AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "AMENDMENT")
is made as of November 23, 1999, by and among XXXXXXX KODAK COMPANY, a New
Jersey corporation, KODAK S.A., a French Corporation, and GETTY IMAGES, INC., a
Delaware corporation.
WHEREAS, the parties are parties to a certain Stock Purchase
Agreement dated as of September 20, 1999 ( the "AGREEMENT"), and they now desire
to amend the Agreement, as provided by Section 11.2 of the Agreement, as herein
set forth;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. The last sentence of SECTION 9.2 of the Agreement
("INDEMNIFICATION BY GETTY.") is hereby amended to provide in its entirety as
follows (with the remainder of said Section 9.2 remaining unchanged and
unaffected by this Amendment and continuing in full force and effect):
"Notwithstanding the foregoing, the limitations contained in the
immediately preceding sentence will not apply to any Seller Loss
arising out of: (x) any breach or non-fulfillment by the Company of
its obligations under any lease or agreement listed in Schedule 5.12;
(y) any breach or non-fulfillment of a covenant or agreement of Buyer
contained in Section 5.12; or (z) any fraud committed by Buyer."
2. Each of the following Schedules to the Agreement is hereby amended
to provide in its entirety as is set forth on the respective Schedules annexed
to this Amendment (with the remainder of the Schedules to the Agreement
remaining unchanged and unaffected by this Amendment):
Schedule 3.4(a)
Schedule 3.4(c)
Schedule 3.12
Schedule 3.13(a)
Schedule 3.13(b)
Schedule 3.13(h)
Schedule 3.14(d)
Schedule 3.14(f)
Schedule 3.14(h)
Schedule 3.19
Schedule 3.22
Schedule 3.26
Schedule 5.12
Schedule 6.7
Schedule 9.1(e)
3. Closing will be effective as of 12:01 a.m., New York time, on the
Closing Date.
4. The last sentence of SECTION 9.1 of the Agreement
("INDEMNIFICATION BY KODAK.") is hereby amended to provide in it entirety as
follows (with the remainder of said Section 9.1 remaining unchanged and
unaffected by this Amendment and continuing in full force and effect):
"Notwithstanding the foregoing, the limitations contained in the
immediately preceding sentence will not apply to any Buyer Loss
arising out of: (w) any failure or breach of a representation or
warranty of Seller contained in Sections 3.3, 3.4(b) or 3.4(c); (x)
any amount payable under any agreement listed in Schedule 5.12 that
relates to periods prior to the Closing Date, or any breach or
non-fulfillment of a covenant or agreement of Seller contained in
Section 5.12; (y) any obligation of the Company or Seller to either
Executive arising out of (1) his employment by the Company or Seller
(including those obligations set forth on Exhibit `A' to that certain
Agreement, Waiver and Release of each Executive dated November 19,
1999, but excluding obligations created by the Company or Buyer after
the Closing Date) or (2) the termination, whether before or after the
Closing Date, of such employment; or (z) any fraud committed by
Seller."
5. SECTION 2.2 of the Agreement ("PURCHASE PRICE.") is hereby amended
to provide in its entirety as follows:
"On the terms and subject to the conditions set forth herein, at
Closing Buyer will pay to the Seller the aggregate amount of
$183,104,430 (the `PURCHASE PRICE') in payment for the TIB Shares and
the TIB France Shares; provided, however, that at Closing the Deposit
will be accredited against Buyer's payment of the Purchase Price as
provided by Section 2.6."
The amount of the Purchase Price assumes that (a) the amount of cash in the
Company's cash accounts immediately prior to Closing is $1,284,617 and (b) the
amount of the Company's checks outstanding immediately prior to Closing is
$1,180,187. If either such assumption is incorrect, promptly after Closing an
appropriate adjustment to the Purchase Price will be made to reflect the
correction thereof, and any payment arising out of such adjustment will be made
promptly by the party responsible therefor.
6. At Closing, Buyer will pay to Seller the additional amount of
$82,500 in satisfaction of Buyer's expense obligations under Section 5.10.
7. SECTION 1.1 of the Agreement ("CERTAIN DEFINITIONS.") is hereby
amended to add a new definition as follows (with the remainder said Section 1.1
remaining unchanged and unaffected by this Amendment and continuing in full
force and effect):
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"'NEW YORK LEASE' means, collectively, those real property leases
pertaining to properties located in New York, New York and set forth
on Schedule 1.1(a)."
8. SECTION 2.4 of the Agreement ("INABILITY TO OBTAIN CONSENTS AND
APPROVALS.") is hereby amended to provide in its entirety as follows:
"(A) Both prior and subsequent to Closing, the parties will
use their commercially reasonable efforts, and cooperate with each
other, to obtain promptly all Required Approvals and all other
consents, approvals, waivers, authorizations, novations, notices and
filings which are necessary for the effectiveness after Closing of
either any Material Contract, other than the New York Lease, or any
Licensed Intellectual Property. All filing, recordation and similar
fees and Taxes payable to Governmental Entities will be paid by the
party obligated by Law to pay such amounts. Kodak and Getty will, in
equal portions not to exceed $200,000 each, pay any and all
additional fees or charges (howsoever denominated) required by any
Persons other than Governmental Entities in connection with obtaining
any Required Approval or any other consents, approvals, waivers,
authorizations, novations, notices and filings which are necessary
for the effectiveness after Closing of either any Material Contract,
other than the New York Lease, or any Licensed Intellectual Property.
"(B) To the extent that: (i) any Required Approval or other
consent, approval, waiver, authorization, novation, notice or filing
which is necessary for the effectiveness after Closing of either any
Material Contract, other than the New York Lease, or any Licensed
Intellectual Property, cannot be obtained or made and, as a result
thereof, the full benefits of such Material Contract or Licensed
Intellectual Property cannot be retained by the Company following
Closing; and (ii) if such consent, approval, waiver, authorization,
novation, notice or filing is a Required Approval, Buyer elects to
close the Transaction notwithstanding the failure to receive the
same; then, if Buyer so requests, Buyer and Seller will cooperate
with each other and enter into such mutually agreeable, reasonable
and lawful arrangements (including subcontracting, subleasing or
sublicensing, if permitted) to provide to the parties the economic
(taking into account all burdens and benefits, including Tax costs
and benefits) and operational equivalent, to the extent permitted, of
retaining for the Company the full benefit of such Material Contract
or Licensed Intellectual Property, as the case may be, and the
performance by the Company of all obligations under such Material
Contract or Licensed Intellectual Property; provided however, that
Buyer and Seller will not enter into such an arrangement with respect
to the New York Lease (which is instead governed by the provisions of
Section 2.4(c)) or with respect to any Material Contract or Licensed
Intellectual Property that is no longer in full force and effect; and
provided further that such economic and operational equivalent does
not include the provision of lost revenues or profits in the event
that any Person (other than the Company) terminates any such Material
Contract, Licensed Intellectual Property or other prior relationship
with the Company by reason of the consummation of the Transaction.
Seller will pay to Buyer, when received, all income, proceeds and
other monies received by Seller from third parties to the
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extent related to the Company's intended rights in any such Material
Contract or Licensed Intellectual Property, as contemplated by this
Section 2.4(b).
"(C) Seller will pay (i) 50 percent of all costs and
expenses incurred by Buyer in obtaining the Required Approval
pertaining to the New York Lease and (ii) 50 percent of all costs and
expenses in excess of amounts due and payable under the terms of the
New York Lease as they exist on the date hereof, incurred by Buyer if
such Required Approval is not obtained, including holdover tenant
damages, relocation costs, legal fees and expenses, real estate
brokerage fees and commissions, and any other costs and expenses
(other than those related to business interruption) related to the
failure to obtain such Required Approval; provided, however, that in
no event will Seller's obligations under this Section 2.4(c) exceed
$300,000."
9. SECTION 6.8 of the Agreement ("CERTAIN RETAINED LIABILITIES.") is
hereby amended to provide in its entirety as follows:
"Following Closing, Seller will assume and retain: (a) all
obligations of the Company or Seller to any employees of the Company
arising under Kodak's Stock Option Plan; and (b) all obligations of
the Company or Seller to either Executive arising out of (i) his
employment by the Company or Seller (including, in the case of Xxx
Xxxx, those obligations set forth on Exhibit `A' to that certain
Agreement, Waiver and Release dated November 19, 1999, but excluding
in all cases obligations created by the Company or Buyer after the
Closing Date) or (2) the termination, whether before or after the
Closing Date, of such employment; provided, however, that any rights
(but not obligations) of the Company existing immediately prior to
Closing pursuant to employment agreements between the Company and
either Executive will remain with and be the rights of the Company in
accordance with the terms of such employment agreements; and provided
further that all rights and obligations of the Company existing
immediately prior to Closing pursuant to the agreements set forth on
Schedule 6.8 will remain with and be the rights and obligations of
the Company. In addition, prior to or concurrently with Closing,
Kodak will cause all outstanding options granted under Kodak's Stock
Option Plan to employees of the Company not to terminate or expire by
reason of consummation of the Transaction or termination of the
status of such employees as employees of a Subsidiary of Kodak."
10. Notwithstanding the provisions of Section 11.2, by effecting
Closing, each party waives, as a condition to Closing, each unsatisfied Closing
delivery; provided, however, that the foregoing does not constitute the waiver
of the breach of any representation, warranty or covenant contained in the
Agreement.
11. For purposes of Closing, the parties have estimated the amount of
interest comprising part of the Deposit to be $20,000. Promptly after Closing,
an appropriate adjustment will be made to reflect the actual amount of interest
comprising the Deposit within the meaning of the Agreement, and any payment
arising out of such adjustment will be made promptly by the party responsible
therefor.
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12. Except as amended hereby, the Agreement will remain in full force
and effect in accordance with its terms.
13. All capitalized terms used herein and not otherwise defined
herein will have the respective meanings given them by the Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment, as
contemplated by Section 11.2 of the Agreement, as of the date first above
written.
XXXXXXX KODAK COMPANY
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
Its: Senior Vice President
GETTY IMAGES, INC.
By: /s/ Xxxxxxx X. Page
------------------------------------
Xxxxxxx X. Page
Its: General Counsel and Vice President
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