WAIVER AND AMENDMENT TO RESTATED OPTION AGREEMENT
Exhibit
5
WAIVER
AND AMENDMENT TO RESTATED OPTION AGREEMENT
This
WAIVER AND AMENDMENT TO RESTATED OPTION AGREEMENT, dated as of February
24, 2008 (this “Agreement”), is by and among Getty
Investments L.L.C., a Delaware limited liability company (“Getty
Investments”), Getty Images, Inc., a Delaware corporation
(“Getty Images”), Getty
Communications Limited (f/k/a Getty Communications plc) a company organized
under the laws of England and Wales (“Getty
Communications”), and Abe Investment, L.P., a Delaware limited
partnership (“Parent”).
WHEREAS,
Getty Investments, Getty Images and Getty Communications entered into a Restated
Option Agreement, dated February 9, 1998 (the “Option
Agreement”), pursuant to which, among other things, upon the terms
and subject to the conditions set forth therein, Getty Investments has the
right
to obtain control over the Getty Marks in the event that a third party acquires
a Controlling Interest in Getty Images;
WHEREAS,
concurrently with the execution and delivery of this Agreement, Getty Images,
Inc., Parent and Abe Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Parent (“Merger Sub”), are entering into
an Agreement and Plan of Merger, dated as of the date hereof (as such agreement
may be amended from time to time in compliance with the Interim Investors
Agreement of even date herewith among Parent, Merger Sub, Abe Investment
Holdings, Inc., Getty Investments and other parties thereto (as amended from
time to time), the “Merger Agreement”), pursuant to
which, among other things, upon the terms and subject to the conditions set
forth therein, Merger Sub will merge with and into Getty Images, and Getty
Images will become a subsidiary of Parent (the
“Merger”);
WHEREAS,
prior to and immediately after the consummation of the Merger, a majority of
the
equity interests of Parent will be beneficially owned by ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Capital Partners VI, L.P., a Delaware limited partnership and certain of its
affiliated investment fund entities (“HFCP VI”);
and
WHEREAS,
as a condition to the willingness of, and as an inducement to, Parent to enter
into the Merger Agreement, Getty Investments has agreed to enter into this
Agreement pursuant to which, among other things, Getty Investments has agreed
to
waive certain rights under the Option Agreement and to amend certain provisions
in the Option Agreement effective upon the closing of the Merger (the
“Closing”).
NOW,
THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE
I
CERTAIN
DEFINITIONS
1.1 Capitalized
Terms. Capitalized terms used in this Agreement and not
defined herein have the meanings ascribed to them in the Option
Agreement.
ARTICLE
II
WAIVER
2.1 Waiver.
(a) Effective
as of the Closing without any further action necessary on the part of the
parties hereto or any other Person, Getty Investments hereby waives the right
to
exercise, and agrees not to exercise, the option granted under the Option
Agreement (the “Option”) in connection with the
consummation of the transactions contemplated by the Merger Agreement, including
the Merger and HFCP VI and its investment vehicle and fund Affiliates
(collectively, the “H&F Group”) obtaining an
indirect Controlling Interest in Getty Images. For the purposes of
this Agreement, “Affiliate” shall have the meaning set
forth in Rule 12b-2 promulgated by the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended. Without
limiting the foregoing, subject to the amendments to the Option Agreement set
forth in Article III of this Agreement, Getty Investments continues to retain
the Option, which it may exercise at any time in the future if any third party
(or related third party group), other than the H&F Group pursuant to the
Merger Agreement, obtains a Controlling Interest in Getty Images, and the waiver
contemplated by this Section 2.1 does not constitute a waiver by Getty
Investments of any other provisions under the Option Agreement, as amended
by
this Agreement.
ARTICLE
III
AMENDMENTS
TO THE OPTION AGREEMENT
3.1 Exercise
of Option. The parties hereto agree that, effective as
of the Closing without any further action necessary on the part of the parties
hereto or any other Person, the Option Agreement is hereby amended to insert
a
new Section 2(c) as follows:
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“(c)
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Notwithstanding
anything to the contrary set forth herein, Getty Investments shall
not
have the right to exercise the option in Section 2(a) if and for
so long
as HFCP VI and its investment vehicle and fund Affiliates, collectively,
beneficially own, or otherwise have the right to vote, directly or
indirectly, a Controlling Interest in Getty Images, whether through
beneficial ownership of voting securities of Getty Images or any
direct or
indirect parent of Getty Images and/or through proxies, voting trusts,
voting agreements or otherwise. For the purposes of this
Agreement, “Affiliate” shall have the meaning set
forth in Rule 12b-2 promulgated by the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as
amended.”
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3.2 Phase-Out
Period. The parties hereto agree that, effective as of
the Closing without any further action necessary on the part of the parties
hereto or any other Person, Section 3(a) of the Option Agreement is hereby
amended and restated as follows:
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“(a)
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Getty
Images shall have eighteen (18) months from the date of the notice
referred to in Clause 2(b) above, to phase out all use by Getty Images
and
its subsidiaries of all the Getty Marks (hereinafter, the
“Phase-Out
Period”).”
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3.3 Phase-Out
Period. The parties hereto agree that, effective as of
the Closing without any further action necessary on the part of the parties
hereto or any other Person, Section 3(b)(i) of the Option Agreement is hereby
amended and restated as follows:
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“(i)
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the
license shall become effective as of the date of the assignment and
shall
expire eighteen (18) months from said
date;”
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3.4 Adoption
of New Names and Marks. The parties hereto agree that,
effective as of the Closing without any further action necessary on the part
of
the parties hereto or any other Person, Section 4(b) of the Option Agreement
is
hereby amended and restated as follows:
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“(b)
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No
later than ninety (90) days prior to the expiration of the Phase-Out
Period, Getty Images shall submit for the review of Getty Investments
its
proposed new Names and Marks for the Getty Images
businesses. Getty Investments shall have thirty (30) days
within which to object to such new Names and Marks solely based on
the
fact that the new Names and Marks (x) contain the Getty Marks, (y)
are
confusingly similar to any of the Getty Marks or (z) are disparaging
to
▇▇▇▇ ▇. Getty or the “Getty” name. If Getty Investments fails
to respond in writing within this period, Getty Investments shall
have no
further right to object.”
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3.5 Integration
and Amendments. The parties hereto agree that, effective
as of the Closing without any further action necessary on the part of the
parties hereto or any other Person, Section 7(g) of the Option Agreement is
hereby amended and restated as follows:
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“(g)
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This
Agreement, as modified by the Waiver and Amendment to Restated Option
Agreement, dated as of February 24, 2008, by and among Getty Investments
L.L.C., Getty Images, Inc., Getty Communications Limited (f/k/a Getty
Communications plc) and Abe Investment, L.P. (the
“Amendment Parties”), embodies the entire
agreement of the parties hereto, and supersedes all prior negotiations,
understandings and agreements whether written or oral, among the
parties,
with respect to the subject matter hereof. No part of this
Agreement may be varied by any party hereto, except by a writing
signed by
each of the Amendment Parties.”
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3.6 Survival. Except
as set forth in this Agreement, all other terms of the Option Agreement shall
remain in full force and effect without amendment or modification
thereof.
ARTICLE
IV
MISCELLANEOUS
4.1 Termination. Notwithstanding
anything to the contrary set forth herein, it is understood and agreed that
if
the Merger Agreement is terminated in accordance with its terms, this Agreement
shall be void and of no force and effect.
4.2 Amendment. This
Agreement may not be amended other than in an instrument in writing signed
by
all of the parties hereto.
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4.3 Severability. If
any term or provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law or public policy, all other terms and
provisions of this Agreement shall remain in full force and effect so long
as
the economic or legal substance of the transactions contemplated hereby is
not
affected in any manner adverse to the parties. Upon such
determination that any term or provision is invalid, illegal or incapable of
being enforced, the parties hereto shall negotiate in good faith to amend or
otherwise modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner such that the
transactions contemplated hereby are fulfilled to the extent
possible.
4.4 Entire
Agreement. Except for the Merger Agreement, the Option
Agreement as amended hereby, this Agreement and the other documents and
instruments delivered in connection herewith constitute the entire agreement
and
supersede all prior representations, agreements, understandings and
undertakings, whether written and oral, among the parties, or any of them,
with
respect to the subject matter hereof, and no party is relying on any other
prior
oral or written representations, agreements, understandings or undertakings
with
respect to the subject matter hereof.
4.5 Successors
and Assigns. This agreement is binding upon the parties
hereto, their subsidiaries, divisions and all those acting in concert or in
participation with them or under their direction or control, and upon their
successors and assigns. Notwithstanding the foregoing, this Agreement
may only be assigned by a party hereto and its subsidiaries if the Option
Agreement, as amended by this Agreement, is assigned together
therewith.
4.6 Counterparts. This
Agreement may be executed in one or more counterparts, which when taken together
shall constitute one and the same agreement.
4.7 Governing
Law; Dispute Resolution. This Agreement is governed
exclusively by Delaware law. 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 binding arbitration in
New
York City, New York, USA under the auspices of 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 tendered may be entered in any court having jurisdiction
thereof. The reasonable fees, costs and expenses, including legal
fees, incurred in connection with such arbitration shall be borne equally by
the
parties. Nothing in this Section 4.7 shall limit any right that any
party may otherwise have to seek to obtain preliminary injunctive relief in
order to preserve the status quo pending the disposition of any such arbitration
proceeding.
4.8 WAIVER
OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LETTER AGREEMENT IS LIKELY
TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF
OR
RELATING TO THIS LETTER AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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4.9 Exercise
of Rights and Remedies. No delay of or omission in the
exercise of any right, power or remedy accruing to any party as a result of
any
breach or default by any other party under this Agreement shall impair any
such
right, power or remedy, nor shall it be construed as a waiver of or acquiescence
in any such breach or default, or of any similar breach or default occurring
later; nor shall any such delay, omission nor waiver of any single breach or
default be deemed a waiver of any other breach or default occurring before
or
after that waiver.
4.10 Interpretation. The
section headings contained in this Agreement are inserted for convenience
only and will not affect in any way the meaning or interpretation of this
Agreement. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or
question of intent or interpretation arises, this Agreement will be construed
as
if drafted jointly by the parties and no presumption or burden of proof will
arise favoring or disfavoring any party because of the authorship of any
provision of this Agreement.
4.11 Notices. Notwithstanding
anything to the contrary set forth in the Option Agreement, all notices or
other
communications required or permitted by this Agreement or the Option Agreement
shall be in writing and sent to the parties at the following addresses (or
any
substitute addresses to which the parties are notified pursuant to this Section
4.11):
To
Getty
Images or Getty Communications;
▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇, General Counsel
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
with
a
copy (which shall not constitute notice) to:
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Weil,
Gotshal & ▇▇▇▇▇▇ LLP
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇
▇. ▇▇▇▇
▇▇▇▇
▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
and
Weil,
Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇)
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5
To
Getty
Investments:
c/o
Sutton
Place Limited
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax
(▇▇▇)
▇▇▇-▇▇▇▇
Attn: ▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
with
a
copy (which shall not constitute notice) to:
▇▇▇▇▇
▇▇▇▇
& ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
To
Parent:
c/o
Hellman & ▇▇▇▇▇▇▇▇ LLC
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇, Esq.
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
with
a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
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Facsimile: (▇▇▇)
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[Remainder
of Page Intentionally Left Blank.]
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IN
WITNESS
WHEREOF, the undersigned have caused this Agreement to be executed as of the
date first written above.
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GETTY
INVESTMENTS L.L.C.
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By:
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/s/
▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇
▇. ▇▇▇▇▇
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Title:
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Officer
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GETTY
IMAGES, INC.
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By:
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/s/
▇▇▇▇ ▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇
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Title:
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Senior
Vice President
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GETTY
COMMUNICATIONS LIMITED
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By:
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/s/
▇▇▇▇ ▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇
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Title:
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Director
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ABE
INVESTMENT, L.P.
By: Abe
GP LLC, its general partner
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By:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners VI, L.P.,
its
managing member
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By:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Investors VI, L.P.,
its
general partner
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By:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLC,
its
general partner
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇
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Title:
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Managing
Director
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[Signature
Page to Waiver and Amendment to Option
Agreement]