permitted Transferee" shall mean (i) in the case of any Holder
who is a natural person, a Person to whom Registrable Securities are
transferred from such Holder by gift, will or the laws of descent and
distribution, (ii) any member of the Getty Group or the Torrance Group (each
as defined in the Stockholders' Agreement, as amended from time to time), and
(iii) any "affiliate" of any Holder, including, without limitation, any
trust, partnership or limited liability company that a Holder controls or is
a beneficiary of, or any Person that is a member of any Holder or a
beneficiary of any such trust, and any partnership or limited liability
company controlled by two or more of such trusts or beneficiaries of such
trust or trusts.
SECTION 2.12. 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.
SECTION 2.13. MERGERS AND CONSOLIDATIONS. The Company shall not,
directly or indirectly, enter into any merger, consolidation or reorganization
in which the Company shall not be the surviving corporation, or transfer all or
substantially all of its assets, unless prior to such merger, consolidation,
reorganization or transfer, the surviving corporation or transferee shall have
agreed in writing to assume the obligations of the Company under this Agreement
and for that purpose references to Registrable Securities shall mean the
securities issued in exchange for such Registrable Securities pursuant to such
merger, consolidation, reorganization or sale.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. EXPENSES. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
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 and made upon receipt) by delivery
in person, by courier service, by cable, by facsimile, by telegram, by telex, or
by registered or certified mail (postage prepaid, return receipt requested) to
the respective parties at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this Section
3.02):
(a) if to the Company:
Getty Images, Inc.
500 North Michigan Avenue, Suite 1700
<PAGE>
Chicago, Illinois 60611
Facsimile: [_________]
Attention: [_________]
with copies to:
Clifford Chance
200 Aldersgate
London EC1A 4JJ
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 the PDI Shareholders:
c/o PhotoDisc, Inc.
2013 Fourth Avenue, 4th Floor
Seattle, Washington 98121
Facsimile: (206) 441-9379
Attention: Mark Torrance
with a copy to:
Graham & James LLP/Riddell Williams P.S.
1001 Fourth Avenue Plaza
Suite 4500
Seattle, Washington 98154-1085
Facsimile: (206) 389-1708
Attention: John Steel
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 the prior written 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
<PAGE>
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 the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
SECTION 3.06. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
among the parties hereto with respect to the subject matter hereof, except as
otherwise expressly provided herein.
SECTION 3.07. ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns; PROVIDED, HOWEVER, that this Agreement shall
not inure to the benefit of any transferee unless such transferee shall have
complied with the terms of Section 2.11. Except with the consent of the
Company, no Holder may assign any of its rights hereunder to any Person other
than a transferee that has complied with the requirements of Section 2.11 in all
respects.
SECTION 3.08. NO THIRD PARTY BENEFICIARY. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
respective successors and 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 (a) by an instrument in writing signed by, or on behalf of, the
Company and Holders of a majority of the Registrable Securities then held by all
Holders or (b) by a waiver in accordance with Section 3.10 of this Agreement.
SECTION 3.10. WAIVER. Any party to this Agreement may (a) extend the
time for the performance of any obligations or other acts of any other party
hereto or (b) waive compliance with any agreements or conditions contained
herein. Any such extension or waiver shall be valid against the Company only if
set forth in an instrument in writing signed by the Company and shall be valid
against the Holders only if set forth in an instrument in writing signed by
Holders of a majority of the Registrable Securities then held by all Holders.
Any waiver of any term or condition shall not be construed as a waiver of any
subsequent
<PAGE>
breach or a subsequent waiver of the same term or condition, or as a
waiver of any other term or condition, of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of any
of such rights.
SECTION 3.11. GOVERNING LAW; DISPUTE RESOLUTION. 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 relating to this
Agreement shall be heard and determined in any Delaware state or federal court
sitting in the State of Delaware. In the event of any dispute, claim or
litigation with regard to this Agreement, the prevailing party shall be entitled
to receive from the non-prevailing party, and the non-prevailing party shall
promptly pay, all reasonable fees and expenses of counsel for the prevailing
party incurred in connection with such dispute, claim or litigation.
SECTION 3.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
SECTION 3.13. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 3.14. SURVIVAL. The several indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
and 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
Securities by a Holder, and the indemnification and contribution provisions set
forth in Section 2.06 hereof shall survive termination of this Agreement.
SECTION 3.15. THE HOLDERS' REPRESENTATIVE. Each Holder hereby
appoints the Holders' Representative as its attorney-in-fact to act on its
behalf and to take any and all actions required or permitted to be taken by the
Holders' Representative under this Agreement. The Company shall be entitled to
rely, as being binding upon each Holder, upon any document or other paper
believed by it to be genuine and correct and to have been signed or sent by the
Holders' Representative, and the Company shall not be liable to any Holder for
any action taken or omitted to be taken by it in such reliance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized or in their individual capacities, as applicable.
<PAGE>
GETTY IMAGES, INC.
By: _____________________________________
Name:
Title:
PDI, L.L.C
By: _____________________________________
Name:
Title:
______________________________________________
Mark Torrance