Exhibit 11
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GETTY INVESTMENTS INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is made as of November 22, 1999
BETWEEN:
(1) GETTY IMAGES, INC., a Delaware corporation whose registered office is
at 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 ("Getty
Images"); and
(2) THOSE PERSONS whose names and addresses are set out in Exhibit A hereto
(the "Investors").
NOW THE PARTIES HEREBY AGREE as follows:
1. Definitions
a. In this Agreement:
"Action" means any actual or threatened legal action, claim,
proceeding or investigation.
"Affiliate" means, with respect to any specified Person, the
directors, officers, trustees, managers and partners of such
Person, and any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled
by, or is under common control with, such specified Person.
"control" (including the terms "controlled by" and "under
common control with"), with respect to the relationship
between or among two or more Persons, means the possession,
directly or indirectly or as trustee or executor, of the power
to direct or cause the direction of the affairs or management
of a Person, whether through the ownership of voting
securities, as trustee or executor, by contract or otherwise.
Control shall be conclusively presumed when any Person
directly or indirectly owns 50% or more of the voting
securities of another Person.
"Disclosure Documents" means any preliminary prospectus,
prospectus, registration statement, circular and any amendment
or supplement thereto, filed, distributed or used at any time
in connection with the Offering (and including any exhibits to
the foregoing documents).
"Investors" means those persons listed in Exhibit A hereto,
together with their respective Affiliates, agents and
representatives.
MP\1t2802.DOC
"Offering" means the offering, issuance and sale of the common
stock, par value $0.01 per share, of Getty Images pursuant to
a Registration Statement on Form S-3, as amended (Registration
No. 333-88009), and a related Registration Statement on Form
S-3 to register additional shares of common stock pursuant to
Rule 462(b) of the Securities Act of 1933, as amended
(Registration No. 333-91097).
"Person" means an individual, corporation, general or limited
partnership, limited or unlimited liability company, trust,
association, unincorporated organization, government or any
authority, agency or body thereof, or other entity and any
legal personal representative, successor and lawful assignee
of any of them.
b. In this Agreement, a reference to:
(1) a "subsidiary" means any and all corporations,
partnerships, joint ventures, associations and other
entities controlled by Getty Images directly or
indirectly through one or more intermediaries;
(2) a statutory provision includes a reference to the
statutory provision as modified or re-enacted or both
from time to time whether before or after the date of
this Agreement and any subordinate legislation made
under the statutory provision whether before or after
the date of this Agreement;
(3) a clause or schedule, unless the context otherwise
requires, is a reference to a clause of or schedule
to this Agreement; and
(4) a document is a reference to that document as from
time to time supplemented or varied.
c. The headings in this Agreement do not affect its
interpretation.
2. Indemnity
a. Getty Images hereby undertakes that it will indemnify and hold
harmless each Investor against any losses, claims, damages or
liabilities to which such Investor may become subject, arising
directly or indirectly out of the Disclosure Documents and
Getty Images will reimburse each Investor for any legal or
other expenses reasonably incurred by such Investor in
connection with investigating or defending any Action in
respect thereof as such expenses are incurred, provided that,
Getty Images shall have no liability under this Clause to the
extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in any of the
Disclosure Documents in reliance upon and in conformity with,
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in the case of each Investor, information provided by such
Investor.
b. Promptly after receipt by any Investor of notice of the
commencement of any Action or any written notice of any threat
of any Action, it shall, if a claim in respect thereof is to
be made against Getty Images under this Clause, notify Getty
Images and the other Investors in writing of the commencement
thereof; but the omission so to notify Getty Images shall not
relieve Getty Images from any liability which it may have to
such Investor. If any such Action shall be brought against any
Investor and it shall notify Getty Images of the commencement
thereof, Getty Images shall, subject to its agreeing to
indemnify the Investors against all judgments and other
liabilities resulting from such Action (and so far as
permitted by any insurance policy of such Investors), be
entitled to participate therein and, to the extent that it
shall wish, to assume the defense thereof, with counsel
satisfactory to such Investor (which shall not, except with
the consent of such Investor, be counsel to Getty Images),
and, after notice from Getty Images to such Investor of its
election so as to assume the defense thereof, Getty Images
shall not be liable to such Investor under this Clause for any
legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such Investor, in connection
with the defense thereof other than reasonable costs of
investigation. Getty Images shall not, without the written
consent of the relevant Investor effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any Action in respect of which indemnification or
contribution may be sought hereunder (whether or not such
Investor is an actual or potential party to such Action)
unless such settlement, compromise or judgment (i) includes a
full and unconditional release of such Investor from all
liability arising out of such Action, and (ii) does not
include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any
Investor. In the event that Getty Images wishes to assume the
defense of any Action but is not permitted by the insurance
policy of the relevant Investor to do so, such Investor shall
use all reasonable endeavors to procure that its insurers and
their legal advisers shall consult and cooperate with Getty
Images in respect of such defense and (except insofar as such
Investor shall certify to Getty Images that the requirement to
obtain the written consent of Getty Images as referred to
below would invalidate the relevant insurance policy, in which
case such requirement shall not apply) shall not settle,
compromise or consent to the entry of any judgment with
respect to such Action without the written consent of Getty
Images, such consent not to be unreasonably withheld or
delayed.
c. If the indemnification provided for in this Clause 2 is
unavailable to or insufficient to hold harmless any Investor
under the foregoing provisions of this Clause in respect of
any losses, claims, damages or liabilities (or Actions in
respect thereof) referred to therein, then Getty Images shall
contribute to the amount paid or payable by the relevant
Investor as a result of such losses, claims, damages or
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liabilities (or Actions in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by
that Investor on the one hand and Getty Images on the other
from the Offering. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law or if the relevant Investor failed to give the notice
required under sub-Clause b. above, then Getty Images shall
contribute to such amount paid or payable by such Investor in
such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such Investor
on the one hand and Getty Images on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or Actions in respect
thereof), as well as any other relevant equitable
considerations. The relative benefits received by the
Investors in the aggregate on the one hand and Getty Images on
the other shall be deemed to be in the proportion 99 percent,
to Getty Images and 1 percent, to the Investors. The relative
fault shall be determined by reference to, among other things,
whether the claim relates to information supplied by Getty
Images or the Investors and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The relevant Investors
agree with Getty Images that it would not be just and
equitable if contributions pursuant to this sub-Clause c. were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this sub-Clause c. The
amount paid or payable by the relevant Investor as a result of
the losses, claims, damages or liabilities (or Actions in
respect thereof) referred to above in this sub-Clause c. shall
be deemed to include any legal or other expenses reasonably
incurred by it in connection with investigating or defending
any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation.
d. If any taxing authority brings into charge to taxation any sum
payable under the indemnity contained in this Clause 2, the
amount so payable shall be grossed up by such amount as will
ensure that after deduction of the tax so chargeable (after
giving credit for any tax relief available to the indemnified
party) there shall remain a sum equal to the amount that would
otherwise have been payable under this Clause.
e. The obligations of Getty Images under this Clause 2 shall be
in addition to any liability which Getty Images may otherwise
have.
3. Survival of Obligations
The indemnities, agreements, representations, warranties and other
statements of Getty Images contained in this Agreement or made by or
on behalf of it pursuant to this Agreement shall remain in full force
and effect, regardless of any investigation (or any statement as to
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the results thereof) made by or on behalf of Getty Investments, and
shall survive the completion of the Offering.
4. Assignment and Further Assistance
a. This Agreement shall be binding upon, and the benefit of this
Agreement shall inure solely to the Investors and Getty Images
and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any shares from any Investor
shall be deemed a successor or assign by reason merely of such
purchase.
b. Getty Images shall, if requested by any of the Investors,
procure that any of its subsidiaries nominated by any of the
Investors shall enter into an agreement with the Investors on
similar terms to this Agreement, save that any such subsidiary
shall be the party giving the indemnification thereunder in
place of Getty Images.
5. Time of the Essence
Time shall be of the essence of this Agreement.
6. Choice of Law
a. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
b. To the fullest extent permitted by law, controversy or claim
arising out of or relating to this Agreement, or the breach
thereof, shall be settled by mandatory, final and binding
arbitration in New York City, New York, USA under the auspices
of and in accordance with the rules, then pertaining, of the
American Arbitration Association, to the extent not
inconsistent with the Delaware Uniform Arbitration Act and
judgment upon the award rendered may be entered in any court
having jurisdiction thereof. Nothing in this paragraph 6.b.
shall limit any right that any Person may otherwise have to
seek to obtain preliminary judgment upon the award rendered
may be entered in any court having jurisdiction thereof.
Nothing in this paragraph 6.b. shall limit any right that any
Person 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.
c. In the event of any dispute, claim, arbitration 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, arbitration or
litigation.
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7. Severability
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
8. No Personal Liability of Trustees
The parties hereto agree that with respect to the Cheyne Walk Trust,
the Xxxxxx Family Trust A, the Xxxxxx Family Trust B and the Xxxxxx
X. Getty Family Trust, the respective trustees thereof have executed
this Agreement solely in their representative capacities as trustees
and not individually, and that any liability arising from this
Agreement shall be satisfied solely from the assets of the trust of
which such person is trustee, and not from such person individually.
9. Counterparts
This Agreement may be executed by the parties hereto in counterparts,
each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF the parties have caused this Agreement to be signed by their
duly authorized representatives as of the day and year first mentioned above.
The Trustees of the Cheyne Walk Trust
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: C.O.O.
The Trustees of the Xxxxxx Family Trust A
By: /s/ Xxxxxx Xxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxx Xxxxxxxxx
Title: Trust Administrator
The Trustees of the Xxxxxx Family Trust B
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: C.O.O.
Transon Limited
By: /s/ MJ Ridleyl
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Name: XX Xxxxxx
Title: Director
The Trustees of the Xxxxxx X. Getty Family Trust
By: /s/ Xxxxxx Xxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxx Xxxxxxxxx
Title: Trust Administrator
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Getty Investments, L.L.C.
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Officer
Getty Images, Inc.
By: /s/ Xxxxxxx X. Page
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Name: Xxxxxxx X. Page
Title: General Counsel
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EXHIBIT A
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Name Notice Address
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Trustees of the Cheyne Walk Trust Attn: Xxx X. Xxxxx
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Trustees of the Xxxxxx Family Trust A Attn: Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Trustees of the Xxxxxx Family Trust B Attn: Xxx X. Xxxxx
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Transon Limited c/o Macfarlanes
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Trustees of the Xxxxxx X. Getty Attn: Xxxxxx X. Xxxxxxxxx
Family Trust 0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Getty Investments L.L.C. Attn: Xxx X. Xxxxx
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000
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