ESCROW AGREEMENT, dated as of February 9, 1998 (this "AGREEMENT"),
among Getty Images, Inc., a Delaware corporation ("GETTY IMAGES"), the
stockholders (the "PRINCIPAL STOCKHOLDERS") of PhotoDisc, Inc., a Washington
corporation ("PHOTODISC"), identified on the signature pages of this Agreement,
Xxxx Xxxxxxxx, as designated representative of the Principal Stockholders (the
"PRINCIPAL STOCKHOLDERS' REPRESENTATIVE"), and Citibank, N.A., a national
banking association, as escrow agent (the "ESCROW AGENT").
W I T N E S E T H:
WHEREAS, (i) Getty Images, Getty Communications plc, a public limited
company organized under the laws of England and Wales ("GETTY COMMUNICATIONS"),
PhotoDisc and Merger Sub, Inc., a Washington corporation ("MERGER SUB"), have
entered into a Merger Agreement dated September 15, 1997, a copy of which is
attached hereto (but not made a part hereof) as Exhibit A (the "MERGER
AGREEMENT"; capitalized terms not defined herein have the meanings ascribed to
them in the Merger Agreement), and (ii) Getty Images and the Principal
Stockholders have entered into the Stockholders' Transaction Agreement dated as
of September 15, 1997, a copy of which is attached hereto as Exhibit B (the
"STOCKHOLDERS' TRANSACTION AGREEMENT");
WHEREAS, pursuant to the Merger Agreement, Merger Sub will merge (the
"MERGER") with and into PhotoDisc in accordance with the Business Corporation
Act of the State of Washington (the "WBCA") and upon the terms and subject to
the conditions set forth in the Merger Agreement;
WHEREAS, pursuant to the Merger, each issued and outstanding share of
common stock, par value $0.01 per share, of PhotoDisc ("PHOTODISC COMMON
STOCK"), other than shares owned directly or indirectly by Getty or by
PhotoDisc, will be converted into the right to receive a number of shares of
common stock, par value $0.01 per share, of Getty Images ("GETTY IMAGES SHARES")
and an amount of cash as set forth in the Merger Agreement;
WHEREAS, it is contemplated under the Merger Agreement that Getty
Images will deposit or cause to be deposited into escrow at Closing certificates
representing ____________ shares of Getty Images Shares (the "ESCROW SHARES")
issued in the name of the Principal Stockholders to be held and disbursed by the
Escrow Agent in accordance with Section 8 of this Agreement;
WHEREAS, the Escrow Agent is willing to act as the Escrow Agent
hereunder;
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WHEREAS, the Escrow Agent will hold the Escrow Shares in a
non-interest bearing account, Account No. 794610 at Citibank, N.A., New York,
New York, ABA No. 000000000 (the "ESCROW ACCOUNT"); and
WHEREAS, pursuant to the Principal Stockholders' Transaction
Agreement, each of the Principal Stockholders has appointed the Principal
Stockholders' Representative to act on such Stockholder's behalf for purposes of
this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree as follows:
SECTION 1. APPOINTMENT AND AGREEMENT OF ESCROW AGENT. Getty
Images and the Principal Stockholders hereby appoint the Escrow Agent to serve
as, and the Escrow Agent hereby agrees to act as, escrow agent upon the terms
and conditions of this Agreement.
SECTION 2. ESTABLISHMENT OF THE ESCROW FUND. (a) Pursuant to
Section 1.12(a)(ii) of the Merger Agreement, Getty Images shall deliver to the
Escrow Agent on the date hereof certificates representing the Escrow Shares
endorsed in blank or accompanied by duly executed stock transfer powers. The
Escrow Agent shall hold the Escrow Shares and/or any cash (the "ESCROW FUND") in
escrow pursuant to this Agreement. The Escrow Shares shall be registered in the
name of the Principal Stockholders. On the date hereof, each Principal
Stockholder shall deliver (or cause his or her nominee to deliver) to the Escrow
Agent stock transfer powers duly executed in blank with respect to the shares of
Getty Images Shares issued to such Principal Stockholder and deposited in the
Escrow Fund.
(b) Each of Getty Images and the Principal Stockholders confirms to
the Escrow Agent and to each other that the Escrow Fund is free and clear of all
Encumbrances except as may be created by this Agreement and the Merger
Agreement.
SECTION 3. PURPOSE OF THE ESCROW FUND. The Escrow Shares will be
deposited with the Escrow Agent and held by the Escrow Agent to secure the
indemnification obligations of the Principal Stockholders contained in Section
2.01 of the Stockholders' Transaction Agreement and Article X of the Merger
Agreement.
SECTION 4. PRINCIPAL STOCKHOLDER PERCENTAGE INTEREST IN ESCROW
FUND. Attached hereto as Schedule A is a schedule listing each Principal
Stockholder and such Principal Stockholder's initial interest in the Escrow Fund
(expressed as a percentage, based on the number of shares of Getty Images Shares
delivered to the Escrow Agent at Closing on behalf of such Principal
Stockholder).
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SECTION 5. PRINCIPAL STOCKHOLDER RIGHTS. (a) While any Escrow
Shares are held in escrow in the Escrow Fund, and pending the distribution
thereof to Getty Images or the Principal Stockholders, as the case may be, in
connection with any distributions from the Escrow Fund in accordance with
Section 8 hereof, each Principal Stockholder will have all rights with respect
to the Escrow Shares issued in such Principal Stockholder's name (including,
without limitation, the right to vote such shares as set forth in Section 5(b)
below), except (i) the right of possession thereof or (ii) the right to sell,
assign, pledge, hypothecate or otherwise dispose of such shares or any interest
therein. Principal Stockholders shall have the right to receive any dividends
or other distributions in respect thereof.
(b) Each Principal Stockholder shall have the right to exercise any
voting rights with respect to the Escrow Shares issued in such Principal
Stockholder's name. The Principal Stockholders' Representative (as defined
below) shall direct the Escrow Agent in writing as to the exercise of any voting
rights by the Principal Stockholders, and the Escrow Agent shall comply with any
such directions of the Principal Stockholders' Representative. In the absence
of such directions, the Escrow Agent shall not vote any of the Escrow Shares.
(c) Each Principal Stockholder shall be responsible for and shall pay
and discharge all taxes, assessments and governmental charges imposed on or with
respect to the Escrow Shares issued in such Principal Stockholder's name.
SECTION 6. PRINCIPAL STOCKHOLDERS' REPRESENTATIVE. Each Principal
Stockholder hereby acknowledges and affirms (a) the appointment of Xxxx Xxxxxxxx
as the Principal Stockholders' Representative and (b) the authority of the
Principal Stockholders' Representative to perform the actions specified in this
Agreement to be performed by the Principal Stockholders' Representative.
SECTION 7. SHARE VALUE. The parties hereto agree and acknowledge
that, for all purposes under this Agreement, each share of Getty Images Shares
held in escrow pursuant to this Agreement shall be valued at the Average Trading
Price of Getty ADRs at Closing (the "SHARE VALUE"), which Share Value shall be
provided to the Escrow Agent by Getty Communications.
SECTION 8. PAYMENTS FROM THE ESCROW FUND. (a) If, at any time on
or prior to the Expiration Date (as defined below), a Getty Images Party shall
deliver to the Escrow Agent a certificate of such Getty Images Party, executed
by an authorized officer of such Getty Images Party (a "GETTY IMAGES PARTY'S
CERTIFICATE"), which Getty Images Party's Certificate shall:
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(i) state that such Getty Images Party has paid or incurred a Loss
(an "INDEMNIFICATION ITEM");
(ii) state the aggregate amount of such Indemnification Item and the
number of Getty Images Shares necessary to satisfy the Loss specified in
the Indemnification Item based on the Share Value; and
(iii) specify in reasonable detail the nature and amount of each
individual Indemnification Item, including whether such Indemnification
Item results from a breach of representation or warranty or covenant of
PhotoDisc or a Principal Stockholder;
the Escrow Agent shall, promptly upon receipt of such Getty Images Party's
Certificate, deliver a copy of such Getty Images Party's Certificate to the
Principal Stockholders' Representative. For purposes of this Agreement, the
"EXPIRATION DATE" shall be March 31, 1999.
(b) If the Principal Stockholders' Representative shall object to any
amount claimed in connection with any Indemnification Item specified in any
Getty Images Party's Certificate, the Principal Stockholders' Representative
shall, within 15 Business Days after delivery by the Escrow Agent to the
Principal Stockholders' Representative of such Getty Images Party's Certificate,
deliver to the Escrow Agent a certificate, executed by the Principal
Stockholders' Representative (a "PRINCIPAL STOCKHOLDERS' CERTIFICATE"),
(i) specifying each such amount to which the Principal Stockholders'
Representative objects and (ii) specifying in reasonable detail the nature and
basis for each such objection. Promptly upon receipt of a Principal
Stockholders' Certificate, the Escrow Agent shall deliver a copy of such
Principal Stockholders' Certificate to the Getty Images Party. If the Escrow
Agent shall not have received a Principal Stockholders' Certificate objecting to
the amount claimed with respect to an Indemnification Item within 15 Business
Days after delivery to the Principal Stockholders' Representative of a Getty
Images Party's Certificate specifying such Indemnification Item, the Principal
Stockholders shall be deemed to have acknowledged the correctness of the amount
claimed on such Getty Images Party's Certificate with respect to such
Indemnification Item, and the Escrow Agent shall thereafter forward to the
transfer agent for the Getty Images Shares (the "TRANSFER AGENT") as soon as
administratively permissible for further transfer to the Getty Images Party, out
of the Escrow Fund (such transfer to be applied pro rata in accordance with each
Stockholder's percentage interest in the Escrow Fund) such number of shares of
Getty Images Shares, as specified in the Getty Images Party's Certificate, equal
to the lesser of (A) the amount claimed in the Getty Images Party's Certificate
with respect to such Indemnification Item divided by the Share Value and (B) the
number of shares of Getty Images Shares then remaining in the Escrow Fund.
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(c) If the Escrow Agent receives, within 15 Business Days after
delivery to the Principal Stockholders' Representative of a Getty Images Party's
Certificate, a Principal Stockholders' Certificate objecting to the amount
claimed with respect to any Indemnification Item specified in such Getty Images
Party's Certificate, the amount so objected to shall be held by the Escrow Agent
and shall not be released from the Escrow Fund except in accordance with either
(i) written instructions executed by an authorized officer of each of Getty
Images and the Principal Stockholders' Representative or (ii) written
instructions from the Getty Images Party and the final nonappealable judgment of
a court having jurisdiction over the matters relating to the claim by the Getty
Images Party for indemnification from the Principal Stockholders, after which
time the Escrow Agent shall forward to the Transfer Agent as soon as
administratively practicable for further transfer to the Getty Images Party, out
of the Escrow Fund such number of shares of Getty Images Shares, as specified in
the judgement, or if not so specified, as determined by such Getty Images Party
in accordance with such judgment and communicated to the Escrow Agent in
writing, equal to the lesser of (A) the amount set forth in the written
instructions or in such judgment, as the case may be, divided by the Share Value
and (B) the number of shares of Getty Images Shares then remaining in the Escrow
Fund.
(d) Notwithstanding the limitations set forth in Section 8(a) of this
Agreement, following the Expiration Date, the Getty Images Party shall be
entitled to assert claims against the Escrow Fund under this Section 8 in
respect of all Losses that were included in determining the Reserved Amount (as
defined below).
(e) For purposes of this Agreement, the "Reserved Amount" shall be
equal to the aggregate of the amounts claimed and unpaid in all Getty Images
Party's Certificates delivered to the Escrow Agent prior to the Expiration Date
(which claims shall not have been resolved on or prior to the Expiration Date).
(i) If, on the Expiration Date, the Reserved Amount is less than the
product of the number of Escrow Shares then remaining in the Escrow Fund
and the Share Value (the "ESCROW FUND SHARES VALUE"), on the Expiration
Date, the Escrow Agent shall promptly liquidate all investments (other than
shares of Getty Images Stock) of the Escrow Fund and transfer to each
Principal Stockholder (x) by wire transfer in immediately available funds
in accordance with the written wire transfer instructions provided by the
Principal Stockholders' Representative, the amount in cash, if any, then
remaining in the Escrow Fund and attributable to the Escrow Shares issued
in such Principal Stockholder's name and (y) the number of shares of Getty
Images Shares issued in such Principal Stockholder's name then remaining in
the Escrow Fund less such Principal Stockholder's percentage interest of
the Reserved Amount divided by the Share Value.
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(ii) If, on the Expiration Date, the Reserved Amount is greater than
the Escrow Fund Shares Value, on the Expiration Date, the Escrow Agent
shall promptly liquidate all investments (other than shares of Getty Images
Stock) of the Escrow Fund and transfer to each Principal Stockholder, by
wire transfer in immediately available funds in accordance with the written
wire transfer instructions provided by such Principal Stockholder, the
amount in cash, if any, then remaining in the Escrow Fund and attributable
to the Escrow Shares issued in such Principal Stockholder's name less such
Principal Stockholder's percentage interest of the difference between the
Reserved Amount and the Escrow Fund Shares Value.
(f) With respect to indemnifiable Losses resulting from a breach of
representation or warranty or covenant of a Principal Stockholder and not from a
breach of representation or warranty or covenant of PhotoDisc, any Escrow Shares
transferred out of the Escrow Fund pursuant to Sections 8(b) or 8(c) shall be
transferred out of such Principal Stockholder's percentage interest in the
Escrow Fund and shall not be accounted against the interest of other Principal
Stockholders in the Escrow Fund.
(g) Upon the termination of this Agreement in accordance with
Section 11, the Escrow Agent shall promptly liquidate all investments (other
than shares of Getty Images Shares) of the Escrow Fund and transfer to each
Principal Stockholder (i) the shares of Getty Images Shares issued in such
Principal Stockholder's name then remaining in the Escrow Fund and (ii) by wire
transfer in immediately available funds, the amount in cash, if any, then
remaining in the Escrow Fund and attributable to the Escrow Shares issued in
such Principal Stockholder's name in accordance with the written wire transfer
instructions provided by such Principal Stockholder, which shall be deemed to be
standing instructions unless revised instructions are subsequently received by
the Escrow Agent.
SECTION 9. RESERVATION OF GETTY IMAGES' RIGHTS. Subject to
Section 10.05(c) of the Merger Agreement, the rights of Getty Images to receive
distributions from the Escrow Fund in respect to Indemnification Items shall be
without prejudice to any other rights Getty Images may have under the
Stockholders' Transaction Agreement or the Merger Agreement to seek indemnity
for Indemnification Items. Except with respect to claims based on fraud by an
individual Principal Stockholder, or claims for any equitable remedies available
under this Agreement, in no event shall the Investors (as defined in the Merger
Agreement) be liable for the satisfaction of Indemnification Items other than
out of their respective Escrow Shares.
SECTION 10. ALLOCATION OF ESCROW SHARES. (a) With respect to any
Escrow Shares distributed to the Principal Stockholders pursuant to Section 8 of
this Agreement, the Escrow Agent, the Principal Stockholders and Getty Images
will take such action as may be necessary: (i) to cause appropriate
certificates to be issued and delivered to the Principal
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Stockholders and (ii) to the extent necessary if not all shares of Getty Images
Shares have been distributed from the Escrow Fund, to cause appropriate
certificates to be issued to the Principal Stockholders and delivered to the
Escrow Agent representing the number of shares of Getty Images Shares remaining
in the Escrow Fund after such distribution to the Principal Stockholders and to
cause appropriate stock transfer powers, duly executed in blank by the Principal
Stockholders, to be delivered to the Escrow Agent with respect to the shares of
Getty Images Shares then remaining in the Escrow Fund.
(b) In the event Escrow Shares are distributed by the Escrow Agent to
Getty Images pursuant to Section 8 of this Agreement and, after such
distribution, shares of Getty Images Shares remain in the Escrow Fund, Getty
Images, the Principal Stockholders and the Escrow Agent will take such action as
may be necessary: (i) to cause appropriate certificates to be issued to the
Principal Stockholders and delivered to the Escrow Agent representing the number
of shares of Getty Images Shares remaining in the Escrow Fund after such
distribution to Getty Images and (ii) to cause appropriate stock transfer
powers, duly executed in blank by the Principal Stockholders, to be delivered to
the Escrow Agent with respect to the shares of Getty Images Shares then
remaining in the Escrow Fund.
(c) Notwithstanding any of the provisions of Section 8 of this
Agreement, in each circumstance in which shares of Getty Images Shares are to be
distributed to Getty Images or the Principal Stockholders pursuant to this
Agreement, the number of shares of Getty Images Shares to be distributed shall
be rounded down to the nearest whole integer.
SECTION 11. MAINTENANCE OF THE ESCROW FUND; TERMINATION OF THE ESCROW
FUND. (a) The Escrow Agent shall continue to maintain the Escrow Fund until
the earlier of (i) the time at which there shall be no funds, shares of Getty
Images Shares or other property in such Escrow Fund and (ii) the termination of
this Agreement.
(b) Notwithstanding any other provision of this Agreement to the
contrary, at any time prior to the termination of the Escrow Fund, the Escrow
Agent shall, if so instructed in a writing signed by Getty Images and the
Principal Stockholders' Representative, pay from the Escrow Fund, as instructed,
to the Getty Images Party and the Principal Stockholders, as directed in such
writing, the number of shares of Getty Images Shares and the amount of cash or
other property so instructed.
SECTION 12. INVESTMENT OF ESCROW FUND. (a) The Escrow Agent shall
invest and reinvest moneys on deposit in the Escrow Fund upon written direction
from Getty Images and the Principal Stockholders' Representative, in any
combination of the following, as specified in such direction: (i) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or readily marketable obligations
8
unconditionally guaranteed by the full faith and credit of the Government of the
United States, (ii) insured certificates of deposit, or time deposits, with any
commercial bank that is a member of the Federal Reserve System and which issues
(or the parent of which issues) commercial paper rated as described in
clause (iii) below, is organized under the laws of the United States or any
State thereof and has combined capital and surplus of at least $1 billion or
(iii) commercial paper in an aggregate amount of no more than $1,000,000 per
issuer outstanding at any time, issued by any corporation organized under the
laws of any State of the United States, rated at least "Prime-1" (or the then
equivalent grade) by Xxxxx'x Investors Services, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poors, Inc. Any interest or other income
received on such investment or reinvestment of the Escrow Fund shall become part
of the Escrow Fund.
(b) The Escrow Agent shall report to the United States Internal
Revenue Service the amount of interest or other income received by the Escrow
Agent on such investment or reinvestment of the Escrow Fund as having been
received by each Principal Stockholder in accordance with the amount
attributable to the Escrow Shares issued in such Principal Stockholder's name.
Distributions of such interest or other income to the Principal Stockholders
will not be made unless the Escrow Agent shall have received a fully completed
Form W-9 from each Principal Stockholder on file.
SECTION 13. ASSIGNMENT OF RIGHTS TO THE ESCROW FUND; ASSIGNMENT OF
OBLIGATIONS; SUCCESSORS. This Agreement may not be assigned by operation of Law
or otherwise without the express written consent of the other parties hereto
(which consent may be granted or withheld in the sole discretion of such other
parties). This Agreement shall be binding upon and inure solely to the benefit
of the parties hereto and their permitted assigns.
SECTION 14. ESCROW AGENT. (a) Except as expressly contemplated by
this Agreement or by joint written instructions from Getty Images and the
Principal Stockholders' Representative, the Escrow Agent shall not sell,
transfer or otherwise dispose of in any manner all or any portion of the Escrow
Fund, except pursuant to an order of a court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be
determined solely by this Agreement, and the Escrow Agent shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement and no implied covenants shall be read into this
Agreement against the Escrow Agent.
(c) In the performance of its duties hereunder, the Escrow Agent
shall be entitled to rely without any investigation into the underlying facts
upon any certificate, statement, opinion, report, notice, request, consent,
order, approval, document, instrument,
9
signature or other paper document believed by it in good faith to be genuine and
signed by any party hereto or an authorized officer or agent thereof, and shall
not be required to investigate the truth or accuracy of any statement contained
in any such document or instrument. The Escrow Agent may assume that any Person
purporting to give any notice in accordance with the provisions of this
Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be liable for any error of judgment,
or any action taken hereunder except in the case of its gross negligence, bad
faith or willful misconduct. The Escrow Agent may consult with counsel of its
own choice and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(e) The Escrow Agent shall have no duty as to the collection of
dividends, distributions or income on the Escrow Shares or any investments held
in the Escrow Fund or as to the preservation of any rights pertaining thereto,
and shall not be under any duty to give the Escrow Funds held by it hereunder
any greater degree of care than it gives its own similar property.
(f) As compensation for its services to be rendered under this
Agreement, for each year or any portion thereof, the Escrow Agent shall receive
a fee in the amount specified in Schedule B to this Agreement and shall be
reimbursed upon request for all expenses, disbursements and advances, including
reasonable fees of outside counsel and of all persons not regularly in its
employ, if any, incurred or made by it in connection with the preparation of
this Agreement or any other documents executed in connection herewith and the
carrying out of its duties under this Agreement. All such fees and expenses
shall be the responsibility of Getty Images. The obligations of Getty Images
under this section 14(f) to compensate the Escrow Agent and to pay or reimburse
the Escrow Agent for reasonable expenses, disbursements and advances shall
survive the satisfaction and discharge of this Agreement or the earlier
resignation or removal of the Escrow Agent.
(g) Getty Images shall reimburse and indemnify the Escrow Agent and
its officers, directors, employees and agents for, and hold it harmless against
and reimburse the Escrow Agent for, any loss, injuries, penalties, stamp or
other taxes, actions, suits, liability, damage or expense, including, without
limitation, reasonable attorneys' and consultant's fees, incurred without gross
negligence, bad faith or willful misconduct on the part of the Escrow Agent,
directly or indirectly related to, or arising out of, or in connection with the
acceptance of, or the performance of, its duties and obligations under this
Agreement.
(h) The Escrow Agent may at any time resign by giving 30 Business
Days' prior written notice of resignation to the Principal Stockholders'
Representative and Getty
10
Images. The Principal Stockholders' Representative and Getty Images may at any
time jointly remove the Escrow Agent by giving 20 Business Days' written notice
signed by each of them to the Escrow Agent. If the Escrow Agent shall resign or
be removed, a successor Escrow Agent, which shall be a bank or trust company
having its principal executive offices in San Francisco or New York and assets
in excess of $500,000,000, and which shall be reasonably acceptable to the
Principal Stockholders' Representative, shall be appointed by Getty Images by
written instrument executed by the Principal Stockholders' Representative and
Getty Images and delivered to the Escrow Agent and to such successor Escrow
Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent
shall become effective and such successor Escrow Agent, without any further act,
deed or conveyance, shall become vested with all right, title and interest to
all cash and property held hereunder of such predecessor Escrow Agent, and such
predecessor Escrow Agent shall, on the written request of the Principal
Stockholders' Representative, Getty Images or the successor Escrow Agent,
execute and deliver to such successor Escrow Agent all the right, title and
interest hereunder in and to the Escrow Fund of such predecessor Escrow Agent
and all other rights hereunder of such predecessor Escrow Agent. If no
successor Escrow Agent shall have been appointed within 20 Business Days of a
notice of resignation by the Escrow Agent, the Escrow Agent's sole
responsibility shall thereafter be to hold the Escrow Fund until the earlier of
(i) its receipt of designation of a successor Escrow Agent in a joint written
instruction by the Principal Stockholders' Representative and Getty Images and
(ii) termination of this Agreement in accordance with its terms. If no
successor Escrow Agent shall have been appointed within 20 Business Days, the
Escrow Agent may apply to a court of competent jurisdiction for such
appointment.
(i) The Escrow Agent shall prepare and deliver to Getty Images and
the Principal Stockholders' Representative at the end of each calendar month
prior to termination of this Agreement an account statement describing all
transactions with respect to the Escrow Fund during such calendar month.
(j) The Escrow Agent does not have any interest in the Escrow Fund
deposited hereunder but is serving as escrow holder only and having only
possession thereof. The Principal Stockholders shall pay or reimburse the
Escrow Agent upon request for any transfer taxes or other taxes relating to the
Escrow Fund incurred in connection herewith and shall indemnify and hold
harmless the Escrow Agent from any amounts that it is obligated to pay in the
way of such taxes. If necessary under applicable law, any payments of income
from the Escrow Fund shall be subject to withholding regulations then in force
with respect to United States taxes. The parties hereto will provide the Escrow
Agent with appropriate W-9 forms for taxpayer identification number
certifications or W-8 forms for non-resident alien certifications. It is
understood that the Escrow Agent shall be responsible for income reporting only
with respect to income earned and paid on investment of funds which are a part
of the
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Escrow Fund and is not responsible for any other reporting. This Section 14(j)
and Section 14(g) above shall survive notwithstanding any termination of this
Escrow Agreement or the resignation of the Escrow Agent.
(k) The Escrow Agent makes no representation as to the validity,
value, genuineness or collectability of any security or other document or
instrument held by or delivered to it.
(l) The Escrow Agent shall not be called upon to advise any party as
to the wisdom in selling or retaining, or taking or refraining from taking any
action with respect to any securities or other property deposited hereunder.
(m) In the event of any disagreement between the other parties hereto
resulting in adverse claims or demands being made in connection with the Escrow
Fund, or in the event that the Escrow Agent in good faith is in doubt as to what
action it should take hereunder, the Escrow Agent shall be entitled to retain
the Escrow Fund until the Escrow Agent shall have received (i) a final
nonappealable order of a court having jurisdiction directing delivery of the
Escrow Fund or (ii) a written agreement executed by the other parties hereto
directing delivery of the Escrow Fund, in which event the Escrow Agent shall
disburse the Escrow Fund in accordance with such order, judgment or agreement.
Any court order shall be accompanied by a legal opinion of counsel for the
presenting party satisfactory to the Escrow Agent to the effect that said order
or judgment is final and nonappealable. The Escrow Agent shall act on such
court order or judgment and legal opinion without further question.
(n) The Escrow Agent shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with any
direction of Getty Images and the Principal Stockholders given under this
Agreement.
(o) None of the provisions of this Agreement shall require the Escrow
Agent to expend or risk its own funds or otherwise to incur any liability,
financial or otherwise, in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
(p) Whenever in the administration of the provisions of this
Agreement the Escrow Agent shall deem it necessary or desirable that a matter be
provided or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence, bad faith or
willful misconduct on the part of the Escrow Agent, be deemed to be
12
conclusively proved and established by a certificate signed by Getty Images and
the Principal Stockholders' Representative and delivered to the Escrow Agent and
such certificate, in the absence of gross negligence, bad faith or willful
misconduct on the part of the Escrow Agent, shall be full warrant to the Escrow
Agent for any action taken, suffered or omitted by it under the provisions of
this Agreement upon the faith thereof.
(q) The Escrow Agent shall have no obligation to invest and reinvest
any cash held in the Escrow Fund in the absence of timely and specific written
investment direction from Getty Images and the Principal Stockholders'
Representative as provided in Section 12. In no event shall the Escrow Agent be
liable for the selection of investments or for investment losses incurred
thereon. The Escrow Agent shall have no liability in respect of losses incurred
as a result of the liquidation of any investment prior to its stated maturity or
the failure of Getty Images and the Principal Stockholders' Representative to
provide timely written investment direction.
(r) The Escrow Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, custodians or nominees appointed with due care, and shall not
be responsible for any bad faith, willful misconduct or gross negligence on the
part of any agent, attorney, custodian or nominee so appointed.
(s) Any corporation into which the Escrow Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Escrow Agent shall be
a party, or any corporation succeeding to the business of the Escrow Agent shall
be the successor of the Escrow Agent hereunder without the execution or filing
of any paper with any party hereto or any further act on the part of any of the
parties hereto except where an instrument of transfer or assignment is required
by law to effect such succession, anything herein to the contrary
notwithstanding.
(t) The parties each (for itself and any person or entity claiming
through it) hereby releases, waives, discharges, exculpates and covenants not to
xxx the Escrow Agent for any action taken or omitted under this Agreement except
to the extent caused by the Escrow Agent's gross negligence, bad faith or
willful misconduct. Anything in this Agreement to the contrary notwithstanding,
in no event shall the Escrow Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Escrow Agent has been advised of the likelihood of
such loss or damage and regardless of the form of action.
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SECTION 15. TERMINATION. This Agreement shall terminate on the later
of: (a) the date on which there are no funds, shares of Getty Images Shares or
other property remaining in the Escrow Fund and (b) ten Business Days following
the date after the Expiration Date on which all claims made in Getty Images
Party's Certificates delivered to the Escrow Agent prior to the Expiration Date
shall have been resolved.
SECTION 16. 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 or made upon receipt) by delivery
in person, by courier service, by cable, by facsimile, by telegram, or by
registered or certified mail (postage prepaid, 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 16):
(a) if to Getty Images:
c/o Getty Communications plc
000 Xxxxxx Xxxxxx
Xxxxxx XX0 0XX Xxxxxxx
Telephone: (00000) 000-0000
Facsimile: (00000) 000-0000
Attention: Xxxx Xxxxx-Lombe
with a copy to each of:
Xxxxxxxx Chance
000 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Telephone: (00000) 000-0000
Facsimile: (00000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
Xxxxxxxx & Sterling
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
(b) if to the Principal Stockholders' Representative:
14
c/o PhotoDisc, Inc.
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxx White & XxXxxxxxx
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(c) if to the Escrow Agent, to:
Citibank, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Telex: NYCTA
Attention: Escrow Administration
SECTION 17. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to its conflict of law principals. The parties hereto hereby irrevocably submit
to the jurisdiction of any federal court sitting in the City of New York in any
action or proceeding arising out of or relating to this Agreement and
irrevocably waive the defense of an inconvenient forum to the maintenance of any
such action or proceeding.
SECTION 18. AMENDMENTS. This Agreement may not be amended or
modified except (a) by an instrument in writing signed by, or on behalf of, the
parties hereto or (b) by a waiver in accordance with Section 19 of this
Agreement.
15
SECTION 19. 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 only if set forth in an
instrument in writing signed by the party to be bound thereby. 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 20. 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 and legal
substance of the transactions contemplated by this Agreement 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 a mutually
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
SECTION 21. 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.
SECTION 22. NO THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
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.
SECTION 23. 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 24. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
when taken together shall constitute one and the same agreement.
16
(Intentionally Left Blank)
17
IN WITNESS WHEREOF, each of Getty Images, the Principal Stockholders,
the Principal Stockholders' Representative and the Escrow Agent has duly
executed, or has caused this Agreement to be duly executed by its duly
authorized representative, as of the date first written above.
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
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On February 6, 1998, before me personally appeared Xxxx Xxxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] /s/ Xxxxxx X. XxXxxxxxx
________________________________________
_____
Name: Xxxxxx X. XxXxxxxxx
Notary Public
18
/s/ Xxxx Xxxxxxxx
_____________________________________________
_____
Xxxx Xxxxxxxx
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On February 9, 1998, before me personally appeared Xxxx Xxxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] /s/ Xxxxxx X. Xxxx
_____ _____________________________________________
Name: Xxxxxx X. Xxxx
Notary Public
/s/ Xxxxxx X. Xxxxxx
________________________________________
_____
Xxxxxx X. Xxxxxx
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On February 6, 1998, before me personally appeared Xxxxxx X. Xxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL]
19
/s/ Xxxxxx X. XxXxxxxxx
________________________________________
_____
Name: Xxxxxx X. XxXxxxxxx
Notary Public
/s/ Xxxx X. Xxxxxxxxx
________________________________________
_____
Xxxx X. Xxxxxxxxx
STATE OF MONTANA )
) ss.:
COUNTY OF GALLATIN )
On February 10, 1998, before me personally appeared Xxxx Xxxxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] /s/ Xxxx X. Xxxxxx
________________________________________
_____
Name: Xxxx X. Xxxxxx
Notary Public
/s/ Xxxxx Xxxxxxxxx
________________________________________
_____
Xxxxx Xxxxxxxxx
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On February 9, 1998, before me personally appeared Xxxxx Xxxxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
20
WITNESS my hand and official seal
[SEAL] /s/ Xxxxxx X. XxXxxxxxx
________________________________________
_____
Name: Xxxxxx X. XxXxxxxxx
Notary Public
/s/ Xxxxx xxx Xxxxxx
________________________________________
_____
Xxxxx xxx Xxxxxx
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On February 5, 1998, before me personally appeared Xxxxx xxx Xxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] /s/ Xxxxxx X. XxXxxxxxx
________________________________________
_____
Name: Xxxxxx X. XxXxxxxxx
Notary Public
/s/ Xxxxxxx Xxxxxxx
________________________________________
_____
Xxxxxxx Xxxxxxx
STATE OF WYOMING )
) ss.:
COUNTY OF TETON )
21
On February 6, 1998, before me personally appeared Xxxxxxx Xxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] /s/ Xxxxxxxx X. Xxxxxxxxx
________________________________________
_____
Name: Xxxxxxxx X. Xxxxxxxxx
Notary Public
/s/ Xxxx Xxxxxxx
________________________________________
_____
Xxxx Xxxxxxx
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On February 5, 1998, before me personally appeared Xxxx Xxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] /s/ Xxxxxx X. XxXxxxxxx
________________________________________
_____
Name: Xxxxxx X. XxXxxxxxx
Notary Public
J&B VENTURE PARTNERS I
By: /s/ Xxxx Xxxxxxxxxxx
_____________________________________
_____
22
Name: Xxxx Xxxxxxxxxxx
Title: Partner
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On February 5, 1998, before me personally appeared Xxxx Xxxxxxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] /s/ Xxxxx Xxxxxxx
________________________________________
_____
Name: Xxxxx Xxxxxxx
Notary Public
23
ADVENT VII L.P.
By: /s/ Xxxxxxx X. Child
______________________________________
_______
Name: Xxxxxxx X. Child
Title: Authorized Signatory
STATE OF ________________)
) ss.:
COUNTY OF _______________)
On February ___, 1998, before me personally appeared _______________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL]
________________________________________
_____
Name:
Notary Public
ADVENT ATLANTIC
AND PACIFIC III, L.P.
By: /s/ Xxxxxxx X. Child
_____________________________________
_____
Name: Xxxxxxx X. Child
Title: Authorized Signatory
STATE OF ________________)
) ss.:
COUNTY OF _______________)
On February ___, 1998, before me personally appeared _____________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
24
WITNESS my hand and official seal
[SEAL] ________________________________________
_____
Name:
Notary Public
ADVENT NEW YORK L.P.
By: /s/ Xxxxxxx X. Child
_____________________________________
_____
Name: Xxxxxxx X. Child
Title: Authorized Signatory
STATE OF ________________)
) ss.:
COUNTY OF _______________)
On February ___, 1998, before me personally appeared _____________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] ________________________________________
_____
Name:
Notary Public
TA VENTURE INVESTORS
LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Child
_____________________________________
_____
Name: Xxxxxxx X. Child
Title: Authorized Signatory
STATE OF ________________)
) ss.:
COUNTY OF _______________)
25
On February ___, 1998, before me personally appeared ______________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL]
________________________________________
_____
Name:
Notary Public
GEOCAPITAL III, L.P.
By: /s/ Xxxxxxx X. Xxxxx
_____________________________________
_____
Name: Xxxxxxx X. Xxxxx
Title: General Partner
STATE OF ________________)
) ss.:
COUNTY OF _______________)
On February ___, 1998, before me personally appeared ________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL]
________________________________________
_____
Name:
Notary Public
GEOCAPITAL IV, L.P.
By: /s/ Xxxxxxx X. Xxxxx
____________________________________
_____
26
Name: Xxxxxxx X. Xxxxx
Title: General Partner
STATE OF ________________)
) ss.:
COUNTY OF _______________)
On February ___, 1998, before me personally appeared _______________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL]
________________________________________
_____
Name:
Notary Public
27
THE BROADVIEW PARTNERS GROUP
By: /s/ Xxxxx X. Xxxxxx
_____________________________________
_____
Name: Xxxxx X. Xxxxxx
Title: Nominee for the Broadview
Partners Group
STATE OF NJ )
) ss.:
COUNTY OF BERGEN )
On February 5, 1998, before me personally appeared Xxxxx X. Xxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL] /s/ Xxxxxxxx Xxxxxxx
________________________________________
_____
Name: Xxxxxxxx Xxxxxxx
Notary Public
/s/ Xxxx Xxxxxxxx
________________________________________
_____
Xxxx Xxxxxxxx, as Principal
Stockholders' Representative
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On February 9, 1998, before me personally appeared Xxxx Xxxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within agreement and
acknowledged to me that he executed the same and that by his signature he
executed this agreement
WITNESS my hand and official seal
[SEAL]
28
/s/ Xxxxxx X. Xxxx
________________________________________
_____
Name: Xxxxxx X. Xxxx
Notary Public
CITIBANK, N.A., as Escrow Agent
By: /s/ Xxxxx X. Xxxxxxxx
_____________________________________
_____
Name: Xxxxx X. Xxxxxxxx
Title: Senior Trust Officer
