FIFTH AMENDMENT AND WAIVER TO STOCKHOLDERS AGREEMENT
Exhibit
7
FIFTH
AMENDMENT AND WAIVER TO
This
Fifth
Amendment and Waiver to Stockholders Agreement (the “Amendment”) is
made effective as of the 24th day of February, 2008, by and between
(a) Getty Images, Inc., a Delaware corporation (the “Company”), and
(b) Getty Investments L.L.C., a Delaware limited liability company
(“Getty Investments”), Xxxx X. Getty, Xxxxxxxx X. Xxxxx, RBC Trustees
(C.I.) Limited, as Trustee of The October 1993 Trust, and Abacus Trust Company
Limited, as Trustee of the XX Xxxxx Family Settlement (as successor by
assignment from Crediton Limited).
RECITALS
A. The
parties entered into that certain Stockholders Agreement, dated as of
February 9, 1998, as amended and supplemented by a Deed of Adherence, dated
as of February 28, 1999, a Deed of Amendment, dated as of February 28,
1999, the Third Amendment to Stockholders Agreement, dated as of May 1,
2003, and the Fourth Amendment and Waiver to Stockholders Agreement, dated
as of
October 4, 2006 (the Stockholders Agreement as amended and supplemented is
referred to as the “Stockholders Agreement”).
B. The
Company has entered into an Agreement and Plan of Merger (the “Merger
Agreement”), dated as of February 24, 2008, by and among Abe
Investment, L.P., a Delaware limited partnership, Abe Acquisition Corp., a
Delaware corporation, and the Company, whereby Abe Acquisition Corp. will merge
with and into the Company (the “Merger”), with the Company surviving
the Merger on the terms and subject to the conditions set forth in the Merger
Agreement.
C. Concurrently
with the execution and delivery of the Merger Agreement, Getty Investments,
The
October 1993 Trust and Xxxx X. Getty (collectively, the “Rollover
Investors”) have executed an Interim Investors Agreement
(the “Interim Investors Agreement”), dated as of February 24,
2008, pursuant to which each Rollover Investor has made certain representations,
warranties and covenants regarding, inter alia, such Rollover
Investor’s power over its Shares (as defined in the Stockholders Agreement) and
the absence of agreements or arrangements obligating such Rollover Investor
to
transfer or cause to be transferred any of such Shares.
D. In
order to induce Abe Investment, L.P. and Abe Acquisition Corp. to enter into
the
Merger Agreement and proceed with the Merger, the parties hereto agree to waive
compliance with provisions of the Stockholders Agreement that might cause the
Rollover Investors to breach the Interim Investors Agreement and any other
agreement entered into in connection with the Merger.
E. Capitalized
terms used but not defined herein shall have the meanings assigned to them
in
the Stockholders Agreement.
NOW
THEREFORE, in consideration of the foregoing and the mutual promises and
covenants contained herein, the parties agree as follows.
1. Waiver. Effective
immediately prior to the Effective Time (as defined in the Merger Agreement),
compliance with all provisions of Article III of the Stockholders Agreement
is
hereby waived with respect to the Rollover Investors.
2. Full
Force and Effect. All other provisions of the Stockholders
Agreement not otherwise waived or modified herein shall remain in full force
and
effect in accordance with their terms.
3. Termination
of Merger Agreement. If the Merger Agreement hereafter terminates
in accordance with its terms, this Amendment shall be void and of no effect,
and
all provisions of the Stockholders Agreement shall be restored to full force
and
effect with respect to the Rollover Investors.
4. Governing
Law. The terms and conditions of this Amendment shall be governed
by and construed in accordance with the laws of the State of
Delaware.
5. Counterparts. This
Amendment may be executed in one or more counterparts, all of which shall
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page by facsimile shall be as effective as delivery
of a manually executed counterpart.
[Signatures
appear on the following
pages]
IN
WITNESS
WHEREOF, the parties have executed this Fifth Amendment and Waiver to
Stockholders Agreement effective as of the date first written
above.
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GETTY
IMAGES, INC.
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By: /s/
Xxxxxxxx X. Xxxxx
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Name/Title:
Xxxxxxxx X. Xxxxx, Chief Executive Officer
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GETTY
INVESTMENTS L.L.C.
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By:
/s/ Xxx X. Xxxxx
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Name/Title:
Xxx X. Xxxxx, Officer
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/s/
Xxxx X. Getty
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XXXX
X. GETTY, individually
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/s/
Xxxxxxxx X. Xxxxx
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XXXXXXXX
X. XXXXX, individually
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RBC
TRUSTEES (C.I.) LIMITED,
as
Trustee of The October 1993 Trust
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By:
/s/ Xxxxxx Xxxxx Xxxxxxx Le Vesconte
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Xxxxxx
Xxxxx Xxxxxxx Le Vesconte
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Authorised
Signatory
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ABACUS
TRUST COMPANY LIMITED,
as
Trustee of The XX Xxxxx Family Settlement
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By:
/s/ Xxxxxxxxx X. Monee
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Name/Title:
Xxxxxxxxx X. Monee, Authorised Signatory
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