REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of this 5th day of
August, 1999 (the "Agreement"), by and among Getty
Images, Inc., a Delaware Corporation (the "Company") and each of the
stockholders of EyeWire Partners, Inc., an Alberta corporation ("EyeWire"),
named on the signature pages hereto (herein referred to individually as a
"Holder" and collectively as the "Holders").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of
the Combination Agreement dated as of the date hereof between the Company,
3032097 Nova Scotia Limited, a Nova Scotia company limited by shares ("NSL"),
EyeWire and each of the Holders (the "Combination Agreement"), the Company shall
be issued common shares of EyeWire, and the Holders shall receive exchangeable
non-voting shares of NSL ("Exchangeable Shares") which may be exchanged for
shares of common stock, par value $.01 per share, of the Company ("Common
Stock"); and
WHEREAS, to induce the Holders to execute and deliver the
Combination Agreement, the Company has agreed to provide the Holders with
certain registration rights with respect to the Common Stock issuable upon
exchange of the Exchangeable Shares.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall
have the meanings:
(i) "COMMISSION" means the U.S. Securities and Exchange
Commission.
(ii) "EXCHANGE ACT" means the U.S. Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder, or any similar successor statute.
(iii) "PERSON" means any individual, partnership,
corporation, limited liability company, joint stock company,
association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
(iv) "PROSPECTUS" means the prospectus (including, without
limitation, any preliminary prospectus and any final prospectus filed
pursuant to Rule 424(b) under the Securities Act, including any
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration
statement in reliance on Rule 430A under the Securities Act) included
in the Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration
Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such
prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference
therein.
(v) "REGISTRABLE SECURITIES" means the Common Stock and
other securities of the Company issued or issuable in exchange for
Exchangeable Shares; provided, however, a share of Common Stock shall
cease to be a Registrable Security for purposes of this Agreement when
it no longer is a Restricted Security.
(vi) "REGISTRATION STATEMENT" means a registration
statement of the Company filed on an appropriate form under the
Securities Act providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act, including the
Prospectus contained therein and forming a part thereof, any amendments
to such registration statement and supplements to such Prospectus, and
all exhibits and other material incorporated by reference in such
registration statement and Prospectus.
(vii) "RESTRICTED SECURITY" means any share of Common Stock
except any such share that (i) has been registered pursuant to an
effective registration statement under the Securities Act and sold in a
manner contemplated by the Prospectus included in the Registration
Statement, (ii) has been transferred in compliance with the resale
provisions of Rule 144 under the Securities Act (or any successor
provision thereto) or is transferable by the holder thereof pursuant to
paragraph (k) of Rule 144 under the Securities Act (or any successor
provision thereto), or (iii) otherwise has been transferred and a new
share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company.
(viii) "SECURITIES ACT" means the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder,
or any similar successor statute.
(b) All capitalized terms used and not defined herein have
the respective meaning assigned to them in the Combination Agreement.
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2. REGISTRATION; FILING AND EFFECTIVENESS OF REGISTRATION
STATEMENT.
(a) The Company shall prepare and file with the Commission,
within 30 days of the date hereof, a Registration Statement on Form S-3 (or if
the Company is not then eligible to register for resale the Registrable
Securities on Form S-3 such registration shall be on Form S-1 or another
appropriate Form in accordance herewith) relating to the offer and sale of the
Registrable Securities and shall use its reasonable best efforts to cause the
Commission to declare such Registration Statement effective under the Securities
Act as promptly as practicable, and shall use its reasonable best efforts to
keep such Registration Statement continuously effective under the Securities Act
until the date which is the later of one year after the date that all
Exchangeable Shares deposited in escrow pursuant to the Combination Agreement
are eligible to be released from escrow or eight years after the date that such
Registration Statement is declared effective by the Commission or such shorter
period that will terminate when all the Registrable Securities covered by the
Registration Statement have been sold pursuant thereto in accordance with the
plan of distribution provided in the Prospectus, transferred pursuant to Rule
144 under the Securities Act or otherwise transferred in a manner that results
in the delivery of new securities not subject to transfer restrictions under the
Securities Act. If a Registration Statement on Form S-3 is not available to
register the resale of Registrable Securities, then at such time as Xxxxxxx X.
Xxxxx or Xxxx X. Xxxxxx (the "Non-Employee Shareholders") provide notice to the
Company that they intend to exchange their Exchangeable Shares, the Company
shall prepare and file with the Commission, as promptly as practicable, a
Registration Statement on Form S-3 to register the resale of the shares of
Common Stock issued upon exchange of the Non-Employee Shareholders' Exchangeable
Shares and the Company shall use its reasonable best efforts to cause the
Commission to declare such Registration Statement effective and maintain its
effectiveness as set forth above.
(b) If a Registration Statement (other than on behalf of
the Non-Employee Shareholders) has not been declared effective prior to, or is
not available for use by Holders on, the date which is the third business day
after the Company's initial public release of its year end results and earnings
for the year ending December 31, 1999 (the "First Release Date") (unless such
unavailability is due to the Company exercising its rights under Section 3 or 4
hereof) for the resale of Registrable Securities, then any Holder other than a
Non-Employee Shareholder who exchanges Exchangeable Shares on or after such date
shall upon request be entitled to a loan from Getty (a "Tax Loan") in an amount
equal to the Canadian Federal and Provincial income tax paid by such Holder as a
result of the exchange of such Exchangeable Shares, provided, however, that the
amount of any such Loan shall be limited to the amount of tax actually paid with
respect to the exchange of not more than 50% of any such Holder's Exchangeable
Shares, and provided, further, that any such Loan shall not be required to be
made by Getty until the latest time that such tax becomes due and payable to the
appropriate Canadian taxing authorities without penalty or interest. In the
event that any Holders exchange Exchangeable Shares for shares of Common Stock
of the Company pursuant to this
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subsection, the Company shall prepare and file with the Commission, as promptly
as practicable, a Registration Statement on Form S-3 to register the resale of
such shares of Common Stock and shall use its reasonable best efforts to cause
the Commission to declare such Registration Statement effective under the
Securities Act as promptly as practicable, and shall use its reasonable best
efforts to keep such Registration Statement continuously effective under the
Securities Act until the date which is one year after the date that such
Registration Statement is declared effective by the Commission or such shorter
period that will terminate when all the Registrable Securities covered by the
Registration Statement have been sold pursuant thereto in accordance with the
plan of distribution provided in the Prospectus, transferred pursuant to Rule
144 under the Securities Act or otherwise transferred in a manner that results
in the delivery of new securities not subject to transfer restrictions under the
Securities Act.
Each Tax Loan shall be an interest-free, non-recourse loan
to the borrower, secured by all of the shares of Common Stock issued upon
exchange of such Exchangeable Shares and payable from the proceeds of any sale
of such shares of Common Stock. Each Tax Loan shall become due and payable at
the time of such sale but in any event not later than the earlier of (i) 14
months after the exchange and (ii) 60 days after a Registration Statement
registering the resale of such shares of Common Stock is declared effective by
the Commission (provided, however, that the due date for such loan in the case
of clause (ii) above shall be extended in the event of a suspension pursuant to
Sections 3 or 4 hereof which prevents trading during the 60 days after such
Registration Statement has been declared effective, by the number of days that
such suspension is in effect).
(c) If a Registration Statement (other than on behalf of
the Non-Employee Shareholders) has not been declared effective prior to, or is
not available for use by Holders on, July 1, 2000 (unless such unavailability is
due to the Company exercising its rights under Section 3 or 4 hereof) for the
resale of Registrable Securities, then any Holder other than a Non-Employee
Shareholder who exchanges Exchangeable Shares on or after such date shall upon
request be entitled to a Tax Loan in an amount equal to the Canadian Federal and
Provincial income tax paid by such Holder as a result of the exchange of such
Exchangeable Shares, provided, however, that the amount of any such Loan shall
not be required to be made by Getty until the latest time that such tax becomes
due and payable to the appropriate Canadian taxing authorities without penalty
or interest. In the event that any Holders effectuate an exchange of
Exchangeable Shares for shares of Common Stock of the Company pursuant to this
subsection, the Company shall prepare and file with the Commission, as promptly
as practicable, a Registration Statement on Form S-3 to register the resale of
such shares of Common Stock and shall use its reasonable best efforts to cause
the Commission to declare such Registration Statement effective under the
Securities Act as promptly as practicable, and shall use its reasonable best
efforts to keep such Registration Statement continuously effective under the
Securities Act until the date which is one year after the date that such
Registration Statement is declared effective by the Commission or such shorter
period that will terminate when all the Registrable Securities covered by the
Registration Statement have
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been sold pursuant thereto in accordance with the plan of distribution provided
in the Prospectus, transferred pursuant to Rule 144 under the Securities Act or
otherwise transferred in a manner that results in the delivery of new securities
not subject to transfer restrictions under the Securities Act.
(d) If (but without any obligation to do so) at any time
prior to the First Release Date, the Company proposes to prepare and file with
the Commission a Registration Statement covering an underwritten offering of
Common Stock of the Company (other than in connection with a merger, acquisition
or pursuant to Form S-4, Form S-8 or successor forms), it will give written
notice (the "Notice") of its intention to do so at least twenty days prior to
the filing of such Registration Statement, to all Holders. Upon the written
request of any Holder made within ten days after receipt of the Notice, that the
Company include up to 50% of the requesting Holder's Registrable Securities in
the proposed Registration Statement, the Company shall, as to each such
requesting Holder, use its reasonable best efforts to effect the registration
under the Securities Act of the Registrable Securities which it has been so
requested to register (the "Piggyback Registration"), at the Company's sole cost
and expense (other than any commission, discounts or counsel fees payable by
such requesting Holder); provided, however, that if in the written opinion of
the Company's managing underwriter for such offering, the inclusion of all or a
portion of the Registrable Securities requested to be registered, when added to
the securities being registered by the Company, will exceed the maximum amount
of the Company's securities which can be marketed (i) at a price reasonably
related to their then current market value, or (ii) without otherwise materially
adversely affecting the offering, then the Company may exclude from such
offering all or a portion of the Registrable Securities which it has been
requested to register, such exclusion to be pro rata among the requesting
Holders. Without limiting the generality of the foregoing, the managing
underwriter may condition its consent to the inclusion of all or a portion of
the Registrable Securities requested to be registered upon the participation by
the holders of such Registrable Securities in the underwritten public offering
on the terms and conditions thereof.
Notwithstanding the provisions of this Section 2(d), the
Company shall have the right at any time after it shall have given written
notice pursuant to this Section 2(d) (irrespective of whether any written
request for inclusion of such securities shall have already been made) to elect
not to file any proposed Registration Statement, or to withdraw the same after
the filing but prior to the effective date thereof.
3. NOTICE OF PROPOSED SALE AND NOTICE OF SUSPENSION. Any
Holder proposing to sell Registrable Securities pursuant to a Registration
Statement must provide the Company with written notice of the proposed sale at
least 3 business days prior to the date of the contemplated sale. During the
term of this Agreement, including any time before or after receipt of this
notice, the Company shall immediately, by written notice to the Holder, suspend
all sales by Holders of Registrable Securities pursuant to such Registration
Statement for a period not to exceed sixty (60) days if the Company decides that
(i) a material event has or is likely to occur that has not been publicly
disclosed that, if disclosed, would have a material adverse effect on the
Company, or (ii) the sale of
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Registrable Securities would require the Company to accelerate public disclosure
of, any material financing, acquisition, disposition, corporate reorganization
or other material transaction involving the Company or its subsidiaries. The
Company agrees that in suspending the sale of any Registrable Securities
pursuant to this Section 3 or Section 4, it shall not discriminate between the
holders of Common Stock (or securities convertible into or exchangeable for
Common Stock) for which a Registration Statement relating to the resale of such
Common Stock is then effective. Each Holder agrees it shall not sell Registrable
Securities pursuant to a Registration Statement after receiving notice of a
suspension period, and the Company agrees that it shall not suspend the sale of
Registrable Securities by a Holder or Holders, pursuant to this Section 3 or
Section 4, for more than an aggregate of 120 days in any twelve (12) month
period. At the end of any such suspension period, the Company shall provide the
Holders with written notice of the termination of such suspension. The time
which any Registration Statement must remain effective pursuant to Section 2
shall be extended by the number of days during which a Holder or Holders are
prevented from selling Registrable Securities pursuant to this Section 3 or
Section 4.
4. OBLIGATIONS OF THE COMPANY. If and when the Company is
required by the provisions of this Agreement to use its reasonable best efforts
to effect the registration of the Registrable Securities, the Company shall:
(a) Prepare and file with the Commission such amendments
(including post-effective amendments) to any such Registration Statement and
supplements to the Prospectus as may be necessary to keep the Registration
Statement effective and in compliance with the provisions of the Securities Act
applicable thereto so as to permit the Prospectus forming part thereof to be
current and useable by the Holders for resales of the Registrable Securities
during the period such Registration Statement is in effect. Subject to Section
3, the Company shall, during the period such Registration Statement is in
effect, suspend the sale by the Holders of their Registrable Securities pursuant
to the Registration Statement for a reasonable period not to exceed sixty (60)
days upon (1) the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, in which case suspension shall
be limited to sales in such jurisdiction, (2) the occurrence of any event that
makes any statement made in the Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires any revisions to the Registration
Statement, Prospectus or other documents so that, in the case of the
Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, and
prior to or contemporaneously with suspending such use, the Company shall
provide the Holders with written notice of such suspension, which notice need
not specify the nature of the event giving rise to such suspension. At the end
of any such suspension period, the Company shall provide the Holders with
written notice of the
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termination of such suspension. Each Holder agrees that it will not sell
Registrable Securities pursuant to a Registration Statement during any
suspension period.
(b) Furnish to each Holder whose Registrable Securities are
included in a Registration Statement and its legal counsel identified to the
Company such number of copies of the Prospectus (including any preliminary
Prospectus), and all amendments and supplements thereto as such Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder.
(c) Use its reasonable best efforts to register or qualify
the Registrable Securities covered by a Registration Statement under such U.S.
securities or "blue sky" laws of such U.S. jurisdictions as Holders who hold a
majority-in-interest of the Registrable Securities being offered reasonably
request in order to facilitate the disposition of the Registrable Securities by
the Holders; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (1) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(c), (2) subject itself to general taxation in any such
jurisdiction, or (3) file a general consent to service of process in any such
jurisdiction.
(d) Use its reasonable best efforts to cause all the
Registrable Securities covered by a Registration Statement to be listed on the
principal national securities exchange, and included in an inter-dealer
quotation system of a registered national securities association, on or in which
securities of the same class or series issued by the Company are then listed or
included.
(e) Promptly notify the Holders (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or any state
securities authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the issuance by any
state securities commission or other regulatory authority of any order
suspending the qualification or exemption from qualification of any of the
Registrable Securities under state securities or "blue sky" laws or the
initiation of any proceedings for that purpose, (v) if, between the effective
date of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Company
contained in any securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material respects,
and (vi) of the happening of any event which makes any statement made in a
Registration Statement or related Prospectus untrue or which requires the making
of any changes in such Registration Statement or Prospectus so that they will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Subject to Sections 3
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and 4, the Company shall promptly prepare and file with the Commission and
furnish a supplement or amendment to such Prospectus so that, as thereafter
deliverable to the purchasers of such Registerable Securities, such Prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) Promptly use its reasonable best efforts to prevent the
issuance of or, if issued, obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement, and if one is issued use its
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment.
(g) Permit counsel for the Holders to review a Registration
Statement and all amendments and supplements thereto for a reasonable period of
time prior to their filing with the Commission, and shall not file any document
in a form to which such counsel reasonably objects.
(h) Cooperate with the Holders in a reasonable manner to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing Registrable Securities to be sold pursuant to
a Registration Statement and enable such certificates to be in such
denominations or amounts, as the case may be, and registered in such names as
the Holders may reasonably request.
5. OBLIGATIONS OF THE HOLDERS. In connection with the
registration of the Registrable Securities, the Holders shall have the following
obligations:
(a) It shall be a condition precedent to the obligations of
the Company to complete the registration pursuant to this Agreement with respect
to the Registrable Securities of a particular Holder that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request in order to assure
compliance with the Securities Act. At least fifteen (15) business days prior to
the first anticipated filing date of a Registration Statement, the Company shall
notify each Holder of the information the Company requires from each such Holder
(the "Requested Information"), if such Holder elects to have any of its
Registrable Securities included in such Registration Statement. If at least five
(5) business days prior to the anticipated filing date the Company has not
received the Requested Information from a Holder (a "Non-Responsive Holder"),
then the Company may file the Registration Statement without including
Registrable Securities of such Non-Responsive Holder and have no further
obligations to the Non-Responsive Holder.
(b) Each Holder by its acceptance of the Registrable
Securities agrees to cooperate fully with the Company and do all things
reasonably required by the
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Company in connection with the preparation and filing of a Registration
Statement hereunder, unless such Holder has notified the Company in writing of
its election to exclude all of its Registrable Securities from such Registration
Statement.
(c) Each Holder agrees that, to the extent limited thereby,
it will not effect sales of the Registrable Securities during any suspension
period as described in Section 3 or 4 hereof until such Holder receives notice
from the Company that the suspension period has ended and, if so directed by the
Company, such Holder shall promptly deliver to the Company or destroy (and
deliver to the Company a certificate of destruction) all copies in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of notice of such suspension.
(d) The failure of any Holder to comply with the provisions
of this Section 5 shall not relieve the Company of its obligations to the other
Holders under this Agreement with respect to the registration of such other
Holders' Registrable Securities in accordance with the terms hereof, except
where the failure of any Holder to so comply will interfere with the ability of
the Company to timely perform its obligations hereunder to the other Holders.
6. EXPENSES OF REGISTRATION. All expenses, other than
underwriting discounts and commissions, if any, incurred in connection with
registrations, filings or qualifications pursuant to Section 4 shall be borne by
the Company; provided, that the Holders shall bear expenses and all underwriting
discounts and commissions applicable to their Registrable Securities. The
Company shall pay the fees of one United States and Canadian counsel designated
by the Holders of a majority of the Registrable Securities included in a
Registration Statement, up to a maximum of U.S.$10,000 in the aggregate for a
registration statement on Form S-3 and U.S.$20,000 in the aggregate for a
registration statement on Form S-1.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company. If the Registrable
Securities are registered under the Securities Act pursuant to Section 2 hereof,
the Company shall indemnify and hold harmless each Holder who sold Registrable
Securities pursuant to such registration its officers, directors, partners and
trustees, and each person who controls a Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act (each, a "Holder
Indemnitee") from and against any losses, claims, damages or liabilities to
which such Holder Indemnitee may become subject under the Securities Act,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
any amendment thereto or an omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, not misleading, or (ii) an untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (as the same may have been
amended or supplemented) or an omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company hereby agrees to reimburse such Holder
Indemnitee for all reasonable legal and other expenses incurred by them in
connection with investigating or defending any such action or claim as and when
such expenses are incurred; provided, however, that the Company shall not be
liable to any such Holder Indemnitee in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon (i) an
untrue statement or alleged untrue statement made in, or an omission or alleged
omission from, such Registration Statement or Prospectus in reliance upon and in
conformity with information furnished to the Company by such Holder Indemnitee
for use therein or (ii) the use by the Indemnified Holder of an outdated or
defective Prospectus after the Company has provided to such Holder Indemnitee an
updated Prospectus correcting the untrue statement or alleged untrue statement
or omission or alleged omission giving rise to such loss, claim, damage or
liability.
(b) Indemnification by the Holders. If any Registrable
Securities are registered under the Securities Act pursuant to Section 2 hereof,
each Holder agrees to (i) indemnify and hold harmless the Company, its directors
(including any person who, with his or her consent, is named in the Registration
Statement as a director nominee of the Company), its officers who sign any
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which the
Company or such other persons may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (x) an untrue statement or
alleged untrue statement of a material fact contained in such Registration
Statement or an omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (y) an untrue statement or alleged untrue statement of a material
fact contained in any Prospectus or an omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with information furnished to the Company by such Holder for use
therein, and (ii) reimburse the Company for any legal or other expenses incurred
by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred. No Holder shall be liable under this
Section 7 for any amount in excess of the net proceeds such Holder shall have
received from the sale of Registrable Securities.
(c) Notice of Claims, etc. Promptly after receipt by a
party seeking indemnification pursuant to this Section 7 (an "Indemnified
Party") of written notice of any investigation, claim, proceeding or other
action in respect of which indemnification is being sought (each, a "Claim"),
the Indemnified Party promptly shall notify the party against whom
indemnification pursuant to this Section 7 is being sought (the "Indemnifying
Party") of the commencement thereof; but the omission to so notify the
Indemnifying Party shall not relieve it from any liability that it otherwise may
have to the
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Indemnified Party, except to the extent that the Indemnifying Party is
materially prejudiced and forfeits substantive rights and defenses by reason of
such failure. In connection with any Claim as to which both the Indemnifying
Party and the Indemnified Party are parties, the Indemnifying Party shall be
entitled to assume the defense thereof. Notwithstanding the assumption of the
defense of any Claim by the Indemnifying Party, the Indemnified Party shall have
the right to employ separate legal counsel and to participate in the defense of
such Claim, and the Indemnifying Party shall bear the reasonable fees,
out-of-pocket costs and expenses of such separate legal counsel to the
Indemnified Party if (and only if): (x) the Indemnifying Party shall have agreed
to pay such fees, costs and expenses, (y) representation of the Indemnified
Party by the Indemnifying Party by the same legal counsel would not be
appropriate due to actual or, as reasonably determined by legal counsel to the
Indemnified Party, potentially differing interests between such parties in the
conduct of the defense of such Claim, or if there may be legal defenses
available to the Indemnified Party that are in addition to or disparate from
those available to the Indemnifying Party, or (z) the Indemnifying Party shall
have failed to employ legal counsel reasonably satisfactory to the Indemnified
Party within a reasonable period of time after notice of the commencement of
such Claim; provided, however, in no event shall the Indemnifying Party be
required to pay the fees and expenses of more than one separate firm for all
Indemnified Parties plus local counsel in each jurisdiction in which an action
shall be brought. If the Indemnified Party employs separate legal counsel in
circumstances other than as described in clauses (x), (y) or (z) above, the
fees, costs and expenses of such legal counsel (other than local counsel) shall
be borne exclusively by the Indemnified Party. The Indemnifying Party shall not,
without the prior written consent of the Indemnifying Party (which consent shall
not unreasonably be withheld or delayed), settle or compromise any Claim or
consent to the entry of any judgment that does not include an unconditional
release of the Indemnifying Party from all liabilities with respect to such
Claim or judgment.
(d) Contribution. If the indemnification provided for in
this Section 7 is unavailable to or insufficient to hold harmless an Indemnified
Person under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein
because such indemnification is held by a court of competent jurisdiction to be
unenforceable, then each Indemnifying Party shall contribute to the amount paid
or payable by such Indemnified Party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Party 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, subject, however, to the
limitations on the liability of the Holders contained in subsection (b) above.
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
11
agree that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 7(d). The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party 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) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. RULE 144. The Company covenants to file all reports
required to make publicly available, and available to the Holders, at all times,
such information as is necessary to enable the Holders to make sales of
Registrable Securities pursuant to Rule 144 of the Commission under the
Securities Act, or any successor to such rule. Upon request of a Holder, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
9. ASSIGNMENT. The rights to have the Company register
Registrable Securities pursuant to this Agreement may be assigned by the Holders
to any permitted transferee of all or any portion of the Registrable Securities
of Holder only if: (a) the Holder agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (b) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (i) the name and address of such transferee or assignee and
(ii) the securities with respect to which such registration rights are being
transferred or assigned, (c) immediately following such transfer or assignment,
the securities so transferred or assigned to the transferee or assignee
constitute Restricted Securities, and (d) at or before the time the Company
received the written notice contemplated by clause (b) of this sentence the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein. The Company shall take such steps as are
necessary to permit the transferee to use any effective Registration Statement
covering Registrable Securities received by such transferee or issuable upon
exchange of Exchangeable Shares by such transferee.
10. AMENDMENT AND WAIVER. Any provision of this Agreement
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and Holders who hold a majority-in-interest of
the Registrable Securities (including for this purpose, Exchangeable Shares
exchangeable for Registrable Securities. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon each Holder and the
Company.
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11. MISCELLANEOUS.
(a) A person or entity shall be deemed to be a holder of
Registrable Securities whenever such person or entity owns of record such
Registrable Securities (including for this purpose, Exchangeable Shares
exchangeable for Registrable Securities). If the Company receives conflicting
instructions, notices or elections from two or more persons or entities with
respect to the same Registrable Securities, the Company shall act upon the basis
of instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Except as may be otherwise provided herein, any notice
or other communication or delivery required or permitted hereunder shall be in
writing and shall be delivered personally or sent by certified mail, postage
prepaid, or by a nationally recognized overnight courier service, and shall be
deemed given when so delivered personally or by overnight courier service, or,
if mailed, three (3) days after the date of deposit in the United States mails,
as follows:
(1) if to the Company, to:
GETTY IMAGES, INC.
0000 Xxxxxx Xxxxxx - Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Page, Esq.
With a copy to:
WEIL, GOTSHAL & XXXXXX LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(2) if to any Holder, at the most current address as such
Holder shall have provided in writing to the Company
in accordance with the provisions of this Section 11,
which address shall initially be the address set
forth next to such Holder's name on the signature
page to this Agreement.
(c) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Washington. Each of the parties
consents to the jurisdiction of the federal courts whose districts encompass any
part of the City of Seattle or the state courts of the State of Washington
sitting in the City of Seattle in connection with any dispute arising under this
Agreement and hereby waives, to the maximum extent permitted by law, any
objection including any objection based on forum non conveniens, to the bringing
of any such proceeding in such jurisdictions.
(d) The remedies provided in this Agreement are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or
13
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provision,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(e) This Agreement and the Combination Agreement constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein. This Agreement and the Combination
Agreement supersede all prior agreements and undertakings among the parties
hereto with respect to the subject matter hereof.
(f) This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto.
(g) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(h) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. A facsimile transmission of this signed
Agreement shall be legal and binding on all parties hereto.
14
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered as of the date first above written.
GETTY IMAGES, INC.
By: /s/
----------------------------------------
Name:
Title:
STOCKHOLDERS
_____________________________ Address: 000 Xxxxxxx Xxxxxxx Xxxxx X.X.
Name: Xxxxxxx X. Xxxxxxx Xxxxxxx, Xxxxxxx
X0X 0X0
_____________________________ Address: 000 Xxxxxxx Xxxxxxx Xxxxx X.X.
Name: Xxxxx X. Xxxxxxx Xxxxxxx, Xxxxxxx
X0X 0X0
_____________________________ Address: 000 Xxxxxxxxxx Xxxxxx X.X.
Name: Xxxxx X. Xxxxxxxx Xxxxxxx, Xxxxxxx
X0X 0X0
_____________________________ Address: 0000 - 0xx Xxxxxx X.X.
Name: Xxxxx X. Xxxxxxxx Xxxxxxx, Xxxxxxx
X0X 0X0
_____________________________ Address: #2, 0000 - 0xx Xxxxxx, X.X.
Name: Xxxxx X. Xxxxxxx Calgary, Alberta
TZN 0A8
_____________________________ Address: 000 Xxxxxxxx Xxx X.X.
Name: Xxxxx X. Xxxxxxxxx Xxxxxxx, Xxxxxxx
X0X 0XX
_____________________________ Address: 000 - 00xx Xxxxxx X.X.
Name: Xxxxx X. Xxxxx Xxxxxxx, Xxxxxxx
X0X 0X0
15
_____________________________ Address: 0000 Xxxxxxxxxx Xxxx
Name: Xxxxxx X. Xxxxxxxxx Xxxxxx, Xxxxx
XXX 00000
_____________________________ Address: 00 Xxxxxxx Xxxxx X.X.
Name: Xxxxxx X. Xxxxxx Xxxxxxx, Xxxxxxx
X0X 0X0
_____________________________ Address: 000 Xxxxxxxx Xxxxxx
Name: Xxxxxxx X. Xxxxx Xxxxxx, Xxxxxxxxxxxxx
XXX 00000
_____________________________ Address: 3700,400 - 0xx Xxxxxx X.X.
Name: Xxxx X. Xxxxxx Xxxxxxx, Xxxxxxx
X0X 0X0
16
