INTERIM INVESTORS AGREEMENT
Exhibit
4
This
Interim Investors Agreement (the “Agreement”) is made as of February 24,
2008 by and among Abe Investment, L.P., a Delaware limited partnership
(“Parent”), Abe Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of Parent (“Merger Sub”), Abe Investment Holdings, Inc.,
a Delaware corporation and wholly owned subsidiary of Parent
(“Holdings”), and the other parties appearing on the signature pages
hereto.
RECITALS
1. On
the date hereof, Parent, Merger Sub and Getty Images, Inc. (the
“Company”) have executed an Agreement and Plan of Merger, dated as of the
date hereof (as amended from time to time, the “Merger Agreement”),
pursuant to which, upon the terms and subject to the conditions set forth
therein, Merger Sub will be merged with and into the Company (the
“Merger”).
2. Concurrently
with the execution and delivery of this Agreement, the H&F Investors (as
defined below) have executed a letter agreement in favor of Parent (as amended
from time to time, the “Equity Commitment Letter”) in which the H&F
Investors have agreed, subject to the terms and conditions set forth therein,
to
make a cash equity investment in Parent immediately prior to the Closing, which
cash equity investment will be contributed by Parent to Merger Sub as equity
immediately prior to the Rollover Closing (as defined below).
3. Concurrently
with the execution and delivery of this Agreement, the Rollover Investors (as
defined below) have executed a letter agreement in favor of Parent (as amended
from time to time, the “Rollover Commitment Letter,” and together with
the H&F Commitment Letter, the “Commitment Letters”) in which the
Rollover Investors have agreed, subject to the terms and conditions set forth
therein, to transfer, contribute and deliver shares of Company Common Stock
to
Parent immediately prior to the Closing (the “Rollover
Closing”).
4. Immediately
after the Closing (the “Contribution Closing”), upon the terms and
subject to the conditions set forth herein, Parent will contribute all of the
shares of common stock of the Surviving Corporation to Holdings in exchange
for
common stock of Holdings.
5. The
Investors (as defined below), Parent, Holdings and Merger Sub wish to agree
to
certain terms and conditions that will govern the actions of Parent, Holdings
and Merger Sub and the relationship among the Investors with respect to the
Merger Agreement, the Commitment Letters and the transactions contemplated
thereby.
AGREEMENT
Therefore,
the parties hereto hereby agree as follows:
1. EFFECTIVENESS;
DEFINITIONS.
1.1. Effectiveness. This
Agreement shall become effective on the date hereof concurrently with the
execution and delivery of the Commitment Letters.
1.2. Definitions. Certain
terms are used in this Agreement as specifically defined
herein. Certain of those definitions are set forth in Section 3
hereof. Capitalized terms used herein but not defined shall have the
meanings given to them in the Merger Agreement.
2. AGREEMENTS
AMONG THE INVESTORS.
2.1. Actions
of Parent, Holdings and Merger Sub. Subject to the terms of this
Agreement, the H&F Investors may cause Parent, Holdings and Merger Sub to
take any actions and Parent, Holdings and Merger Sub shall take only those
actions approved by the H&F Investors in connection with the Merger
Agreement, the Commitment Letters, the Voting Agreement and the Option Agreement
and the transactions and financings contemplated by such agreements or
otherwise. Without limiting the generality of the foregoing, subject
to the terms of this Agreement (a) the H&F Investors may cause Parent
and Merger Sub to take any action or refrain from taking any action in order
for
Parent and Merger Sub to comply with their obligations, satisfy their closing
conditions or exercise their rights under the Merger Agreement, including
determining that the conditions to closing specified in Sections 6.1 and
6.2 of the Merger Agreement (the “Closing Conditions”) have been satisfied,
waiving compliance
with any agreements and conditions contained in the Merger Agreement, amending
or modifying the Merger Agreement, obtaining the debt financing for the Merger
and related transactions (including pursuant to the Debt Commitment Letter)
and
determining to close the Merger and (b) all actions and decisions of
Parent and Merger Sub relating to the Commitment Letters, the Voting Agreement
and the Option Agreement, including any negotiations, amendments or waivers
relating to any of the foregoing, shall require the approval of the H&F
Investors. Notwithstanding anything to the contrary in this
Agreement, in no event shall Parent or Merger Sub, without the prior written
consent of the Rollover Investors, (A) amend or modify (and in no event shall
any H&F Investor cause Parent, Merger Sub or any other Fund Affiliate that
becomes a party to the Merger Agreement to amend or modify) the Merger Agreement
(i) so as to modify the Merger Consideration to a non-cash form or (ii) so
as to
add any new parties to the Merger Agreement (other than any Fund Affiliates
and
any wholly owned Subsidiaries thereof and any Subsidiaries of the Company)
or
(B) obtain debt financing such that, immediately following the Effective Time,
the ratio of Consolidated Total Debt (as defined in the Debt Commitment Letter)
to Consolidated EBITDA (as defined in the Debt Commitment Letter and as
determined for the twelve-month period ending March 31, 2008) is in excess
of
6.0:1.
2.2. Unitholders
Agreements. Parent and each Investor agree to negotiate in good
faith with respect to, and enter into concurrently with the Closing, one or
more
definitive agreements, including a limited partnership agreement (the
“Unitholders Agreements”), that together reflect the terms and conditions
set forth on Schedule I and/or such additional or modified terms as the
H&F Investors and the Rollover Investors shall approve. Each of
Parent and the H&F Investors agrees to use its commercially reasonable
efforts to cause the Co-Investors to enter into the Unitholders Agreements
concurrently with the Closing.
2.3. Equity
Commitments.
2.3.1. Each
Investor hereby affirms and agrees that Parent, acting at the direction of
the
H&F Investors, shall be entitled to enforce (including seeking specific
performance) the provisions of each Commitment Letter in accordance with its
terms.
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Parent
shall not attempt such enforcement of any Commitment Letter until the H&F
Investors have determined that the Closing Conditions have been satisfied or
validly waived as permitted hereunder. Parent shall have no right to
enforce any of the Commitment Letters unless acting at the direction of the
H&F Investors. The Rollover Investors shall not have any right to
enforce (including seeking specific performance) the Equity Commitment
Letter. For the avoidance of doubt, it is understood that the
creditors of Parent shall not have any right to enforce (including seeking
specific performance) the Commitment Letters or to cause Parent to enforce
(including seeking specific performance) any of the Commitment
Letters.
2.3.2. Prior
to the Closing, no Investor shall transfer, directly or indirectly, its
obligations and rights under its Commitment Letter or this Agreement, other
than
(a) as approved by all the Investors, (b) in the case of the H&F
Investors, a transfer of the right and obligation to fund their Commitments
to
(x) any affiliated investment fund (“Fund Affiliate”),
provided, however that any such transferee shall be obligated to
become a party to this Agreement and no such assignment shall relieve the
assigning party of its obligations hereunder if the assignee does not perform
its obligations, or (y) up to an aggregate of $200 million of such
Commitments to the following (the “Co-Investors”) (for the avoidance of
doubt, it is understood that the Persons set forth on Schedule II hereto
shall be deemed to be Co-Investors to the extent set forth therein):
(i) any of the debt financing providers for the Merger and related
transactions and/or any Affiliates of such providers and/or (ii) no more
than two (2) other investment funds or other financial investors (or groups
of
related investment funds or other financial investors) in the aggregate, and
(c) the October 1993 Trust may transfer its right and obligation to
transfer, contribute and deliver its Commitment under the Rollover Commitment
Letter to Xxxx X. Getty and/or any trusts solely for the benefit of Xxxx X.
Getty and/or the spouse and descendants of Xxxx X. Getty for estate planning
or
similar purposes (Xxxx X. Getty or any such trust, a “Permitted Family
Transferee”), provided, however, that Xxxx X. Getty retains
sole control over the voting and disposition of such Rollover Shares, any such
transferee shall be obligated to become a party to this Agreement (if not
already a party hereto) and Xxxx X. Getty shall be responsible for the
obligations of the October 1993 Trust hereunder and under the Rollover
Commitment Letter if the assignee does not perform its obligations.
2.3.3. The
H&F Investors, or Parent acting at the direction of the H&F Investors,
shall be permitted to terminate the Rollover Commitment Letter if any of the
Rollover Investors are in material breach of their obligations to fund the
Commitment set forth in the Rollover Commitment Letter.
2.4. Notice
of Closing. Parent and Merger Sub agree to keep the Rollover
Investors reasonably and promptly informed of developments relating to the
Merger, including the likely Closing Date. If Parent or Merger Sub
receives any notice under the Merger Agreement, it shall notify each Investor
at
the addresses, and in the manner, set forth in Section 4.16. The
failure of Parent or Merger Sub to perform its obligations under this
Section 2.4 will not relieve any Investor of any of its obligations under
this Agreement.
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2.5. Expenses.
2.5.1. Except
as provided by Section 2.5.4 and except in connection with the remedies
available under Section 4.3, (a) the H&F Investors shall be responsible
for all of, and the Rollover Investors shall not be responsible for any of
(whether by contribution of money or otherwise), the expenses and fees of legal
counsel, accountants, financial advisors and other consultants and advisors
and
any financing or other fees or expenses (excluding the Parent Termination Fee
or
any Company Damages, in each case if and to the extent paid or payable to the
Company pursuant to the Merger Agreement or the Limited Guarantee)
(collectively, “Expenses”) incurred by the H&F Investors, Parent,
Holdings and Merger Sub in connection with the Merger Agreement, the Ancillary
Agreements, the Equity Commitment Letter and the Limited Guarantee
(collectively, the “Transaction Agreements”) and the transactions and
financings contemplated hereby and thereby and (b) each Rollover Investor will
be responsible for all of, and none of the H&F Investors, Parent, Holdings
or Merger Sub shall be responsible for any of, the Expenses incurred by the
Rollover Investors in connection with the Transaction Agreements and the
transactions and financings contemplated hereby and thereby.
2.5.2. Except
in connection with the remedies available under Section 4.3, the Rollover
Investors shall have no liability to the H&F Investors, Parent, Holdings or
Merger Sub with respect to the Parent Termination Fee or any Company Damages
if
paid or payable by the H&F Investors, Parent, Holdings or Merger Sub to the
Company pursuant to the Merger Agreement or the Limited Guarantee.
2.5.3. The
Rollover Investors shall have no right to receive any portion of the Termination
Fee or any Parent Damages if paid or payable by the Company pursuant to the
Merger Agreement.
2.5.4. In
the event that the Closing occurs, Parent, Holdings and Merger Sub shall
substantially simultaneously with the Closing, pay or reimburse, or cause to
be
paid or reimbursed, each of the Investors for the Expenses incurred by it in
connection with the Transaction Agreements and the transactions and financings
contemplated hereby and thereby.
2.6. Contributions.
2.6.1. After
giving effect to the contribution
to Parent by the H&F Investors and any Co-Investors of the amount of 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) (the “Cash Contribution”)
and the contribution to Parent by the
Rollover Investors of their respective Commitments (the “Rollover Contribution”),
each of the H&F Investors, the
Rollover Investors and any Co-Investors will own a pro rata number of the same
class and series of limited partnership units of Parent (excluding the general
partnership interest described in the following clause (b)) based on the
relative values of such contributions (valuing each of the Rollover Shares
at an
amount per share equal to the Merger Consideration), and, at
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the
Effective Time, Parent will not have
any outstanding equity interests other than (a) the limited partnership
units held by the H&F Investors and any Co-Investors pursuant to the Cash
Contribution and the Rollover Investors pursuant to the Rollover Contribution,
(b) the general partnership interest held by an Affiliate of the H&F
Investors (for the avoidance of doubt, it is understood that such Affiliate shall
have no economic
interest in Parent other than through its ownership of limited partnership
units
of the same class and series as those held by the H&F Investors, the
Rollover Investors and any Co-Investors) and (c) limited partnership
units and
other equity interests held by employees, directors and officers of the Company
and its Subsidiaries.
2.6.2. Parent
agrees to transfer, contribute
and deliver, immediately after the Closing, all shares of common stock of the
Surviving Corporation held by it to Holdings in exchange for newly issued common
stock of Holdings (the “Post-Closing
Contribution”), which
together with any previously outstanding shares, 100% of which are owned by
Parent, shall constitute 100% of the outstanding common stock of Holdings
immediately after the Post-Closing Contribution.
2.7. Representations
and Warranties; Covenants.
2.7.1. Each
Investor, severally and not jointly, hereby represents, warrants and covenants
to the other Investors that (a) such Investor (unless an individual) is
validly existing and in good standing under the laws of the jurisdiction of
its
formation or, in the case of an Investor that is a trust, the jurisdiction
of
its domicile, and has the requisite power and authority to execute and deliver
this Agreement, the Commitment Letter to which it is a party and the Option
Amendment (if a party thereto), to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby,
(b) if such Investor is an individual, such Investor has full power and
authority to execute and deliver this Agreement, the Commitment Letter to which
such Investor is a party and the Option Amendment (if a party thereto), to
perform such Investor’s obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby, (c) this Agreement, the
Commitment Letter to which such Investor is a party and the Option Amendment
(if
a party thereto) have been duly and validly executed and delivered by such
Investor and, assuming due authorization, execution and delivery by the other
parties thereto, constitute legal, valid and binding obligations of such
Investor, enforceable against such Investor in accordance with their terms,
except that such enforceability is subject to the Bankruptcy and Equity
Exception, (d) none of the Rollover Shares constitute community property or
otherwise need spousal or other approval for this Agreement or the Rollover
Commitment Letter to be a legal, valid and binding obligation of Xxxx X. Getty,
enforceable against Xxxx X. Getty in accordance with its terms, (e) except
for (w) filings required under, and compliance with other applicable
requirements of, the Exchange Act and the rules and regulations of the NYSE,
(x) solely in the case of Parent and Merger Sub, the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware
pursuant to the DGCL, (y) solely in the case of Parent, Merger Sub,
Holdings and the H&F Investors, filings required under, and compliance with
other applicable requirements of, the HSR Act and Foreign Antitrust Laws and
(z) solely in the case of the Rollover Investors, as set forth on
Schedule III, (i) no filing
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with,
and
no permit, authorization, consent or approval of, any Governmental Authority
is
necessary on the part of such Investor for the execution and delivery of this
Agreement, the Commitment Letter to which such Investor is a party and the
Option Amendment (if a party thereto) by such Investor and the consummation
by
such Investor of the transactions contemplated hereby and thereby and
(ii) neither the execution and delivery of this Agreement, such Commitment
Letter or the Option Amendment (if a party thereto) by such Investor nor the
consummation by such Investor of the transactions contemplated hereby or thereby
or compliance by such Investor with any of the provisions hereof or thereof
shall (1) in the case of any Investor that is not an individual, conflict
with or violate any provision of its certificate of formation or operating
agreement (or similar organizational documents), (2) result in any breach
or violation of, or constitute a default (or an event which, with notice or
lapse of time or both, would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result
in
the creation of a Lien on any property or asset of such Investor pursuant to
any
Contract to which such Investor is a party or by which such Investor or any
property or asset of such Investor is bound or affected, except for the creation
of any Liens described on Schedule IV with respect to the limited
partnership units issued to the October 1993 Trust in the Rollover Contribution,
or (3) violate any Law or Order applicable to any of such Investor or any
of its or his properties or assets; (f) such Investor and each of its members,
partners and stockholders is an “accredited investor” within the meaning of
Rule 501(a) under the Securities Act and (g) none of the information
supplied in writing by such Investor for inclusion or incorporation by reference
in the Proxy Statement or Schedule 13E-3 will cause a breach of the
representation and warranty of Parent or Merger Sub set forth in
Section 4.8 of the Merger Agreement.
2.7.2. Each
Rollover Investor, severally and not jointly, hereby represents, warrants and
covenants to each of the other Investors that (a) such Rollover Investor is,
and
will be immediately prior to the Closing, the only beneficial owner and, except
as otherwise noted on Exhibit A to this Agreement, the only record
holder of the number of shares of Company Common Stock set forth opposite its
or
his name on Exhibit A to this Agreement (the “Rollover
Shares”), in each case free and clear of Liens (except for the Liens
described on Schedule IV with respect to the Rollover Shares of the
October 1993 Trust), (b) such Rollover Investor has sole voting power and sole
power of disposition with respect to all of such Rollover Shares, with no
restrictions, subject to applicable federal securities laws on their rights
of
disposition pertaining thereto (other than as created by this Agreement, the
Rollover Commitment Letter and the Voting Agreement), (c) upon completion
of the transactions contemplated by the Rollover Agreement, Merger Sub will
acquire good and marketable title to such Rollover Shares free and clear of
any
Liens (except for the Liens described on Schedule IV with respect to
the Rollover Shares of the October 1993 Trust), (d) other than the Rollover
Commitment Letter and this Agreement and except the obligations under the
Stockholders’ Agreement, dated as of February 9, 1998, among the Company, Getty
Investments L.L.C. and the other parties, as such agreement has been amended
and
is in effect as of the date hereof (all of which obligations have been validly
waived by the other parties thereto prior to the date hereof pursuant to an
executed waiver (a true and complete copy of which has been made available
to
Parent prior to the date hereof by
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the
Rollover Investors) that is in full force and effect), there are no agreements
or arrangements of any kind, contingent or otherwise, obligating such Rollover
Investor to transfer or cause to be transferred any of such Rollover Shares
and
no Person has any contractual or other right or obligation to purchase or
otherwise acquire any of such Rollover Shares, (e) the only Contracts or
arrangements in effect between such Rollover Investor or any of his or its
Affiliates (excluding the Company and its Subsidiaries), on the one hand, and
the Company or any of its Subsidiaries, on the other hand, are those identified
on Schedule V hereto (collectively, the “Affiliate
Agreements”) and true and complete copies of each of the Affiliate
Agreements (including any amendments thereto) have been provided to Parent
prior
to the date hereof; (f) there are no outstanding claims for fees and expenses
under any of the Affiliate Agreements with respect to such Rollover Investor,
or
any claims for indemnity thereunder, and such Rollover Investor is not aware
of
any matters which could give rise to a claim for indemnity thereunder;
(g) after the date hereof, such Rollover Investor will not amend any
Affiliate Agreement or enter into any Contract that would be an Affiliate
Agreement; (h) immediately prior to the Closing, such Rollover Investor will
execute and deliver a termination and release agreement terminating all
Contracts and arrangements with the Company or any of its Subsidiaries (other
than the Option Agreement) without any obligation or liabilities having been
incurred or satisfied by the Company or any of its Subsidiaries under any of
such Contracts or arrangements after the date hereof, provided that all
confidentiality provisions and all rights to indemnification (solely with
respect to claims of which the Rollover Investor is not aware) in such Contracts
and arrangements will survive such termination; (i) during the three year
period immediately preceding the date of this Agreement, such Rollover Investor
has not taken any action to cause him or it to be an “interested stockholder”
(within the meaning of Section 203 of the DGCL) of the Company or the
restrictions of Section 203 of the DGCL on “business combinations” (within
the meaning of Section 203 of the DGCL) to be applicable to such Rollover
Investor because the transactions pursuant to which such Rollover Investor
became an “interested stockholder” were approved in advance by the board of
directors of the Company; (j) such Rollover Investor hereby waives any rights
of
appraisal or rights of dissent that such Rollover Investor may have with respect
to the Merger; (k) such Rollover Investor shall not take any action, or cause
to
be taken any action, to challenge, prevent or impair the Voting Agreement,
the
Rollover Commitment Letter or the Option Amendment from being in full force
and
effect at all times prior to the Closing; and (l) the Schedule 13D filed by
the
Rollover Investors, together with all amendments filed with the SEC prior to
the
date of this Agreement, does not contain any untrue statement of a material
fact
or omit to state 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.
2.7.3. Getty
Investments L.L.C. hereby represents, warrants and covenants that it has
provided or made available to Parent prior to the date hereof true and complete
copies of its certificate of formation and operating agreement and will not
amend any of such documents prior to the Closing in a manner that could
reasonably be expected to adversely affect its ability to perform its
obligations hereunder or under the Rollover Commitment Letter or to consummate
the transactions contemplated hereby or thereby.
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2.8. Tax
and Rollover Matters.
2.8.1. In
no event shall Parent or Merger Sub (and in no event shall any H&F Investor
cause Parent or Merger Sub to) amend the Merger Agreement in a manner that
would
reasonably be expected to cause the Commitment (as defined in the Rollover
Commitment Letter) to fail to qualify as a transaction under section 721 of
the
Code for U.S. federal income tax purposes.
2.8.2. The
parties agree that, for U.S. federal income tax purposes, the Post-Closing
Contribution is intended to be treated as an exchange described in
Section 351 of the Code (provided the parties do not have knowledge to the
effect that the Post-Closing Contribution does not so qualify as a result of
the
failure of the representations and warranties to be provided to Parent at
Closing by or on behalf of the Rollover Investors pursuant to
Schedule VI to be true) and the parties agree to take no positions
inconsistent with Section 351 treatment, unless required by
Law. Each party hereto shall not take any action that would
reasonably be expected to cause the Post-Closing Contribution not to qualify
as
an exchange described in Section 351 of the Code.
2.8.3. At
the Contribution Closing, Parent, Holdings, the H&F Investors, the
Co-Investors, the Rollover Investors and any other parties who contribute shares
of Company Common Stock to Parent in exchange for limited partnership units
of
Parent immediately prior to the Closing (the “Management Rollover
Investors”), severally and not jointly, will make the representations and
warranties set forth on Schedule VI.
2.8.4. Notwithstanding
anything to the contrary
set forth in the Merger Agreement, the Options Settlement shall be permitted
to
rollover and exchange options to acquire up to 446,350 shares of Company Common
Stock (the “Existing
Options”) for options
to acquire shares of common stock of Holdings (the “Rollover Options”)
(such rollover and exchange, the
“Options
Rollover”), whereby the
“total option spread” after such rollover
and exchange shall remain unchanged
and the terms of each Rollover Option shall remain substantially the same as
the
Existing Option, except that each Rollover Option shall (i) represent a
number of shares of Holdings common stock equal to the number of shares of
Company Common Stock subject to the Existing Option multiplied by the Option
Conversion Ratio (as defined below), with the number of shares subject
to
each Rollover Option after the rollover and exchange rounded down to the nearest
whole number of shares; and (ii) have an exercise price per share equal
to the exercise price per share of Company Common Stock under the Existing
Option divided by the Option Conversion Ratio, with the exercise price per
share
rounded up to the nearest whole cent. The “Option Conversion Ratio”
for purposes of this Section 2.8.4 shall equal
the ratio of the per share Merger Consideration to the fair market value of a share
of common
stock of Holdings as of the Effective Time. For purposes of this
Section 2.8.4, (A) “total option spread” before the Options Rollover shall
mean the product of (i) the total number of shares of Company Common Stock
subject to an Existing Option that will be rolled over and exchanged, and (ii)
the excess, if any, of the per share Merger Consideration over the exercise
price per share of Company Common Stock subject to such Existing Option, and
(B)
“total option spread” after the Options Rollover shall mean the product of (i)
the total number of
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shares
of common stock of Holdings
subject to a Rollover Option, and (ii) the excess of the fair market value
of a
share of common stock of Holdings as of the Effective Time over the exercise
price per share subject to such Rollover Option. Each of
Holdings and Options Settlement agrees to negotiate in good faith with
respect to, and enter into prior to the Closing, customary documentation to
effect the Options Rollover.
2.9. Antitrust
Matters.
2.9.1. Subject
to the terms and conditions of this Agreement, each of the Rollover Investors
shall use his or its reasonable best efforts to promptly take, or cause to
be
taken, all actions, and do, or cause to be done, all things, necessary, proper
or advisable to obtain any approvals required under the Antitrust Laws with
respect to such Rollover Investor as promptly as practicable, including
preparing and filing promptly and fully all documentation to effect all
necessary filings, notices, petitions, statements, registrations, submissions
of
information, applications and other documents (including any required or
recommended filings) under applicable Antitrust Laws. In furtherance
and not in limitation of the foregoing, the Rollover Investors agree to make
an
appropriate filing with the German Federal Cartels Office with respect to the
transactions contemplated hereby as promptly as practicable (and in any event
within ten (10) Business Days from the date hereof) or such other time as
mutually agreed to by the parties, and to supply as promptly as practicable
any
additional information and documentary material that may be requested by the
German Federal Cartels Office and use its reasonable best efforts to take,
or
cause to be taken, all other actions consistent with this Section 2.9
necessary to cause the expiration or termination of any applicable waiting
periods (including any extensions thereof) as soon as
practicable. Each of the parties shall cooperate with each other and
the Company in connection with the matters contemplated by this Section
2.9.1.
2.9.2. Each
of the Rollover Investors shall keep the other parties to this Agreement and
the
Company informed in all material respects on a reasonably timely basis of
(i) any investigation or other inquiry by or before the German Federal
Cartels Office or any other Governmental Authority relating to the transactions
contemplated hereby, including any proceeding initiated by a private party,
and
(ii) any material communication received by such party from, or given by
such party to, the German Federal Cartels Office or any other Governmental
Authority and of any material communication received or given in connection
with
any such proceeding by a private party, in each case regarding any of the
transactions contemplated hereby.
2.9.3. In
furtherance and not in limitation of the covenants of the Rollover Investors
contained in this Section 2.9, each of the Rollover Investors hereto shall
use its or his reasonable best efforts to resolve such objections, if any, as
may be asserted by the German Federal Cartels Office or any other Governmental
Authority with respect to the application of Antitrust Laws to the transactions
contemplated hereby. Without limiting any other provision hereof,
each of the Rollover Investors shall use its or his reasonable best efforts
to
(i) avoid the entry of, or to have vacated or terminated, any decree,
decision, order or judgment that would restrain, prevent or delay the
consummation of the transactions contemplated hereby, on or before the Walk-Away
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Date,
including by defending through litigation on the merits any claim asserted
in
any court by any Person, and (ii) avoid or eliminate each and every
impediment under any Antitrust Laws that may be asserted by the German Federal
Cartels Office or any other Governmental Authority with respect to the
transactions contemplated hereby so as to enable the consummation of the
transactions contemplated hereby to occur as soon as reasonably possible (and
in
any event on or before the Walk-Away Date). Notwithstanding anything
to the contrary, each of the Rollover Investors shall take all such actions,
including (i) proposing, negotiating, committing to and effecting, by
consent decree, hold separate order, or otherwise, the sale, divestiture or
disposition of such assets or businesses of the Rollover Investors and
(ii) otherwise taking or committing to take actions that limit the Rollover
Investors freedom of action with respect to, or their ability to retain, one
or
more of their investments, businesses, product lines or assets, in each case,
as
may be required in order to avoid the entry of, or to effect the dissolution
of,
any injunction, temporary restraining order, or other decision or order in
any
suit or proceeding, which would otherwise have the effect of preventing or
materially delaying the consummation of the transactions contemplated
hereby.
3. CERTAIN
DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
“Commitments”
shall mean (a) for each of the H&F Investors, the amount of 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), after taking into account any transfers permitted by
Section 2.3.2 hereto and (b) for each of the Rollover Investors, the
Rollover Shares (based on the Merger Consideration) set forth in the Rollover
Commitment Letter, after taking into account any transfers permitted by
Section 2.3.2 hereto.
“H&F
Investors” shall mean, collectively, (a) Xxxxxxx & Xxxxxxxx Capital
Partners VI, L.P., (b) Xxxxxxx & Xxxxxxxx Capital Partners VI (Parallel),
L.P., (c) Xxxxxxx & Xxxxxxxx Capital Executives VI, L.P., (d) Xxxxxxx &
Xxxxxxxx Capital Associates VI, L.P. and (e) any Fund Affiliate of any of the
foregoing to whom a transfer is made pursuant to Section 2.3.2
hereto.
“Investors”
shall mean, collectively, (a) the H&F Investors and (b) the Rollover
Investors.
“Option
Agreement” shall mean the Restated Option Agreement, dated February 9, 1998,
between Getty Investments L.L.C., the Company and Getty
Communications Limited (f/k/a Getty Communications plc) as amended by the
Waiver and Amendment to Restated Option Agreement, dated as of the date hereof
(the “Option Amendment”), among Getty Investments L.L.C., the Company,
Getty Communications Limited, and Parent and as amended from time to time
thereafter.
“Rollover
Investors” shall mean, collectively, (a) Getty Investments L.L.C., (b) the
October 1993 Trust, (c) the Cheyne Walk Trust, (d) the Xxxxxx Family Trust
B,
(e) Xxxx X.
10
Getty, (f) the Options Settlement and (g) and any Permitted
Family Transferee of the October 1993 Trust to whom a transfer is made pursuant
to Section 2.3.2 hereto.
“Voting
Agreement” shall mean the Voting Agreement, dated as of the date hereof,
between Parent and the Rollover Investors, as amended from time to
time.
4. MISCELLANEOUS.
4.1. Option
Amendment and Termination. This Agreement may be amended and
modified only by an agreement in writing signed by each of the
Investors. This Agreement shall terminate (except with respect to
Sections 1.2, 2.5, 2.7, 3 and 4) upon the earliest of (i) the
completion of the Post-Closing Contribution, (ii) the termination of the
Merger Agreement and (iii) the
written agreement of the parties hereto; provided that, subject to
Section 4.3 hereto, nothing herein shall relieve any party hereto
from
liability for any breach of this
Agreement prior to any such termination.
4.2. Severability. In
the event that any provision hereof would, under applicable law, be invalid
or
unenforceable in any respect, such provision shall be construed by modifying
or
limiting it so as to be valid and enforceable to the maximum extent compatible
with, and possible under, applicable Law. The provisions hereof are
severable, and in the event any provision hereof should be held invalid or
unenforceable in any respect, it shall not invalidate, render unenforceable
or
otherwise affect any other provision hereof.
4.3. Remedies.
(a) The
parties agree that this Agreement and the Rollover Commitment Letter will be
enforceable against the Rollover Investors by all available remedies at law
or
in equity (including specific performance).
(b) Without
prejudice to any remedy the Company may obtain against Parent and Merger Sub
(solely to the extent provided for under the Merger Agreement) and against
the
H&F Investors (solely to the extent as provided for under the Limited
Guarantee), other than as provided in Section 2.5.1 and 2.5.2, none of the
Rollover Investors shall have, and none of them shall seek, any direct or
indirect remedies, whether at law or in equity (including specific performance),
against any of Parent, Holdings, Merger Sub, the H&F Investors or the
H&F Related Parties (as defined below) in connection with (i) the Merger or
any of the other transactions and financings contemplated by the Transaction
Agreements, or (ii) a breach, failure to perform or fraud by any of Parent,
Holdings, Merger Sub or the H&F Investors under any of the Transaction
Agreements; provided, however, if the Rollover Closing and the
Effective Time have occurred, this Agreement and all other Ancillary Agreements
will be enforceable against Parent, Holdings, Merger Sub and the H&F
Investors and the Rollover Commitment Letter will be enforceable against Parent,
in each case by all available remedies at law or in equity (including specific
performance).
(c) Notwithstanding
anything to the contrary herein, in no event shall any party have the right
to
recover from any other party hereto lost profits, or any special, indirect,
or
consequential damages in connection with the enforcement of this Agreement
or
the Rollover Commitment Letter; provided, however, the parties
acknowledge and agree that Expenses, the
11
Parent
Termination Fee and Company Damages shall not constitute lost profits or
special, indirect or consequential damages.
(d) The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement or the Rollover Commitment Letter were not performed
in accordance with the terms hereof and that, subject to the limitations on
remedies set forth in this Section 4.3, the parties hereto shall be entitled
to
specific performance of the terms hereof, in addition to any other remedy at
law
or equity.
4.4. No
Recourse.
(a) Notwithstanding
anything that may be expressed or implied in this Agreement, or any document
or
instrument delivered in connection herewith, Parent, Holdings, Merger Sub and
each of the Rollover Investors agrees and acknowledges that no H&F Related
Party shall have any obligations hereunder and that, notwithstanding that the
H&F Investors or any of their permitted assigns may be a partnership or
limited liability company, no recourse hereunder or under any documents or
instruments delivered in connection herewith shall be had against any former,
current or future director, officer, employee, agent, general or limited
partner, manager, member, stockholder, Affiliate or assignee of any of the
Investors or any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder, Affiliate or assignee
of any of the H&F Investors (each, other than the H&F Investors, a
“H&F Related Party”), whether by or through attempted piercing of the
corporate (or limited liability company or limited partnership) veil, by or
through a claim by or on behalf of any of the H&F Investors against any
H&F Related Party, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute, regulation or applicable Law,
or
otherwise (provided that nothing in this Agreement shall limit any rights of
Parent, Merger Sub, Holdings or the H&F Investors against the Company in
connection with the Merger Agreement and any other agreements to which the
Company is a party). It is expressly agreed and acknowledged that no
personal liability whatsoever shall attach to, be imposed on or otherwise be
incurred by any H&F Related Party for any obligations of any of the
Investors or any of their successors or permitted assigns under this Agreement
or any documents or instrument delivered in connection herewith or for any
claim
based on, in respect of, or by reason of such obligations or their
creation.
(b) Notwithstanding
anything that may be expressed or implied in this Agreement, or any document
or
instrument delivered in connection herewith, Parent, Holdings, Merger Sub and
each of the H&F Investors and agree and acknowledge that no Rollover Related
Party shall have any obligations hereunder and that, notwithstanding that the
Rollover Investors or any of their permitted assigns may be a partnership or
limited liability company, no recourse hereunder or under any documents or
instruments delivered in connection herewith shall be had against any former,
current or future director, officer, employee, agent, general or limited
partner, manager, member, stockholder, Affiliate or assignee, in each case,
in
such person’s capacity as such, of any of the Investors (each, other than the
Rollover Investors, a “Rollover Related Party”), whether by or through
attempted piercing of the corporate (or limited liability company or limited
partnership) veil, by or through a claim by or on behalf of any of the Rollover
Investors against any Rollover Related Party, by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute,
regulation or applicable Law, or
12
otherwise. It
is expressly agreed and acknowledged that no personal liability whatsoever
shall
attach to, be imposed on or otherwise be incurred by any Rollover Related Party
for any obligations of any of the Investors or any of their successors or
permitted assigns under this Agreement or any documents or instrument delivered
in connection herewith or for any claim based on, in respect of, or by reason
of
such obligations or their creation.
4.5. Rollover
Investors’ Representative. Each of the Rollover Investors hereby
irrevocably appoints Getty Investments L.L.C. as such Rollover Investor’s proxy
and attorney-in-fact with full power of substitution (the
“Representative”), to act on behalf of each Rollover Investor with
respect to any matter (including any amendments or waivers) arising under this
Agreement, the Rollover Commitment Letter and the Voting
Agreement. Each of Parent, Merger Sub, Holdings and the H&F
Investors shall be entitled to deal exclusively with the Representative with
respect to any matters (including any amendments or waivers) arising under
this
Agreement, the Rollover Commitment Letter and the Voting Agreement and shall
be
entitled to rely, without independent investigation whatsoever, on (i) the
power
and authority of the Representative to act on behalf of, and to bind, all
Rollover Investors, and (ii) any document executed or purported to be executed
on behalf of the Rollover Investors by the Representative and any other action
taken or purported to be taken on behalf of the Rollover Investors by the
Representative, in each case as fully binding upon the Rollover
Investors. Any notices delivered to the Representative under this
Agreement, the Rollover Commitment Letter and the Voting Agreement shall be
deemed to constitute notices to all of the other Rollover
Investors. None of Parent, Merger Sub, Holdings or the H&F
Investors shall have any liability to any Rollover Investor for any acts or
omissions of the Representative, or any acts or omissions taken or not taken
by
any Persons at the direction of the Representative. The
Representative shall not be entitled to a fee for its services as Representative
hereunder.
4.6. Governing
Law; Consent to Jurisdiction. (a) This Agreement, 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 Agreement (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 Agreement or as an inducement to enter into this Agreement)
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 Agreement
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 Agreement 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 Agreement or the
transactions contemplated hereby may not be enforced in or by such
courts.
13
(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 set forth in, and the manner
contemplated by, Section 4.16 of this Agreement.
(d) The
consents to jurisdiction set forth in this Section 4.6 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 4.6 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.
4.7. WAIVER
OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS LETTER AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF
OR
RELATING TO THIS LETTER AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
4.8. Exercise
of Rights and Remedies; Waivers. No delay of or omission in the
exercise of any right, power or remedy accruing to any party as a result of
any
breach or default by any other party under this Agreement shall impair any
such
right, power or remedy, nor shall it be construed as a waiver of or acquiescence
in any such breach or default, or of any similar breach or default occurring
later; nor shall any such delay, omission nor waiver of any single breach or
default be deemed a waiver of any other breach or default occurring before
or
after that waiver. Any agreement on the part of a party hereto to any
waiver shall be valid only if set forth in an instrument in writing signed
on
behalf of such party.
4.9. Other
Agreements. This Agreement, together with the agreements
referenced herein, constitutes the entire agreement, and supersedes all prior
agreements, understandings, negotiations and statements, both written and oral,
among the parties or any of their Affiliates with respect to the subject matter
contained herein except for such other agreements as are referenced herein
which
shall continue in full force and effect in accordance with their
terms.
4.10. Assignments. The
rights and obligations of the parties hereunder shall not be assigned without
the prior consent of the other parties hereto; provided, however,
that (a) in connection with any transfer of the right and obligation to
fund its Commitments to any Fund Affiliates pursuant to and in compliance with
Section 2.3.2, the H&F Investors may assign their rights and
obligations under this Agreement to such Fund Affiliates without the prior
written consent of the other parties hereto, provided that no such assignment
shall relieve the assigning party of its obligations hereunder if the assignee
does not perform its obligations, and (b) in connection with any transfer of
the
right and obligations to fund its Commitments to any Permitted Family Transferee
pursuant to and in compliance with Section 2.3.3, the October 1993 Trust may
assign its rights and obligations under this Agreement to such Permitted Family
Transferee, provided that no such assignment shall relieve the assigning party
of its obligations
14
hereunder
if the assignee does not perform its obligations. Any assignment in
derogation of the foregoing shall be null and void.
4.11. Confidentiality. Each
party hereto agrees to, and shall cause its affiliates, directors, officers,
employees, agents, advisors and representatives (“Representatives”) to,
keep this Agreement and any information supplied by or on behalf of any of
the
other parties to this Agreement, confidential (“Confidential
Information”) and to use, and cause its Representatives to use, the
Confidential Information only in connection with the Merger and the transactions
contemplated hereby; provided, however, that the
term “Confidential Information” does not include information that (a) is
already in such party’s possession, provided that such information is not
subject to another confidentiality agreement with or other obligation of secrecy
to any person, (b) is or becomes generally available to the public other
than as a result of a disclosure, directly or indirectly, by such party or
such
party’s Representatives, or (c) is or becomes available to such party on a
non-confidential basis from a source other than any of the parties hereto or
any
of their respective Representatives, provided that such source is not known
by
such party to be bound by a confidentiality agreement with or other obligation
of secrecy to any person; providedfurther,
however, that nothing in this Agreement, the Voting
Agreement,
the Option Agreement or the Commitment Letters shall prevent any party hereto
from disclosing Confidential Information (i) upon the order of any court or
administrative agency, (ii) upon the request or demand of any regulatory agency
or authority having jurisdiction over such party, (iii) to the extent required
by Law, (iv) to the extent necessary in connection with the exercise of any
remedy, hereunder, (v) in connection with a transfer permitted by
Section 2.3.2 and (vi) to such party’s Representatives that need to know
such information (it being understood and agreed that, in the case of clause
(i), (ii) or (iii), such party shall notify the other parties hereto of the
proposed disclosure as far in advance of such disclosure as practicable and
use
reasonable efforts to ensure that any information so disclosed is accorded
confidential treatment, when and if available). Notwithstanding
anything to the contrary herein, the parties acknowledge and agree that nothing
in the Ancillary Agreements shall prohibit or restrict any of the Investors
from
complying with their obligations under the Securities Exchange Act of 1934,
as
amended, as determined in good faith by such party after consultation with
its
counsel. No party shall have any obligation to seek confidential
treatment of any information required to be disclosed by the Securities and
Exchange Commission as determined in good faith by such party after consultation
with its counsel.
4.12. Publicity. Each
party hereto will coordinate in good faith any and all press releases and other
public relations matters with respect to the Merger and the transactions
contemplated hereby. Unless otherwise required by Law, no party
hereto may issue any press release or otherwise make any public announcement
or
comment on the Merger Agreement, this Agreement and the transactions
contemplated thereby and hereby without the prior consent of the H&F
Investors.
4.13. Counterparts. This
Agreement may be executed in any number of counterparts, all of which will
be
one and the same agreement. This Agreement will become effective when each
party
to this Agreement will have received counterparts signed by all of the other
parties.
4.14. Interpretation. The
Section headings contained in this Agreement are inserted for convenience
only and will not affect in any way the meaning or interpretation of this
Agreement. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. If
15
an
ambiguity or question of intent or interpretation arises, this Agreement will
be
construed as if drafted jointly by the parties and no presumption or burden
of
proof will arise favoring or disfavoring any party because of the authorship
of
any provision of this Agreement. The words such as “herein,”
“hereof,” and “hereunder” refer to this Agreement as a whole and
not merely to a subdivision in which such words appear unless the context
requires otherwise. The word “including,” or any variation
thereof means “including, without limitation” and shall not be construed
to limit any general statement that it follows to the specific or similar items
or matters immediately following it.
4.15. 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 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.
4.16. Notices. All
notices and other communications under this Agreement shall be in writing and
shall be deemed given (a) when delivered personally by hand (with written
confirmation of receipt), (b) when sent by facsimile (with written
confirmation of transmission), or (c) one (1) Business Day following
the day sent by overnight courier (with written confirmation of receipt), in
each case at the following addresses and facsimile numbers (or to such other
address or facsimile number as a party may have specified by notice given to
the
other parties pursuant to this provision):
If
to the
H&F Investors, Parent, Holdings or Merger Sub, to:
c/o
Hellman & Xxxxxxxx LLC
Xxx
Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: C.
Xxxxxx Xxxxxxx
Xxxxx
Xxxx, Esq.
Facsimile: (000)
000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxx
X. Xxxxxxx
Facsimile: (000)
000-0000
16
and
Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxxx Xxxxxx
Xxxx
Xxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxxxx
Facsimile: (000)
000-0000
If
to any
of the Rollover Investors, to:
x/x
Xxxxx
Xxxxxxxxxxx X.X.X.
x/x
Xxxxxx
Xxxxx Investments
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Xxx
Xxxxx
Xxxx Xxxxxxx
Facsimile:
(000) 000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxx
Xxxx
& Xxxxxxxx
0000
Xx
Xxxxxx Xxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx
Xxxxx
Xxxxx Xxxxx
Facsimile:
(000) 000-0000
4.17. No
Partnership. Nothing in this letter agreement shall be deemed to
constitute a partnership between any of the parties, nor constitute any part
the
agent of any other party for any purpose.
[Signature
pages follow]
17
IN
WITNESS
WHEREOF, each of the undersigned has duly executed this Agreement (or caused
this Agreement to be executed on its behalf by its officer or representative
thereunto duly authorized) under seal as of the date first above
written.
|
ABE
INVESTMENT, L.P.
By: Abe
GP LLC, its general partner
|
|
By:
Xxxxxxx & Xxxxxxxx Capital Partners VI, L.P.,
its
managing member
|
||||||
|
By:
Xxxxxxx & Xxxxxxxx Investors VI, L.P.,
its
general partner
|
||||||
|
By:
Xxxxxxx & Xxxxxxxx LLC,
its
general partner
|
||||||
|
By:
|
/s/
Xxxxxxx Xxx
|
|||||
|
Name:
|
Xxxxxxx
Xxx
|
|||||
|
Title:
|
Managing
Director
|
|||||
|
ABE
INVESTMENT HOLDINGS, INC.
|
|||
|
By:
|
/s/
Xxxxxxx Xxx
|
||
|
Name:
|
Xxxxxxx
Xxx
|
||
|
Title:
|
Treasurer
and Assistant Secretary
|
||
|
ABE
ACQUISITION CORP.
|
|||
|
By:
|
/s/
Xxxxxxx Xxx
|
||
|
Name:
|
Xxxxxxx
Xxx
|
||
|
Title:
|
Treasurer
and Assistant Secretary
|
||
[Interim
Investors Agreement Signature Page]
|
XXXXXXX
& XXXXXXXX CAPITAL
PARTNERS
VI, L.P.
|
||||||
|
By:
|
Xxxxxxx
& Xxxxxxxx Investors VI, L.P.,
its
general partner
|
|||||
|
By:
|
Xxxxxxx
& Xxxxxxxx LLC,
its
general partner
|
|||||
|
By:
|
/s/
Xxxxxxx Xxx
|
|||||
|
Name:
|
Xxxxxxx
Xxx
|
|||||
|
Title:
|
Managing
Director
|
|||||
|
XXXXXXX
& XXXXXXXX CAPITAL
PARTNERS
VI (PARALLEL), L.P.
|
||||||
|
By:
|
Xxxxxxx
& Xxxxxxxx Investors VI, L.P.,
its
general partner
|
|||||
|
By:
|
Xxxxxxx
& Xxxxxxxx LLC,
its
general partner
|
|||||
|
By:
|
/s/
Xxxxxxx Xxx
|
|||||
|
Name:
|
Xxxxxxx
Xxx
|
|||||
|
Title:
|
Managing
Director
|
|||||
|
XXXXXXX
& XXXXXXXX CAPITAL
EXECUTIVES
VI, L.P.
|
||||||
|
By:
|
Xxxxxxx
& Xxxxxxxx Investors VI, L.P.,
its
general partner
|
|||||
|
By:
|
Xxxxxxx
& Xxxxxxxx LLC,
its
general partner
|
|||||
|
By:
|
/s/
Xxxxxxx Xxx
|
|||||
|
Name:
|
Xxxxxxx
Xxx
|
|||||
|
Title:
|
Managing
Director
|
|||||
[Interim
Investors Agreement Signature Page]
|
XXXXXXX
& XXXXXXXX CAPITAL
ASSOCIATES
VI, L.P.
|
||||||
|
By:
|
Xxxxxxx
& Xxxxxxxx Investors VI, L.P.,
its
general partner
|
|||||
|
By:
|
Xxxxxxx
& Xxxxxxxx LLC,
its
general partner
|
|||||
|
By:
|
/s/
Xxxxxxx Xxx
|
|||||
|
Name:
|
Xxxxxxx
Xxx
|
|||||
|
Title:
|
Managing
Director
|
|||||
[Interim
Investors Agreement Signature Page]
|
GETTY
INVESTMENTS L.L.C.
|
||
|
By:
|
/s/
Xxx X. Xxxxx
|
|
|
Xxx
X. Xxxxx
Officer
|
||
|
CHEYNE
WALK TRUST
|
||
|
Remainderman
Ltd., as Trustee,
|
||
|
By:
|
Xxxxxx
Place Investments,
as
Administrative Agent
|
|
|
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
|
||
|
GFT
LLC, as Trustee
|
||
|
By:
|
Xxxxxx
Place Investments,
as
Administrative Agent
|
|
|
By:
|
/s/
Xxx X. Xxxxx
|
|
|
Xxx
X. Xxxxx
Chief
Investment Officer
|
||
|
THE
OCTOBER 1993 TRUST
|
||
|
RBC
Trustee (CI) Limited, as Trustee
|
||
|
By:
|
/s/
Xxxxxx Xxxxx Xxxxxxx Le Vesconte
|
|
|
Xxxxxx
Xxxxx Xxxxxxx Le Vesconte
Authorised
Signatory
|
||
|
THE OPTIONS
SETTLEMENT
|
||
|
RBC
Trustee (CI) Limited, as Trustee
|
||
|
By:
|
/s/
Xxxxxx Xxxxx Xxxxxxx Le Vesconte
|
|
|
Xxxxxx
Xxxxx Xxxxxxx Le Vesconte
Authorised
Signatory
|
||
|
/s/
Xxxx X. Getty
|
||
|
Xxxx
X. Getty
|
||
[Interim
Investors Agreement Signature Page]
Exhibit
A
|
Getty
Investments L.L.C.
|
8,273,301
|
|
Cheyne
Walk Trust
|
24,377
|
|
Xxxxxx
Family Trust B
|
7,313
|
|
Xxxx
X. Getty (personal shares)
|
15,000
|
|
Xxxx
X. Getty (Restricted Stock Units)
|
1,998
|
|
The
October 1993 Trust
|
622,602
|
|
The
Options Settlement
|
446,350
|
Of
the
8,273,301 shares of the Company owned by Getty Investments LLC, 62,471 are
registered in book entry form at The Northern Trust Company as custodian and
would be held under the “street name” for The Northern Trust
Company. The remaining 8,210,830 shares are certificated and
registered in the name of Getty Investments LLC.
The
24,377
shares of the Company owned by Cheyne Walk Trust are registered in book entry
form at The Northern Trust Company as custodian and would be held under the
“street name” for The Northern Trust Company.
The
7,313
shares of the Company owned by Xxxxxx Family Trust B are registered in book
entry form at The Northern Trust Company as custodian and would be held under
the “street name” for The Northern Trust Company.
The
15,000
shares held by Xxxx Xxxxx are registered in book entry form at Xxxxxx Xxxxxxx
account in San Francisco and would be held under the “street name” for Xxxxxx
Xxxxxxx.
In
the
case of shares issued to a Rollover Investor that is a trust, the name of the
trustee acting on behalf of the trust also may be shown on the account or on
the
share certificate.
