(1) GETTY INVESTMENTS L.L.C.
(2) THE INVESTORS NAMED HEREIN
(3) GETTY IMAGES, INC.
(4) ▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
RESTATED SHAREHOLDERS AGREEMENT
--------------------------------------------------------------------------------
CONTENTS
CLAUSE PAGE
1. INTERPRETATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. VOTING ARRANGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. PLEDGE OF COMMON STOCK. . . . . . . . . . . . . . . . . . . . . . . . . 4
4. PERMITTED TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. TRANSFERS - GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. LOCK-UP - CREDITON. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. LOCK-UP - OCTOBER TRUST . . . . . . . . . . . . . . . . . . . . . . . . 8
9. SPECIAL LOCK-UP . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10. STOCK CERTIFICATE LEGEND. . . . . . . . . . . . . . . . . . . . . . . . 10
11. NON-COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12. APPOINTMENT OF CHAIRMAN OF GETTY IMAGES . . . . . . . . . . . . . . . . 11
13. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
15. CONSEQUENCES OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . 11
16. FURTHER ASSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
18. RESTRICTIVE TRADE PRACTICES ACT . . . . . . . . . . . . . . . . . . . . 12
19. SATISFACTION OF LEGAL REQUIREMENTS. . . . . . . . . . . . . . . . . . . 12
20. ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
21. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
22. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
23. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
24. POWER TO APPOINT, REMOVE AND REPLACE A DIRECTOR OF GETTY INVESTMENTS. . 14
25. CHAIRMAN OF BOARD OF GETTY INVESTMENTS. . . . . . . . . . . . . . . . . 14
THIS AGREEMENT is made on 9 February 1998
BETWEEN:
(1) GETTY INVESTMENTS L.L.C. a limited liability company organised
pursuant to the Delaware Limited Liability Company Act whose principal
office is at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
("GETTY INVESTMENTS");
(2) THOSE PERSONS whose names and addresses are set out in Exhibit A
hereto (the "INVESTORS");
(3) GETTY IMAGES, INC, a company incorporated and existing under the laws
of Delaware, with its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.▇.▇. ("GETTY IMAGES"); and
(4) ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, shareholders of Common Stock ("GETTY
AND ▇▇▇▇▇")
WHEREAS
(A) On 8 July 1996 Getty Investments and the Investors entered into a
Shareholders Agreement as amended by a Supplemental Agreement dated 1
November 1996 (collectively the "ORIGINAL SHAREHOLDERS AGREEMENT") to
regulate the conduct of Getty Investments and the Investors in
relation to their direct and indirect investments in Getty
Communications plc ("GETTY COMMUNICATIONS").
(B) The share capital of Getty Communications was divided into A Shares
and B Shares. The A Shares and the B Shares had identical rights
attached to them apart from the voting rights where the B Shares had
ten votes per share and the A Shares had one vote per share.
(C) Getty Investments and the Investors owned 100% of the issued and
allotted B Shares in Getty Communications.
(D) On 15 September 1997 Getty Communications entered into a merger
agreement (the "MERGER AGREEMENT") with PhotoDisc, Inc ("PHOTODISC").
Pursuant to the terms of the Merger Agreement Getty Images was formed
and (i) pursuant to a scheme of arrangement (the "SCHEME OF
ARRANGEMENT") each issued B Share of Getty Communications was
converted into one A Share of Getty Communications, each A Share of
Getty Communications was then transferred to Getty Images and the
holders of Getty Communications A Shares were issued one share of
Common Stock for every two Getty Communications A Shares held and
Getty Communications became a wholly owned subsidiary of Getty Images;
and (ii) PhotoDisc was merged with and into a wholly owned subsidiary
of Getty Images ("MERGERSUB") with MergerSub as the surviving
corporation.
(E) Following completion of the Merger Agreement Getty Investments has,
through its ownership of Common Stock, a significant interest in Getty
Images.
(F) THIS AGREEMENT is intended to regulate the conduct of Getty
Investments and the Investors in relation to their direct and indirect
investments in Getty Images. By this Agreement the parties wish to
restate the Original Shareholders Agreement in full.
THE PARTIES AGREE in consideration of the mutual terms, covenants and
conditions herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, as follows:
1. INTERPRETATION
1.1 In this Agreement:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly Controlling, directly or indirectly Controlled
by or under direct or indirect common Control with such Person;
"CLOSING PRICE" means with respect to Common Stock, the last reported
sale price on a Trading Day or, in case no such sale takes place on
such day, the average of the reported closing bid and asked prices as
reported on the New York Stock Exchange Composite Tape, or, if such
sales are not so reported, the reported last sale price or, if no such
sale takes place on such day, the average of the reported closing bid
and asked prices on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or if not
listed or admitted to trading on any national securities exchange, on
the National Association of Securities Dealer Automated Quotations
("NASDAQ") National Market System, or if the Common Stock is not
quoted on such National Market System, the average of the closing bid
and asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected by Getty Images for that
purpose;
"COMMON STOCK" means the shares of Common Stock, par value $0.01 per
share of Getty Images;
"CONTROL" means, with respect to any Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the
management or policies of the controlled Person, whether through
equity ownership, by contract or otherwise;
"CONTROLLING PERSON" means, as to any Person, any one or more Persons
who Control such Person;
"CREDITON" means Crediton Limited and the "Permitted Transferees" of
the Common Stock held by Crediton (if any) pursuant to this Agreement;
"GETTY INVESTMENTS" means Getty Investments and the "Permitted
Transferees" of the Common Stock held by Getty Investments (if any)
pursuant to this Agreement;
"GROUP" means Getty Images and each Subsidiary thereof;
"INVESTORS" means the Investors listed in Exhibit A hereto, together
with the respective Permitted Transferees of the Common Stock held by
such Persons (if any) pursuant to this Agreement;
"OCTOBER TRUST" means the Trustees of the October 1993 Trust and the
"Permitted Transferees" of the Common Stock held by the October Trust
(if any) pursuant to this Agreement; October Trust is the beneficial
owner of the Common Stock which is registered in the name of Abacus
(C.I.) Limited as trustee of the October 1993 Trust ("ABACUS");
"PARTY" means any party to this Agreement or a Person who becomes a
Party pursuant to the provisions of this Agreement;
"PERMITTED TRANSFEREE" means a Person who is a "permitted transferee"
of Common Stock as set forth in clauses (iii) (with reference to
members of the Getty Group only) and (iv) of the definition of
Permitted Transferee under the Stockholders' Agreement;
"PERSON" means an individual, corporation, general or limited
partnership, limited or unlimited liability company, trust,
association, unincorporated organisation, government or any authority,
agency or body thereof, or other entity and any legal personnel
representative successors and lawful assigns of any of them;
"REGISTRATION RIGHTS AGREEMENTS" means (i) the Registration Rights
Agreement dated 9 February between Getty Images, and Getty Investments
and (ii) the Registration Rights Agreement dated 3 July 1996 and
amended by the Registration Rights Agreement Amendment dated 9
February, among Getty Images, October Trust and Crediton;
"STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement dated 9
February between Getty Images and (a) Getty Investments, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Crediton Limited and October 1993 Trust and (b) PDI,
L.L.C., ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇;
"TRADING DAY" means a weekday (except for public holidays and Sundays)
on which the New York Stock Exchange is open for business; and
"TRANSFER" means to sell, assign, pledge, grant a security interest
in, otherwise dispose of, of agree to do any of the foregoing with
respect to the Common Stock.
1.2 In this Agreement, a reference to:
1.2.1 a "SUBSIDIARY" or "HOLDING COMPANY" is to be construed in accordance
with section 736 of the Companies ▇▇▇ ▇▇▇▇;
1.2.2 a statutory provision includes a reference to the statutory provision
as modified or re-enacted or both from time to time whether before or
after the date of this Agreement
and any subordinate legislation made under the statutory provision
whether before or after the date of this Agreement;
1.2.3 a clause or schedule, unless the context otherwise requires, is a
reference to a clause of or schedule to this Agreement; and
1.2.4 a document is a reference to that document as from time to time
supplemented or varied.
1.3 The headings in this Agreement do not affect its interpretation.
1.4 Getty and ▇▇▇▇▇ are parties to this Agreement solely for the purposes
of clauses 4, 5, 6 and 9 and any other clauses necessary for the
interpretation of clauses 4, 5, 6 and 9.
2. VOTING ARRANGEMENTS
The Parties hereto hereby agree that they shall exercise the voting
rights associated with their Common Stock in such manner as they shall
be directed to do so by the Board of Directors of Getty Investments
from time to time.
2.1 Such direction shall be given by notice in writing sent by Getty
Investments to the Party in question. Any such notice may require the
Party in question to appoint any Person nominated by Getty Investments
as such Party's proxy to attend and vote the Common Stock on behalf of
such Party at any shareholders' meeting of Getty Images.
3. PLEDGE OF COMMON STOCK
No Party shall, except with the prior written consent of the other
Parties (such consent not to be unreasonably withheld), pledge,
mortgage, charge or otherwise encumber any Common Stock or any
interest in any Common Stock, or grant an option over any Common Stock
or any interest in any Common Stock.
4. PERMITTED TRANSFERS
4.1 A Party may at any time Transfer all/or any of its Common Stock (the
"RELEVANT STOCK") to a Permitted Transferee. The Permitted Transferee
may at any time Transfer all the Relevant Stock back to the said Party
or another Permitted Transferee of the said Party.
4.2 If Relevant Stock has been Transferred under clause 4.1 (whether
directly or by a series of Transfers) by a Party (the "TRANSFEROR"
which expression shall include a second or subsequent Transferor in
the case of a series of Transfers) to its Permitted Transferee (the
"TRANSFEREE") and subsequently the Transferee ceases to be a Permitted
Transferee pursuant to this Agreement then the Transferee shall
forthwith Transfer the Relevant Stock back to the Transferor or at the
Transferor's option to another Permitted Transferee. If the
Transferee fails to Transfer the Relevant Stock within thirty days of
the Transferee ceasing to be a Permitted Transferee then the
Transferee shall be deemed to have served a Transfer Notice pursuant
to clause 5
in respect of all the Relevant Stock, with the Transfer Price being
determined pursuant to clause 5.2.3. The Transfer Notice shall not be
withdrawn in any circumstances.
5. TRANSFERS
5.1 Subject to clause 4, a Party (the "VENDOR") who wishes to Transfer any
Common Stock or any interest in any Common Stock shall give notice in
writing (the "TRANSFER NOTICE") to Getty Investments of its desire to
do so.
5.2 The Transfer Notice:
5.2.1 shall specify the identity of a bona fide purchaser (the "PURCHASER")
or that the Common Stock is to be Transferred pursuant to the exercise
of rights under the Registration Rights Agreement or other securities
law exemption;
5.2.2 shall specify the number of shares desired to be Transferred (the
"OFFERED STOCK");
5.2.3 shall specify the bona fide price per share which the Purchaser is
willing to pay for the Offered Stock or in the case of a Transfer
pursuant to the exercise of rights under the Registration Rights
Agreement the average of the Closing Prices on the ten previous
Trading Days;
5.2.4 shall, without prejudice to the right of Getty Investments to purchase
all or any part thereof, constitute Getty Investments by its Directors
as the Vendor's agents to offer and sell the Offered Stock in
accordance with the terms of this Agreement at the price per share
specified in the Transfer Notice; and
5.2.5 shall not be withdrawn except as provided in paragraph 5.5.2(a).
5.3 Getty Investments shall serve a copy of the Transfer Notice on each of
the Parties hereto (other than the Vendor) which are then stockholders
of Getty Images ("MEMBER") which term shall include Getty Investments
if it is then a member of Getty Images with the request that each
Member informs Getty Investments in writing within 7 days whether it
wishes to purchase any of the Offered Stock. Each such Member shall
be entitled to accept (either itself or by nominating one or more
Permitted Transferees) such number of the Offered Stock as bears the
same proportion to the total Offered Stock as the number of shares of
Common Stock already held by such Member calculated as a percentage of
the total Common Stock held by all Members (other than those held by
the Vendor). Any balance of the Offered Stock not so accepted shall
be offered again to the remaining Members who wish to accept (either
themselves or through their nominating one or more Permitted
Transferees) Offered Stock on a similar basis.
5.4 For the purpose of clauses 5.4 to 5.6, the term "the Offer" relates to
any offer pursuant to clause 5.3 and the term "Stockholder" includes
any Person who accepts an offer pursuant to clause 5.3. If the Offer
is accepted in respect of all of the Offered Stock Getty Investments
shall forthwith give notice (the "ALLOCATION NOTICE") of the
acceptance of the Offer to the Vendor and to each Stockholder. The
Allocation Notice shall specify:
5.4.1 the price of the Offered Stock (the "TRANSFER PRICE");
5.4.2 the number of shares of Offered Stock to be transferred to each
Stockholder to whom the Offered Stock has been allocated; and
5.4.3 the place and time (being not earlier than fourteen and not later than
twenty-eight days after the date of the Allocation Notice) at which
the Transfer Price is to be paid by the Stockholders and the Offered
Stock is to be transferred by the Vendor.
5.5 If the Members or their nominees do not accept the Offer to purchase
all of the Offered Stock in accordance with clauses 5.2 and 5.3, then
the following provisions shall apply:
5.5.1 Getty Investments shall notify that fact to the Vendor; and
5.5.2 the Vendor may either:
(a) withdraw the Transfer Notice and cancel Getty Investments'
authority to sell the Offered Stock by delivering to Getty
Investments a written notice of withdrawal but where applicable
may continue to sell the Offered Stock pursuant to the
Registration Rights Agreement; or
(b) may before the expiration of 30 days after receiving the
notification referred to in paragraph 5.5.1 elect by notice in
writing to Getty Investments to Transfer the Offered Stock which
Members or their nominees have accepted to such Members or their
Nominees in the amounts which they have respectively accepted and
with regard the remainder to the Purchaser at the Transfer Price
and otherwise on terms no more favourable than those offered to
the relevant Members and subject to the condition that the
Purchaser must enter into a deed with the Parties hereto agreeing
to discharge in full any outstanding obligations of the Vendor
towards the Parties hereto and otherwise in accordance with
clause 6.3; and
in all cases the Vendor shall be bound by the applicable provisions of
the Stockholders Agreement.
5.6 The Vendor shall be bound to Transfer such number of the shares of
Offered Stock as have been allocated pursuant to paragraph 5.4 above
against tender of the Transfer Price in accordance with the terms of
the Allocation Notice.
6. TRANSFERS - GENERAL
6.1 An obligation to Transfer an Common Stock pursuant to these provisions
shall be deemed to be an obligation to Transfer the entire legal and
beneficial interest in the
Common Stock free from all liens, mortgages, charges, encumbrances and
other third party rights of whatever nature.
6.2 The Directors of Getty Images shall register the Transfer of Common
Stock to any Person only if the Transfer has been carried out in
accordance with this Agreement and the Stockholders' Agreement and in
no other circumstances.
6.3 The Parties shall procure that any Transfer or pledge or grant of any
option over Common Stock in accordance with this Agreement and, in the
case of Permitted Transferees, the Stockholders' Agreement shall be
subject to the following conditions which must be satisfied prior to
such Transfer, pledge or grant:
6.3.1 the Transferee, pledgee or grantee shall execute a deed confirming to
the other Parties that it shall be bound by this Agreement and, in the
case of Permitted Transferees, the Stockholders' Agreement in respect
of the Common Stock Transferred, pledged or granted as if it was a
Party; and
6.3.2 the Transferring, pledging or granting Party (which expression shall
include a second or subsequent Transferor, pledgee or grantee in a
series of Transfers, pledges or grants) shall be jointly and severally
liable with the Transferee for its obligations pursuant to this
Agreement and, in the case of Permitted Transferees, the Stockholders'
Agreement.
7. LOCK-UP - CREDITON
7.1 Subject to clause 7.2, in respect of the 50% of the number of shares
of Common Stock set opposite its name in Exhibit A hereto (the
"CREDITON LOCK-UP STOCK"), Crediton agrees not to Transfer (other than
to a Permitted Transferee in accordance with this Agreement) any of
the Crediton Lock-up Stock until 8 July 2001 and thereafter for a
further period of two years not to Transfer (other than to a Permitted
Transferee in accordance with this Agreement) more than 50% of the
Crediton Lock-up Stock.
7.2 The following exceptions to clause 7.1 are hereby agreed:
(a) if ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ceases to be employed by the Group then
Crediton will be released from its obligations in clause 7.1;
(b) if any Party other than the October Trust Transfers (other than
to a Permitted Transferee in accordance with this Agreement) any
Common Stock then Crediton will be released from its obligations
under clause 7.1 in respect of such Common Stock that is the same
percentage of all the Crediton Lock-up Stock (or after 8 July
2001 the same percentage as half the Crediton Lock-up Stock), as
the percentage that the Common Stock being sold is of all the
Common Stock held by the Parties other than Crediton and October
Trust; and
(c) if the Common Stock held by the Parties (other than Crediton and
the October Trust) ceases to represent 7% or more of the total
Common Stock of Getty Images outstanding from time to time then
Crediton shall be released from its obligations under clause 7.1.
7.3 In consideration of the agreement set forth above:
(a) Getty Investments will pay to Crediton an annual fee according to
the Schedule provided in paragraph (b).
(b) The fees payable under paragraph (a) shall be as follows:
YEAR BEGINNING FEE AMOUNT
08/07/97 L267,500 multiplied by (1+2/3 RPI increase from
May 1996 to May 1997)
08/07/98 Fee payable at 08/07/97 multiplied by (1+2/3
RPI increase from May 1997 to May 1998)
08/07/99 Fee payable at 08/07/98 multiplied by
97,000/267,500 and further multiplied by (1+2/3
RPI increase from May 1998 to May 1999)
08/07/00 Fee payable at 08/07/99 multiplied by (1+2/3 RPI
increase from May 1999 to May 2000)
08/07/01 Fee payable at 08/07/00 multiplied by (1+2/3 RPI
increase from May 2000 to May 2001)
08/07/02 Fee payable at 08/07/01 multiplied by (1+2/3 RPI
increase from May 2001 to May 2002)
(c) Such annual fee will be payable in advance on 8 July of each
year.
8. LOCK-UP - OCTOBER TRUST
8.1 Subject to clause 8.2, in respect of 50% of the number of shares of
Common Stock set opposite its name in Exhibit A hereto (the "OCTOBER
LOCK-UP STOCK"), the October Trust agrees not to Transfer (other than
to a Permitted Transferee in accordance with this Agreement) any of
the October Lock-up Stock until 8 July 2001 and thereafter for a
further period of two years not to Transfer (other than to a Permitted
Transferee in accordance with this Agreement) more than 50% of the
October Lock-up Stock.
8.2 The following exceptions to clause 8.1 are hereby agreed:
(a) if ▇▇▇▇ ▇. Getty ceases to be employed by the Group then the
October Trust will be released from its obligations in clause
8.1;
(b) if any Party other than Crediton Transfers (other than to a
Permitted Transferee in accordance with this Agreement) any
Common Stock then the October Trust will be released from its
obligations under clause 8.1 in respect of the Common Stock that
is the same percentage of all the October Trust Lock-up Stock (or
after 8 July 2001 the same percentage as half the October Trust
Lock-up Stock) as the percentage that the Common Stock being sold
is of all the Common Stock held by the Parties other than
Crediton and October Trust; and
(c) if the Common Stock held by the Parties (other than Crediton and
the October 1993 Trust and their Permitted Transferees) ceases to
represent 7% or more of the total Common Stock of Getty Images
outstanding from time to time then the October Trust shall be
released from its obligations under clause 8.1
8.3 In consideration of the agreement set forth above:
(a) Getty Investments will pay to the October Trust an annual fee
according to the schedule provided in paragraph (b).
(b) The fees payable under paragraph (a) shall be as follows:
YEAR BEGINNING FEE AMOUNT
08/07/97 L77,500 multiplied by (1+2/3 RPI
increase from May 1996 to May 1997)
08/07/98 Fee payable at 08/07/97 multiplied by
(1+2/3 RPI increase from May 1997 to May
1998)
08/07/99 Fee payable at 08/07/98 multiplied by
28,000/77,500 and further multiplied by
(1+2/3 RPI increase from May 1998 to May
1999)
08/07/00 Fee payable at 08/07/99 multiplied by
(1+2/3 RPI increase from May 1999 to May
2000)
08/07/01 Fee payable at 08/07/00 multiplied by
(1+2/3 RPI increase from May 2000 to May
2001)
08/07/02 Fee payable at 08/07/01 multiplied by
(1+2/3 RPI increase from May 2001 to May
2002)
(c) such annual fee will be payable in advance on 8 July of each
year.
9. SPECIAL LOCK-UP
9.1 Subject to paragraph 9.2, in respect of all and any shares of Common
Stock (the "LOCK-UP STOCK"), each of ▇.▇. ▇▇▇▇▇, Crediton, M.H. Getty
and the October Trust (together the "COVENANTEES") hereto agree not to
Transfer (other than to a Permitted Transferee in accordance with this
Agreement any of the Lock-up Stock until the later of the announcement
by Getty Images of its results for the second quarter of 1998 and 9
August 1998.
9.2 clause 9.1 does not apply to the transfer of up to 60,000 shares of
Common Stock of Getty Images in aggregate by:
9.2.1 ▇.▇. ▇▇▇▇▇ and Crediton; or
9.2.2 M.H. Getty and the October Trust.
9.3 Each of the Covenantees hereby agrees with Getty Investments that in
the event of any proposed Transfer (other than to a Permitted
Transferee in accordance with this Agreement) it shall give Getty
Investments at least 10 days notice of such proposed Transfer and
shall consult with Getty Investments about the reasons for, manner of
and timing of such proposed Transfer.
10. STOCK CERTIFICATE LEGEND
All certificates representing shares of Common Stock shall bear, in
addition to other legends required under applicable securities laws,
the following legend:
"The shares represented by this certificate are subject to
the provisions of the Getty Parties Shareholders' Agreement
dated as of 9 February 1998 among certain stockholders of
Getty Images, Inc."
11. NON-COMPETITION
11.1 RESTRICTIONS ON COMPETITION BY GETTY INVESTMENTS
Getty Investments agrees that neither it nor any Affiliates in which
it has a controlling interest shall (i) own directly or indirectly
assets comprising a visual content business as described in the
Prospectus other than through its relationship with Getty Images or
(ii) acquire an equity interest in any Person if at the time of such
acquisition such Person directly or indirectly through one or more
Affiliates in which it has a controlling interest owns any visual
content business as described in the Prospectus.
11.2 Nothing contained in this clause 11 shall prohibit or otherwise
restrict the ownership or acquisition of 10% or less of the
outstanding equity of a Person that engages in the visual content
business directly or indirectly as described in the Prospectus.
12. APPOINTMENT OF CHAIRMAN OF GETTY IMAGES
Getty Images hereby agrees that, subject to the terms of the
Stockholders' Agreement, it shall take all necessary steps to ensure
the appointment of any person nominated to be chairman of Getty Images
by Getty Investments pursuant to the by-laws of Getty Images provided
that for so long as either ▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇ are co-chairman
of the board such right shall not be in effect.
13. TERM
This Agreement has a term of seven years from 8 July 1996 (the
"INITIAL TERM"), unless terminated earlier pursuant to clause 14.
14. TERMINATION
14.1 CESSATION OF OWNERSHIP
This Agreement shall be terminated with immediate effect in respect of
any Party when it and its Permitted Transferees cease to be Members of
Getty Images; or
14.2 REDUCTION IN HOLDING OF GETTY IMAGES
This Agreement shall be terminated with immediate effect if the Common
Stock held by the Parties ceases to represent beneficially fewer than
the greater of 3,000,000 shares of Common Stock and such number of
shares as is equal to 2% or less of the then outstanding shares of
Common Stock.
14.3 For the purposes of this clause 14, Getty Images shall include any
corporation into which Getty Images may merge into or consolidate with
and in such case the term Common Stock shall mean and include the
shares of stock of such successor entity exchanged for such Common
Stock.
15. CONSEQUENCES OF TERMINATION
15.1 Subject to clause 15.2, each Party's further rights and obligations
cease immediately on termination of this Agreement, but termination
does not affect a Party's accrued rights and obligations at the date
of termination.
15.2 Upon the occurrence of the termination of this Agreement pursuant to
clause 14.1 or 14.2 an event set out in clause 14 above, Getty
Investments shall pay to Crediton and October Trust respectively any
outstanding fees together with all fees payable by Getty Investments
in respect of the entire period of the Agreement.
16. FURTHER ASSURANCE
Each party shall at its own cost do and execute, or arrange for the
doing and executing of, each necessary act, document and thing
reasonably within its power to implement this Agreement.
17. GENERAL
17.1 This Agreement and any document referred to in this Agreement and
other documents constitute the entire agreement, and supersede any
previous agreement, between the parties relating to the subject matter
of this Agreement.
17.2 A variation of this Agreement is valid only if it is in writing and
signed by or on behalf of each party.
17.3 The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not constitute a waiver of
the right or remedy or a waiver of other rights or remedies. No
single or partial exercise of a right or remedy provided by this
Agreement or by law prevents further exercise of the right or remedy
or the exercise of another right or remedy.
17.4 No provision of this Agreement creates a partnership between the
parties or makes a party the agent of the other party for any purpose.
A party has no authority or power to bind, to contract in the name of,
or to create a liability for the other party in any way or for any
purpose.
18. RESTRICTIVE TRADE PRACTICES ACT
Any provision contained in this Agreement or in any arrangement of
which this Agreement forms part by virtue of which this Agreement or
such arrangement is subject to registration under the Restrictive
Trade Practices Acts 1976 and 1977 shall not come into effect until
the day following the date on which particulars of this Agreement and
of any such arrangement have been furnished to the Office of the
Director General of Fair Trading in accordance with the requirements
of such Acts.
19. SATISFACTION OF LEGAL REQUIREMENTS
Notwithstanding any other provision of this Agreement, no Stockholder
may Transfer any Common Stock unless it has complied with all
applicable legal requirements, including without limitation applicable
United States federal and state securities laws.
20. ASSIGNMENT
20.1 A Party may not assign or transfer or purport to assign or transfer a
right or obligation under this Agreement except to a Permitted
Transferee. Each Party is entering into this Agreement for its
benefit and not for the benefit of another Person.
21. NOTICES
21.1 A notice or other communication under or in connection with this
Agreement shall be in writing and may be delivered personally or sent
by first class post or by fax, as follows:
21.1.1 if to Getty Investments to:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Marked for the attention of ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
21.1.2 If to the Investors to the address specified for such Person in
Exhibit A hereto with a copy to:
Address: ▇▇▇▇▇▇▇▇ Chance
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Marked for the attention of: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
21.1.3 If to Getty Images to:
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Marked for the attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to another Person, address or fax number specified by a party by
written notice to the other.
21.2 In the absence of evidence of earlier receipt, a notice or other
communication is deemed given:
21.2.1 if delivered personally, when left at the address referred to in
clause 21.1
21.2.2 if sent by fax, one hour after its despatch.
22. GOVERNING LAW
22.1 This Agreement is governed exclusively by Delaware law.
22.2 Arbitration - To the fullest extent permitted by law, any controversy
or claim arising out of or relating to this Agreement, or the breach
thereof shall be settled by mandatory, final and binding arbitration
in New York City, New York, USA under the auspices and in accordance
with the rules, then obtaining, of the American Arbitration
Association to the extent not inconsistent with the Delaware Uniform
Arbitration Act, and judgment upon the award rendered may be entered
in any court having jurisdiction thereof. Reasonable fees, costs and
expenses, including legal fees,
incurred by any Party in connection with such arbitration shall be
borne by Getty Investments. Nothing in this paragraph 22.2 shall
limit any right that any Party may otherwise have to seek (on its own
behalf or in the right of Getty Investments) to obtain preliminary
injunctive relief in order to preserve the status quo pending the
disposition of any such arbitration proceeding.
23. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed and delivered is an original, but all the
counterparts together constitute the same document.
24. POWER TO APPOINT, REMOVE AND REPLACE A DIRECTOR OF GETTY INVESTMENTS
24.1 Each of Crediton and the October Trust shall have the right to
nominate one Person who is willing so to act, as a director of Getty
Investments and to nominate for removal and replacement the Person so
nominated by each of them.
24.2 Any nomination pursuant to clause 24.1 shall be effected by notice to
Getty Investments signed by or on behalf of the nominator. The notice
shall be left at or sent by post or facsimile transmission to the
office or such other place designated by the board for the purpose.
The nomination shall take effect as of the deposit of the notice or
such later date (if any) specified in the notice. The first director
nominated by the October Trust shall be ▇▇▇▇ ▇. Getty and the first
director nominated by Crediton shall be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
25. CHAIRMAN OF BOARD OF GETTY INVESTMENTS
25.1 The October Trust shall have the right to nominate, out of the
directors of Getty Investments from time to time, a Person who is
willing so to act, as Chairman of Getty Investments and to removal and
replacement of the Person that is nominated as Chairman by it. The
first person nominated Chairman by October Trust shall be ▇▇▇▇ ▇.
Getty.
25.2 Any nomination as Chairman pursuant to clause 25.1 shall be effected
by notice to Getty Investments signed by or on its behalf. The notice
shall be left at or sent by post or facsimile transmission to the
office or such other place designated by the board for the purpose.
The nomination shall take effect immediately on deposit of the notice
or on such later date (if any) specified in any notice.
EXECUTED by the parties as follows:
Signed by )
a duly authorised )
representative for and )
on behalf of )
Crediton Limited )
/s/ ▇▇ ▇▇▇▇▇▇▇ - Director Signature
------------------------------
Signed by )
a duly authorised )
representative for and )
on behalf of )
Abacus (C.I.) Limited as the )
Trustees of The October )
1993 Trust )
/s/ Authorized Signatory Signature
------------------------------
Signed by )
a duly authorised )
representative for and )
on behalf of )
Getty Investments L.L.C. )
/s/ Authorized Signatory Signature
------------------------------
Signed by )
a duly authorised )
representative for and )
on behalf of )
Getty Images, Inc. )
/s/ Authorized Signatory Signature
------------------------------
Signed by
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ Signature
------------------------------
Signed by
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Signature
------------------------------
EXHIBIT A
THE INVESTORS
NOTICE ADDRESS
NAME NOTICE ADDRESS NO. OF SHARES
CREDITON LIMITED ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 622,602 Common
Douglas Shares
Isle of Man
IM1 1SA
ABACUS (C.I.) LTD AS THE La Motte ▇▇▇▇▇▇▇▇ 622,602 Common Shares
TRUSTEE OF THE OCTOBER St Helier
1993 TRUST Jersey
JE1 1BJ