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EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
AMONG
XXXXXXX KODAK COMPANY
AND
KODAK S.A.
AND
GETTY IMAGES, INC.
DATED AS OF SEPTEMBER 20, 1999
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TABLE OF CONTENTS
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Article I. DEFINITIONS...............................................................1
Section 1.1 Certain Definitions..............................................1
Section 1.2 Interpretation...................................................6
Article II. PURCHASE AND SALE........................................................7
Section 2.1 Purchase and Sale of Shares......................................7
Section 2.2 Purchase Price...................................................7
Section 2.3 Purchase by Getty's Affiliates; Guaranty.........................8
Section 2.4 Inability to Obtain Consents and Approvals.......................8
Section 2.5 Closing..........................................................9
Section 2.6 Buyer's Financing; Getty Note....................................9
Article III. REPRESENTATIONS AND WARRANTIES OF SELLER...............................10
Section 3.1 Organization and Power of Seller................................11
Section 3.2 Organization and Power of TIB and TIB France....................11
Section 3.3 Capital Structure...............................................11
Section 3.4 TIB Subsidiaries and Investments................................12
Section 3.5 Corporate Authorization.........................................13
Section 3.6 Approvals.......................................................13
Section 3.7 Non-Contravention...............................................13
Section 3.8 Binding Effect..................................................14
Section 3.9 Financial Statements; Certain Liabilities.......................14
Section 3.10 Title to Assets................................................15
Section 3.11 Compliance With Laws...........................................15
Section 3.12 Litigation and Claims..........................................15
Section 3.13 Intellectual Property..........................................16
Section 3.14 Images.........................................................20
Section 3.15 Tax Matters....................................................22
Section 3.16 Employee Benefits..............................................24
Section 3.17 Environmental Matters..........................................25
Section 3.18 Labor Matters..................................................26
Section 3.19 Material Contracts.............................................27
Section 3.20 Uniform Franchise Offering Circular............................28
Section 3.21 Relationships with Franchisees, Licensees, Customers,
Suppliers, Etc ..............................................28
Section 3.22 Absence of Certain Developments................................28
Section 3.23 Certain Interests..............................................30
Section 3.24 Insurance Policies.............................................31
Section 3.25 Banks..........................................................31
Section 3.26 Year 2000 Compliance...........................................31
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TABLE OF CONTENTS (cont.)
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Section 3.27 Accounts Receivable............................................31
Section 3.28 Books and Records..............................................31
Section 3.29 No Misrepresentation...........................................32
Section 3.30 Finders' Fees..................................................32
Section 3.31 Buyer's Representations and Warranties.........................32
Article IV. REPRESENTATIONS AND WARRANTIES OF BUYER.................................32
Section 4.1 Organization and Power of Buyer.................................32
Section 4.2 Corporate Authorization.........................................33
Section 4.3 Approvals.......................................................33
Section 4.4 Non-Contravention...............................................33
Section 4.5 Binding Effect..................................................33
Section 4.6 Financing.......................................................33
Section 4.7 Investment Intent...............................................34
Section 4.8 Litigation and Claims...........................................34
Section 4.9 Finders' Fees...................................................34
Section 4.10 Seller's Representations and Warranties........................34
Article V. CERTAIN COVENANTS........................................................34
Section 5.1 Access..........................................................34
Section 5.2 Conduct of Business.............................................35
Section 5.3 Reasonable Efforts; Further Assurances..........................37
Section 5.4 Antitrust and Competition Laws..................................38
Section 5.5 Seller's Trademarks and Other Intellectual Property.............38
Section 5.6 Confidentiality.................................................39
Section 5.7 Public Disclosure...............................................40
Section 5.8 Notice of Certain Matters.......................................40
Section 5.9 Exclusivity.....................................................40
Section 5.10 Certain Financial Statement Matters............................41
Section 5.11 Intercompany Accounts..........................................41
Section 5.12 Obligations Under IBM Contracts................................41
Section 5.13 Year 2000 Compliance Prior to Closing..........................41
Section 5.14 Certain Actions by the Company Prior to Closing................41
Section 5.15 Certain Actions by Buyer Prior to Closing......................41
Article VI. COVENANTS AS TO EMPLOYMENT MATTERS......................................42
Section 6.1 Certain Definitions.............................................42
Section 6.2 Certain Employment Matters......................................43
Section 6.3 [intentionally omitted].........................................43
Section 6.4 Additional Obligations of Buyer.................................43
Section 6.5 Consultation....................................................44
Section 6.6 Compliance with WARN, Etc.......................................44
Section 6.7 Retention Plan..................................................45
Section 6.8 Certain Retained Liabilities....................................45
Section 6.9 Non-Solicitation................................................45
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TABLE OF CONTENTS (cont.)
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Article VII. COVENANTS AS TO TAX MATTERS............................................46
Section 7.1 Proration of Taxes..............................................46
Section 7.2 Transfer Taxes..................................................46
Section 7.3 Tax Returns.....................................................46
Section 7.4 Information to be Provided by Buyer.............................47
Section 7.5 Contest Provisions..............................................47
Section 7.6 Certain Post-Closing Settlement Payments........................47
Section 7.7 Post-Closing Actions That Affect Seller's Liability for Taxes...48
Section 7.8 Termination of Tax Allocation Agreements........................48
Section 7.9 Assistance and Cooperation......................................48
Section 7.10 Section 338(h)(10) Election....................................49
Article VIII. CONDITIONS TO CLOSING.................................................50
Section 8.1 Conditions to the Obligations of Buyer and Seller...............50
Section 8.2 Further Conditions to the Obligation of Buyer...................50
Section 8.3 Further Conditions to the Obligation of Seller..................52
Article IX. INDEMNIFICATION; REMEDIES...............................................52
Section 9.1 Indemnification by Kodak........................................52
Section 9.2 Indemnification by Getty........................................53
Section 9.3 Indemnification Procedures......................................54
Section 9.4 Equitable and Other Special Remedies............................56
Section 9.5 Sole Remedy.....................................................57
Article X. TERMINATION..............................................................57
Section 10.1 Termination....................................................57
Section 10.2 Effect of Termination..........................................58
Article XI. IN GENERAL..............................................................58
Section 11.1 Notices........................................................58
Section 11.2 Amendment; Waiver..............................................59
Section 11.3 No Assignment or Benefit to Third Parties......................59
Section 11.4 Survival.......................................................60
Section 11.5 Return of Information..........................................60
Section 11.6 Expenses.......................................................61
Section 11.7 Schedules......................................................61
Section 11.8 Dispute Resolution.............................................61
Section 11.9 Governing Law; Submission to Jurisdiction; Selection of
Forum .......................................................61
Section 11.10 Inferences....................................................62
Section 11.11 Severability..................................................62
Section 11.12 Entire Agreement..............................................62
Section 11.13 Headings......................................................63
Section 11.14 Counterparts..................................................63
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TABLE OF CONTENTS (cont.)
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TABLE OF EXHIBITS AND SCHEDULES.....................................................65
INDEX OF DEFINED TERMS..............................................................67
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of September 20, 1999 by and among XXXXXXX KODAK
COMPANY, a New Jersey corporation ("KODAK"), and KODAK S.A., a French
corporation ("KODAK FRANCE") (collectively, "SELLER"), and GETTY IMAGES, INC., a
Delaware corporation ("GETTY" or "BUYER").
WHEREAS, Kodak owns all of the outstanding capital stock of The Image
Bank, Inc., a New York corporation ("TIB"), and (but for directors' qualifying
shares) Kodak France owns all of the outstanding capital stock of The Image Bank
France S.A., a French corporation ("TIB FRANCE");
WHEREAS, TIB, TIB France and their Subsidiaries (collectively, the
"COMPANY") is engaged worldwide in its business including the licensing of
visual images to Persons in the advertising, design, publishing, corporate,
broadcast and documentary/editorial markets (the "BUSINESS"); and
WHEREAS, the parties desire that Seller sell to Buyer, and that Buyer
purchase from Seller, all of the outstanding capital stock of TIB and TIB
France, as more specifically provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and undertakings contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS. In addition to the other definitions
contained in this Agreement, the following terms will, when used in this
Agreement, have the following respective meanings:
"AFFILIATES" means, with respect to any Person, any Persons directly or
indirectly controlling, controlled by, or under common control with, such other
Person at any time during the period for which the determination of affiliation
is being made. For purposes of this definition, the term "control" means, with
respect to any Person, the possession, directly or indirectly, of the power to
direct or cause the direction of management policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"AGREEMENT" means this Stock Purchase Agreement, including all Exhibits
and Schedules hereto, as the same may be amended or supplemented from time to
time in accordance with the terms hereof.
"ANTITRUST LAWS" means and includes the Xxxxxxx Act, as amended, the
Xxxxxxx Act, as amended, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, the Federal Trade Commission Act, as amended, EU competition
Laws, national competition
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Laws and all other U.S. or non-U.S. Laws that are designed or intended to
prohibit, restrict or regulate actions having the purpose or effect of
monopolization or restraint of trade.
"AUDITED FINANCIAL STATEMENTS" means the consolidated balance sheet,
statement of operations and statement of cash flows of the Company as of and for
the year ended December 31, 1998, together with the notes and schedules thereto,
certified to the Company, Seller and Buyer and accompanied by the unqualified
opinion of Seller's Auditors.
"BOOKS AND RECORDS" means books, ledgers, files, reports, operating
records, accounting records, price lists, correspondence and other forms of
information relating in any manner to the business, assets, properties or
operations, or the business, financial or statistical history, of a Person,
whether in written, electronic or magnetic form.
"BUYER" has the meaning given it in the heading paragraph of this
Agreement and the further meaning given it by Section 2.3(a).
"CLOSING" means the closing and consummation of the Transaction.
"CLOSING DOCUMENTS" means (a) with respect to Seller, all agreements,
documents and instruments required to be delivered by Seller at Closing, as set
forth in Section 8.2, and (b) with respect to Buyer, all agreements, documents
and instruments required to be delivered by Buyer at Closing, as set forth in
Sections 2.6 and 8.3.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY BENEFIT PLANS" means those benefit plans, contracts, agreements
or arrangements of the Company, including "employee benefit plans" within the
meaning of section 3(3) of ERISA, plans of deferred compensation, and
employment, retention, termination, severance, bonus, incentive compensation,
disability, salary continuation, employee stock purchase, stock option or other
obligations of the Company and as to which the Company has an obligation,
contingent or otherwise, after Closing.
"DEPOSIT" means the deposit in the amount of $1,000,000 paid by Buyer to
Seller on August 4, 1999, together with interest thereon from August 4, 1999 to
(but not including) the date of payment, calculated, on a 365-day basis, at the
average of the six-month Interbank Official Rates with respect to deposits in
dollars which appear on the Telerate Page 3750 as of 11:00 a.m., London time,
each business day from and including August 4, 1999 to two business days in
London preceding the date of payment.
"ENCUMBRANCES" means liens, charges, encumbrances, security interests,
options or any other restrictions or third party rights.
"ENVIRONMENT" means all air, surface water, groundwater, drinking water or
land, including land surface or subsurface.
"ENVIRONMENTAL LAW" means any Law relating to the Environment, natural
resources, or public or employee health and safety and includes the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C.
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Section 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 6901 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., the Clean Air Act, 33 U.S.C. Section 2601 et seq., the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq., the Federal Insecticide, Fungicide,
and Rodenticide Act, 7 U.S.C. Section 136 et seq., the Oil Pollution Act of
1990, 33 U.S.C. Section 2701 et seq., and the Occupational Safety and Health
Act, 29 U.S.C. Section 651 et seq., as such Laws have been amended or
supplemented, and the regulations promulgated pursuant thereto, and all
analogous state or local statutes.
"ENVIRONMENTAL PERMITS" means all approvals, consents, permits, licenses,
registrations, certificates and other authorizations required by any applicable
Environmental Law, including: (a) pollution or the protection of the
Environment, occupational health or safety, including those relating to the
emission, Release or discharge of any Hazardous Substances into the Environment;
(b) the manufacture, processing, distribution, use, treatment, storage,
disposal, generation, packaging, transport or handling of Hazardous Substances;
or (c) the containment, cleanup or other remediation of Hazardous Substances
from any real property.
"ENVIRONMENTAL COSTS AND LIABILITIES" means any and all losses,
liabilities, obligations, damages, fines, penalties, judgments, actions, claims,
costs and expenses (including reasonable fees, disbursements and expenses of
legal counsel, experts, engineers and consultants and the costs of investigation
and feasibility studies and Remedial Action) arising from or under any
Environmental Law or order or contract with any Governmental Entity or other
Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EU" means the European Union.
"EXECUTIVES" means Xxx Xxxx and Miles Gerstein.
"GAAP" means, at any time, generally accepted accounting principles,
methods and practices then set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants, and statements and pronouncements of the Financial Accounting
Standards Board or of such other entity as may then be approved by a significant
segment of the U.S. accounting profession.
"GETTY NOTE" means that certain promissory note of Getty in Kodak's favor,
in the form of Exhibit A, which may be delivered to Kodak at Closing as provided
by Section 2.6.
"GETTY SECURITY AGREEMENT " means a subordinated security agreement
between Getty, certain of Getty's Affiliates and Kodak in form and substance
reasonably similar (but for subordination provisions) to Getty's then-existing
security agreements with the holder(s) of its senior indebtedness and containing
customary terms and conditions, including those described on the term sheet
annexed as Exhibit B, which agreement may be delivered at Closing as provided by
Section 2.6.
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"GOVERNMENTAL AUTHORIZATIONS" means all licenses, permits, certificates
and other authorizations and approvals of any Governmental Entity required to
carry on the Business as currently conducted in the Ordinary Course under any
Law.
"GOVERNMENTAL ENTITY" means any U.S. or non-U.S. local, state, federal,
national, provincial, regional or other government, including each of their
respective branches, departments, agencies, courts, instrumentalities or other
subdivisions.
"HAZARDOUS SUBSTANCE" means any substance, material or waste which is
regulated by any Governmental Entity, including any material, substance or waste
which is defined as a "hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste," "restricted hazardous waste,"
"contaminant," "toxic waste" or "toxic substance" under any provision of
Environmental Law, which includes petroleum, petroleum products, asbestos, urea
formaldehyde and polychlorinated biphenyls.
"HISTORICAL FINANCIAL STATEMENTS" means: (a) the unaudited consolidated
balance sheet, statement of operations and statement of cash flows of the
Company as of and for the six months ended June 30, 1998, together with the
notes and schedules thereto (if any), reviewed by Seller's auditors; and (b) in
the event that Buyer requests the preparation thereof as provided by Section
5.10(b), the unaudited consolidated balance sheets, statements of operations and
statements of cash flows of the Company as of and for the years ended December
31, 1997 and/or December 31, 1996, together with the notes and schedules thereto
(if any), reviewed by Seller's auditors.
"INDEMNIFIED PARTIES" means, as appropriate in the context, either the
Buyer Indemnified Parties or the Seller Indemnified Parties.
"INDEMNIFYING PARTY" means a party providing indemnification pursuant to
Article IX.
"JUNE 30 FINANCIAL STATEMENTS" means the unaudited consolidated balance
sheet, statement of operations and statement of cash flows of the Company as of
and for the six months ended June 30, 1999, together with the notes and
schedules thereto (if any), reviewed by Seller's auditors.
"LAW" means any applicable law, statute, ordinance, rule, regulation,
code, order, judgment, injunction, decree or judicial or administrative doctrine
that is legally promulgated or issued by any Governmental Entity.
"LOSSES" means damages, claims, losses, charges, actions, suits,
proceedings, deficiencies, interest, penalties and reasonable costs and expenses
associated therewith (including reasonable attorneys' fees, litigation costs,
removal costs, remediation costs, closure costs, fines, penalties and expenses
of investigation and ongoing monitoring), in each case on an after-tax basis,
and has the further meaning given it by Section 9.3(a).
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"MATERIAL ADVERSE EFFECT" means an effect that is materially adverse to
the business, assets, liabilities, properties, condition or results of
operations of the Company taken as a whole.
"ORDINARY COURSE" means the conduct of the Business consistent with the
Company's normal and customary practices and procedures, so long as such
practices and procedures are in accordance with, and do not violate or conflict
with, any Laws.
"PERMITTED ENCUMBRANCES" means: (a) Encumbrances that secure or constitute
a liability that was recorded on the balance sheet included in the June 30
Financial Statements; (b) liens for Taxes, assessments and other governmental
charges not yet due and payable or due but not delinquent or being contested in
good faith by appropriate proceedings; (c) mechanics', carriers', workers',
repairmen's, statutory or common law liens being contested in good faith by
appropriate proceedings; (d) rights of third parties under all licenses in the
Owned Intellectual Property and Owned Images granted by the Company in the
Ordinary Course prior to the Closing Date; and (e) with respect to real
property: (i) easements, quasi-easements, covenants, rights-of-way or other
similar restrictions of record; (ii) zoning, building, subdivision or other
similar requirements or restrictions; and (iii) inchoate landlords' and similar
liens for amounts not yet due and payable and not relating to any breach or
default, none of which items described in this clause (e) materially impair the
value or interfere with the use of such real property for its current purposes
or purposes currently contemplated by the Company.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, a joint venture, an association, a trust or any other entity.
"RELEASE" means any past or present spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing of a Hazardous Substance into the indoor or outdoor Environment or
into or out of any property.
"REMEDIAL ACTION" means all actions, including any capital expenditures,
undertaken to: (a) clean up, remove, treat, contain or monitor any Hazardous
Substance; (b) prevent the Release or threat of Release, or minimize the further
Release, of any Hazardous Substance so it does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
Environment; (c) perform pre-remedial studies and investigations or
post-remedial monitoring and care; or (d) bring facilities of the Company on any
property owned, operated or leased by the Company and the operations conducted
by the Company thereon into compliance with all Environmental Laws and
Environmental Permits.
"REQUIRED APPROVALS" means, collectively, the consents, approvals,
waivers, authorizations, novations, notices and filings which are necessary for
the consummation of the Transaction and are (a) listed on Schedule 1.1(a), or
(b) required by any Antitrust Laws of the U.S., France or the EU to which
Seller, Buyer or the Company is subject.
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"SECURITIES LAWS" means and includes the Securities Act, state securities
or "blue sky" Laws, and all other U.S. and non-U.S. Laws that regulate the
offering, sale or disposition of securities.
"SELLER'S AUDITORS" means PricewaterhouseCoopers LLP, the auditors
regularly retained by Seller.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, joint venture, association, trust or
other entity of which such Person, directly or indirectly, owns more than 50
percent of the voting securities or other ownership interests (or such lesser
amount as has the power, direct or indirect, to elect a majority of the Board of
Directors or other governing body thereof).
"TAXES" means all taxes, charges, fees, imposts or other assessments
levied or imposed by any Governmental Entity, including income, gross receipts,
windfall profits, value added, severance, production, sales, use, license,
excise, franchise, employment, environmental, real property, personal property,
transfer, alternative minimum, estimated, withholding or other taxes, together
with any interest, additions or penalties with respect thereto and any interest
in respect of such additions or penalties, whether or not disputed or contested.
"TAX RETURNS" means all U.S. and non-U.S. reports and returns required to
be filed with respect to Taxes, including all attachments thereto.
"TIB FRANCE SHARES" means an aggregate of 99,006 shares, par value 50
French francs per share, of TIB France, that being all of the capital stock of
TIB France issued and outstanding.
"TIB SHARES" means an aggregate of 90 shares of the common stock, par
value $0.01 per share, of TIB, that being all of the capital stock of TIB issued
and outstanding.
"TRANSACTION" means, collectively, the parties' purchase and sale of the
TIB Shares and the TIB France Shares, and execution and delivery of the Closing
Documents, pursuant to this Agreement.
"TRANSFER TIME" means, with respect to each relevant locality, 12:01 a.m.
local time on the day following the Closing Date or such later date as is the
earliest date possible under local Law.
"U.S." means the United States of America.
SECTION 1.2 INTERPRETATION. In this Agreement, unless the express context
otherwise requires:
(a) the words "herein," "hereof" and "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular provision of
this Agreement;
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(b) references to "Article" or "Section" are to the respective
Articles and Sections of this Agreement, and references to "Exhibit" or
"Schedule" are to the respective Exhibits and Schedules annexed hereto;
(c) references to a "party" means a party to this Agreement and
include references to such party's successors and permitted assigns;
(d) references to a "third party" means a Person that is neither a
party to this Agreement nor an Affiliate thereof;
(e) the terms "dollars" and "$" means U.S. dollars;
(f) references to a party's "knowledge" or any similar phrase means
(i) in the case of Seller, the collective actual knowledge of the senior
management personnel of Seller and the Company after due inquiry, or (ii) in the
case of Buyer, the collective actual knowledge of the senior management
personnel of Getty after due inquiry;
(g) terms defined in the singular have a comparable meaning when used
in the plural, and vice versa;
(h) the masculine pronoun includes the feminine and the neuter, and
vice versa, as appropriate in the context; and
(i) wherever the word "include," "includes" or "including" is used in
this Agreement, it will be deemed to be followed by the words "without
limitation."
ARTICLE II. PURCHASE AND SALE
SECTION 2.1 PURCHASE AND SALE OF SHARES. On the terms and subject to the
conditions set forth herein, at Closing:
(a) Kodak will sell, transfer, convey, assign and deliver the TIB
Shares to Buyer, and Buyer will purchase and accept the TIB Shares from Kodak;
(b) Seller will cause each owner of TIB France Shares which are
directors' qualifying shares to sell, transfer, convey, assign and deliver such
directors' qualifying shares to such Persons as Buyer may designate, and Buyer
will cause such Persons to purchase and accept such directors' qualifying shares
from such owners; and
(c) Kodak France will sell, transfer, convey, assign and deliver the
remainder of the TIB France Shares to Buyer, and Buyer will purchase and accept
such TIB France Shares from Kodak France.
SECTION 2.2 PURCHASE PRICE. On the terms and subject to the conditions set
forth herein, at Closing Buyer will pay to Seller the aggregate amount of
$183,000,000 (the
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"PURCHASE PRICE") in payment for the TIB Shares and the TIB France Shares;
provided, however, that at Closing the Deposit will be credited against Buyer's
payment of the Purchase Price as provided by Section 2.6.
SECTION 2.3 PURCHASE BY GETTY'S AFFILIATES; GUARANTY. Getty may elect,
by notice given to Kodak within a reasonable time prior to Closing, to have any
or all of the TIB Shares or the TIB France Shares purchased by one or more of
Getty's Affiliates (each, an "AFFILIATE BUYER"), provided, however, that in such
event:
(a) all references in this Agreement to "BUYER" will mean and
include each Affiliate Buyer;
(b) such election will not result in any net greater cost
(including reasonable attorneys' fees) or obligation than Seller would otherwise
have had, nor relieve Getty of any of its obligations to Seller and its
Affiliates hereunder or under any Closing Document (including the Getty Note and
the Getty Security Agreement), nor modify the allocation of risk and
responsibility between Kodak and Getty;
(c) Getty will cause, and hereby fully and unconditionally
guarantees to Kodak, the full and prompt performance of all of the obligations
of the Affiliate Buyers (and of any and all of each Affiliate Buyer's successors
and permitted assigns) under this Agreement, and the execution and delivery by,
and the full and prompt performance of all of the covenants and other
obligations of, each Affiliate Buyer (and of any and all of such Affiliate
Buyer's successors and permitted assigns) under each Closing Document to which
such Affiliate Buyer is a party;
(d) Getty will pay all costs, expenses and fees, including all
reasonable attorneys' fees, which may be incurred by Seller in any successful
proceeding instituted to enforce the provisions of this Section 2.3 following
any default on the part of Getty or any Affiliate Buyer, and will execute and
deliver such other agreements, documents and instruments as may be reasonably
required to evidence further the provisions of this Section 2.3; and any
discharge or limitation of the obligations of an Affiliate Buyer under this
Agreement or any Closing Document by operation of Law or otherwise will not
discharge or limit Getty's obligations under this Section 2.3; and
(e) notwithstanding the foregoing, the Getty Note and the
Getty Security Agreement, if deliverable as provided by Section 2.6, will be
executed and delivered by Getty.
SECTION 2.4 INABILITY TO OBTAIN CONSENTS AND APPROVALS.
(a) Both prior and subsequent to Closing, the parties will use
their commercially reasonable efforts, and cooperate with each other, to obtain
promptly all Required Approvals and all other consents, approvals, waivers,
authorizations, novations, notices and filings which are necessary for the
effectiveness after Closing of any Material Contract or Licensed Intellectual
Property. All filing, recordation and similar fees and
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Taxes payable to Governmental Entities will be paid by the party obligated by
Law to pay such amounts. Kodak and Getty will, in equal portions not to exceed
$250,000 each, pay any and all additional fees or charges (howsoever
denominated) required by any Persons other than Governmental Entities in
connection with obtaining any Required Approval or any other consents,
approvals, waivers, authorizations, novations, notices and filings which are
necessary for the effectiveness after Closing of any Material Contract or
Licensed Intellectual Property.
(b) To the extent that: (i) any Required Approval or other
consent, approval, waiver, authorization, novation, notice or filing which is
necessary for the effectiveness after Closing of any Material Contract or
Licensed Intellectual Property cannot be obtained or made and, as a result
thereof, the full benefits of such Material Contract or Licensed Intellectual
Property cannot be retained by the Company following Closing; and (ii) if such
consent, approval, waiver, authorization, novation, notice or filing is a
Required Approval, Buyer elects to close the Transaction notwithstanding the
failure to receive the same; then, if Buyer so requests, Buyer and Seller will
cooperate with each other and enter into such mutually agreeable, reasonable and
lawful arrangements (including subcontracting, subleasing or sublicensing, if
permitted) to provide to the parties the economic (taking into account all
burdens and benefits, including Tax costs and benefits) and operational
equivalent, to the extent permitted, of retaining for the Company the full
benefit of such Material Contract or Licensed Intellectual Property, as the case
may be, and the performance by the Company of all obligations under such
Material Contract or Licensed Intellectual Property; provided, however, that
Buyer and Seller will not enter into such an arrangement with respect to any
Material Contract or Licensed Intellectual Property which is no longer in full
force and effect; and provided further that such economic and operational
equivalent does not include the provision of lost revenues or profits in the
event that any Person (other than the Company) terminates a Material Contract,
Licensed Intellectual Property or other prior relationship with the Company by
reason of the consummation of the Transaction. Seller will pay to Buyer, when
received, all income, proceeds and other monies received by Seller from third
parties to the extent related to the Company's intended rights in any such
Material Contract or Licensed Intellectual Property, as contemplated by this
Section 2.4(b).
SECTION 2.5 CLOSING. Closing will take place at the offices of counsel
to Buyer, Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at
9:00 a.m., local time, on a mutually agreed date, as soon as practicable after
the conditions set forth in Article VIII have been satisfied or waived, or on
such other date, or at such other time or place, as the parties may mutually
agree. The date in the U.S. on which Closing occurs is called the "CLOSING
DATE." The required deliveries at Closing are set forth in Section 2.6 and in
Article VIII.
SECTION 2.6 BUYER'S FINANCING; GETTY NOTE.
(a) On or before December 15, 1999, at Buyer's election, Buyer will
either:
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(i) effect Closing by paying to Seller the Purchase Price
(net of the Deposit) in federal funds;
(ii) effect Closing by: (A) paying to Seller in federal funds
the greater of (x) $91,000,000 or (y) the total amount of capital, up to a
maximum of the Purchase Price (net of the Deposit), theretofore raised by Getty
in the debt and equity markets, including the proceeds of Getty's senior
indebtedness (other than $50,000,000 of senior indebtedness incurred for working
capital and other non-acquisition purposes); and (B) delivering to Seller (x)
the Getty Note in the principal amount of the balance of the Purchase Price (net
of the Deposit), duly executed by Getty, and (y) the Getty Security Agreement,
duly executed by Getty and each Affiliate of Getty that is a necessary party
thereto;
(iii) extend Closing, and all of the terms of this Agreement,
until February 15, 2000 by paying to Seller in federal funds a non-refundable
fee of $2,000,000; or
(iv) terminate this Agreement by paying to Seller in federal
funds a non-refundable fee of $4,000,000, in which event Seller will also retain
the Deposit.
(b) In the event that Buyer extends Closing as provided by
Section 2.6(a)(iii) (but only in such event), then on or before February 15,
2000, at Buyer's election, Buyer will either:
(i) effect Closing by paying to Seller the Purchase Price
(net of the Deposit) in federal funds;
(ii) effect Closing by: (A) paying to Seller in federal funds
the greater of (x) $91,000,000 or (y) the total amount of capital, up to a
maximum amount equal to the Purchase Price (net of the Deposit), theretofore
raised by Getty in the debt and equity markets, including the proceeds of
Getty's senior indebtedness (other than $50,000,000 of senior indebtedness
incurred for working capital and other non-acquisition purposes); and (B)
delivering to Seller (x) the Getty Note in the principal amount of the balance
of the Purchase Price (net of the Deposit), duly executed by Getty, and (y) the
Getty Security Agreement, duly executed by Getty and each Affiliate of Getty
that is a necessary party thereto; or
(iii) terminate this Agreement by paying to Seller in federal
funds a non-refundable fee of $2,000,000, in which event Seller will retain both
the non-refundable fee provided by Section 2.6(a)(iii) and the Deposit.
(c) Under all circumstances, each non-refundable fee provided
by this Section 2.6, when paid to Seller, will be and remain the property of
Seller as liquidated damages and not as a penalty, and Buyer will have no right
whatsoever to credit any such non-refundable fee against payment of the Purchase
Price or to receive any return thereof, whether upon termination of this
Agreement or otherwise. Under no circumstances will
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the Deposit be credited against the payment of any non-refundable fee provided
by this Section 2.6.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER
Kodak represents and warrants to Buyer as follows:
SECTION 3.1 ORGANIZATION AND POWER OF SELLER. Kodak is a corporation
duly organized, validly existing and in good standing under the laws of New
Jersey and has all requisite corporate power and authority to own and operate
its assets, to carry on its business as currently conducted, to consummate the
Transaction and to perform its obligations hereunder. Kodak is duly qualified to
do business and (in the case of U.S. jurisdictions) is in good standing as a
foreign corporation in each jurisdiction where such qualification is required,
except for failures to be so qualified or in good standing, as the case may be,
that would not prevent consummation of the Transaction or materially impair the
ability of Kodak to perform its obligations hereunder. Kodak France is a
corporation duly organized and validly existing under the laws of France and has
all requisite corporate power and authority to own and operate its assets, to
carry on its business as currently conducted, to consummate the Transaction and
to perform its obligations hereunder.
SECTION 3.2 ORGANIZATION AND POWER OF TIB AND TIB FRANCE.
(a) TIB is a corporation duly organized, validly existing and
in good standing under the laws of New York and has all requisite corporate
power and authority to own and operate its assets and to carry on, directly or
indirectly through TIB France and the TIB Subsidiaries, the Business as
currently conducted. TIB is duly qualified to do business and (in the case of
U.S. jurisdictions) is in good standing as a foreign corporation in each
jurisdiction where such qualification is required, except for failures to be so
qualified or in good standing, as the case may be, that would not have a
Material Adverse Effect.
(b) TIB France is a corporation duly organized and validly
existing under the laws of France and has all requisite corporate power and
authority to own and operate its assets and to carry on its portion of the
Business as currently conducted. TIB France is duly qualified to do business as
a foreign corporation in each jurisdiction where such qualification is required,
except for failures to be so qualified that would not have a Material Adverse
Effect.
(c) Seller has heretofore delivered to Buyer true and complete
copies of the articles of incorporation and bylaws (or similar governing
documents) as in effect as of the date hereof, minute books and stock records of
TIB and TIB France.
SECTION 3.3 CAPITAL STRUCTURE.
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(a) The total authorized capital stock of TIB consists of 90
shares of common stock, par value $0.01 per share, all of which shares are
issued and outstanding. All of the TIB Shares have been duly authorized and
validly issued and are fully paid and non-assessable. Kodak owns all of the
issued and outstanding TIB Shares, free and clear of all Encumbrances except as
provided by section 630 of the New York Business Corporation Law. There are no
preemptive or other outstanding rights, options, warrants, conversion rights or
agreements or commitments (other than this Agreement) to issue or sell any
shares of capital stock of TIB or any securities or obligations convertible into
or exchangeable for, or giving any Person a right to subscribe for or acquire,
any shares of capital stock or other equity interests of TIB, and no securities
or obligations evidencing such rights are outstanding.
(b) The total authorized capital stock of TIB France consists
of 99,006 shares, par value 50 French francs per share, all of which shares are
issued and outstanding. All of the TIB France Shares have been duly authorized
and validly issued and are fully paid and non-assessable. Except for directors'
qualifying shares, which shares will be transferred at Closing to such Persons
as Buyer may designate, Kodak France owns all of the issued and outstanding TIB
France Shares, free and clear of all Encumbrances. There are no preemptive or
other outstanding rights, options, warrants, conversion rights or agreements or
commitments (other than this Agreement) to issue or sell any shares of capital
stock of TIB France or any securities or obligations convertible into or
exchangeable for, or giving any Person a right to subscribe for or acquire, any
shares of capital stock or other equity interests of TIB France, and no
securities or obligations evidencing such rights are outstanding.
SECTION 3.4 TIB SUBSIDIARIES AND INVESTMENTS.
(a) Schedule 3.4(a) sets forth a list of each Subsidiary of
TIB and each Subsidiary of TIB France (collectively, the "TIB SUBSIDIARIES"),
together with its jurisdiction of organization, and its authorized and
outstanding capital stock or other equity interests as of the date hereof.
Except as may be set forth on Schedule 3.4(a), each TIB Subsidiary is duly
organized, validly existing and (in the case of U.S. jurisdictions) in good
standing under the laws of its jurisdiction of organization and has all
requisite corporate or similar power and authority to own and operate its assets
and to carry on its portion of the Business as currently conducted, and is duly
qualified to do business and (in the case of U.S. jurisdictions) is in good
standing as a foreign corporation or other entity in each jurisdiction where
such qualification is required, except for failures to be so qualified or in
good standing, as the case may be, that would not have a Material Adverse
Effect. Seller has heretofore delivered to Buyer true and complete copies of the
articles of incorporation and bylaws (or similar governing documents) as in
effect as of the date hereof, minute books and stock records of each TIB
Subsidiary.
(b) All of the capital stock of each TIB Subsidiary has been
duly authorized and validly issued and is fully paid and non-assessable. Except
as set forth on Schedule 3.4(a), TIB or TIB France, as the case may be, owns,
directly or indirectly, all of the outstanding capital stock or other equity
interests of each TIB Subsidiary, free and clear
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of all Encumbrances except, in the case of each TIB Subsidiary that is
incorporated under the Laws of New York, as provided by section 630 of the New
York Business Corporation Law. There are no preemptive or other outstanding
rights, options, warrants, conversion rights or agreements or commitments to
issue or sell any shares of capital stock or other equity interest of any TIB
Subsidiary or any securities or obligations convertible into or exchangeable
for, or giving any Person a right to subscribe for or acquire, any shares of
capital stock or other equity interests of any TIB Subsidiary, and no securities
or obligations evidencing such rights are outstanding.
(c) Schedule 3.4(c) sets forth a list of each Person other
than a TIB Subsidiary in which TIB or TIB France has an equity ownership
interest, together with its jurisdiction of organization, its authorized and
outstanding capital stock or other equity interests as of the date hereof, and
the respective amounts of capital stock or other equity interests owned by TIB
or TIB France, as the case may be, and by each other equity owner as of the date
hereof. TIB or TIB France owns, directly or indirectly, the respective amounts
of the outstanding capital stock or other equity interests of each such Person
set forth on Schedule 3.4(c), free and clear of all Encumbrances except, in the
case of each such Person that is incorporated under the Laws of New York, as
provided by section 630 of the New York Business Corporation Law.
(d) Except as set forth in Schedule 3.4(d), there are no
outstanding contractual obligations of TIB or TIB France: (i) to provide funds
to, or make any investment (in the form of a loan, capital contribution or
otherwise) in, any TIB Subsidiary or any other Person in which TIB or TIB France
has an equity ownership interest; or (ii) to make any investment (in the form of
a loan, capital contribution or otherwise) in any TIB Subsidiary or any other
Person.
SECTION 3.5 CORPORATE AUTHORIZATION. Seller has full corporate power
and authority to execute and deliver this Agreement and each of the Closing
Documents, and to perform its obligations hereunder and thereunder. The
execution, delivery and performance by Seller of this Agreement and each of the
Closing Documents have been duly and validly authorized, and no additional
corporate authorization or consent is required in connection therewith.
SECTION 3.6 APPROVALS. Except for the Required Approvals, no consent,
approval, waiver, authorization or novation is required to be obtained by Seller
or the Company from, and no notice or filing is required to be given by Seller
or the Company to or made by Seller or the Company with, any Governmental Entity
or other Person in connection with the execution, delivery and performance by
Seller of this Agreement and each of the Closing Documents, except for those the
failure of which to obtain, give or make would not have a Material Adverse
Effect or prevent consummation of the Transaction.
SECTION 3.7 NON-CONTRAVENTION. The execution, delivery and performance
by Seller of this Agreement and each of the Closing Documents, and the
consummation of the Transaction, do not and will not (a) violate any provision
of the articles of
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incorporation, bylaws or other organizational documents of Seller or the
Company, (b) assuming the receipt or making of all necessary consents,
approvals, waivers, authorizations, novations, notices and filings, conflict
with, or result in the breach of, or constitute a default under, or result in
the termination, cancellation or acceleration (whether after the filing of
notice or the lapse of time or both) of any right or obligation of the Company
under, or a loss of any benefit to which the Company is entitled under, any
Material Contract or any Licensed Intellectual Property, or result in the
creation of any Encumbrance upon any assets of the Company, or (c) assuming
receipt of all Required Approvals, violate or result in a breach of or
constitute a default under any Law, judgment, injunction, order, decree or other
restriction of any Governmental Entity to which Seller or the Company is
subject; except for, in the cases of the foregoing clauses (b) and (c),
conflicts, breaches, terminations, defaults, cancellations, accelerations,
losses, violations or Encumbrances that would not, individually or in the
aggregate, have a Material Adverse Effect or prevent consummation of the
Transaction.
SECTION 3.8 BINDING EFFECT. This Agreement when executed and delivered
by Buyer, and each of the Closing Documents when executed and delivered by the
parties thereto, will constitute a valid and legally binding obligation of the
Seller party thereto, enforceable against such Seller in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights and to
general equity principles.
SECTION 3.9 FINANCIAL STATEMENTS; CERTAIN LIABILITIES.
(a) Annexed hereto as Schedule 3.9(a) are the June 30
Financial Statements. The June 30 Financial Statements have been derived from
Seller's Books and Records maintained in the ordinary course of business and
from the Company's Books and Records maintained in the Ordinary Course, and
fairly present in all material respects the financial position of the Company as
of the date thereof and for the period then ended, in accordance with GAAP
(except as may be indicated in the notes thereto) and with Seller's internal
accounting policies.
(b) Annexed hereto as Schedule 3.9(b) are the Audited
Financial Statements. The Audited Financial Statements have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto) and with the
requirements of the Securities and Exchange Commission (including Regulation
S-X), and include the unqualified opinion of Seller's Auditors with respect
thereto, in each case sufficient in all respects for inclusion in a registration
statement of Buyer under the Securities Act of 1933, as amended (the "SECURITIES
ACT"). The Audited Financial Statements present fairly, in all material
respects, the consolidated financial position of the Company as of the date
thereof and for the period indicated therein.
(c) The Historical Financial Statements, when delivered in
accordance with this Agreement, will have been derived from Seller's Books and
Records maintained in the Ordinary Course, and will fairly present in all
material respects the financial position
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of the Company as of the respective dates thereof and for the respective periods
indicated, in accordance with GAAP (except as may be indicated in the notes
thereto) and with Seller's internal accounting policies.
(d) Except as set forth in Schedule 3.9(d), there are not (and
as of Closing there will not be) any debts, liabilities or obligations of any
kind (whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable) of the Company which are required to be disclosed
under GAAP or which reflect off-balance sheet financing, other than those (i)
reflected or reserved against in the June 30 Financial Statements or (ii)
incurred in the Ordinary Course since June 30, 1999. Except as set forth in
Schedule 3.9(d), and except that the June 30 Financial Statements and the
Audited Financial Statements only reflect debts, liabilities and obligations
existing as of the respective dates thereof, reserves are reflected in the June
30 Financial Statements or the Audited Financial Statements and on the books of
account and other financial Books and Records of the Company against all debts,
liabilities or obligations of the Company of any kind required by GAAP to be
reserved against, in amounts that have been established on a basis consistent
with the past practice of the Company and in accordance with GAAP. Except as set
forth in Schedule 3.9(d), there are not (and as of Closing there will not be)
any outstanding warranty claims against the Company.
SECTION 3.10 TITLE TO ASSETS. Except for those assets listed on
Schedule 3.10 or Schedule 3.13(g), which are used in the Business but are owned
by Kodak or its Affiliates, the Company has and will have at Closing good title
to, or a valid license or leasehold interest in, all of the assets used by it in
the conduct of the Business, free and clear of all Encumbrances, except for
Permitted Encumbrances.
SECTION 3.11 COMPLIANCE WITH LAWS. The Business is being conducted in
compliance with all Laws, and the Company has all Governmental Authorizations
necessary for the conduct of the Business as currently conducted, except for
those failures of compliance or lack of Governmental Authorizations which would
not have a Material Adverse Effect. No suspension or cancellation of any such
Governmental Authorization is pending or, to Seller's knowledge, threatened. To
Seller's knowledge, the Company has not, during the past three years (or, with
respect to issues that remain unresolved on the date hereof, at any time)
received any notice or other communication (whether oral or written) regarding
any actual, alleged, possible or potential violation of, or failure to comply
with, any Law applicable to the Company or by which any property or asset of the
Company is bound or affected. The Company is not in breach or violation of, or
default under, any Governmental Authorization, except for those breaches or
violations that would not have a Material Adverse Effect.
SECTION 3.12 LITIGATION AND CLAIMS.
(a) Except as set forth on Schedule 3.12: (i) there is no
civil, criminal or administrative action, suit, demand, claim, hearing,
proceeding or disclosed investigation pending or, to Seller's knowledge,
threatened, against the Company or any of its properties; and (ii) neither the
Company nor any of its properties is subject to any order,
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writ, judgment, award, injunction or decree of any Governmental Entity of
competent jurisdiction or any arbitrator, other than orders, writs, judgments,
awards, injunctions or decrees that in the aggregate would not have a Material
Adverse Effect.
(b) There is no civil, criminal or administrative action,
suit, demand, claim, hearing, proceeding or disclosed investigation pending or,
to Seller's knowledge, threatened, against Seller, except for those that would
not prevent consummation of the Transaction or materially impair the ability of
Seller to perform its obligations hereunder. Seller is not subject to any order,
writ, judgment, award, injunction or decree of any Governmental Entity of
competent jurisdiction or any arbitrator, except for those that would not
prevent consummation of the Transaction or materially impair the ability of
Seller to perform its obligations hereunder.
SECTION 3.13 INTELLECTUAL PROPERTY.
(a) Schedule 3.13(a) sets forth a true and complete list of
all patents and patent applications, trademarks, service marks, trademark and
service xxxx registrations, and trademark and service xxxx applications,
registered copyrights and copyright applications, and Internet domain names, in
each case that are owned by the Company and material to the Business
(collectively, together with unregistered copyrights and trade secrets, know-how
and similar confidential and proprietary information owned by the Company and
material to the Business (which unregistered copyrights and information are not
listed on Schedule 3.13(a)), "OWNED INTELLECTUAL PROPERTY").
(b) Schedule 3.13(b) sets forth a true and complete list of
all material computer software developed in whole or in part by or on behalf of
the Company (other than the software, if any, that is owned by Kodak or its
Affiliates and listed on Schedule 3.13(g)), including such developed computer
software and databases that are operated or used by the Company on its web sites
or used by the Company in connection with processing customer orders, storing
customer information or storing and archiving Images (collectively, "SOFTWARE").
Except for the software, if any, listed on Schedule 3.13(g) and prepackaged
third party software, the Software is the only computer software that is
material to the Business.
(c) Schedule 3.13(c) sets forth a true and complete list of
all licenses, sublicenses and other agreements pertaining to Intellectual
Property or Software to which the Company is a party, including agreements with
major Internet service providers and major Internet portals, in each case which
are material to the Business (collectively, "LICENSED INTELLECTUAL PROPERTY").
(d) As used herein:
(i) "INTELLECTUAL PROPERTY" means any and all of the
following, but excluding Images: (A) U.S., international and foreign patents,
patent applications and statutory invention registrations; (B) trademarks,
service marks, trade names, trade dress, slogans, logos and Internet domain
names, including registrations and applications for
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registration thereof; (C) copyrights, including registrations and applications
for registration thereof; and (D) trade secrets, know-how and similar
confidential and proprietary information.
(ii) "IMAGE" means a reproduction of any artwork, photograph,
still image, motion image, video, motion picture footage, illustration or image
of any type.
(iii) "APPROVED IMAGES" means Images used or held for use by
the Company in connection with the Business for which the Company has the right
to grant sublicenses to third parties.
(iv) "UNAPPROVED IMAGES" means Images used or held for use by
the Company in connection with the Business for which the Company has not been
granted the right to grant sublicenses to third parties.
(v) "OFFERED IMAGES" means, collectively, Approved Images and
Unapproved Images.
(vi) "OWNED IMAGES" means Images for which the Company owns
the copyright thereto.
(vii) "LICENSED IMAGES" means Images for which the Company
has licensed rights from a third party.
(e) The Company's use in the Ordinary Course of the Owned
Intellectual Property, Software and Licensed Intellectual Property does not
infringe upon or misappropriate the valid Intellectual Property rights, privacy
rights or right of publicity of any third party.
(f) Except as set forth in Schedule 3.13(f), the Company is
the owner of the entire and unencumbered right, title and interest in and to
each item of Owned Intellectual Property (but for Permitted Encumbrances), and
the Company is entitled to use the Owned Intellectual Property, Software,
Offered Images and Licensed Intellectual Property in the Ordinary Course.
(g) Except for the Intellectual Property and software, if any,
which is owned by Kodak or its Affiliates and listed on Schedule 3.13(g), the
Owned Intellectual Property and the Licensed Intellectual Property include all
of the Intellectual Property used in the ordinary day-to-day conduct of the
Business, and there are no other items of Intellectual Property that are
material to such ordinary day-to-day conduct of the Business. The Owned
Intellectual Property and, to Seller's knowledge, the Licensed Intellectual
Property, is subsisting, valid and enforceable, and has not been adjudged
invalid or unenforceable in whole or part.
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(h) Except as set forth on Schedule 3.13(h), no claims or
legal proceedings have been asserted against the Company and not disposed of, or
are pending or, to Seller's knowledge, threatened against the Company: (i) based
upon or challenging or seeking to deny or restrict the use by the Company of any
of the Owned Intellectual Property or Licensed Intellectual Property; (ii)
alleging that any services provided by, processes used by, or Images offered by
the Company infringe upon or misappropriate any Intellectual Property right of
any third party; (iii) alleging that any Intellectual Property licensed to the
Company under the Licensed Intellectual Property infringes upon any Intellectual
Property right of any third party or is being licensed or sublicensed to the
Company in conflict with the terms of any license or other agreement; or (iv)
challenging the Company's ownership of the Owned Intellectual Property.
(i) To Seller's knowledge, no Person is engaged in any
activity that infringes upon the Owned Intellectual Property or the Licensed
Intellectual Property, except for Persons whose use or presentation of material
on web sites may violate the Company's Internet Policing Policy, through the
implementation of which the Company has learned of such possible violations. The
Internet Policing Policy is described in Schedule 3.13(i). The Company has not
granted any license or other right currently outstanding to any third party with
respect to the Owned Intellectual Property or Licensed Intellectual Property,
except for (i) licenses comprising invoices incurred in the Ordinary Course,
(ii) licenses granted pursuant to agreements with franchisees of the Company,
and (iii) those licenses set forth in Schedule 3.13(i). The consummation of the
Transaction will not result in the termination or impairment of any of the Owned
Intellectual Property.
(j) Except for licenses comprising invoices incurred in the
Ordinary Course, Seller has delivered or made available to Buyer correct and
complete copies of all licenses and sublicenses of the Licensed Intellectual
Property to which the Company is a party. With respect to each such license and
sublicense (except for those that expire by their terms prior to Closing):
(i) such license or sublicense is valid and binding and in
full force and effect and, together with the related invoices, represents the
entire agreement between the respective licensor and licensee with respect to
the subject matter of such license or sublicense;
(ii) assuming the receipt or making of all necessary
consents, approvals, waivers, authorizations, novations, notices and filings in
connection with the Transaction (but subject to the provisions of Section 2.4),
such license or sublicense will not cease to be valid and binding and in full
force and effect on terms identical to those currently in effect as a result of
the consummation of the Transaction, nor will the consummation of the
Transaction constitute a breach or default under such license or sublicense or
otherwise give the licensor or sublicensor a right to terminate such license or
sublicense;
(iii) the Company has not (A) received any notice of
termination or cancellation under such license or sublicense, (B) received any
notice of a breach or default under such license or sublicense, which breach has
not been cured, or (C) granted
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to any other third party any rights, adverse or otherwise, under such license or
sublicense that would constitute a breach of such license or sublicense; and
(iv) assuming the receipt or making of all necessary
consents, approvals, waivers, authorizations, novations, notices and filings in
connection with the Transaction (but subject to the provisions of Section 2.4),
neither the Company nor, to Seller's knowledge, any other party to such license
or sublicense is in breach or default in any material respect under such license
or sublicense and, to Seller's knowledge, no event has occurred that, with
notice or lapse of time would constitute such a breach or default or permit
termination, modification or acceleration under such license or sublicense.
(k) The Company has obtained all Governmental Authorizations
necessary for exporting the Software outside the U.S. or Canada and importing
the Software into any country in which the Software is now sold or licensed for
use, and all such export and import Governmental Authorizations in the U.S. and
Canada and throughout the world are valid, current outstanding and in full force
and effect. No rights in the Software have been transferred by the Company to
any third party except to the customers of the Company to whom the Company has
licensed such Software in the Ordinary Course.
(l) Except for the software or tools, if any, which are owned
by Kodak or its Affiliates and listed on Schedule 3.13(g), the Company has the
right to use all software development tools, image processing tools, library
functions, compilers and other third party software that is material to the
Business or that is required to operate or modify the Software.
(m) The Internal MIS Systems are Euro Compliant. As used
herein, "INTERNAL MIS SYSTEMS" means any computer software and systems
(including hardware, firmware, operating system software, utilities and
applications software) used by the Company in the Ordinary Course that process
financial information and that are material to the operation of the Business,
including, where applicable, payroll, accounting, billing/receivables,
purchasing, payables, inventory, asset tracking, customer service and human
resources. As used herein, "EURO COMPLIANT" means that the Internal MIS Systems
will record, store, process and present currency denominated in Euros, in the
same manner, and with the same functionality, as the Internal MIS Systems
record, store, process and present currencies denominated in U.S. dollars and
major European currencies.
(n) The Company has taken reasonable steps in accordance with
normal industry practice to maintain the confidentiality of its trade secrets
and other confidential Intellectual Property. To Seller's knowledge: (i) there
has been no misappropriation of any material trade secrets or other material
confidential Intellectual Property of the Company by any Person; (ii) no
employee, independent contractor or agent of the Company has misappropriated any
trade secrets of any other Person in the course of his performance as an
employee, independent contractor or agent; and (iii) no employee, independent
contractor or agent of the Company is in default or breach of any term of any
employment agreement, non-disclosure agreement, non-compete obligation,
assignment
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of invention agreement or similar agreement or contract relating in any way to
the protection, ownership, development, use or transfer of Intellectual
Property.
(o) The trademarks constituting Owned Intellectual Property
have been duly registered with, filed in, issued by or applied for with, as the
case may be, the United States Patent and Trademark Office or such other
appropriate filing offices, domestic or foreign, as are identified on Schedule
3.13(a), and such registrations, filings, issuances, applications and other
actions remain in full force and effect, and are current and unexpired.
SECTION 3.14 IMAGES.
(a) Except for public domain imagery and except as set forth
in Schedule 3.14(a), the Company either owns or licenses all Images used or held
for use by the Company in connection with the Business. The Offered Images
include all of the Images used or held for use by the Company and material to
the operation of the Business as currently conducted. The Company has the right
to display, reproduce, distribute, market, transmit electronically (except when
expressly prohibited by contract), perform and (except in the case of Unapproved
Images) sublicense the use of each Offered Image to the extent required for the
continued operation of the Business in a manner consistent with the Company's
past practice. To Seller's knowledge, no public domain Image included in the
Offered Images requires a license or the payment of a fee for the Company's use
thereof in a manner consistent with the Company's past practice.
(b) Except for Images the rights to which were acquired by the
Company pursuant to an artist's agreement, producer's agreement or acquisition
agreement providing the Company with indemnification rights, the Company has not
granted any license, sublicense or other right to any Person with respect to any
Unapproved Images. The Company has not granted any license, sublicense or other
right to any Person with respect to any Approved Image that would constitute a
breach of any agreement or license pertaining to such Approved Image.
(c) The display, sale, reproduction, electronic transmission
(except when expressly prohibited by contract), performance, marketing,
distribution and sublicensing of the Licensed Images by the Company does not
infringe upon the Intellectual Property right, privacy rights or right of
publicity of any third party, except in the case of Images as to which artists
have granted superseding display rights to galleries. The display, sale,
reproduction, electronic transmission (except when expressly prohibited by
contract), performance, marketing, distribution and sublicensing of the Licensed
Images by the Company does not constitute a breach of any agreement or license
to which the Company is a party.
(d) Except as set forth in Schedule 3.14(d), no claims have
been asserted and not disposed of, or are pending or, to Seller's knowledge,
threatened against the Company or, to Seller's knowledge, against any customer
of the Company or any third party licensor or licensee of Offered Images: (i)
based upon or challenging or seeking to
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deny or restrict the display, sale, reproduction, electronic transmission,
performance, marketing, distribution or sublicensing by the Company of any of
the Licensed Images; (ii) alleging that the sale, reproduction, distribution or
sublicensing of the Licensed Images does or may infringe upon the Intellectual
Property rights, privacy rights, or right of publicity of any third party; or
(iii) challenging the ownership of the Owned Images or the Company's rights to
the Offered Images. Except as set forth in Schedule 3.14(d), within the past 12
months no Person has requested indemnification from the Company based on the
proper use of an Offered Image.
(e) To Seller's knowledge, no Person is engaging in any
activity that infringes upon the Offered Images or upon the rights of the
Company therein. The consummation of the Transaction will not result in the
termination or impairment of the rights of the Company, as they exist on the
date hereof or on the Closing Date, to sell, reproduce, market, transmit
electronically, perform, distribute or sublicense any of the Licensed Images.
(f) Prior to any display, sale, marketing, electronic
transmission, performance, reproduction, distribution or sublicensing of any
Licensed Image, either: (i) the Company has obtained in writing all such
releases and/or other third party consents or authorizations necessary for such
display, sale, marketing, electronic transmission, performance, reproduction,
distribution or sublicensing; or (ii) the artist providing such Licensed Image
has represented and warranted to the Company that he has obtained such releases
and/or other third party consents or authorizations. Copies of such releases
and/or other third party consents or authorizations are either kept by the
Company at its offices or are required to be provided to the Company upon
request pursuant to the Company's agreements with the artists providing such
Licensed Images. Except as set forth on Schedule 3.14(f), the Company has not
entered into any contract under which the Company has assumed any obligation for
the storage and handling of Images.
(g) With respect to each license or agreement by which the
Company has obtained the right to display, sell, reproduce, market, transmit
electronically, perform, distribute or sublicense the Offered Images or by which
the Company has granted to any third party the right to display, sell,
reproduce, market, transmit electronically, perform or distribute any Offered
Images (except for those that expire by their terms prior to Closing):
(i) such license or agreement is legal, valid, binding and
enforceable and in full force and effect and, together with the related
invoices, represents the entire agreement between the parties thereto with
respect to the subject matter thereof;
(ii) assuming the receipt or making of all necessary
consents, approvals, waivers, authorizations, novations, notices and filings in
connection with the Transaction (but subject to the provisions of Section 2.4),
such license or agreement will not cease to be legal, valid, binding and
enforceable and in full force and effect on terms identical to those currently
in effect as a result of the consummation of the Transaction, nor will the
consummation of the Transaction constitute a breach or default under such
license or
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agreement, or otherwise give any party thereto a right to terminate such license
or agreement;
(iii) the Company has not: (A) received any notice of
termination or cancellation under such license or agreement, and no party
thereto has any right of termination or cancellation thereunder except in
accordance with its terms; (B) received any notice of a breach or default under
such license or agreement which breach or default has not been cured; and (C)
granted to any other Person any rights, adverse or otherwise, under such license
or agreement; and
(iv) assuming the receipt or making of all necessary
consents, approvals, waivers, authorizations, novations, notices and filings in
connection with the Transaction (but subject to the provisions of Section 2.4),
neither the Company nor, to Seller's knowledge, any other party to such license
or agreement is in breach or default thereof in any material respect and, to
Seller's knowledge, no event has occurred that, with notice or lapse of time
would constitute such a breach or default or permit termination, modification or
acceleration under such license or agreement.
(h) Schedule 3.14(h) identifies each contract providing the
Company with the right to display, reproduce, distribute or sublicense the use
of any Image owned or controlled by a third party that has, since January 1,
1998, been terminated or revoked by either the Company or the third party.
SECTION 3.15 TAX MATTERS.
(a) The Company (and each affiliated, unitary or combined
group of which the Company is or has been a member) has timely filed, or has
timely filed for an extension for the filing of, all federal, state, local and
foreign income and franchise Tax Returns and all other material Tax Returns that
are required to be filed by it on or before the date hereof, and all Taxes owed
by the Company (whether or not shown on any Tax Return) and due on or before the
date hereof have been paid. The Financial Statements reflect an adequate
accrual, based on the facts and circumstances existing as of the respective
dates thereof, for all Taxes payable by the Company through the respective dates
thereof.
(b) There are no deficiencies for any Taxes proposed, asserted
or assessed against the Company, no requests for waivers of the time to assess
any Taxes are pending, and no power of attorney with respect to any Taxes has
been executed or filed with any taxing authority.
(c) The Company has complied with all Laws relating to the
payment and withholding of employment Taxes and has withheld and paid all Taxes
required to have been withheld and paid in connection with amounts paid or owing
to any employee, independent contractor or other Person.
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(d) The income and franchise Tax Returns of the Company have
been examined by and settled with the Internal Revenue Service or other relevant
taxing authority (or the applicable statute of limitations has expired) for all
years through December 31, 1989. All assessments for Taxes due with respect to
such completed and settled examinations or any concluded litigation have been
fully paid.
(e) There are no liens for Taxes (other than for current Taxes
not yet due and payable) on the assets of the Company.
(F) The Company is not bound by any agreement (either with any
Person or with any taxing authority) with respect to Taxes.
(g) The Company has not constituted either a "distributing
corporation" or a "controlled corporation" (within the meaning of section
355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free
treatment under section 355 of the Code (i) in the two years prior to the date
of this Agreement or (ii) in a distribution which could otherwise constitute
part of a "plan" or "series of related transactions" (within the meaning of
section 355(e) of the Code) in conjunction with the Transaction.
(h) Since 1991, the Company has not been a member of an
affiliated, unitary or combined group of corporations (within the meaning of
section 1504 of the Code and any analogous provision of other Law) other than
the affiliated group of which Kodak is the common parent.
(i) The Company has not filed a consent pursuant to the
provisions of section 341(f) of the Code (or any corresponding provision of
state or local Law) or agreed to have section 341(f)(2) of the Code (or any
corresponding provision of state or local Law) apply to any disposition of any
asset owned by the Company.
(j) The Company has not agreed to make, nor is required to
make, any adjustment under section 481(a) of the Code or any similar provision
of other Law by reason of a change in accounting methods or otherwise.
(k) No property owned by the Company is (i) property required
to be treated as being owned by another Person pursuant to the provisions of
section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect
immediately prior to the enactment of the Tax Reform Act of 1986, (ii)
"tax-exempt use property" within the meaning of section 168(h)(1) of the Code,
(iii) "tax-exempt bond financed property" within the meaning of section 168(g)
of the Code, or (iv) "limited use property" (as that term is used in Rev. Proc.
76-30).
(l) Except for Internal Revenue Service audits of Kodak, as
the common parent, for tax years ending after December 31, 1989, which do not
raise issues pertaining to the Company, no audit or other administrative or
court proceedings are pending with respect to Taxes of the Company and no notice
thereof has been received. No issue has
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been raised by any taxing authority in any presently pending or prior audit that
could be material and adverse to the Company for any period after the Closing.
(m) No claim has been made by a taxing authority in a
jurisdiction where the Company does not file Tax Returns that the Company is or
may be subject to income or franchise taxation in that jurisdiction.
(n) The Company is not a party to any contract, agreement or
other arrangement that provides for the payment of any amount that would not be
deductible by reason of section 280G of the Code.
(o) Seller has delivered or made available to Buyer true and
complete copies of (i) all income and franchise Tax Returns of the Company (or
the portion of any affiliated, unitary or combined Tax Return relating to the
Company) for the preceding three taxable years and (ii) any audit report issued
within the last three years (or otherwise with respect to any audit or
proceeding in progress) relating to Taxes of the Company.
SECTION 3.16 EMPLOYEE BENEFITS.
(a) All Company Benefit Plans covering active and retired U.S.
employees of the Company (collectively, "U.S. COMPANY BENEFIT PLANS") and, to
Seller's knowledge, all Company Benefit Plans covering active and retired
non-U.S. employees of the Company (other than those which provide terms solely
mandated by local Law), are listed on Schedule 3.16(a). True and complete copies
of all U.S. Company Benefit Plans, including any trust instruments and insurance
contracts forming a part of any U.S. Company Benefit Plans, all amendments
thereto, the most recent summary plan descriptions related thereto, the most
recent actuarial reports and financial statements related thereto and, as
applicable, the three most recent Internal Revenue Service Form 5500 filings,
have been provided or made available to Buyer.
(b) Schedule 3.16(b) sets forth a list of all plans that cover
U.S. Applicable Employees prior to Closing and would constitute U.S. Company
Benefit Plans if such plans were maintained by the Company, but which are
instead maintained by Kodak or its other Affiliates.
(c) Schedule 3.16(c) separately identifies all Company Benefit
Plans as to which all liabilities are not fully funded as of Closing through
insurance, annuity or similar contract or trust, or which are not fully reserved
on the June 30 Financial Statements or the Audited Financial Statements.
(d) Each U.S. Company Benefit Plan that is intended to be
qualified under section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service and, to Seller's
knowledge, there are no circumstances that could reasonably be expected to
result in any failure of such plans to be so qualified. Except as disclosed on
Schedule 3.16(d), there is no material litigation pending or, to Seller's
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knowledge, overtly threatened against Seller or the Company relating to any
Company Benefit Plan. Seller has not engaged in any transactions with respect to
the U.S. Company Benefit Plans that could subject Seller or its Affiliates to a
material Tax or penalty imposed under section 4975 of the Code or section 502 of
ERISA.
(e) All Company Benefit Plans comply in all material respects with
all Laws.
SECTION 3.17 ENVIRONMENTAL MATTERS. Except as disclosed on Schedule
3.17:
(a) The Company has obtained, currently maintains and is in
material compliance with all Environmental Permits that are required for the
lawful operation of the Business. Each such Environmental Permit is valid,
subsisting and in good standing. No proceeding is pending or, to Seller's
knowledge, threatened and, to Seller's knowledge, no grounds exist, to revoke or
limit any such Environmental Permit. The Company is in material compliance with
and not in default under any Environmental Law.
(b) There have been no Releases by the Company of any
Hazardous Substances into, on, around, from or under any of the properties or
assets owned or operated (or formerly owned or operated) by the Company, in any
case in such a way as to create any Environmental Costs and Liabilities in
excess of $50,000. None of the operations of the Company involves the
generation, treatment, storage or disposal of any Hazardous Substance.
(c) During the past three years (or, with respect to issues
that remain unresolved on the date hereof, at any time), the Company has not:
(i) received any notice of, nor is there now pending or, to Seller's knowledge,
threatened, any legal proceeding or claim against the Company alleging the
violation of any Environmental Law or Environmental Permit by the Company; (ii)
settled any allegation of violation of Environmental Law or Permit prior to
prosecution; (iii) received any notices, orders or directives from any
Governmental Entity or arising under any Environmental Permit nor, to Seller's
knowledge, is any federal, state or local investigation now pending or
threatened respecting (A) Environmental Laws, (B) Remedial Action or (C) the
Release or threatened Release of any Hazardous Substance, in each case with
respect to the Business or any of the properties or assets owned, operated or
occupied (or formerly owned, operated or occupied) by the Company; or (iv)
received written notice of any violation by or claim under any Environmental Law
that is reasonably likely to result in Environmental Costs and Liabilities in
excess of $50,000.
(d) Seller has delivered or provided to Buyer true and
complete copies of all environmental audits, evaluations, assessments, studies
and tests relating to the Business or the Company's ownership or use of the
properties or assets of the Company within the past five years which are, or
with reasonable effort could be, within the possession or control of Seller or
the Company.
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(e) No written claims have been made, and no suits or
proceedings are pending or, to Seller's knowledge, threatened, by any employee
against the Company that are premised on exposure to asbestos or
asbestos-containing material or PCBs.
(f) To Seller's knowledge, no underground storage tanks,
abandoned xxxxx or landfills are located on any real property owned, operated or
occupied by the Company.
SECTION 3.18 LABOR MATTERS.
(a) Except as set forth on Schedule 3.18(a), the Company is
not a party to or bound by any labor agreement, union contract or collective
bargaining agreement respecting the Applicable Employees, no collective
bargaining agreement is being negotiated by the Company and Seller has no
knowledge of any activities or proceedings of any labor union to organize any of
the Company's employees. There is no labor dispute, strike or work stoppage
against the Company pending or, to Seller's knowledge, threatened, and since
January 1, 1997 the Company has not experienced any material work stoppage or
other material labor difficulty.
(b) The Company is not delinquent in payments to any of its
officers, directors, employees or agents for any wages, salaries, commissions,
bonuses or other direct compensation for any services performed by them or
amounts required to be reimbursed to such officers, directors, employees or
agents. At Closing the Company will have no severance obligations for employment
terminations prior to Closing other than obligations pursuant to the Company
Severance Policies. Except for employees subject to (i) the employment
agreements listed on Schedule 3.19 (true and complete copies of which (or, in
the case of agreements providing terms solely mandated by local Law, a form
thereof) have been furnished to Buyer), or (ii) the agreements contemplated by
Section 6.8, all employees of the Company are employed at will.
(c) Except to the extent set forth in Schedule 3.18(c), to
Seller's knowledge: (i) the Company is and within the past three years has been
in compliance in all material respects with all Laws respecting employment and
employment practices, terms and conditions of employment and wages and hours,
including the Immigration Reform and Control Act, the Worker Adjustment and
Retraining Notification Act, any such Laws respecting employment discrimination,
disability rights or benefits, equal opportunity, plant closure issues,
affirmative action, workers' compensation, employee benefits, severance
payments, labor relations, employee leave issues, wage and hour standards,
occupational safety and health requirements and unemployment insurance and
related matters, and is not engaged in and has not within the past three years
engaged in any unfair labor practice; (ii) to Seller's knowledge, no
investigation or review by or before any Governmental Entity concerning any
possible conflicts with or violations of any such Laws by the Company is
pending, nor is any such investigation threatened, nor has any such
investigation occurred during the last three years, and no Governmental Entity
has provided any notice to the Company or otherwise asserted an intention to
conduct any such investigation or review.
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SECTION 3.19 MATERIAL CONTRACTS.
(a) Schedule 3.19 contains a true and complete list of each of
the following contracts and agreements (whether written or oral) to which the
Company is a party or by which the Company is obligated (collectively, "MATERIAL
CONTRACTS"):
(i) each contract and agreement having a value or
consideration of $100,000 or more and providing for the purchase or lease of
personal property from any supplier or the furnishing of services to the
Company;
(ii) each broker, exclusive dealing or exclusivity,
distributor, dealer, manufacturer's representative, franchise, license, agency,
sales promotion, market research, marketing, consulting and advertising contract
and agreement or any other contract that compensates any Person based on any
sales by the Company;
(iii) each lease and sublease of real property;
(iv) each contract and agreement relating to indebtedness,
other than trade indebtedness, of the Company;
(v) each contract and agreement with any Governmental Entity
other than standard form end-user licenses;
(vi) each contract and agreement that limits or purports to
limit the ability of the Company to compete in any line of business or with any
Person or in any geographic area or during any period of time;
(vii) each contract and agreement containing confidentiality
requirements (including all nondisclosure agreements, but excluding all
contracts containing confidentiality restrictions entered into in the Ordinary
Course which do not restrict the conduct of the Company's business);
(viii) each contract and agreement relating to trafficking
arrangements, domain name registration and customer lists;
(ix) each contract and agreement relating to the license,
purchase, right to use or other supply of Images to the Company;
(x) each contract and agreement relating to employment,
consulting, severance or similar issues with any current or former employee,
consultant or agent of the Company other than the Executives; and
(xi) each other contract and agreement, whether or not made
in the Ordinary Course, which in the good faith judgment of Kodak is material to
the Company.
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(b) Except for those that expired by their terms prior to
Closing, and assuming the receipt or making of all necessary consents,
approvals, waivers, authorizations, novations, notices and filings in connection
with the Transaction (but subject to the provisions of Section 2.4): (i) each
Material Contract is valid and binding on the Company and on the other parties
thereto in accordance with its terms, and is in full force and effect, subject
to bankruptcy and equitable remedies qualifications; (ii) no rights or benefits
of any Person party to a Material Contract have been (or will be) accelerated or
increased, nor will any party to a Material Contract be entitled to cancel,
suspend or terminate or diminish the rights of the Company (or its successor)
under any Material Contract, as a result of the consummation of the Transaction;
and (iii) the Company is not in breach of, or default under, any Material
Contract and, to Seller's knowledge, no other party to any Material Contract is
in breach thereof or default thereunder.
(c) Seller has heretofore made available to Buyer copies of
all contracts and agreements between the Company and either Executive, and the
Company has no oral agreements with either Executive.
SECTION 3.20 UNIFORM FRANCHISE OFFERING CIRCULAR. The Company has
delivered a Uniform Franchise Offering Circular to each U.S. licensee or
franchisee of the Company, together with all updates and amendments thereto, as
required by Law (collectively, the "OFFERING DOCUMENTS"). Each Offering Document
complied in all material respects with all applicable Laws and none of the
Offering Documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
SECTION 3.21 RELATIONSHIPS WITH FRANCHISEES, LICENSEES, CUSTOMERS,
SUPPLIERS, ETC. Except as set forth on Schedule 3.21, since January 1, 1997: (a)
there has not been any termination of the business relationship of the Company
with any franchisee or material licensee, customer or supplier; (b) to Seller's
knowledge, there has not been any threatened termination or withholding of
payments by, or any material dispute with, any franchisee or material licensee,
customer or supplier; and (c) neither Seller nor the Company has received any
notice or been informed that any such event will occur in the future, either as
a result of the consummation of the Transaction or otherwise. Except as set
forth on Schedule 3.21, the Company is not currently in dispute over any terms
of any contract or agreement to which the Company and any franchisee or material
licensee, customer or supplier is a party.
SECTION 3.22 ABSENCE OF CERTAIN DEVELOPMENTS.
(a) Except as expressly contemplated by this Agreement, as set
forth in Schedule 3.22, between June 30, 1999 and the date hereof:
(i) [intentionally omitted]
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(ii) there has not been any damage, destruction or loss,
whether or not covered by insurance, with respect to the property and assets of
the Company having a replacement cost of more than $25,000 for any single loss
or $50,000 for all such losses;
(iii) there has not been any grant of any stock option or
right to purchase shares of the stock of the Company;
(iv) there has not been any declaration, setting aside or
payment of any dividend or other distribution in respect of any shares of
capital stock of the Company or any repurchase, redemption or other acquisition
of any outstanding shares of capital stock or other securities of, or other
ownership interest in, the Company;
(v) except pursuant to the Retention Plan, and except for
obligations expressly assumed by Seller under Section 6.8, the Company has not
awarded or paid any bonuses to employees of the Company, or entered into any
employment, deferred compensation, severance or similar agreement (nor amended
any such agreement) or agreed to increase the compensation payable or to become
payable by it to any of the Company's directors, officers, employees, agents or
representatives, or agreed to increase the coverage or benefits available under
any severance pay, termination pay, vacation pay, company awards, salary
continuation for disability, sick leave, deferred compensation, bonus or other
incentive compensation, insurance, pension or other employee benefit plan,
payment or arrangement made to, for or with such directors, officers, employees,
agents or representatives (other than normal increases in the Ordinary Course
and that in the aggregate have not resulted in a material increase in the
benefits or compensation expense of the Company);
(vi) there has not been any change by the Company in
accounting or Tax reporting principles, methods or policies;
(vii) the Company has not entered into any transaction or
contract or conducted its business other than in the Ordinary Course;
(viii) the Company has not failed to pay and discharge
promptly current liabilities except where disputed in good faith by appropriate
proceedings;
(ix) the Company has not made any loans, advances or capital
contributions to, or investments in, any Person or paid any fees or expenses to
any Affiliate of the Company (other than the payment of trade payables in the
Ordinary Course);
(x) the Company has not mortgaged, pledged or subjected to
any Encumbrance any of its assets, or acquired any assets or sold, assigned,
transferred, conveyed, leased or otherwise disposed of any of its assets, except
for assets acquired or sold, assigned, transferred, conveyed, leased or
otherwise disposed of in the Ordinary Course;
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(xi) the Company has not discharged or satisfied any
Encumbrance, or paid any obligation or liability (fixed or contingent), except
in the Ordinary Course and which, in the aggregate, would not be material to the
Company;
(xii) the Company has not cancelled or compromised any debt
or claim or amended, canceled, terminated, relinquished, waived or released any
contract or right except in the Ordinary Course and which, in the aggregate,
would not be material to the Company;
(xiii) the Company has not made or committed to make any
capital expenditures or capital additions or betterments in excess of $100,000
individually;
(xiv) the Company has not instituted or settled any material
litigation, suit, claim, action, proceeding or investigation of any kind; and
(xv) the Company has not agreed to do anything set forth in
this Section 3.22.
SECTION 3.23 CERTAIN INTERESTS.
(a) Except as set forth on Schedule 3.23, no Affiliate of
Kodak nor, to Seller's knowledge, any Affiliate (other than an Affiliate of
Kodak), officer or director of the Company or any immediate relative or spouse
(or immediate relative of such spouse) who resides with, or is a dependent of,
any such officer or director:
(i) has any direct or indirect financial interest in any
competitor, supplier or customer of the Company, provided, however, that the
ownership of securities representing no more than 1 percent of the outstanding
voting power of any competitor, supplier or customer, and which are listed on
any U.S. securities exchange or traded actively in the U.S. over-the-counter
market, will not be deemed to be a "financial interest" as long as the Person
owning such securities has no other connection or relationship with such
competitor, supplier or customer;
(ii) owns, directly or indirectly, in whole or in part, or
has any other interest in, any tangible or intangible property which the Company
uses or has used in the conduct of the Business or otherwise (except for any
such ownership or interest resulting from the ownership of securities in a
public company);
(iii) has outstanding any indebtedness to the Company; or
(iv) is a party to any contract with the Company, or is owed
by the Company any obligation of any nature whatsoever, except for the payment
of employee compensation, the advancement of expenses or indemnification
obligations, and the payment of trade payables, in each case in the Ordinary
Course.
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SECTION 3.24 INSURANCE POLICIES. Schedule 3.24 sets forth a true and
complete list and description (including face amount of policy, name of insured,
carrier, premium, expiration date and whether it is a "claims made" or an
"occurrence" policy) of all insurance policies held by the Company. All premiums
due to the date hereof on such policies have been paid. There are no pending
claims made against the Company that are covered by insurance. The Company has
not failed to give any notice or present any claim under any such policy in a
timely fashion, except where such failure would not prejudice the ability of the
Company to make a claim and result in a Material Adverse Effect. Such insurance
to the date hereof has (a) been maintained in full force and effect and (b) not
been canceled or changed, except to extend the maturity dates thereof.
SECTION 3.25 BANKS. Schedule 3.25 sets forth the name of each bank in
which the Company has an account, lockbox or safe deposit box, and the names of
all Persons authorized to draw thereon or have access thereto.
SECTION 3.26 YEAR 2000 COMPLIANCE. The Company has (a) undertaken an
assessment of those Company Systems that could be adversely affected by a
failure to be Year 2000 Compliant, (b) developed a plan and time line for
rendering such Company Systems Year 2000 Compliant, a copy of which is annexed
as Schedule 3.26 (the "YEAR 2000 PLAN"), and (c) to date, implemented such plan
in accordance with such timetable in all material respects. Based on such
inventory, review and assessment, except as set forth in Schedule 3.26 all
Company Systems are Year 2000 Compliant or are expected to be Year 2000
Compliant as of January 1, 2000. Seller and the Company estimate that the total
remaining cost from the date hereof to execute the Year 2000 Plan is $150,000.
As used herein, "COMPANY SYSTEMS" means all computer hardware, software, systems
and equipment embedded within or material to or necessary for the Company to
carry on the Business as currently conducted. As used herein, "YEAR 2000
COMPLIANT" means that the Company Systems provide uninterrupted millennium
functionality in that the Company Systems will record, store, process and
present calendar dates falling on or after January 1, 2000, in the same manner
and with the same functionality as the Company Systems record, store, process
and present calendar dates falling on or before December 31, 1999.
SECTION 3.27 ACCOUNTS RECEIVABLE. The accounts receivable shown in the
June 30 Financial Statements arose in the Ordinary Course. The allowances for
doubtful accounts and returns set forth in the June 30 Financial Statements have
been prepared in the Ordinary Course. The accounts receivable of the Company
arising after June 30, 1999 and prior to Closing arose or will arise in the
Ordinary Course. None of the accounts receivable are subject to any material
asserted claim of offset or recoupment or counterclaim and Seller has no
knowledge of any specific facts that would be reasonably likely to give rise to
any such claim. No material amount of accounts receivable are contingent upon
the future performance by the Company of any obligation and no agreement for
deduction or discount has been made with respect to any material amount of
accounts receivable.
SECTION 3.28 BOOKS AND RECORDS. The minute books and other similar
records of TIB contain true and complete registers of the shareholders and
records of all actions
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taken at any meetings of shareholders, boards of directors or any committee
thereof and all written consents executed in lieu of the holding of any such
meetings, except that the minutes of the March 12, 1999 meeting of the board of
directors of TIB exist in draft form only. As of the Closing Date, the minute
books and other similar records of TIB France and each TIB Subsidiary will
contain true and complete registers of the shareholders and records of all
actions taken at any meetings of shareholders, boards of directors or any
committee thereof and all written consents executed in lieu of the holding of
any such meetings. The accounting Books and Records of the Company accurately
reflect in all material respects the assets, liabilities, business, financial
condition and results of operations of the Company and have been maintained in
accordance with Seller's internal policies.
SECTION 3.29 NO MISREPRESENTATION. No representation or warranty of
Seller contained in this Agreement or in the Closing Documents contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained herein or therein not misleading.
SECTION 3.30 FINDERS' FEES. There is no investment banker, broker,
finder or other intermediary who has been retained by or is authorized to act on
behalf of Seller or any Affiliate of Seller who might be entitled to any fee or
commission from Buyer, any Affiliate of Buyer or the Company in connection with
the Transaction.
SECTION 3.31 BUYER'S REPRESENTATIONS AND WARRANTIES. Seller
acknowledges that except for the representations and warranties contained in
Article IV of this Agreement, neither Buyer nor any other Person makes any other
express or implied representation or warranty on behalf of Buyer.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER
Getty represents and warrants to Seller as follows:
SECTION 4.1 ORGANIZATION AND POWER OF BUYER. Getty is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and has all requisite corporate power and authority to own and operate its
assets, to carry on its business as currently conducted, to consummate the
Transaction and to perform its obligations hereunder. Getty is duly qualified to
do business and (in the case of U.S. jurisdictions) is in good standing as a
foreign corporation in each jurisdiction where its ownership or operation of its
assets or the conduct of its business requires such qualification, except for
failures to be so qualified or in good standing, as the case may be, that would
not prevent consummation of the Transaction or materially impair the ability of
Getty to perform its obligations hereunder. On the Closing Date, each Affiliate
Buyer will be a corporation duly organized, validly existing and (in the case of
U.S. jurisdictions) in good standing under the laws of the jurisdiction of its
incorporation and will have all requisite corporate power and authority to own
and operate its assets, to carry on its business as then conducted, to
consummate the Transaction and to perform its
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obligations hereunder. Except for directors' qualifying shares (if any), Getty
owns all of the outstanding capital stock or other equity interest of each
Affiliate Buyer.
SECTION 4.2 CORPORATE AUTHORIZATION. Buyer has full corporate power
and authority to execute and deliver this Agreement and each of the Closing
Documents, and to perform its obligations hereunder and thereunder. The
execution, delivery and performance by Buyer of this Agreement and each of the
Closing Documents have been duly and validly authorized and no additional
corporate authorization or consent is required in connection therewith.
SECTION 4.3 APPROVALS. Except for the Required Approvals, no consent,
approval, waiver, authorization or novation is required to be obtained by Buyer
from, and no notice or filing is required to be given by Buyer to or made by
Buyer with, any Governmental Entity or other Person in connection with the
execution, delivery and performance by Buyer of this Agreement and each of the
Closing Documents, except for those the failure of which to obtain, give or make
would not prevent consummation of the Transaction or materially impair the
ability of Buyer to perform its obligations hereunder.
SECTION 4.4 NON-CONTRAVENTION. The execution, delivery and performance
by Buyer of this Agreement and each of the Closing Documents, and the
consummation of the Transaction, do not and will not (a) violate any provision
of the articles of incorporation, bylaws or other organizational documents of
Buyer, (b) assuming receipt of all Required Approvals, conflict with, or result
in the breach of, or constitute a default under, or result in the termination,
cancellation or acceleration (whether after the filing of notice or the lapse of
time or both) of any right or obligation of Buyer under, any agreement,
contract, lease, sublease, arrangement, commitment or license to which Buyer is
a party or by which any of is assets are bound, or (c) assuming receipt of all
Required Approvals, violate or result in a breach of or constitute a default
under any Law, judgment, injunction, order, decree or other restriction of any
Governmental Entity to which Buyer is subject, except for, in the cases of the
foregoing clauses (b) and (c), conflicts, breaches, terminations, defaults,
cancellations, accelerations or violations that would not prevent consummation
of the Transaction or materially impair the ability of Buyer to perform its
obligations hereunder.
SECTION 4.5 BINDING EFFECT. This Agreement when executed and delivered
by Seller, and each of the Closing Documents when executed and delivered by the
parties thereto, will constitute a valid and legally binding obligation of the
Buyer party thereto, enforceable against such Buyer in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights and to
general equity principles.
SECTION 4.6 FINANCING. On the Closing Date, Buyer will have sufficient
funds to consummate the Transaction and to perform its obligations hereunder, or
will have full corporate and contractual power and authority to execute and
deliver to Seller the Getty Note and the Getty Security Agreement.
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SECTION 4.7 INVESTMENT INTENT. Buyer acknowledges that the TIB Shares
and the TIB France Shares have not been registered under any Securities Laws.
Buyer is acquiring the TIB Shares and the TIB France Shares hereunder for
Buyer's own account, for investment, and not with a view to, or for resale in
connection with, any distribution thereof, and Buyer has no present intention of
selling or otherwise transferring the TIB Shares or the TIB France Shares or any
interest therein, except for Getty's assignment of rights to Affiliate Buyers as
contemplated by Section 2.3. Buyer acknowledges and agrees that the TIB Shares
and the TIB France Shares may not be sold, transferred, pledged or otherwise
disposed of except in compliance with Securities Laws.
SECTION 4.8 LITIGATION AND CLAIMS. There is no civil, criminal or
administrative action, suit, demand, claim, hearing, proceeding or disclosed
investigation pending or, to Buyer's knowledge, threatened, against Buyer,
except for those that would not prevent consummation of the Transaction or
materially impair the ability of Buyer to perform its obligations hereunder.
Buyer is not subject to any order, writ, judgment, award, injunction or decree
of any Governmental Entity of competent jurisdiction or any arbitrator, except
for those that would not prevent consummation of the Transaction or materially
impair the ability of Buyer to perform its obligations hereunder.
SECTION 4.9 FINDERS' FEES. There is no investment banker, broker,
finder or other intermediary that has been retained by or is authorized to act
on behalf of Buyer or any Affiliate of Buyer who might be entitled to any fee or
commission from Seller or any Affiliate of Seller in connection with the
Transaction.
SECTION 4.10. SELLER'S REPRESENTATIONS AND WARRANTIES. Buyer
acknowledges that except for the representations and warranties contained in
Article III of this Agreement, neither Seller nor any other Person makes any
other express or implied representation or warranty on behalf of Seller.
ARTICLE V. CERTAIN COVENANTS
SECTION 5.1 ACCESS.
(a) Prior to Closing, Seller will permit Buyer and its
representatives to have reasonable access, at reasonable times, upon reasonable
advance notice and subject to reasonable security requirements, to the Books and
Records of the Company, to the employees, consultants, agents and other
personnel of the Company, to the employees, consultants and other personnel of
Seller having knowledge of the Company and the Business, and to the locations at
which the Business is conducted or at which any Books and Records are located.
Seller will furnish to Buyer any financial and operating data and other
information that is available with respect to the Company as Buyer from time to
time reasonably requests (it being understood that in no event will Buyer have
access to Seller's consolidated U.S. federal, state or local Tax Returns), and
will cause its employees, counsel, independent accountants and financial
advisors to cooperate with Buyer in its investigation of the Company. During the
period from the date hereof through Closing, Seller will (or will cause the
Company to) furnish to Buyer (i) a copy of
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each Tax Return filed by the Company with any taxing authority and (ii) monthly
and other interim financial statements in the form prepared by the Company for
its internal use. Notwithstanding the provisions of this Section 5.1(a), Buyer
will have no access to any information the provision of which to Buyer would
violate any Law; provided, however, that within ten days prior to the Closing
Date, reasonable access to such information will be provided to Buyer's counsel
at reasonable times, upon reasonable advance notice and subject to reasonable
security requirements.
(b) For ten years following the Closing Date in the case of
Tax Books and Records, and for five years following the Closing Date in the case
of other Books and Records, Buyer will keep and maintain all Books and Records
of the Company in existence on the Closing Date; provided, however, that prior
to expiration of such applicable period, Buyer may dispose of such Books and
Records after reasonable notice offering the same to Seller.
(c) Following Closing, and upon the reasonable request of
Seller, Buyer will, during the periods provided by Section 5.1(b) and to the
extent permitted by Law and applicable confidentiality obligations, grant to
Seller and its representatives (with reimbursement of Buyer's reasonable and
necessary out-of-pocket expenses incurred in complying with such request)
reasonable access, during normal business hours, upon reasonable notice and
subject to reasonable security requirements, to inspect and copy the Books and
Records referred to in Section 5.1(b).
(d) Buyer may require, as a condition to the delivery of any
Books and Records under Section 5.1(b) and the grant of access under Section
5.1(c), that Seller execute and deliver to Buyer a customary confidentiality and
non-disclosure agreement, in form and substance reasonably satisfactory to
Buyer, with respect to the materials to be delivered to or examined by Seller or
its representatives.
(e) No investigation by any party made heretofore or hereafter
will affect the respective representations and warranties of the parties
contained herein and each such representation and warranty will survive such
investigation as provided in this Agreement.
SECTION 5.2 CONDUCT OF BUSINESS. During the period from the date
hereof to Closing, except as otherwise expressly contemplated by this Agreement
or as Buyer otherwise agrees in writing in advance, Seller will cause the
Company to conduct the Business only in the Ordinary Course and to use its
commercially reasonable efforts to maintain and preserve intact its business
organization, employees and advantageous business relationships and retain the
services of its officers and key employees, and to maintain existing
relationships with licensors, licensees, suppliers, contractors, distributors,
customers and others having business relationships with it. Without limiting the
generality of the foregoing, except as expressly provided in this Agreement or
as otherwise agreed by the parties in writing, and except as set forth on
Schedule 5.2, from the date hereof to Closing, Seller will not cause or permit
the Company to, without the prior written consent of Buyer:
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(a) amend or propose to amend its certificate or articles of
incorporation or by-laws or equivalent organizational documents;
(b) authorize for issuance, issue, sell, deliver or agree or
commit to issue, sell or deliver (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or otherwise)
any stock of any class or any other securities or equity equivalents of the
Company (including stock appreciation rights), or amend any of the terms of any
such securities or agreements outstanding as of the date hereof;
(c) split, combine or reclassify any shares of its capital
stock, declare, set aside or pay any dividend or other distribution (whether in
cash, stock, or property or any combination thereof) in respect of its capital
stock, or redeem, repurchase or otherwise acquire any of its securities or any
securities of its Subsidiaries;
(d) (i) incur any indebtedness for borrowed money or issue any
debt securities or assume, guarantee or endorse the obligations of any other
Person; (ii) make any loans, advances or capital contributions to, or
investments in, any other Person (other than to wholly-owned Subsidiaries of the
Company); (iii) pledge or otherwise encumber shares of capital stock of the
Company or any of its Subsidiaries; or (iv) mortgage or pledge any of its
assets, tangible or intangible, or create or knowingly suffer to exist any
Encumbrance thereupon;
(e) enter into, adopt or (except as may be required by Law)
amend or terminate any bonus, profit sharing, compensation, severance,
termination, stock option, stock appreciation right, restricted stock,
performance unit, stock equivalent, stock purchase, pension, retirement,
deferred compensation, employment, severance or other employee benefit
agreement, trust, plan, fund or other arrangement for the benefit or welfare of
any director, officer or employee, or (except, in the case of employees who are
not officers or directors, for normal compensation increases in the Ordinary
Course) increase in any manner the compensation or benefits of any director,
officer or employee or pay any benefit not required by any plan or arrangement
as in effect as of the date hereof (including the granting of stock options,
restricted stock, stock appreciation rights or performance units or past service
credit under any Company Benefit Plan);
(f) acquire, sell, lease or dispose of any assets outside the
Ordinary Course or any assets which in the aggregate are material to the
Company, taken as a whole, or enter into any contract, agreement, commitment or
transaction outside the Ordinary Course;
(g) change any of the accounting principles or practices used by
it;
(h) (i) acquire (by merger, consolidation, or acquisition of
stock or assets) any corporation, partnership or other business organization or
division thereof; (ii) authorize any new capital expenditure or expenditures
which, individually, is in excess of $100,000 or, in the aggregate, are in
excess of $500,000; (iii) settle any litigation for
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amounts in excess of $50,000 individually or $250,000 in the aggregate; or (iv)
enter into or amend any contract, agreement, commitment or arrangement with
respect to any of the foregoing;
(i) settle or compromise any Tax liability or waive or extend
the statute of limitations in respect of any Taxes;
(j) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the Ordinary
Course, or in accordance with their terms, of liabilities reflected or reserved
against in the June 30 Financial Statements or incurred in the Ordinary Course
since June 30, 1999;
(k) enter into any contract, agreement or understanding that
would, if in existence on the date hereof, constitute a Material Contract, or
amend, modify, renegotiate, renew, extend or terminate any Material Contract, in
each case except in the Ordinary Course;
(l) take, or agree in writing or otherwise to take, any of the
actions described in this Section 5.2 or any action that would (i) make any of
the representations or warranties of Seller contained herein that are qualified
by materiality or Material Adverse Effect to be untrue or incorrect, or (ii)
make any other representation or warranty of Seller contained herein to be
untrue or incorrect in any material respect, or (iii) result in any of the
conditions set forth in Article VIII not being satisfied; or
(m) transfer employees from Seller or any Affiliate of Seller
to the Company.
SECTION 5.3 REASONABLE EFFORTS; FURTHER ASSURANCES.
(a) During the period from the date hereof to Closing (but
subject to Section 5.4(e)), Seller and Buyer will cooperate and use commercially
reasonable efforts to fulfill the conditions precedent to its own and the other
parties' obligations hereunder, including taking or causing to be taken all
actions necessary, proper or advisable to obtain as promptly as practicable all
Required Approvals. Without limiting the generality of the foregoing, Buyer and
Seller will cooperate fully with each other to file promptly documentary
materials required by or necessary to obtain approval or clearance under
Antitrust Laws or in connection with the matters contemplated by Article VI.
(b) Seller and Buyer will cooperate and use their respective
commercially reasonable efforts to comply with all Laws in furtherance of the
Transaction, including the execution of additional agreements, instruments and
documents that may be required by local Law. Subject to the provisions hereof,
from time to time after the Closing Date, each party will promptly execute,
acknowledge and deliver any other assurances or documents reasonably requested
by any other party and necessary for the other party to satisfy its obligations
hereunder or to obtain the benefits contemplated hereby.
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SECTION 5.4 ANTITRUST AND COMPETITION LAWS.
(a) Seller and Buyer will cooperate with each other and oppose
vigorously and use their commercially reasonable efforts to prevent the entry in
a proceeding or administrative action brought under any Antitrust Law by any
Governmental Entity or any other Person of any permanent or preliminary
injunction or other order, decree or ruling that would make consummation of the
Transaction in accordance with the terms of this Agreement unlawful or that
would prevent or materially delay, restrain, enjoin or otherwise prohibit such
consummation.
(b) Notwithstanding Seller's and Buyer's obligations pursuant
to Section 5.4(a), in the event that such an injunction or order, decree or
ruling has been issued in a proceeding or administrative action, Seller and
Buyer will promptly take any and all steps, including the appeal thereof or the
posting of a bond, necessary to vacate, modify or suspend such injunction or
order so as to permit such consummation on a schedule as close as possible to
that contemplated by the parties on the date hereof.
(c) Seller and Buyer will use their respective commercially
reasonable efforts to take promptly all other actions and to do all other things
necessary, proper or advisable to avoid or eliminate each and every impediment
under any Antitrust Law that may be asserted by any Governmental Entity or any
other Person to the consummation of the Transaction by Seller and Buyer in
accordance with the terms of this Agreement.
(d) Seller and Buyer will use their respective commercially
reasonable efforts to include the other party in all conversations, discussions,
hearings or other meetings, whether in person or by telephone, that it or its
representatives has with any Governmental Entity with respect to the
Transaction, and ensure that the other party promptly receives all
notifications, letters, facsimiles or other written documentation sent to or by
any Governmental Entity to the extent that they relate to the Transaction.
(e) Notwithstanding the foregoing, nothing contained in this
Agreement will obligate any party to agree to any disposition of assets,
separate management agreement or any other restriction or limitation on its
current or future business or activity.
SECTION 5.5 SELLER'S TRADEMARKS AND OTHER INTELLECTUAL PROPERTY.
(a) Buyer acknowledges that neither Buyer nor any of its
Affiliates will have, whether by virtue of this Agreement or otherwise, any
right, title or interest in or to, or any right to use, any of Seller's
Intellectual Property (including any of Seller's trade dress, trade names,
trademarks, service marks, logos, identification or names). At all times after
the date hereof, neither Buyer nor any of its Affiliates will use or attempt to
register any trade dress, trade name, trademark, service xxxx, logo,
identification or name which is confusingly similar to any trade dress, trade
name, trademark, service xxxx, logo, identification or name of Seller currently
used by Seller or any of its Affiliates.
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(b) Without limiting the generality of Section 5.5(a), at all
times after the date hereof, neither Buyer nor any Affiliate of Buyer will have
any rights to use any of the following names or symbols: "KODAK," the KODAK
corporate symbol, the KODAK Service logo and all other trade names of Seller or
its Affiliates currently used by Seller or any of its Affiliates.
SECTION 5.6 CONFIDENTIALITY.
(a) At all times after the date hereof, Seller will treat as
confidential and will safeguard any and all information, knowledge and data in
its possession which is owned by the Company (the "COMPANY CONFIDENTIAL
INFORMATION"), in each case by using the same degree of care, but no less than a
reasonable standard of care, to prevent the unauthorized use, dissemination or
disclosure of such information, knowledge and data as Seller uses with respect
to its own confidential and proprietary information.
(b) At all times after the date hereof, Buyer will treat as
confidential and will safeguard any and all information, knowledge or data
relating to the business of Seller and its Affiliates, not related to the
Company or the Business, that has become or becomes known to Buyer as a result
of the Transaction and Buyer's due diligence investigations in connection
therewith, except in each case as expressly agreed to by Kodak in writing. If
for any reason the Transaction is not consummated, the foregoing obligation of
Buyer will also pertain to all information, knowledge or data relating to the
Company or the Business and, subject to the provisions of Section 5.6(c), Buyer
will neither use nor disclose any of such information, knowledge or data. With
respect to all such information, knowledge or data, (i) Buyer will use the same
degree of care, but no less than a reasonable standard of care, to prevent the
unauthorized use, dissemination or disclosure of such information, knowledge and
data as Buyer uses in the protection of other proprietary information of Buyer,
and (ii) nothing contained in this Section 5.6(b) will prevent the disclosure of
any such information, knowledge or data to any directors, officers, employees,
agents and representatives of Buyer to whom such disclosure is necessary or
desirable in the conduct of the Business if such Persons are informed by Buyer
of the confidential nature of such information and are directed by Buyer to
comply with the provisions of this Section 5.6(b).
(c) Nothing contained in this Section 5.6 will in any way
restrict or impair the right of either party or its Affiliates (collectively,
the "RECEIVING PARTY") to use, disclose or otherwise deal with information of
the other party or its Affiliates (collectively, the "DISCLOSING PARTY") which:
(i) is or becomes a matter of public knowledge through no fault of the Receiving
Party or its agents or representatives; (ii) was already in the Receiving
Party's possession at the time of disclosure of the information to the Receiving
Party, and was not acquired, directly or indirectly, under any obligation of
confidentiality to the Disclosing Party or to any other Person; (iii) is
rightfully received by the Receiving Party from a Person having no duty of
confidentiality to the Disclosing Party or any other Person; (iv) was disclosed
by the Disclosing Party to another Person having no duty of confidentiality to
the Disclosing Party; (v) is independently developed by the Receiving Party;
(vi) is disclosed pursuant to legal process after prior notice to the Disclosing
Party; or
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(vii) is disclosed by the Receiving Party with the Disclosing Party's
prior written consent; provided, however, that nothing in this Section 5.6(c)
will give Seller or its Affiliates the right to use, disclose or otherwise deal
with Company Confidential Information solely by reason of or incidental to
Seller's ownership or prior ownership of the Company. The Receiving Party will
have the burden of proving the applicability of any provision of this Section
5.6(c) to any particular set of facts.
SECTION 5.7 PUBLIC DISCLOSURE. Each of the parties agrees that through
announcement of Closing of the Transaction (or, if applicable, announcement of
termination of this Agreement), except as may be required to comply with the
requirements of any Law, and the rules and regulations of each stock exchange
upon which the securities of any of the parties is listed, no press release or
similar public announcement or communication will be made concerning the
execution, performance or termination of this Agreement unless specifically
approved in advance by Kodak and Getty.
SECTION 5.8 NOTICE OF CERTAIN MATTERS.
(a) Each party will give the other prompt notice of the
occurrence or non-occurrence of any event that causes any condition set forth in
Article VIII not to be satisfied; provided, however, that the delivery of any
such notice will not limit or otherwise affect the remedies available hereunder
to the party receiving such notice.
(b) Seller will promptly update each Schedule as necessary on
or before the Closing Date and deliver the same to Buyer.
SECTION 5.9 EXCLUSIVITY. Seller has, and has caused the Company to,
terminate all existing discussions or negotiations with any third parties
conducted prior to the date hereof with respect to any Acquisition Proposal.
Neither Seller nor the Company will, directly or indirectly, through any
officer, director, employee, representative or agent or any of its Affiliates:
(i) solicit, initiate, continue or encourage any inquiries, proposals or offers
that constitute, or could reasonably be expected to lead to, a proposal or offer
for a merger, consolidation, business combination, sale of substantial assets,
sale of shares of capital stock or similar transaction involving the Company,
other than the Transaction (any of the foregoing inquiries or proposals being
referred to as an "ACQUISITION PROPOSAL"); (ii) solicit, initiate, continue or
engage in any negotiations or discussions concerning, or provide any non-public
information or data to any Person relating to, any Acquisition Proposal; or
(iii) agree to, approve or recommend any Acquisition Proposal. Seller will
notify Buyer immediately after receipt by Seller or the Company of any bona fide
Acquisition Proposal or any request for non-public information in connection
with a bona fide Acquisition Proposal or for access to the properties, Books and
Records of the Company by any Person that informs Seller or the Company that it
is considering making, or has made, an Acquisition Proposal. Seller agrees that
it will not, and will not cause or permit the Company to, release any third
party from, or waive any provision of, any confidentiality or standstill
agreement relating to the Company to which any of them is a party.
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SECTION 5.10 CERTAIN FINANCIAL STATEMENT MATTERS.
(a) As promptly as practicable, but no later than October 11,
1999, Seller will cause the Historical Financial Statements as of and for the
six months ended June 30, 1998 to be completed, reviewed by Seller's Auditors
and delivered to Buyer, all at Buyer's sole cost and expense not to exceed
$25,000.
(b) As promptly as practicable after Buyer's written request
therefor made on reasonable notice, Seller will cause the Historical Financial
Statements as of and for the years ended December 31, 1997 and/or December 31,
1996 to be completed, reviewed by Seller's Auditors and delivered to Buyer, all
at Buyer's sole cost and expense not to exceed $25,000 per reviewed period.
(c) Seller will cause Seller's Auditors to provide to Buyer,
at Buyer's sole cost and expense not to exceed $30,000: (i) all consents
required for inclusion of the Audited Financial Statements and the opinion of
Seller's Auditors with respect thereto in one or more registration statements
filed by Buyer under the Securities Act; and (ii) one or more "comfort letters"
in customary form to the underwriters in connection with any such registration
statement(s); provided, in each case, that drafts of such registration
statement(s) are provided to Seller's Auditors within a reasonable time prior to
the date and time at which such consents or "comfort letters" are required to be
provided to Buyer.
SECTION 5.11 INTERCOMPANY ACCOUNTS.
(a) As of the Closing Date the Company will be current in its
indebtedness owing to Picture Network International, Ltd. ("PNI"), an Affiliate
of Seller. Except for such current indebtedness owed to PNI in the amount of
$31,250, at or prior to Closing all accounts payable from the Company, on the
one hand, to Seller or any other Affiliate of Seller, on the other hand, will be
capitalized by Kodak without payment or other transfer of assets by the Company.
(b) As of the Closing Date, Seller will cause PNI to agree to
the amendments to the existing agreement between PNI and the Company set forth
in Schedule 5.11(b).
SECTION 5.12. OBLIGATIONS UNDER IBM CONTRACTS. After Closing, and at the
end of any applicable contract month following 30 days' written notice given by
Buyer, Seller will assume all obligations of the Company under the leases and
agreements listed in Schedule 5.12, which constitute all leases and services
agreements between the Company and International Business Machine Corporation in
effect as of the Closing Date; provided, however, that Buyer will promptly at
the end of such notice period return to Seller all equipment that is the subject
of such leases and agreements.
SECTION 5.13. YEAR 2000 COMPLIANCE PRIOR TO CLOSING. Annexed hereto as
Schedule 5.13 is a plan developed by the parties that the parties expect, if
properly and timely implemented, will make the Company Systems Year 2000
Compliant on or before
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December 15, 1999. Seller will, and will cause the Company to: (a) test the
Company Systems and implement corrective measures as described in Schedule 5.13
within a timetable to be agreed upon by the parties within two weeks from the
date hereof; (b) provide Buyer and its representatives with reasonable access,
at reasonable times and upon reasonable notice, to the Company Systems and the
results of such testing; and (c) cooperate with Buyer and its representatives in
developing contingency plans and implementing such contingency plans with
respect to the Company Systems based upon the parties' analysis and reevaluation
from time to time prior to the Closing of such plan. In the event that the
parties are unable to agree on whether a corrective measure is necessary to
bring a Company System into Year 2000 Compliance, the matter will be promptly
submitted for resolution to the Dallas, Texas office of Xxxxxx Xxxxxxxx LLP or
to such other Person as Kodak and Getty may mutually agree. The determination by
Xxxxxx Xxxxxxxx LLP or any such other Person of any such disputed matter will be
final and binding on all parties. The fees and expenses of Xxxxxx Xxxxxxxx LLP
or such other Person will be borne in equal portions by Kodak and Getty.
SECTION 5.14. CERTAIN ACTIONS BY THE COMPANY PRIOR TO CLOSING. Prior to
Closing, and notwithstanding the provisions of Section 5.2:
(a) Seller will cause the Company to acquire the remaining 20
percent equity interest in Artville LLC;
(b) Seller will cause the Company to have no indebtedness to
Chase Manhattan Bank N.A. or to any other banking institution;
(c) Seller will cause the Company to cooperate with Buyer in
establishing replacement overdraft accounts for the Company, to be effective
immediately upon Closing; and
(d) Seller will cause all cash and cash equivalents, including
investment securities and other short- and medium-term investments, held by the
Company to be distributed, sold or otherwise transferred to Seller or its
designee in any manner chosen by Seller.
SECTION 5.15. CERTAIN ACTIONS BY BUYER PRIOR TO CLOSING. From the date
hereof to Closing, Buyer will not, without the prior written consent of Seller,
take, or agree in writing or otherwise to take, any action that would (a) make
any of the representations or warranties of Buyer contained herein that are
qualified by materiality to be untrue or incorrect, or (b) make any other
representation or warranty of Buyer contained herein to be untrue or incorrect
in any material respect, or (c) result in any of the conditions set forth in
Article VIII not being satisfied.
ARTICLE VI. COVENANTS AS TO EMPLOYMENT MATTERS
SECTION 6.1 CERTAIN DEFINITIONS. As used herein:
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(a) "APPLICABLE EMPLOYEE" means each Person who, immediately
prior to the Transfer Time, is exclusively employed by the Company and:
(i) is an active employee (with employees on temporary
leave for purposes of jury or annual two-week national service/military duty
being deemed to be active employees);
(ii) is employed in the U.S. (a "U.S. APPLICABLE
EMPLOYEE") and is on non-medical leave of absence; provided, however, that no
such employee will be guaranteed reinstatement to active service if his return
to employment is contrary to the terms of his leave, unless otherwise required
by any Law (for purposes of the foregoing, non-medical leave of absence
including maternity or paternity leave, leave under the Family and Medical Leave
Act of 1993, educational leave, military leave with veterans' reemployment
rights under federal Law and personal leave, unless any of such is determined to
be a medical leave);
(iii) is a U.S. Applicable Employee and is on disability
or medical leave and for whom it has been 180 calendar days or less since his
last day of active employment; provided, however, that no such employee will be
guaranteed reinstatement to active service if he is incapable of performing the
essential function of the position offered in accordance with the Americans With
Disabilities Act or other Law; or
(iv) is employed in a country other than the U.S. (a
"NON-U.S. APPLICABLE EMPLOYEE"), including those employees on maternity or other
leave with the right to return and otherwise, as required by local Law.
(b) "APPLICABLE EU EMPLOYEES" means those Applicable Employees
who are employed by TIB France.
(c) "ACQUIRED RIGHTS" means (i) EU Directive No. 77/187 or any
directive replacing or amending the same and the implementing Laws in the
relevant countries and (ii) local Laws in other jurisdictions which provide for
the automatic transfer of employees and their rights to a purchaser in the event
of the sale of a business or other undertaking.
(d) "COMPANY SEVERANCE POLICIES" means the severance policies
and practices of the Company in effect immediately prior to the Transfer Time, a
copy of which is annexed hereto as Schedule 6.1(d).
SECTION 6.2 CERTAIN EMPLOYMENT MATTERS. From and after the Transfer
Time, Buyer will, and will cause the Company to, perform the obligations set
forth in Schedule 6.2.
SECTION 6.3 [intentionally omitted]
SECTION 6.4 ADDITIONAL OBLIGATIONS OF BUYER.
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(a) In lieu of the Company Benefit Plans, Buyer will cause the
U.S. Applicable Employees and their beneficiaries to be included as of the
Transfer Time in the medical, dental, health and group life insurance plans and
other employee benefit plans and programs of Buyer (excluding its Affiliates),
all of which plans and programs have been previously provided to Kodak
(collectively, "BUYER'S BENEFIT PLANS").
(b) Buyer will (i) cause the medical, dental, health and group
life insurance plans comprising Buyer's Benefit Plans to waive any eligibility
periods and pre-existing condition limitations, and to honor any deductible and
out-of-pocket expenses incurred by each U.S. Applicable Employee and his
beneficiaries under the Company's medical, dental, health and life insurance
plans during the expired portion of calendar year 1999 to the extent that such
periods, limitations and deductibles were covered under the Company Benefit
Plans immediately prior to the Transfer Time; and (ii) waive any proof of good
health requirements for group life insurance coverage up to the level carried by
such U.S. Applicable Employees immediately prior to the Transfer Time.
(c) All liabilities and obligations in or under contracts of
employment or employment relationships of Non-U.S. Applicable Employees will
remain the obligations of the Company at the Transfer Time.
(d) Buyer will give U.S. Applicable Employees credit for all
service with the Company or Seller (or service credited by the Company or
Seller), to the extent disclosed in the Company's Books and Records, under (i)
all Buyer's Benefit Plans in which they become participants for purposes of
eligibility and vesting (but not benefit accrual), and (ii) all severance plans,
vacation plans and short-term disability arrangements comprising Buyer's Benefit
Plans for purposes of calculating the amount of each Applicable Employee's
benefits thereunder.
SECTION 6.5 CONSULTATION. From and after the date hereof, Seller and the
Company will use commercially reasonable efforts in a timely manner to notify
and consult with the respective works councils, trade unions or other employee
representative bodies relating to the Applicable EU Employees as and to the
extent required by local Law with respect to the Transaction. In the event that
Seller or the Company is required under Law in any country to provide
information to works councils, trade unions or other employee representative
bodies concerning Buyer or its Affiliates, or any measures that Buyer
anticipates will be taken after the Transfer Time with respect to the Company or
the Business, Buyer will promptly upon Seller's request provide all such
information as is required for these purposes. Buyer will otherwise cooperate in
a commercially reasonable manner with Seller in connection with such
consultations, and will satisfy any obligation Buyer may have to consult with
employee representatives regarding the Transaction.
SECTION 6.6 COMPLIANCE WITH WARN, ETC. With respect to the Applicable
Employees, Buyer will in a timely manner give all notices required to be given
under the Worker Adjustment and Retraining Notification Act or other similar
Laws of any jurisdiction relating to any plant closing or mass layoff or as
otherwise required by any
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such Law. Buyer will be deemed to have caused a mass layoff if the mass layoff
would not have occurred but for the failure of the Company to continue to employ
the Applicable Employees in accordance with the terms of this Agreement.
SECTION 6.7 RETENTION PLAN. Buyer and Seller have heretofore agreed on a
retention plan for the Company's management, as set forth in Schedule 6.7 (the
"RETENTION PLAN"), to be implemented as soon as practicable following execution
of this Agreement. Buyer and Seller will share the costs of the Retention Plan,
as payments are made by the Company thereunder, as provided by Schedule 6.7.
SECTION 6.8 CERTAIN RETAINED LIABILITIES. Following Closing, Seller will
assume and retain: (a) all obligations of the Company or Seller to any employees
of the Company arising under Kodak's Stock Option Plan; and (b) all obligations
of the Company or Seller to either Executive if his employment is terminated by
the Company prior to or concurrently with Closing; provided, however, that any
rights (but not obligations) of the Company existing immediately prior to
Closing pursuant to employment agreements between the Company and either
Executive will remain with and be the rights of the Company in accordance with
the terms of such employment agreements; and provided further that all rights
and obligations of the Company existing immediately prior to Closing pursuant to
the agreements set forth on Schedule 6.8 will remain with and be the rights and
obligations of the Company. In addition, prior to or concurrently with Closing,
Kodak will cause all outstanding options granted under Kodak's Stock Option Plan
to employees of the Company not to terminate or expire by reason of consummation
of the Transaction or termination of the status of such employees as employees
of a Subsidiary of Kodak.
SECTION 6.9 NON-SOLICITATION.
(a) During the three-month period immediately following the
Closing Date, Buyer will not permit the Company or any successor in interest to
the Company, without the prior written consent of Kodak, to hire or otherwise
use or solicit the services of (i) any employee of Kodak, or (ii) any former
employee of Kodak who terminated employment with Kodak during the period
beginning three months prior to the Closing Date and ending three months after
the Closing Date.
(b) In consideration of the covenants of Seller contained in
Section 6.8, if the employment of either Executive is terminated by the Company
prior to or concurrently with Closing, then during the two-year period
immediately following the Closing Date, neither Buyer nor any of its Affiliates
will, without the prior written consent of Kodak, hire or otherwise use or
solicit the services of such Executive, unless such hiring or use arises out of
an acquisition of any Person owned by such Executive.
(c) During the two-year period immediately following the Closing
Date, neither Seller nor any of its Affiliates will, without the prior written
consent of Buyer, solicit the services of any Person who was an employee of
Buyer or the Company at any
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time from or after August 3, 1999, unless such Person was terminated by Buyer or
the Company without cause after the Closing Date.
(d) In the event that the parties fail for any reason to
consummate the Transaction, neither Buyer nor any of Buyer's Affiliates
controlled by Buyer will, on or before August 3, 2001, directly or indirectly
solicit for employment or hire any employee of the Company with whom Buyer or
any such Affiliate has had contact, or who had become known to Buyer or any such
Affiliate in connection with Buyer's consideration of the Transaction.
ARTICLE VII. COVENANTS AS TO TAX MATTERS
SECTION 7.1 PRORATION OF TAXES. To the extent permitted by Law or
administrative practice, the taxable years of the Company will be closed at the
close of business on the Closing Date. Whenever it is necessary to determine, as
between Seller and Buyer, the liability for Taxes for a portion of a taxable
year or period that begins before and ends on or after the Closing Date, the
determination of the Taxes for the portion of the year or period ending on, and
the portion of the year or period beginning after, the Closing Date will be
determined by assuming that the taxable year or period ended at the close of
business on the Closing Date.
SECTION 7.2 TRANSFER TAXES. All excise, sales, use, value added,
transfer (including real property transfer or gains), stamp, documentary,
filing, recordation and other similar Taxes and fees that may be imposed or
assessed as a result of the transactions effected pursuant to this Agreement
(including those contemplated by Section 2.4), together with any interest,
additions or penalties with respect thereto and any interest in respect of such
additions or penalties, will be borne by Kodak and Getty in equal portions, each
of which will promptly pay its share of the same and provide to evidence of such
payment.
SECTION 7.3 TAX RETURNS.
(a) Seller will include, or cause to be included, TIB and TIB's
U.S. Subsidiaries in the U.S. consolidated federal income Tax Return of Kodak
for the taxable period of TIB and TIB's U.S. Subsidiaries ending on the Closing
Date. Seller will file or cause to be filed when due all Tax Returns due to be
filed on or prior to the Closing Date and all consolidated, combined or unitary
income Tax Returns of the Company that includes Kodak or its Affiliates for the
taxable periods beginning before and ending on the Closing Date. Buyer will file
or cause to be filed when due all other Tax Returns of the Company due to be
filed after the Closing Date.
(b) If either party is liable hereunder for any portion of the
Tax shown due on any Tax Return required to be filed by the other party, the
party preparing such Tax Return will deliver a copy of the relevant portions of
such Tax Return to the party so liable for its review and approval not less than
30 days prior to the date on which such Tax Return is due to be filed (taking
into account any applicable extensions). If the
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parties disagree as to any item reflected on any such Tax Return, the parties
will jointly request Deloitte & Touche LLP (or such other nationally recognized
firm of independent public accountants agreed upon by Kodak and Getty) to
resolve any issue in dispute as promptly as possible. The decision of such
accounting firm will be final and binding and the expenses thereof will be borne
in equal portions by Seller and Buyer.
SECTION 7.4 INFORMATION TO BE PROVIDED BY BUYER.
(a) With respect to Tax Returns to be filed by Seller pursuant
to Section 7.3, Buyer will within 45 days after the Closing Date prepare and
provide to Kodak a package of tax information materials (the "TAX PACKAGE"),
that will be completed in accordance with past practice, including past practice
as to providing the information, schedules and work papers and as to the method
of computation of separate taxable income or other relevant measures of income
of Seller.
(b) To the extent not contained in the Tax Package and to the
extent received by Buyer, Buyer will deliver to the tax director of Kodak
certified copies of all receipts for any foreign Tax with respect to which
Seller or any of its Affiliates could claim a foreign Tax credit, and any other
documentation required in connection with Seller or any of its Affiliates
claiming or supporting a claim for such foreign Tax credit promptly following
either a request by Kodak for such receipts or documentation or payment of any
such foreign Taxes by Buyer or any other Person.
SECTION 7.5 CONTEST PROVISIONS. Each of Buyer and Seller will promptly
notify the other in writing upon receipt of notice of any pending or threatened
audits or assessments with respect to Taxes for which such other party (or such
other party's Affiliates) may be liable hereunder. Seller or Buyer, as
applicable, will be entitled to participate at its own expense in the defense
of, and at its option, take control of the complete defense of, any Tax audit or
administrative or court proceeding relating to Taxes for which it may be liable,
and to employ counsel of its choice at its expense; provided, however, that the
audit or proceeding will be controlled by that party which would bear the burden
of the greater portion of the sum of the adjustment plus any adjustment that may
reasonably be anticipated for one or more future taxable periods. Buyer and
Seller will cooperate on a reasonable basis to enable the party controlling an
audit or proceeding to take all actions with respect to such audit or
proceeding. Neither party may agree to settle any claim for Taxes for which the
other may be liable without the prior written consent of such other party, which
consent will not be unreasonably withheld.
SECTION 7.6 CERTAIN POST-CLOSING SETTLEMENT PAYMENTS.
(a) If, after Closing, Buyer or its Affiliates receive any
refund, or utilize the benefit of any overpayment, of Taxes that were paid by
Seller or any of its Affiliates, Buyer will promptly transfer, or cause to be
transferred, to Kodak the entire amount of the refund or overpayment (including
interest) received or utilized by Buyer or its Affiliates (net of any Taxes
payable with respect thereto). Promptly after receiving a
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written request from Seller, and provided that the claiming of any such refund
or the utilization of any such overpayment would not have an adverse effect on
Buyer or the Company after the Closing, Buyer will claim any such refund or
utilize any such overpayment and furnish to Seller all reasonable information
necessary to verify the amount of the refund or overpayment. Notwithstanding the
foregoing, the provisions of this Section 7.6(a) will not apply to any value
added Tax imposed on the Transaction to the extent that the same has been paid
by Buyer to Seller or otherwise, and any refund or utilization of the benefit
thereof will belong solely to Buyer and its Affiliates.
(b) In the event that any Tax refund, benefit or savings
described in this Section 7.6 is subsequently reduced as a result of any
adjustment required by any taxing authority, the provisions of this Section 7.6
will be applied, taking into account such adjustment. If Seller or its
Affiliates, on the one hand, or Buyer or its Affiliates, on the other hand, have
paid any amount to the other on the basis of the application of the provisions
of this Section 7.6 prior to such subsequent adjustment, and the amount due
pursuant to this Section 7.6 taking into account such subsequent adjustment is
determined to have changed as a result of such subsequent adjustment, the
parties will make any payment necessary to settle the difference between the
amount previously paid and the amount subsequently determined to be due.
(c) In the event that Seller and Buyer cannot agree on any
calculation required under this Section 7.6, such calculation will be made by
Deloitte & Touche LLP, or such other nationally recognized firm of independent
public accountants agreed upon by Kodak and Getty. The decision of such
accounting firm will be final and binding and the expenses thereof will be borne
in equal portions by Seller and Buyer.
SECTION 7.7 POST-CLOSING ACTIONS THAT AFFECT SELLER'S LIABILITY FOR
TAXES. Except to the extent required by Law, Buyer and its Affiliates will not,
without the prior written consent of Kodak, which consent will not be
unreasonably withheld, amend any Tax Return filed by or with respect to the
Company for any taxable period, or portion thereof, beginning before the Closing
Date.
SECTION 7.8 TERMINATION OF TAX ALLOCATION AGREEMENTS. Any agreement or
arrangement with respect to the allocation or sharing of Taxes, whether or not
written, that may have been entered into by TIB, TIB France or any TIB
Subsidiary will be terminated as to each such Person as of the Closing Date, and
no payments that are owed by Seller or any of its Affiliates pursuant thereto
will be made thereunder.
SECTION 7.9 ASSISTANCE AND COOPERATION. After the Closing Date: (a) each
party will assist (and cause its Affiliates to assist) the other in preparing
any Tax Returns of the Company which such other party is responsible for
preparing and filing; (b) each party will cooperate fully in preparing for any
audits of, or disputes with taxing authorities regarding, any Tax Returns and
payments in respect thereof; (c) each party will make available to the other and
to any taxing authority as reasonably requested all relevant Books and Records
relating to Taxes; provided, however, that in no event will either party have
access to the other party's consolidated federal, state or local income
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Tax Returns; (d) each party will provide timely notice in writing to the other
of any pending or proposed audits or assessments with respect to Taxes for which
such other party or any of its Affiliates may have liability under this
Agreement; (e) each party will furnish the other with copies of all relevant
correspondence received from any taxing authority in connection with any audit
or information request with respect to any Taxes referred to in the foregoing
clause (d); and (f) the party requesting assistance or cooperation will bear the
other party's out-of-pocket expenses in complying with such request to the
extent that those expenses are attributable to fees and other costs of
unaffiliated third party service providers.
SECTION 7.10. SECTION 338(H)(10) ELECTION.
(a) Seller will join with Buyer in making an election under
sections 338(g) and 338(h) of the Code and the Treasury Regulations promulgated
under the Code (the "TREASURY REGULATIONS") and any corresponding or similar
elections under state, local or foreign Tax Law (collectively, a "SECTION
338(H)(10) ELECTION") with respect to the purchase and sale of the TIB Shares
(including with respect to the stock of any U.S. Subsidiary of TIB). Seller and
Buyer will report, in connection with the determination of income, franchise or
other Taxes measured by net income, the Transaction in a manner consistent with
the Section 338(h)(10) Election unless required to do otherwise pursuant to a
final determination, as defined in section 1313(a) of the Code.
(b) Buyer will be responsible for the preparation and filing of
all forms and documents required in connection with the Section 338(h)(10)
Election. No later than 45 days after the Closing Date, Seller will execute and
deliver to Buyer such documents or forms as are reasonably requested and are
required of a seller by any Tax Laws to complete properly the Section 338(h)(10)
Election. For the purposes of executing the Section 338(h)(10) Election, on or
prior to the Closing Date, Kodak will execute two copies of Internal Revenue
Service Form 8023 and all attachments required to be filed therewith pursuant to
applicable Treasury Regulations.
(c) Not less than 30 days prior to the date the forms required
under section 338(h)(10) of the Code are required to be filed, Buyer will
provide Seller with a valuation statement reflecting, as of the Closing Date,
the fair market values of all of the assets and the liabilities and obligations
of the Company. Buyer and Seller will file, and will cause their respective
Affiliates to file, all Tax Returns and statements, forms and schedules in
connection therewith in a manner consistent with such valuation and will take no
position contrary thereto unless required to do so by applicable Tax Laws.
(d) To the extent permitted by state and local Law, the
principles and procedures of this Section 7.10 will also apply with respect to a
Section 338(h)(10) Election or equivalent or comparable provision under state or
local Law, including an election under section 338(g) of the Code or equivalent
or comparable provision under state or local Law. At Buyer's request, Seller
will make any election similar to a Section 338(h)(10) Election which is
optional under any state or local Law, and will cooperate and join in any
election made by the Company, Buyer or its Affiliates to effect such an
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election so as to treat the Transaction as a sale of assets for state and local
income Tax purposes.
(e) The parties have heretofore agreed for all purposes hereof
on the amount of the Tax liability of Seller directly related to the 338(h)(10)
Election, and such amount has been reflected in the Purchase Price. No payment,
adjustment or reimbursement of any kind will be payable by one party to another
if Seller's actual Tax liability directly related to the 338(h)(10) Election is
greater or lesser than such amount.
ARTICLE VIII. CONDITIONS TO CLOSING
SECTION 8.1 CONDITIONS TO THE OBLIGATIONS OF BUYER AND SELLER. The
obligations of Buyer and of Seller to effect Closing are subject to the
satisfaction or waiver prior to Closing of each of the following conditions:
(a) ANTITRUST LAWS. All filings under the Antitrust Laws of the
U.S. and of either France or the EU, as applicable, will have been made and any
required waiting period under such Laws applicable to the Transaction will have
expired or been earlier terminated, and any other Governmental Entity of the
U.S. or of either France or the EU, as applicable, that has power or authority
to enforce such Laws will have approved, cleared and/or not intervened or
attempted to prevent or modify the material terms of the Transaction.
(b) NO INJUNCTIONS. No Governmental Entity of competent
jurisdiction will have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, or nonappealable judgment, decree, injunction or
other order that is in effect on the Closing Date and prohibits Closing or the
consummation of the Transaction; provided, however, that the foregoing will not
be a condition to Closing if such prohibition is attributable to the willful act
or omission of either party.
(c) NO LITIGATION. There will not be pending any litigation
seeking to prohibit the Transaction or seeking substantial damages as a result
thereof; provided, however, that the foregoing will not be a condition to
Closing if such prohibition or such damages are attributable to the willful act
or omission of either party.
(d) REQUIRED APPROVALS. All Required Approvals will have been
obtained or accomplished, as the case may be, and the parties will have
delivered to each other appropriate evidence of the same.
SECTION 8.2 FURTHER CONDITIONS TO THE OBLIGATION OF BUYER. The
obligation of Buyer to effect Closing is subject to either the satisfaction, or
the waiver by Getty, of each of the following further conditions at or prior to
Closing:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained herein that are qualified by materiality or
Material Adverse Effect will have been true and correct, and all other
representations and warranties of Seller contained herein will have been true
and correct in all material respects, as of the date hereof and at and as of
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Closing as if made on and as of Closing (except that representations and
warranties that are made as of a specific date need be so true and correct only
as of such date), and Buyer will have received a certificate to such effect
dated the Closing Date and executed by a duly authorized officer of Kodak.
(b) COVENANTS. The covenants and agreements of Seller to be
performed prior to Closing will have been duly performed in all material
respects, and Buyer will have received a certificate to such effect dated the
Closing Date and executed by a duly authorized officer of Kodak.
(c) TAX SHARING AGREEMENTS. Seller and the Company will have
terminated all Tax sharing agreements, without payment by or liability of the
Company thereunder, and all amounts due to the Company thereunder will have been
paid.
(d) MATERIAL ADVERSE CHANGE. Since June 30, 1999, there will not
have occurred any change in the assets, liabilities, properties, business,
operations or condition of the Company that is materially adverse to the Company
taken as a whole, excluding general economic changes, changes in currency
exchange rates, changes that may affect the visual content industry generally,
the voluntary or involuntary termination of either Executive's employment, and
changes attributable to the Transaction (a "MATERIAL ADVERSE CHANGE").
(e) AUDITORS' CONSENTS, ETC. Seller's Auditors will have
provided to Buyer the consents and "comfort letters" required by Section
5.10(c).
(f) ADDITIONAL CLOSING DELIVERIES. At Closing, Seller will have
delivered or caused to be delivered to Buyer the following:
(i) stock certificates representing all of the TIB
Shares, properly endorsed or with stock powers executed in blank or otherwise in
form suitable for transfer;
(ii) transfer order with respect to the transfer of all
of the TIB France Shares (including directors' qualifying shares) to Buyer, any
Affiliate Buyer or any designee with respect to directors' qualifying shares;
(iii) subject to local Law and custom, duly executed
resignations of all directors and corporate officers of the Company (in those
capacities and not as Applicable Employees); and
(iv) such other instruments or documents, in form and
substance reasonably acceptable to Getty, as may be necessary to effect Closing
or reasonably requested by Getty on a timely basis.
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SECTION 8.3 FURTHER CONDITIONS TO THE OBLIGATION OF SELLER. The
obligation of Seller to effect Closing is subject to either the satisfaction, or
the waiver by Kodak, of each of the following further conditions at or prior to
Closing:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer contained herein that are qualified by materiality will have
been true and correct, and all other representations and warranties of Buyer
contained herein will have been true and correct in all material respects, as of
the date hereof and at and as of Closing as if made on and as of Closing (except
that representations and warranties that are made as of a specific date need be
so true and correct only as of such date), and Seller will have received a
certificate to such effect dated the Closing Date and executed by a duly
authorized officer of Getty.
(b) COVENANTS. The covenants and agreements of Buyer to be
performed prior to Closing will have been duly performed in all material
respects, and Seller will have received a certificate to such effect dated the
Closing Date and executed by a duly authorized officer of Getty.
(c) PAYMENT. Buyer will have caused the Purchase Price to be
delivered to Seller at Closing as provided by Section 2.6, with amounts required
by Section 2.6 to be delivered in federal funds being delivered by wire transfer
to an account or accounts designated by Kodak prior to Closing.
(d) ADDITIONAL CLOSING DELIVERIES. At Closing Buyer will have
delivered or caused to be delivered to Seller such other instruments or
documents, in form and substance reasonably acceptable to Kodak and Getty, as
may be necessary to effect Closing or reasonably requested by Kodak on a timely
basis.
ARTICLE IX. INDEMNIFICATION; REMEDIES
SECTION 9.1 INDEMNIFICATION BY KODAK. Subject to the further provisions
of this Article IX, Kodak will indemnify, defend and hold harmless Buyer,
Buyer's Affiliates and their respective directors, officers, shareholders,
partners, attorneys, accountants, agents and employees (other than the
Applicable Employees), and their heirs, successors and assigns (collectively,
the "BUYER INDEMNIFIED PARTIES"), from, against and in respect of all Losses
imposed on, sustained, incurred or suffered by or asserted against any of the
Buyer Indemnified Parties, directly or indirectly relating to or arising out of
any of the following (collectively, "BUYER LOSSES"):
(a) any fact or circumstance that constitutes a failure or
breach of any representation or warranty of Seller contained herein;
(b) any act or omission that constitutes a breach or
non-fulfillment of any covenant or agreement of Seller contained herein;
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(c) any Taxes payable by the Company for any period through and
including the Closing Date, including any Taxes for any period which includes,
but does not end on, the Closing Date, prorated as provided in Section 7.1
(other than those portions of Taxes related to the Transaction which by the
terms of Section 7.2 or Schedule 6.2 are the obligations of Buyer), any Taxes
resulting from the Company having been (or ceasing to be) included in any
consolidated, unitary or combined Tax Return that includes the Company for any
taxable period (or portion thereof) ending on or before the Closing Date, any
Taxes of any member of a consolidated, unitary or combined group of which the
Company is or was a member on or prior to the Closing Date by reason of the
liability of the Company pursuant to Treasury Regulation 1.1502-(6)(a) or any
analogous or similar Law, and any Tax liability of Seller directly related to
the 338(h)(10) Election;
(d) any obligation or liability arising under ERISA and payable
by or imposed upon the Company by virtue of the Company's status at any time as
a Subsidiary of Seller or a member of Seller's consolidated or affiliated group;
and
(e) the litigation and claims listed on Schedule 9.1(e);
provided, however, that Buyer and the Company provide Seller with reasonable
access, at reasonable times, upon reasonable advance notice and subject to
reasonable security requirements, to the Books and Records of the Company
relating to, and the employees, consultants, agents and other personnel of the
Company having knowledge of, any of such litigation and claims, and that the
Company and its employees reasonably cooperate with Seller in its defense of
such litigation and claims.
Notwithstanding the foregoing, Kodak will not be liable for any Buyer Loss
unless a Buyer Indemnified Party gives Kodak notice of a claim for
indemnification therefor within the applicable survival period provided by
Section 11.4. Moreover, except as provided in the immediately following
sentence, Kodak will not be liable for any Buyer Loss referred to in Sections
9.1(a) or 9.1(b) unless: (i) the amount of the individual Loss (or, in the case
of a class action or a series of claims arising out of common facts and
circumstances, the aggregate amount of all such similar claims) exceeds $25,000;
and (ii) the aggregate amount of all Buyer Losses satisfying the foregoing
clause (i) exceeds $1,000,000; and then Kodak will be liable for all such Losses
satisfying the foregoing clause (i), including the first $1,000,000 thereof;
provided, however, that in no event will Kodak's aggregate liability for all
Buyer Losses referred to in Sections 9.1(a) and 9.1(b) exceed $60,000,000 (or,
if less, one-third of the amount of the Purchase Price actually paid by Buyer in
federal funds at Closing or as payment of principal under the Getty Note).
Notwithstanding the foregoing, the limitations contained in the immediately
preceding sentence will not apply to any Buyer Loss arising out of: (x) any
failure or breach of a representation or warranty of Seller contained in
Sections 3.3, 3.4(b) or 3.4(c); (y) any breach or non-fulfillment of a covenant
or agreement of Seller contained in Section 5.12; or (z) any fraud committed by
Seller.
SECTION 9.2 INDEMNIFICATION BY GETTY. Subject to the further provisions
of this Article IX, Getty will indemnify, defend and hold harmless Seller,
Seller's Affiliates and their respective directors, officers, shareholders,
partners, attorneys, accountants, agents
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and employees (other than the Applicable Employees), and their heirs, successors
and assigns (collectively, the "SELLER INDEMNIFIED Parties"), from, against and
in respect of any Losses imposed on, sustained, incurred or suffered by or
asserted against any of the Seller Indemnified Parties, directly or indirectly
relating to or arising out of any of the following (collectively, "SELLER
LOSSES"):
(a) any fact or circumstance that constitutes a failure or
breach of any representation or warranty of Buyer contained herein;
(b) any act or omission that constitutes a breach or
non-fulfillment of any covenant or agreement of Buyer contained herein;
(c) any obligation or liability of the Company incurred after
the Closing Date, except for (i) any obligation or liability contemplated by
Sections 9.1(c), 9.1(d) or 9.1(e), and (ii) any obligation or liability with
respect to which, and to the extent that, there was a failure or breach of any
representation or warranty, or a breach or nonfulfillment of any covenant or
agreement, of Seller contained herein; and
(d) any obligation or liability, whether under Securities Laws
or otherwise, arising out of any registration statement (including any
prospectus forming a part thereof) filed by Getty under the Securities Act or
any other Securities Laws, except to the extent that such obligation or
liability arises out of information provided in writing to Getty by Kodak
expressly for inclusion in such registration statement.
Notwithstanding the foregoing, Getty will not be liable for any Seller Loss
unless a Seller Indemnified Party gives Getty notice of a claim for
indemnification therefor within the applicable survival period provided by
Section 11.4. Moreover, except as provided in the immediately following
sentence, Getty will not be liable for any Seller Loss referred to in Sections
9.2(a), 9.2(b) or 9.2(c) unless: (i) the amount of the individual Loss (or, in
the case of a class action or a series of claims arising out of common facts and
circumstances, the aggregate amount of all such similar claims) exceeds $25,000;
and (ii) the aggregate amount of all Seller Losses satisfying the foregoing
clause (i) exceeds $1,000,000; and then Getty will be liable for all such Losses
satisfying the foregoing clause (i), including the first $1,000,000 thereof;
provided, however, that in no event will Getty's aggregate liability for all
Seller Losses referred to in Sections 9.2(a), 9.2(b) and 9.2(c) exceed
$60,000,000. Notwithstanding the foregoing, the limitations contained in the
immediately preceding sentence will not apply to any Seller Loss arising out of
any fraud committed by Buyer.
SECTION 9.3 INDEMNIFICATION PROCEDURES.
(a) As used herein, "LOSSES" include only Losses actually paid
or incurred, and do not include: (i) any amounts recovered from any insurer or
other third party obligor (which term, for purposes of this Article IX, includes
the escrow account established in connection with TIB's acquisition of Archive
Holdings, Inc.), or the cost
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of maintaining any insurance coverage, and no right of subrogation against the
Indemnifying Party will accrue hereunder to or for the benefit of any third
party obligor; or (ii) any cost or expense previously counted in determining a
Loss. Each Indemnified Party will submit in a timely manner to any applicable
third party obligor all claims for indemnifiable Losses for which such Person
may have liability; provided, however, that such submission of any such claim
against a third party obligor will not relieve any Indemnifying Party of any
indemnification obligation it may have under this Article IX. To the extent
permitted by Law, the Indemnifying Party will be subrogated to all claims and
setoffs that the Indemnified Party could assert against such third party
obligor. The Indemnified Party will execute and deliver to the Indemnifying
Party such documents as may be reasonably necessary to establish by way of
subrogation the ability and right of the Indemnifying Party to assert such
claims and setoffs.
(b) All claims for indemnification by any Indemnified Party will
be asserted and resolved as set forth in this Section 9.3. In the event that any
claim or demand for which an Indemnifying Party would be liable to any
Indemnified Party hereunder is asserted against or sought to be collected from
any Indemnified Party by a third party, such Indemnified Party will promptly
notify the Indemnifying Party in writing of such claim or demand in reasonable
detail (the "CLAIM NOTICE"); provided, however, that no failure or delay by any
Indemnified Party in giving any such notice will relieve any Indemnifying Party
from any obligation or liability under this Agreement, except to the extent that
the Indemnifying Party is prejudiced by such failure or delay.
(c) The Indemnifying Party will have 30 days (or such lesser
period as the nature of the claim may require) from the receipt of the Claim
Notice (the "NOTICE PERIOD") to notify the Indemnified Party (a) whether or not
the Indemnifying Party disputes the liability of the Indemnifying Party to the
Indemnified Party hereunder with respect to such claim or demand and (b) whether
or not it desires to conduct the defense of the Indemnified Party against such
claim or demand. All costs and expenses incurred by the Indemnifying Party in
defending such claim or demand will be a liability of, and will be paid by, the
Indemnifying Party.
(d) Except as provided in this Section 9.3(d) or in Section
9.3(e), in the event that the Indemnifying Party notifies the Indemnified Party
within the Notice Period that the Indemnifying Party does not dispute its
liability with respect to such claim or demand and desires to defend the
Indemnified Party against such claim or demand, the Indemnifying Party will have
the right to defend the Indemnified Party by appropriate proceedings with
counsel of the Indemnifying Party's choosing (which will be reasonably
satisfactory to the Indemnified Party), and will have the sole power to direct
and control such defense, and in such case, if any Indemnified Party desires to
participate in any such defense it may do so at its sole cost and expense;
provided, however, that such Indemnified Party will be entitled to participate
in any such defense with separate counsel at the expense of the Indemnifying
Party if so requested by the Indemnifying Party to participate or if, in the
opinion of counsel to the Indemnified Party, a conflict or potential conflict
exists between the Indemnified Party and the Indemnifying Party that would make
such separate representation advisable; and provided, further, that the
Indemnifying Party will not be
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required to pay for more than one such counsel for all Indemnified Parties in
connection with any claim. The parties agree to cooperate fully with each other
in connection with the defense, negotiation or settlement of any such claim.
(e) If the Indemnifying Party fails so to notify the Indemnified
Party within the Notice Period or does not conduct the defense of the
Indemnified Party against such claim or demand, then the Indemnified Party will
have the right to defend such claim or demand by appropriate proceedings with
counsel of the Indemnified Party's choosing, and will have the sole power to
direct and control such defense, and all reasonable costs and expenses incurred
by the Indemnified Party in defending such claim or demand (together with the
portion of any such claim or demand as to which any defense by the Indemnified
Party is unsuccessful) will be a liability of, and will be paid (as incurred)
by, the Indemnifying Party, subject to the respective limitations set forth in
Sections 9.1 and 9.2.
(f) Except in the circumstances contemplated by Section 9.3(e),
the Indemnified Party will not settle, compromise or offer to settle or
compromise a claim or demand without the consent of the Indemnifying Party,
which consent will not be unreasonably withheld. The Indemnifying Party will not
settle, compromise or offer to settle or compromise any claim or demand without
the prior written consent of the Indemnified Party, which consent will not be
unreasonably withheld; provided, however, that no such settlement or compromise
will be made on a basis (i) that would result in the imposition of a consent
order, injunction or decree that would restrict the future activity or conduct
of the Indemnified Party or any Affiliate thereof, or (ii) that involves the
admission by any Indemnified Party of any liability or wrongdoing, or (iii) that
does not include a full and unconditional release of the Indemnified Party from
all liability in respect of such claim or demand.
(g) To the extent that the Indemnifying Party directs, controls
or participates in the defense or settlement of any third party claim or demand,
the Indemnified Party will give the Indemnifying Party and its counsel, during
normal business hours, access to the relevant business records and other
documents, and will permit them to consult with the employees and counsel of the
Indemnified Party.
(h) All amounts paid by Kodak or Getty, as the case may be,
under this Article IX will be treated as adjustments to the Purchase Price for
Tax purposes.
(i) Under no circumstances will Buyer have any right to setoff
the amount of any Losses against any payments of principal or interest due under
the Getty Note.
SECTION 9.4 EQUITABLE AND OTHER SPECIAL REMEDIES. Each party
acknowledges and agrees that any breach of certain provisions hereof would give
rise to irreparable harm for which money damages would not be an adequate
remedy. Each party accordingly agrees that, in addition to other remedies, the
other party will be entitled to enforce the terms of this Agreement by a decree
of specific performance without the necessity of proving the inadequacy of money
damages as a remedy or posting a bond or
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other security, and to obtain injunctive relief against any breach or threatened
breach of such provisions.
SECTION 9.5 SOLE REMEDY. The rights and remedies expressly provided by
this Article IX and by other provisions of this Agreement will constitute the
sole and exclusive basis for and means of recourse between the parties with
respect to this Agreement and the Transaction, and Buyer and Seller each
expressly waives any and all other rights or causes of action with respect to
this Agreement and the Transaction that it may have against the other party now
or in the future under any Law. Without limiting the generality of the
foregoing, each party acknowledges that this Article IX provides its sole remedy
with respect to any Losses arising under or in connection with this Agreement or
the Transaction. Notwithstanding the foregoing, the provisions of this Article
IX will not apply to the enforcement of the parties' respective rights and
remedies under the Getty Note and the Getty Security Agreement.
ARTICLE X. TERMINATION
SECTION 10.1 TERMINATION. This Agreement may be terminated at any time
prior to Closing:
(a) by mutual agreement of Getty and Kodak;
(b) by either Getty or Kodak, by giving written notice of such
termination to the other party, if Closing has not occurred on or prior to March
31, 2000, provided, however, that the terminating party is not in material
breach of its obligations under this Agreement;
(c) by either Getty or Kodak if there is in effect any Law that
prohibits Closing, or if Closing would violate any non-appealable final order,
decree or judgment of any Governmental Entity having competent jurisdiction;
provided, however, that any such prohibition is not attributable to the
terminating party's willful act or omission;
(d) by Kodak if, as a result of any action or inaction by Buyer
or its Affiliates, Closing has not occurred within 30 days following the date on
which all the conditions to Closing set forth in Sections 8.1 and 8.2 are
satisfied or capable of immediate satisfaction;
(e) by Getty if, as a result of any Material Adverse Change or
any action or inaction by Seller or its Affiliates, Closing has not occurred
within 30 days following the date on which all the conditions to Closing set
forth in Sections 8.1 and 8.3 are satisfied or capable of immediate
satisfaction; or
(f) by Getty, under the circumstances provided by Sections
2.6(a)(iv) or 2.6(b)(iii).
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SECTION 10.2. EFFECT OF TERMINATION.
(a) In the event of the termination of this Agreement in
accordance with Section 10.1, this Agreement will thereupon become void and have
no effect, and no party will have any liability to any other party or their
respective Affiliates, directors, officers or employees, except for the
obligations of the parties contained in this Section 10.2 and in Sections 5.6
(Confidentiality), 5.7 (Public Disclosure), 6.9(d) (Non-Solicitation), 11.1
(Notices), 11.5 (Return of Information), 11.6 (Expenses), 11.9 (Governing Law;
Submission to Jurisdiction; Selection of Forum) and 11.12 (Entire Agreement)
(and any related definitional provisions set forth in Article I), and except
that nothing in this Section 10.2 will relieve any party from liability for any
breach of this Agreement that arose prior to such termination, for which
liability the provisions of Article IX will remain in effect in accordance with
the provisions and limitations thereof.
(b) If the Transaction is not consummated due to the termination
of this Agreement pursuant to Sections 10.1(b), 10.1(c) or 10.1(e), or due to a
material breach by Seller of its obligations under this Agreement, the Deposit
will promptly be returned to Buyer. If the Transaction is not consummated for
any other reason whatsoever, Seller will retain the Deposit as liquidated
damages and not as a penalty.
(c) The parties agree that the provisions of Sections 2.6(c) and
10.2(b) are reasonable in light of: (i) Seller's agreement to deal exclusively
with Buyer since August 3, 1999 with respect to its disposition of the Company;
(ii) the costs and expenses borne and to be borne by Seller in furtherance of
consummation of the Transaction; (iii) the losses and competitive disadvantage
Seller would suffer as a result of terminating on or about August 3, 1999
negotiations with prospective purchasers with which Seller had theretofore had
discussions, foregoing the pursuit of other opportunities for a transaction with
other prospective purchasers, and expending significant time and attention in
furtherance of consummation of the Transaction with Buyer; and (iv) the
additional lost opportunities, losses, competitive disadvantage and costs and
expenses that Seller may suffer as a result of extending Closing, or Getty's
termination of this Agreement, as contemplated by Section 2.6.
ARTICLE XI. IN GENERAL
SECTION 11.1 NOTICES. All notices or other communications given
hereunder will be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended, if delivered
by registered or certified mail, return receipt requested, or by a national
courier service, or if sent by telecopier, provided that the telecopy is
promptly confirmed by telephone confirmation thereof, to the party at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such party:
If to Seller: Xxxxxxx Kodak Company
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
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Attention: General Counsel
Fax: (000) 000-0000
with a copy to: Xxxxxx, Xxxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
If to Buyer: Getty Images, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Page
Fax: (000) 000-0000
with a copy to: Weil, Gotshal & Xxxxxx LLP
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
SECTION 11.2 AMENDMENT; WAIVER. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Getty and Kodak, or in the case of a
waiver, by the party against whom the waiver is to be effective. No failure or
delay by any party in exercising any right, power or privilege hereunder will
operate as a waiver thereof nor will any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided will be
cumulative and, except as otherwise expressly provided herein, not exclusive of
any rights or remedies provided by Law.
SECTION 11.3 NO ASSIGNMENT OR BENEFIT TO THIRD PARTIES. Except as
otherwise provided by Section 2.3, no party may assign any of its rights or
delegate any of its obligations under this Agreement, by operation of Law or
otherwise, without the prior written consent of each of the other parties, and
any attempt to assign this Agreement without such consent will be void and of no
force or effect. Notwithstanding the foregoing, Buyer may collaterally assign
its rights under this Agreement to any lender or other provider of financing to
Buyer, provided that no such assignment will relieve Buyer from any obligation
or liability hereunder, nor result in any net greater cost (including reasonable
attorneys' fees) or obligation than Seller would otherwise have had, nor modify
the allocation of risk and responsibility between Kodak and Getty, to the net
detriment of Kodak. Nothing in this Agreement, express or implied, is intended
to confer
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upon any Person other than Buyer, Seller or the Indemnified Parties,
or their respective successors or permitted assigns, any rights or remedies
under or by reason of this Agreement. Without limiting the generality of the
foregoing, nothing in this Agreement creates any rights in any employees or
groups of employees.
SECTION 11.4 SURVIVAL. All of the respective representations,
warranties, covenants and agreements of Seller and Buyer contained in this
Agreement, and all indemnification obligations of any party with respect
thereto, will survive Closing until April 30, 2001, except that:
(a) the following will survive Closing until expiration of the
applicable statute of limitations with respect thereto:
(i) the representations and warranties contained in
Sections 3.3, 3.4(b) and 3.4(c), and Kodak's indemnification obligations
pursuant to Section 9.1(a) with respect thereto;
(ii) Kodak's indemnification obligations pursuant to
Sections 9.1(c), 9.1(d) and 9.1(e); and
(iii) Getty's indemnification obligations pursuant to
Section 9.2(d);
(b) the following will survive Closing for three years following
the Closing Date:
(i) the representations and warranties contained in
Sections 3.15, 3.16 and 3.17, and Kodak's indemnification obligations pursuant
to Section 9.1(a) with respect thereto; and
(ii) Getty's indemnification obligations pursuant to
Section 9.2(c); and
(c) any covenant that contains an express term of years
extending beyond April 30, 2001, and all indemnification obligations of any
party with respect thereto, will survive Closing for such express term.
Notwithstanding the foregoing, if notice of any claim for indemnification has
been given (within the meaning of Section 11.1) within the applicable survival
period provided by this Section 11.4, such claim for indemnification, and the
underlying representations, warranties, covenants or agreements, and the
indemnification obligations that are the subject thereof, will survive until
such time as such claim is finally resolved.
SECTION 11.5 RETURN OF INFORMATION. If for any reason whatsoever the
Transaction is not consummated, Buyer will promptly return to Seller all Books
and Records furnished by Seller, the Company or any of their respective agents,
employees, or representatives (including all copies, if any, thereof in any
media). In such case, the
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use and disclosure of the information contained in such Books and Records will
be governed by the provisions of Section 5.6.
SECTION 11.6 EXPENSES. Except as otherwise expressly provided by this
Agreement, whether or not the Transaction is consummated, all costs and expenses
incurred in connection with this Agreement and the Transaction will be borne by
the party incurring the same; provided, however, that without the prior written
consent of Buyer the Company will not incur expenses relating to this Agreement
and the Transaction in excess of $50,000 (excluding amounts paid by the Company
under the Retention Plan in accordance with Section 6.7 and Schedule 6.7).
SECTION 11.7 SCHEDULES. The disclosure of any matter in any Schedule
referred to in Article III will be deemed to be a disclosure for all purposes of
Article III to which such matter could reasonably be expected to be pertinent,
so long as such disclosure contains sufficient detail to enable Buyer reasonably
to determine which other Schedules may be implicated. The disclosure of any
matter in any Schedule will expressly not be deemed to constitute an admission
by Seller or Buyer, or otherwise to imply, that any such matter is material for
the purposes of this Agreement.
SECTION 11.8 DISPUTE RESOLUTION. If any dispute arises between Buyer and
Seller regarding this Agreement, any Closing Document or the Transaction, the
General Counsel of Getty on behalf of Buyer, and the Director of Finance of
Kodak's Entertainment Imaging division on behalf of Seller, or their respective
designees, will attempt in good faith to resolve the dispute. If those
individuals have not agreed to a resolution within 30 days from the date on
which the dispute was first presented to them, any party, by written notice to
the other parties, may require that the dispute be submitted for resolution to
the Chief Executive Officer of Getty and the President of Kodak's Entertainment
Imaging division (collectively, the "BUSINESS UNIT CEOS"). The Business Unit
CEOs will meet, in person or by other means mutually satisfactory to them, to
attempt to resolve the dispute within 30 days after reference of the matter to
them. If the Business Unit CEOs reach a decision within such 30-day period,
their decision will be final and binding on the parties for all purposes. If the
Business Unit CEOs fail to resolve the dispute within such period, either of the
Business Unit CEOs may, on notice to the other, refer the matter to the
Executive Chairman of Getty and the Director, Business Strategy and Information
Technology of Kodak (collectively, the "CHIEF EXECUTIVES"). The Chief Executives
will meet, in person or by other means mutually satisfactory to them, to attempt
to resolve the dispute within 30 days after reference of the matter to them. If
the Chief Executives reach a decision within such 30-day period, their decision
will be final and binding on the parties for all purposes. If the Chief
Executives fail to resolve the dispute within such period, Buyer and Seller may,
if they then so agree, refer the matter for arbitration on such terms as they
may then agree or, failing that, proceed to litigation.
SECTION 11.9 GOVERNING LAW; SUBMISSION TO JURISDICTION; SELECTION OF
FORUM. This Agreement will be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of law.
EACH PARTY
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AGREES THAT IT WILL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTION, WHETHER IN TORT
OR CONTRACT OR AT LAW OR IN EQUITY, EXCLUSIVELY IN THE U.S. DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK OR THE SUPREME COURT OF THE STATE OF NEW YORK
FOR THE CITY AND COUNTY OF NEW YORK (the "CHOSEN COURTS") AND, SOLELY IN
CONNECTION WITH CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTION, (a) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN
COURTS, (b) WAIVES ANY OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR
PROCEEDING IN THE CHOSEN COURTS, (c) WAIVES ANY OBJECTION THAT THE CHOSEN COURTS
ARE AN INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY PARTY, AND (d)
AGREES THAT SERVICE OF PROCESS IN PERSON OR BY CERTIFIED OR REGISTERED U.S. MAIL
TO ITS ADDRESS SET FORTH IN SECTION 11.1 WILL CONSTITUTE VALID IN PERSONAM
SERVICE UPON SUCH PARTY AND ITS SUCCESSORS AND ASSIGNS IN ANY ACTION OR
PROCEEDING WITH RESPECT TO ANY MATTER AS TO WHICH IT HAS SUBMITTED TO
JURISDICTION HEREUNDER. EACH PARTY HEREBY ACKNOWLEDGES THAT THIS IS A COMMERCIAL
TRANSACTION, THAT THE FOREGOING PROVISIONS FOR CONSENT TO JURISDICTION AND
SERVICE OF PROCESS HAVE BEEN READ, UNDERSTOOD AND VOLUNTARILY AGREED TO BY SUCH
PARTY AND THAT BY AGREEING TO SUCH PROVISIONS SUCH PARTY IS WAIVING IMPORTANT
LEGAL RIGHTS.
SECTION 11.10 INFERENCES. Inasmuch as this Agreement is the result of
negotiations between sophisticated parties of equal bargaining power represented
by counsel, no inference in favor of or against either party will be drawn from
the fact that any portion of this Agreement has been drafted by or on behalf of
such party.
SECTION 11.11 SEVERABILITY. The provisions of this Agreement will be
deemed severable and the invalidity or unenforceability of any provision will
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision will be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision, and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances will not be affected by such
invalidity or unenforceability, nor will such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
SECTION 11.12 ENTIRE AGREEMENT. This Agreement, including the Schedules
and the Closing Documents, contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters. All Schedules and
Exhibits are hereby incorporated herein and made a part hereof for all purposes
as if fully set forth herein.
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SECTION 11.13 HEADINGS. The heading references herein and the tables and
indexes hereto are for convenience purposes only, do not constitute a part of
this Agreement and will not be deemed to limit or affect any of the provisions
hereof.
SECTION 11.14 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original, and all of which
will constitute one and the same Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
XXXXXXX KODAK COMPANY
By: /s/ XXXXX X. XXXX
---------------------------------
Its: SENIOR VICE PRESIDENT AND
PRESIDENT, ENTERTAINMENT IMAGING
KODAK S.A.
By: /s/ XXXXXXX XXXXXXXXX
---------------------------------
Its: CHAIRMAN
GETTY IMAGES, INC.
By: /s/ XXXXXXXX X. XXXXX
---------------------------------
Its: CHIEF EXECUTIVE OFFICER
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TABLE OF EXHIBITS AND SCHEDULES
Exhibit A Form of Getty Note
Exhibit B Certain Terms and Conditions of Getty Security Agreement
Schedule 1.1(a) Required Approvals
Schedule 3.4(a) TIB Subsidiaries
Schedule 3.4(c) Minority Equity Investments
Schedule 3.4(d) Financial Obligations re TIB Subsidiaries or Investments
Schedule 3.9(a) June 30 Financial Statements
Schedule 3.9(b) Audited Financial Statements
Schedule 3.9(d) Certain Undisclosed Liabilities
Schedule 3.10 Assets of Kodak Used in the Business
Schedule 3.12 Litigation and Claims
Schedule 3.13(a) Certain Owned Intellectual Property
Schedule 3.13(b) Software
Schedule 3.13(c) Licensed Intellectual Property
Schedule 3.13(f) Exceptions to Rights to Intellectual Property
Schedule 3.13(g) Intellectual Property of Kodak Used in the Business
Schedule 3.13(h) Claims as to Intellectual Property
Schedule 3.13(i) Intellectual Property Licenses Granted by the Company
Schedule 3.14(a) Exceptions to Rights to Images
Schedule 3.14(d) Claims as to Images
Schedule 3.14(f) Images Storage or Handling Contracts
Schedule 3.14(h) Terminated Images Contracts
Schedule 3.16(a) U.S. Company Benefit Plans; Certain Other Company Benefit Plans
Schedule 3.16(b) Kodak Benefit Plans Covering Company Employees
Schedule 3.16(c) Unfunded Company Benefit Plans
Schedule 3.16(d) U.S. Company Benefit Plan Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18(a) Labor Agreements, Etc.
Schedule 3.18(c) Exceptions to Compliance With Employment Laws
Schedule 3.19 Material Contracts
Schedule 3.21 Exceptions re Relationships With Franchisee, Licensees, Etc.
Schedule 3.22 Certain Developments
Schedule 3.23 Certain Interests
Schedule 3.24 Insurance Policies
Schedule 3.25 Banks
Schedule 3.26 Plan for Year 2000 Readiness
Schedule 5.2 Conduct of Business
Schedule 5.11(b) PNI Agreement Amendments
Schedule 5.12 IBM Contracts
Schedule 5.13 Year 2000 Compliance Prior to Closing
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Schedule 6.1(d) Company Severance Policies
Schedule 6.2 Certain Employment Matters
Schedule 6.7 Retention Plan
Schedule 6.8 Publisher's Toolbox Contracts
Schedule 9.1(e) Indemnified Litigation and Claims
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INDEX OF DEFINED TERMS
Acquired Rights..........................................................44
Acquisition Proposal.....................................................41
Affiliate Buyer...........................................................8
Affiliates................................................................1
Agreement.................................................................1
Antitrust Laws............................................................2
Applicable Employee......................................................43
Applicable EU Employees..................................................44
Approved Images..........................................................17
Article...................................................................7
Audited Financial Statements..............................................2
Books and Records.........................................................2
Business..................................................................1
Business Unit CEOs.......................................................62
Buyer...............................................................1, 2, 8
Buyer Indemnified Parties................................................53
Buyer Losses.............................................................53
Buyer's Benefit Plans....................................................44
Chief Executives.........................................................62
Chosen Courts............................................................62
Claim Notice.............................................................56
Closing...................................................................2
Closing Date.............................................................10
Closing Documents.........................................................2
Code......................................................................2
Company...................................................................1
Company Benefit Plans.....................................................2
Company Confidential Information.........................................39
Company Severance Policies...............................................44
Company Systems..........................................................32
Deposit...................................................................2
Disclosing Party.........................................................40
dollars, $................................................................7
Encumbrances..............................................................3
Environment...............................................................3
Environmental Costs and Liabilities.......................................3
Environmental Law.........................................................3
Environmental Permits.....................................................3
ERISA.....................................................................3
EU........................................................................3
Euro Compliant...........................................................20
Executives................................................................3
Exhibit...................................................................7
67
73
GAAP......................................................................3
Getty.....................................................................1
Getty Note................................................................4
Getty Security Agreement..................................................4
Governmental Authorizations...............................................4
Governmental Entity.......................................................4
Hazardous Substance.......................................................4
herein, hereof, hereunder.................................................7
Historical Financial Statements...........................................4
Image....................................................................17
include, includes, including..............................................7
Indemnified Parties.......................................................4
Indemnifying Party........................................................4
Intellectual Property....................................................17
Internal MIS Systems.....................................................19
June 30 Financial Statements..............................................4
knowledge.................................................................7
Kodak.....................................................................1
Kodak France..............................................................1
Law.......................................................................5
Licensed Images..........................................................17
Licensed Intellectual Property...........................................17
Losses................................................................5, 55
Material Adverse Change..................................................52
Material Adverse Effect...................................................5
Material Contracts.......................................................27
Non-U.S. Applicable Employee.............................................44
Notice Period............................................................56
Offered Images...........................................................17
Offering Documents.......................................................28
Ordinary Course...........................................................5
Owned Images.............................................................17
Owned Intellectual Property..............................................16
party.....................................................................7
Permitted Encumbrances....................................................5
Person....................................................................5
PNI......................................................................42
Purchase Price............................................................8
Receiving Party..........................................................40
Release...................................................................5
Remedial Action...........................................................5
Required Approvals........................................................6
Retention Plan...........................................................45
Schedule..................................................................7
Section...................................................................7
Section 338(h)(10) Election..............................................50
68
74
Securities Act...........................................................15
Securities Laws...........................................................6
Seller....................................................................1
Seller Indemnified Parties...............................................54
Seller Losses............................................................54
Seller's Auditors.........................................................6
Software.................................................................17
Subsidiary................................................................6
Tax Package..............................................................47
Tax Returns...............................................................6
Taxes.....................................................................6
third party...............................................................7
TIB.......................................................................1
TIB France................................................................1
TIB France Shares.........................................................6
TIB Shares................................................................6
TIB Subsidiaries.........................................................12
Transaction...............................................................6
Transfer Time.............................................................7
Treasury Regulations.....................................................49
U.S.......................................................................7
U.S. Applicable Employee.................................................43
U.S. Company Benefit Plans...............................................24
Unapproved Images........................................................17
Year 2000 Compliant......................................................32
Year 2000 Plan...........................................................31
69
