RESTATED OPTION AGREEMENT
THE AGREEMENT, made as of the 9th day of February 1998 by and between:
(1) GETTY INVESTMENTS LLC, a limited liability company organised and
existing under the laws of the State of Delaware, United States of
America, with its principal office at 0000 Xxxxxxxxx Xxx, Xxxxx 000,
Xxxx, Xxxxxx 00000, XXX (hereinafter "GETTY INVESTMENTS");
(2) GETTY IMAGES, INC., a company incorporated and existing under the laws
of Delaware, with its principal office at 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, XXX, (hereinafter "GETTY IMAGES");
and
(3) GETTY COMMUNICATIONS PLC, a company incorporated under the laws of
England and Wales (registered number 3005770), with its registered
office at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx XX0 0XX, Xxxxxxx
(hereinafter "GETTY COMMUNICATIONS").
WITNESSETH:
WHEREAS Getty Investments owns a significant interest in Getty Images;
WHEREAS ownership of Getty Investments resides in membership interests held by
trusts and other entities whose beneficial owners and beneficiaries are members
of the Getty family;
WHEREAS said members of the Getty family have consented to the use and
registration of the "Getty" name as a trade name, trademark and service xxxx by
Getty Images and the companies under its control and Getty Investments hereby
agrees to provide to the extent it is able to any written consent required to
achieve registration, where the rights or trade marks of the Getty family and
related companies are cited as obstacles in the prosecution of "Getty" Marks of
Getty Images;
WHEREAS Getty Images and its subsidiaries use or intend to use the trade names,
trademarks and service marks "Getty" and derivations thereof, including without
limitation the trade names, trade marks and service marks set forth in Schedule
A (hereinafter collectively the "GETTY MARKS" which term shall include any
future trade names, trademarks and service marks incorporating "Getty" and the
aforementioned design) for photograph library, stock film and video agency
services, and related goods and services;
WHEREAS Getty Communications and its subsidiaries have applied for registration
of the Getty Marks in the United States, the United Kingdom, and the European
Union and any other jurisdiction; and
WHEREAS Getty Investments wishes to retain control over the Getty Marks in the
event that a third party acquires a Controlling Interest (as hereinafter
defined) of Getty Images,
NOW THEREFORE, in consideration of the mutual promises and covenants herein set
forth, the parties do hereby agree as follows:
1. GRANT OF OPTION
Subject to the terms and conditions set forth below, and for
consideration of $1 (the receipt and adequacy of which are hereby
acknowledged) Getty Images grants to Getty Investments the right and
option to purchase all right, title and interest in and to the Getty
Marks, together with the goodwill of the business symbolised by the
marks, and all applications and registrations for said marks, for the
sum of $100. Getty Images shall not sell, transfer or encumber the
Getty Marks, or any interest therein, without the prior written consent
of Getty Investments.
2. EXERCISE OF OPTION
(a) Getty Investments shall have the right to exercise said option at
any time in the future, but only after a third party (or related
third party group) shall obtain a Controlling Interest in Getty
Images. For the purposes hereof, the phrase "Controlling
Interest" shall mean the ability to cast a majority of the total
votes capable of being cast at any meeting of the holders of
shares in Getty Images. Getty Investments shall have thirty (30)
days after being notified in writing that any such third party
has obtained a Controlling Interest in Getty Images in which to
exercise this option by mailing, by certified mail, return
receipt requested, a written notice of its exercise to Getty
Images together with the payment of $100.
(b) Within thirty (30) days of the receipt of said notice and payment
Getty Images and Getty Communications shall execute and deliver
to Getty Investments an assignment of all right, title and
interest in and to the Getty Marks and all applications and
registrations for said marks. Said assignment shall be in a form
suitable for recordal with the appropriate governmental agencies
of the United States, the United Kingdom and the European Union
and any other jurisdiction in which the Getty Marks are
registered or in which there are applications for registration
pending. In the event that the assignments supplied are not in a
form suitable for recordal with the appropriate governmental
agencies or further documentation is required, Getty Images and
Getty Communications undertake to execute any such further
documents reasonably required by Getty Investments to effect
final recordal of assignment.
3. PHASE-OUT PERIOD AND LICENSE
(a) Getty Images shall have one year from the date of the notice
referred to in Clause 2(b) above, to phase out all use by Getty
Images and its subsidiaries of all the Getty Marks (hereinafter
the "PHASE-OUT PERIOD").
(b) During the term of the Phase-Out Period, Getty Investments grants
to Getty Images and its subsidiaries a written licence to use the
Getty Marks throughout the world in connection with the goods,
services and business of
Getty Images and its subsidiaries, subject to the following terms and
conditions:
(i) the license shall become effective as of the date of the
assignment and shall expire one year from said date;
(ii) the license shall be royalty free;
(iii) all use of the Getty Marks by Getty Images and its
subsidiaries during the Phase-Out Period shall inure to
the benefit of Getty Investments, and all such uses shall
bear appropriate legal notices indicating that the marks
are being used under license from Getty Investments;
(iv) Getty Images shall maintain the same high standard of
quality for the goods and services offered for sale and
sold under the Getty Marks as it maintained while they
were under its ownership, and Getty Investments shall have
the right to make such inquiries, and to conduct such
investigations, as it reasonably deems necessary to insure
the continued maintenance by Getty Images of this high
standard of quality; and
(v) upon the expiration of the Phase-Out Period, Getty Images
and its subsidiaries shall immediately cease to use, in
any manner and for any purpose, directly or indirectly,
any of the Getty Marks, and promptly destroy all remaining
inventory of materials bearing any of the Getty Marks.
4. ADOPTION OF NEW NAMES AND MARKS
(a) During the Phase-Out Period, Getty Investments shall have the
right to determine that the new trade names, trademarks and
service marks to be used by Getty Images and its subsidiaries
(hereinafter "NEW NAMES AND MARKS") do not contain the Getty
Marks nor be confusingly similar to any of the Getty Marks.
(b) No later than ninety (90) days prior to the expiration of the
Phase-Out Period, Getty Images shall submit for the review of
Getty Investments its proposed new Names and Marks. Getty
Investments shall have thirty (30) days within which to object to
such new Names and Marks. If Getty Investments fails to respond
in writing within this period, Getty Investments shall have no
further right to object.
(c) Upon the expiration of the Phase-Out Period, Getty Images and
those of its subsidiaries that use the Getty Marks in their
corporate name shall take all appropriate steps to change its
corporate names, to communicate this change to their customers,
and shall cease to use the Getty Marks.
5. FURTHER ASSURANCE
(a) Getty Images shall, if requested by Getty Investments, procure
that any subsidiary of it that uses the Getty Marks shall enter
into an agreement with Getty Investments in similar terms to
this Agreement (the "SUBSIDIARY AGREEMENT") save that if such
subsidiary ceases to be a subsidiary of Getty Images without also
ceasing its use of the Getty Marks and transferring any ownership
rights to Getty Images, the Phase Out Period in the Subsidiary
Agreement shall be 10 days.
(b) Getty Images agrees that it will and will procure that its
subsidiaries will do and execute all necessary acts and documents
to give effect to this Agreement.
6. NOTICES
All notices or other communications required or permitted by this
Agreement shall be in writing and sent to the parties at the following
addresses:
TO GETTY INVESTMENTS:
Getty Investments LLC
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx
Xxxxxx 00000
XXX
Attention: Xxx Xxxxx/Xxxx Xxxxxxx
TO GETTY IMAGES:
Getty Images, Inc
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxx XX0 0XX
Xxxxxxx
Attention: Xxxxxxxx Xxxxx
TO GETTY COMMUNICATIONS:
Getty Communications plc
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxx XX0 0XX
Xxxxxxx
Attention: Xxxxxxxx Xxxxx
7. MISCELLANEOUS
(a) This agreement is governed exclusively by Delaware law.
(b) To the fullest extent permitted by law any 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 obtaining, of the American
Arbitration Association, to the extent not inconsistent with the
Delaware Uniform Arbitration Act and judgment upon the award
tendered may be entered in any court having jurisdiction thereof.
The reasonable fees, costs and expenses, including legal fees,
incurred in connection with such arbitration shall be borne
equally by the parties. Nothing in this paragraph 7(b) shall
limit any right that any party 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 an action for breach of this agreement, the
parties acknowledge that recovery of damages shall not be a
sufficient remedy, and the aggrieved party shall be entitled to
specific performance thereof in addition to other legal remedies
to which it may be entitled.
(d) Getty Investments shall have the right to record this agreement
against any and all applications and registrations of the Getty
Marks with the appropriate governmental agencies of the United
States, the United Kingdom and the European Union and any other
jurisdictions.
(e) This agreement is binding upon the parties hereto, their
subsidiaries, divisions and all those acting in concert or in
participation with them or under their direction or control, and
upon their successor and assigns.
(f) In the event that a Getty Images subsidiary which has not
executed this agreement uses any of the Getty Marks at any time
in the future, such entity shall be required by Getty Images to
execute this agreement in counterpart, and Getty Investments
shall be provided a copy of said counterpart.
(g) This agreement embodies the entire agreement of the parties
hereto and supersedes all prior negotiations, understandings and
agreements whether written or oral. No part of this agreement
may be varied by any party hereto, except by a writing signed by
each of the parties.
IN WITNESS THEREOF, the parties have caused this agreement to be executed by
their duly authorised officers.
Date: GETTY INVESTMENTS LLC
--------------------------
By: /s/ Xxx X. Xxxxx
---------------------------------
Name: Xxx X. Xxxxx
---------------------------------
Title: Officer
---------------------------------
Date: GETTY IMAGES, INC.
--------------------------
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
---------------------------------
Title: Director
---------------------------------
Date: GETTY COMMUNICATIONS PLC
--------------------------
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
---------------------------------
Title: Director
---------------------------------
