REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 9, 1998 (this
"Agreement"), between Getty Images, Inc., a Delaware corporation (the
"Company"), PDI, L.L.C., a Washington limited liability company ("PDI"), and
Xxxx Xxxxxxxx ("Xx. Xxxxxxxx", 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.
2
"HOLDERS' REPRESENTATIVE" shall mean PDI or such other Person or
Persons designated by PDI.
"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 PDI 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
February 9, 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
3
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, 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., Xxxx
Xxxxx, Xxxxxxxx Xxxxx, Crediton Limited, October 1993 Trust, PDI, L.L.C.,
Xxxx Xxxxxxxx and Xxxx Xxxxxxxx.
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
4
Company shall file with the Commission and thereafter use its reasonable best
efforts to cause to be declared effective promptly a Registration Statement
(a "Demand Registration") providing for the registration of all Registrable
Securities as 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 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
5
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 reasonable
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) 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
6
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 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
7
of an underwriting, shall be in form and substance reasonably
acceptable to the underwriters for such underwriting, and use its
reasonable 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 reasonable
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 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 reasonable 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
8
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 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
9
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 reasonable 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 reasonable 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, 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.
10
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 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
11
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 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
12
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
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
13
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 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)
14
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 the
effectiveness of such Registration is after two years after the date of this
Agreement and such Registration has not been initiated by the exercise of demand
registration rights by a stockholder party to the Stockholders' Agreement, 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
15
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
16
(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 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,
17
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.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (0000) 000-0000
Attention: Xxxxxx Xxxxxxx
with copies to:
Xxxxxxxx Chance
000 Xxxxxxxxxx
Xxxxxx XX0X 0XX
Facsimile: (00000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
Xxxxxxxx & Sterling
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
(b) if to the PDI Shareholders:
c/o PhotoDisc, Inc.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxx
with a copy to:
Xxxxxx & Xxxxx LLP/Xxxxxxx Xxxxxxxx X.X.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
18
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
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.
19
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 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
20
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.
GETTY IMAGES, INC.
By: /s/ Xxxx Xxxxx
--------------------------------------------
Name: Xxxx Xxxxx
Title: Director
PDI, L.L.C
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
/s/ Xxxx Xxxxxxxx
------------------------------------------------
Xxxx Xxxxxxxx
