Re: Rollover Commitment Letter
Exhibit
2
February 24,
2008
Abe
Investment, L.P.
c/o
Hellman & Xxxxxxxx LLC
Xxx
Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Ladies
and
Gentlemen:
Reference
is made to the Agreement and Plan of Merger, dated as of the date hereof (as
it
may be amended from time to time in compliance with the Interim Investors
Agreement, the “Merger Agreement”), by and among Abe Investment, L.P., a
Delaware limited partnership (“Parent”), Abe Acquisition Corp., a
Delaware corporation (“Merger-Sub”), and Getty Images, Inc., a Delaware
corporation (the “Company”), pursuant to which Merger Sub will be merged
into the Company (the “Merger”). Capitalized terms used but
not defined herein have the respective meanings ascribed to them in the Merger
Agreement. The parties listed on Schedule A hereto are
collectively referred to herein as the “Investors”.
1. Commitment. This
letter confirms the several, and not joint, commitment of each of the Investors,
subject to the conditions set forth herein, to transfer, contribute and deliver
to Parent the number of shares of Company Common Stock set forth next to such
Investor’s name on Schedule A hereto (the “Commitment”)
immediately prior to the Effective Time in exchange for newly issued limited partnership
units
of Parent issued at a per unit value equal to the Merger Consideration (and
valuing the Commitment at an amount per share equal to the Merger Consideration)
(the “Subject Equity Securities”), provided that none of the
Investors shall, under any circumstances, be obligated to transfer, contribute
and deliver to Parent any shares of Company Common Stock in excess of its
respective Commitment. After giving effect to the
transfer, contribution
and delivery of the Commitment and the
substantially simultaneous contribution to Parent of the amount of cash equity
contemplated to be funded to Parent under the Equity Commitment Letter (as
such
amount may be reduced by the H&F Investors in the manner contemplated by the
Equity Commitment Letter), each of
the Investors and the other investors in Parent will own, at the Closing, a
pro
rata number of the same class and series of limited partnership units of Parent
(except (x) members of management of the Company and (y) an Affiliate
of
the Sponsor will be the general partner of Parent) based on the relative values
of such
contributions (valuing the Commitment at an amount per share equal to the Merger
Consideration). The obligation of each of the Investors to
transfer, contribute and deliver the Commitment (a) is subject to (i) the terms
of this letter, (ii) the satisfaction or waiver by Parent (which waiver by
Parent must have been consented to by each of the Sponsor Investors (as defined
below)) of all conditions precedent to Parent’s and Merger Sub’s obligations to
effect the Closing, (iii) compliance by the Sponsor Investors, Parent, Holdings
and Merger Sub with Section 2.8.1, 2.8.2 and 2.8.3 and the last sentence of
Section 2.1 of the Interim Investors Agreement and (iv) the substantially
simultaneous funding by the Sponsor Investors and their
affiliated
investment funds of the amount of the cash equity contemplated to be funded
by
the Equity Commitment Letter (as such amount may be reduced by the H&F
Investors in the manner contemplated by the Equity Commitment Letter), provided
that such amount will entitle the Sponsor Investors and their affiliated
investment funds to at least a majority of the Subject Equity Securities, and
(b) subject to the foregoing clause (a), will occur substantially simultaneous
with the Closing and the simultaneous issuance to each of the Investors of
the
Subject Equity Securities. In the event that any Commitment is
transferred, contributed and delivered to Parent and the Closing of the Merger
does not occur promptly thereafter, Parent will return such Commitment to the
Investor who transferred, contributed and delivered such Commitment as promptly
as practicable and, in any event, within three Business Days after such
transfer, contribution and delivery.
2. Effectiveness
and Termination. The Commitment described herein will become
effective upon the effectiveness of the execution and delivery hereof and of
the
Equity Commitment Letter. Each Investor’s obligation to fund its
Commitment will terminate automatically and immediately upon the termination
of
the Merger Agreement in accordance with its terms. Upon termination
of this letter, the Investors shall not have any further obligations or
liabilities hereunder, provided that, subject to Section 4.3 of the Interim
Investors Agreement, nothing herein shall relieve any party hereto from
liability for any breach of this Agreement prior to any such
termination.
3. Assignment;
No Modification; Entire Agreement. (a) The rights and
obligations under this letter may not be assigned by any party hereto without
the prior written consent of the other parties and any attempted assignment
shall be null and void and of no force or effect. Notwithstanding the
foregoing, each of Parent and the Investors may assign their rights and
obligations hereunder to the extent permitted by the Interim Investors
Agreement.
(b) This
letter may not be amended, and no provision hereof waived or modified, except
by
an instrument signed by each of the parties hereto.
(c) This
letter and the other Ancillary Agreements constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among
or between any of the parties with respect to the subject matter hereof and
thereof.
4. Third
Party Beneficiaries. This letter shall be binding solely on, and
inure solely to the benefit of, the parties hereto and their respective
successors and permitted assigns, and nothing set forth in this letter shall
be
construed to confer upon or give to any Person (including the Company) other
than the parties hereto and the Sponsor Investors and their respective
successors and permitted assigns any benefits, rights or remedies under or
by
reason of, or any rights to enforce or cause Parent to enforce, the Commitment
or any provisions of this letter. The parties agree that the Sponsor
Investors are express, intended third party beneficiaries of the Investors’
obligations under this letter.
5. Enforcement. This
letter may only be enforced by Parent at the direction of the Sponsor in its
sole discretion. Parent shall have no right to enforce this letter
unless directed to do so by the Sponsor in its sole
discretion. Parent’s creditors shall have no right to enforce this
letter or to cause Parent to enforce this letter. For purposes of
this letter, (i) the “Sponsor” means Xxxxxxx & Xxxxxxxx Capital
Partners VI, L.P., (ii) the “Sponsor Investors” means the Sponsor,
Xxxxxxx & Xxxxxxxx Capital Partners VI (Parallel), L.P., Xxxxxxx &
Xxxxxxxx Capital
2
Executives
VI, L.P. and Xxxxxxx & Xxxxxxxx Capital Associates VI, L.P., (iii) the
“Interim Investors Agreement” means the Interim Investors Agreement,
dated as of the date hereof, among the Investors, Parent, Merger Sub and the
other parties thereto, as amended from time to time, and (iv) the “Equity
Commitment Letter” means the Equity Commitment Letter, dated as of the date
hereof, among the Sponsor Investors and Parent, as amended from time to
time.
6. Governing
Law; Consent to Jurisdiction. (a) This letter, and all
claims or causes of action (whether in contract or tort) that may be based
upon,
arise out of or relate to this Agreement or the negotiation, execution or
performance of this letter (including any claim or cause of action based upon,
arising out of or related to any representation or warranty made in or in
connection with this letter or as an inducement to enter into this letter)
shall
be governed by, and construed, interpreted and enforced in accordance with,
the
Laws of the State of Delaware, without regard to conflict of laws
principles.
(b) Any
legal action, suit or proceeding arising out of or relating to this letter
or
the transactions contemplated hereby shall be heard and determined exclusively
in the Court of Chancery of the State of Delaware, or, in the event (but only
in
the event) that such court does not have subject matter jurisdiction over such
action or proceeding, in the federal courts of the United States of America
located in the State of Delaware. Each party hereto hereby
irrevocably (i) submits to the exclusive jurisdiction of the Court of
Chancery of the State of Delaware or federal courts of the United States of
America located in the State of Delaware in respect of any legal action, suit
or
proceeding arising out of or relating to this letter and (ii) waives, and
agrees not to assert, as a defense in any such action, suit or proceeding,
any
claim that it is not subject personally to the jurisdiction of such courts,
that
its property is exempt or immune from attachment or execution, that the action,
suit or proceeding is brought in an inconvenient forum, that the venue of
action, suit or proceeding is improper or that this letter or the transactions
contemplated hereby may not be enforced in or by such courts.
(c) Each
party hereto agrees that notice or the service of process in any action, suit
or
proceeding arising out of or relating to this Agreement shall be properly served
or delivered if delivered to the addresses of the parties set forth in, and
in
the manner contemplated by, the Interim Investors Agreement.
(d) The
consents to jurisdiction set forth in this Section 6 shall not constitute
general consents to service of process in the State of Delaware and shall have
no effect for any purpose except as provided in this Section 6 and shall not
be
deemed to confer rights on any Person other than the parties
hereto. The parties hereto agree that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable law.
7. WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY
JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER
OR IN CONNECTION WITH THIS LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
8. Relationship
of the Trustee. The parties acknowledge and agree that in the
case of any party which is a trust, (i) the trustee of such trust is entering
into this Agreement and in its representative capacity as trustee only and
not
in its individual capacity; (ii) the trustee (in its
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capacity
as trustee) shall have no personal liability under or arising out of this
Agreement; and (iii) all payments to be made by a trust pursuant to this
Agreement shall be made solely from the assets of the applicable trust and
not
from the personal assets of the trustee.
9. Counterparts. This
letter may be executed in counterparts and by facsimile, each of which, when
so
executed, shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
[Remainder
of page intentionally left blank]
4
Very
truly
yours,
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GETTY
INVESTMENTS L.L.C.
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||
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By:
|
/s/
Xxx X. Xxxxx
|
|
|
Xxx
X. Xxxxx
Officer
|
||
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CHEYNE
WALK TRUST
|
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Remainderman
Ltd., as Trustee,
|
||
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By:
|
Xxxxxx
Place Investments,
as
Administrative Agent
|
|
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By:
|
/s/
Xxx X. Xxxxx
|
|
|
Xxx
X. Xxxxx
Chief
Investment Officer
|
||
|
XXXXXX
FAMILY TRUST B
|
||
|
Remainderman
Ltd., as Trustee,
|
||
|
By:
|
Xxxxxx
Place Investments,
as
Administrative Agent
|
|
|
By:
|
/s/
Xxx X. Xxxxx
|
|
|
Xxx
X. Xxxxx
Chief
Investment Officer
|
||
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GFT
LLC, as Trustee
|
||
|
By:
|
Xxxxxx
Place Investments,
as
Administrative Agent
|
|
|
By:
|
/s/
Xxx X. Xxxxx
|
|
|
Xxx
X. Xxxxx
Chief
Investment Officer
|
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[Rollover
Commitment Letter Signature Page]
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THE
OCTOBER 1993 TRUST
|
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RBC
Trustee (CI) Limited, as Trustee
|
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By:
|
/s/
Xxxxxx Xxxxx Xxxxxxx Le Vesconte
|
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|
Xxxxxx
Xxxxx Xxxxxxx Le Vesconte
Authorised
Signatory
|
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/s/
Xxxx X. Getty
|
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Xxxx
X. Getty
|
||
[Rollover
Commitment Letter Signature Page]
Accepted
and acknowledged as of
the
date
first written above:
ABE
INVESTMENT, L.P.
By: Abe
GP LLC, its general partner
|
By:
Xxxxxxx & Xxxxxxxx Capital Partners VI, L.P., its managing
member
|
|||||
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By:
Xxxxxxx & Xxxxxxxx Investors VI, L.P., its general
partner
|
|||||
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By:
Xxxxxxx & Xxxxxxxx LLC, its general partner
|
|||||
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By:
|
/s/
Xxxxxxx Xxx
|
||||
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Name:
|
Xxxxxxx
Xxx
|
||||
|
Title:
|
Managing
Director
|
||||
[Rollover
Commitment Letter Signature Page]
Schedule
A
|
Investor
|
Shares
of Company Common Stock
|
||
|
Getty
Investments L.L.C.
|
8,273,301
|
||
|
Cheyne
Walk Trust
|
24,377
|
||
|
Xxxxxx
Family Trust B
|
7,313
|
||
|
October
1993 Trust
|
622,602
|
||
|
Xxxx
X. Getty
|
15,000
|
||
|
TOTAL
|
8,942,593
|
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