SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 1)
GETTY IMAGES, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
Shares of Common Stock, par value $0.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
374276 10 3
- --------------------------------------------------------------------------------
(CUSIP Number)
Jan D. Moehl
Getty Investments L.L.C.
1325 Airmotive Way, Suite 262
Reno, Nevada 89502-3420
(702) 348-0111
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Mark J. Jenness
Getty Investments L.L.C.
1325 Airmotive Way, Suite 262
Reno, Nevada 89502-3420
(702) 348-0111
November 22, 1999
- --------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. |_|
(Continued on following pages)
(Page 1 of 11 Pages)
MP\1tz705.DOC
<PAGE>
- --------------------------------------------
CUSIP No. 374276 10 3 13D
--------------------------------
- --------------------------------------------
<TABLE>
<S> <C>
- -------- -----------------------------------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Getty Investments L.L.C.
- -------- -----------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) |_|
(b) |X|
- -------- -----------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -------- -----------------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- -------- -----------------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) |_|
- -------- -----------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------ ------- -----------------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF SHARES 9,620,043
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH
- ------------------------------ ------- -----------------------------------------------------------------------------------------
8 SHARED VOTING POWER
1,145,204
- ------------------------------ ------- -----------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
9,620,043
- ------------------------------ ------- -----------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------- -----------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,765,247
- -------- -----------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|X|
- -------- -----------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.8%
- -------- -----------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
OO
- -------- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 11 Pages
<PAGE>
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Amendment No.
1 to Schedule 13D (this "Amendment") relates is the shares of common stock, par
value $0.01 per share ("Shares"), of Getty Images, Inc., a Delaware corporation
("Issuer"). The principal executive offices of the Issuer are located at 701 N.
34th Street, Suite 400, Seattle, Washington 98103.
ITEM 2. IDENTITY AND BACKGROUND.
This Amendment is being filed by Getty Investments L.L.C.,
a Delaware limited liability company ("Getty Investments") in connection with
its purchase of 1,579,353 newly issued Shares from Issuer.
The principal offices of Getty Investments are located at
1325 Airmotive Way, Suite 262, Reno, Nevada 89502-3240. Getty Investments was
formed with the objective of investing in Getty Communications plc ("Getty
Communications"), a public limited company organized under the laws of England
and Wales and the predecessor of Issuer. Through the transaction described in
Item 3 below, Getty Investments increased its existing investment in Issuer.
The members of Getty Investments are four Getty family
trusts (the "Getty Trusts") and Transon Ltd., the successor in interest to 525
Investments Limited. The Getty Trusts are the Cheyne Walk Trust, the Ronald
Family Trust A, the Ronald Family Trust B and the Gordon P. Getty Family Trust.
The Getty Trusts own, collectively, 89.29% of the membership interests of Getty
Investments, with the Cheyne Walk Trust, the Ronald Family Trust A, the Ronald
Family Trust B and the Gordon P. Getty Family Trust owning 42.35%, 18.75%,
15.69% and 12.5%, respectively. The remaining 10.71% interest in Getty
Investments is held by Transon Ltd.
Getty Investments is governed by the Restated Limited
Liability Company Agreement, dated as of February 9, 1998 (the "Getty
Investments Company Agreement"), among the Getty Trusts and 525 Investments
Limited, as amended by an Agreement and Waiver, dated as of October 26, 1999.
The Getty Investments Company Agreement provides that the board of directors of
Getty Investments will consist of six directors. One director will be appointed
by each of the four Getty Trusts. In addition, the members of Getty Investments
agree to appoint one person nominated by each of the October 1993 Trust and
Crediton Limited. The October 1993 Trust is a trust established by Mark H.
Getty, the son of Sir J. P. Getty and Executive Chairman of Issuer and Chairman
of Getty Investments. Mark H. Getty and his immediate family are the
beneficiaries of the October 1993 Trust. The JD Klein Family Settlement, the
successor in interest to Crediton Limited, is a trust established by Jonathan D.
Klein, Chief Executive Officer of Issuer, for the benefit of himself and his
immediate family.
Under the Getty Investments Company Agreement, the members
of Getty Investments also agree to appoint the director nominated by the October
1993 Trust as the Chairman of Getty Investments. Mark H. Getty has been
appointed a director and Chairman of Getty Investments on behalf of the October
Page 3 of 11 Pages
<PAGE>
1993 Trust, and Jonathan D. Klein has been appointed a director of Getty
Investments on behalf of the JD Klein Family Settlement.
Decisions at meetings of the board of directors of Getty
Investments require a simple majority of the total number of directors, i.e.,
four directors. There are currently no voting arrangements whereby one member of
Getty Investments can control a majority of the directors of the board of Getty
Investments.
The directors and executive officers of Getty Investments
are set forth on Schedule I attached hereto. Schedule I sets forth the following
information with respect to each such person:
(i) name;
(ii) business address;
(iii) present principal occupation or employment and the
name, principal business and address of any corporation or other organization in
which such employment is conducted; and
(iv) citizenship.
During the last five years, neither Getty Investments nor
any person named in Schedule I attached hereto has been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is amended to include the following:
On November 22, 1999, Getty Investments acquired 1,579,353
Shares for $32 million in cash pursuant to the Subscription Agreement, dated as
of October 26, 1999 (the "Subscription Agreement"), between Getty Investments
and Issuer. The funds for the purchase of Shares pursuant to the Subscription
Agreement were supplied to Getty Investments as capital contributions by certain
of the members of Getty Investments.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is amended to include the following:
Getty Investments has acquired the Shares to which this
Amendment relates for the purpose of making an investment in Issuer.
Page 4 of 11 Pages
<PAGE>
Getty Investments from time to time intends to review its
investment in Issuer on the basis of various factors, including Issuer's
business, financial condition, results of operations and prospects, general
economic and industry conditions, the securities markets in general and those
for Issuer's securities in particular, as well as other developments and other
investment opportunities. Based upon such review, Getty Investments will take
such actions in the future as Getty Investments may deem appropriate in light of
the circumstances existing from time to time. If Getty Investments believes that
further investment in Issuer is attractive, whether because of the market price
of Issuer's securities or otherwise, it may acquire Shares either in the open
market or in privately negotiated transactions. Similarly, depending on market
and other factors, Getty Investments may determine to dispose of some or all of
the Shares currently owned by Getty Investments or otherwise acquired by Getty
Investments either in the open market or in privately negotiated transactions.
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
Based on the most recent information available to Getty
Investments, Getty Investments is deemed to beneficially own the number of
Shares and the percentage of outstanding Shares listed in the responses to Items
11 and 13, respectively, on the cover page filed herewith, and such responses
are incorporated by reference herein. In addition, the number of Shares with
respect to which Getty Investments (i) has sole voting power, (ii) shares voting
power, (iii) has sole dispositive power, and (iv) shares dispositive power, are
listed in the responses to Items 7, 8, 9, and 10, respectively, on the cover
page filed herewith, and such responses are incorporated by reference herein.
The following individuals listed on Schedule I attached
hereto, are beneficial owners of Shares, with respect to all of which Getty
Investments disclaims beneficial ownership:
Mark H. Getty is the beneficial owner of 1,162,654 Shares,
by virtue of his right to acquire, within sixty (60) days after the date of this
Amendment, such Shares pursuant to the exercise of options outstanding under the
Getty Images Stock Incentive Plan or the Getty Communications plc Executive
Share Option Plan. He has sole power to vote (or direct the vote of) and sole
power to dispose of (or direct the disposition of) all such Shares. Mark H.
Getty may also be deemed to be the beneficial owner of 622,602 Shares held by
Abacus (C.I.) Limited as Trustee of the October 1993 Trust.
Jonathan D. Klein is the beneficial owner of 900 Shares, as
well as an additional 1,162,654 Shares by virtue of his right to acquire, within
sixty (60) days after the date of this Amendment, such Shares pursuant to the
exercise of options outstanding under the Getty Images Stock Incentive Plan or
the Getty Communications plc Executive Share Option Plan. He has sole power to
vote (or direct the vote of) and sole power to dispose (or direct the
disposition of) all such Shares. Jonathan D. Klein may also be deemed to be the
beneficial owner of 522,602 Shares held by Abacus Trust Company (Isle of Man) as
Trustee of the JD Klein Family Settlement.
Page 5 of 11 Pages
<PAGE>
Andrew S. Garb is the beneficial owner of 10,000 Shares. He
has sole power to vote (or direct the vote of) and sole power to dispose of (or
direct the disposition of) all such Shares.
William A. Newsom is the beneficial owner of 1,000 Shares.
He has sole power to vote (or direct the vote of) and sole power to dispose (or
direct the disposition of) all such Shares. During the past 60 days, he disposed
of 2,000 additional Shares of which he was the beneficial owner.
Thomas E. Woodhouse is the beneficial owner of no Shares.
During the past 60 days, he disposed of 2,500 Shares, such Shares constituting
all of the Shares of which he was the beneficial owner.
Jan D. Moehl is the beneficial owner of 21,000 Shares. He
has sole power to vote (or direct the vote of) and power to dispose of (or
direct the disposition of) 10,000 of such Shares. He shares, with Kathleen W.
Moehl, power to vote (or direct the vote of) and sole power to dispose of (or
direct the disposition of) 11,000 of such Shares. As described in Item 6 of the
original Schedule 13D, Jan D. Moehl has pledged 10,000 Shares to the Trustees of
the Cheyne Walk Trust as security for a five-year fully amortizing loan made to
acquire such Shares.
Except as described herein, neither Getty Investments nor
any party referred to above, has acquired or disposed of, or entered into any
other transaction with respect to, any Shares during the past 60 days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF ISSUER.
Item 6 is amended to include the following:
Getty Investments entered into the following agreements and
arrangements in connection with the purchase of the Shares to which this
Amendment relates. (The summaries below do not purport to be complete and are
subject, and qualified in their entirety by reference, to all the terms and
provisions contained within the actual agreements.)
A. SUBSCRIPTION AGREEMENT
In the Subscription Agreement, Getty Investments agreed to
subscribe for, and Issuer agreed to issue to Getty Investments, 1,579,353 Shares
for an aggregate consideration of $32,000,000. The foregoing description of the
Subscription Agreement is qualified in its entirety by reference to such
agreement, a copy of which is attached hereto as Exhibit 8.
B. AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
In connection with the consummation of the purchase of the
Shares to which this Amendment relates, Issuer and Getty Investments entered
into the First Amendment to Registration Rights Agreement, dated as of November
Page 6 of 11 Pages
<PAGE>
22, 1999, between Issuer and Getty Investments, whereby the Shares which are the
subject of this Amendment were granted the benefits of the Getty Investments
Registration Rights Agreement, which is described in the original Schedule 13D.
The foregoing description of the First Amendment to
Registration Rights Agreement is qualified in its entirety by reference to such
amendment, a copy of which is attached hereto as Exhibit 9.
C. INDEMNITY AGREEMENT
In connection with the consummation of the purchase of the
Shares to which this Amendment relates, Issuer, Getty Investments and the
Investors named therein (collectively, with Getty Investments, the "Investors")
entered into the Getty Investments Indemnity Agreement, dated as of November 22,
1999, whereby Issuer agreed to indemnify and hold harmless the Investors against
any losses, claims, damages or liabilities to which the Investors may become
subject, arising directly or indirectly out of any preliminary prospectus,
prospectus, registration statement, circular and any amendment or supplement
thereto (including any exhibits to any of the foregoing documents), filed,
distributed or used at any time in connection with the offering, issuance and
sale of Shares pursuant to a Registration Statement on Form S-3, as amended
(Registration No. 333-88009), and a related Registration Statement on Form S-3
to register additional Shares pursuant to Rule 462(b) of the Securities Act of
1933, as amended (Registration No. 333-91097). Issuer further agreed to
reimburse the Investors for any legal or other expenses reasonably incurred by
the Investors in connection with investigating or defending any actual or
threatened legal action, claim, proceeding or investigation in respect thereof
as such expenses are incurred.
The foregoing description of the Indemnity Agreement is
qualified in its entirety by reference to such agreement, a copy of which is
attached hereto as Exhibit 10.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<CAPTION>
DESCRIPTION EXHIBIT NUMBER
- ----------- --------------
<S> <C>
Subscription Agreement, dated February 9, 1998, by and between Getty Investments L.L.C. and 1*
Getty Images, Inc.
Stockholders' Agreement, dated as of February 9, 1998, by and among (i) Getty Images, Inc., (ii) 2*
Getty Investments, L.L.C., Mark Getty, Jonathan Klein, Crediton Limited and the October 1993
Trust and (iii) PDI, L.L.C., Mark Torrance and Wade Torrance
Page 7 of 11 Pages
<PAGE>
The Restated Getty Parties' Shareholders Agreement, dated as of February 9, 1998, among Getty 3*
Investments L.L.C., Abacus (C.I.) Ltd. as the Trustee of the October 1993 Trust, Crediton
Limited, Mark H. Getty and Jonathan D. Klein
Registration Rights Agreement, dated February 9, 1998, between Getty Images, Inc. and Getty 4*
Investments L.L.C.
Restated Option Agreement, dated February 9, 1998, by and between Getty Investments L.L.C., 5*
Getty Images, Inc. and Getty Communications plc
Pledge Agreement, dated June 28, 1996, by and between Jan D. Moehl and the Trustees of the 6*
Cheyne Walk Trust
Indemnity Agreement, dated as of November 22, 1999, by and among Getty Images, Inc. and the 7*
Investors named therein
Subscription Agreement, dated October 26, 1999, by and between Getty Investments L.L.C. and Getty 8
Images, Inc
First Amendment to Registration Rights Agreement, dated as of November 22, 1999, between Getty 9
Images, Inc. and Getty Investments L.L.C.
Getty Investments Indemnity Agreement, made as of November 22, 1999, between Getty Images, Inc. 10
and the Investors named therein
</TABLE>
- ----------------------
* Previously filed as exhibit to Schedule 13D by Getty Investments on November
19, 1999.
Page 8 of 11 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Amendment is true, complete and
correct.
December 9, 1999 GETTY INVESTMENTS L.L.C.
By: /s/ Jan D. Moehl
----------------------------
Name: Jan D. Moehl
Title: Officer
Page 9 of 11 Pages
<PAGE>
SCHEDULE I
The name and present principal occupation of each of the executive
officers and directors of Getty Investments L.L.C. are set forth below. Unless
otherwise noted, each of these persons are United States citizens. Their
respective business addresses are set forth below.
<TABLE>
<CAPTION>
POSITION WITH GETTY
NAME INVESTMENTS PRINCIPAL OCCUPATION
---- ----------- --------------------
<S> <C> <C>
Mark H. Getty Chairman of the Board, Executive Chairman of the Board of
(Irish citizenship) Director Getty Images, Inc.
701 N. 34th Street, Suite 400
Seattle, Washington 98103
Jonathan D. Klein Director Chief Executive Officer of Getty Images, Inc.
(United Kingdom citizenship) 701 N. 34th Street, Suite 400
Seattle, Washington 98103
Andrew S. Garb Director Attorney
Loeb & Loeb
1000 Wilshire Boulevard, Suite 1800
Los Angeles, CA 90017
William A. Newsom Director President
Newsom Investments Ltd.
3717 Buchanan Street, Second Floor
San Francisco, CA 94123
Christopher R. Getty Director President
Peak LLC
126 East 56th Street, 24th Floor
New York, NY 1022
Thomas E. Woodhouse Director Administrator
Gordon P. Getty Family Trust
Ronald Family Trust A
1325 Airmotive Way, Suite 264
Reno, NV 89502
Jan D. Moehl Officer Chief Operating Officer
Cheyne Walk Trust
1325 Airmotive Way, Suite 262
Reno, NV 89502
</TABLE>
Page 10 of 11 Pages
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------- -----------
1* Subscription Agreement, dated February 9, 1998, by and between
Getty Investments and Issuer
2* Stockholders' Agreement, dated as of February 9, 1998, by and
among (i) Getty Images, Inc., (ii) Getty Investments L.L.C.,
Mark Getty, Jonathan Klein, Crediton Limited and the October
1993 Trust and (iii) PDI, L.L.C., Mark Torrance and Wade
Torrance
3* The Restated Getty Parties' Shareholders Agreement, dated as
of February 9, 1998, among Getty Investments L.L.C., Abacus
(C.I.) Ltd. as the Trustee of the October 1993 Trust, Crediton
Limited, Mark H. Getty and Jonathan D. Klein
4* Registration Rights Agreement, dated February 9, 1998, between
Getty Images, Inc. and Getty Investments L.L.C.
5* Restated Option Agreement, dated February 9, 1998, by and
between Getty Investments L.L.C., Getty Images, Inc. and Getty
Communications plc
6* Pledge Agreement, dated June 28, 1996, by and between Jan D.
Moehl and The Trustees of the Cheyne Walk Trust
7* Indemnity Agreement, dated as of November 22, 1999, by and
among Getty Images, Inc. and the Investors named therein
8 Subscription Agreement, dated October 26, 1999, by and between
Getty Investments and Issuer
9 First Amendment to Registration Rights Agreement, dated as of
November 22, 1999, between Getty Images, Inc. and Getty
Investments L.L.C.
10 Getty Investments Indemnity Agreement, made as of November 22,
1999, between Getty Images, Inc. and the Investors named
therein
- ----------------------
* Previously filed as exhibit to Schedule 13D by Getty Investments on November
19, 1999.
Exhibit 8
---------
Getty Investments L.L.C.
1325 Airmotive Way, Suite 262
Reno, Nevada 89502
October 26, 1999
Getty Images, Inc.
701 North 34th Street
Seattle, Washington 98103
Dear Sirs:
Getty Investments L.L.C., a limited liability company organized under
the laws of the State of Delaware ("Getty Investments"), hereby subscribes for
and offers to purchase, upon and subject to the conditions set forth below,
1,579,353 validly issued, fully paid and nonassessable shares (the "Shares") of
Common Stock, par value $0.01 per share ("Common Stock"), of Getty Images, Inc.,
a Delaware corporation ("Getty Images"), and to pay therefor in lawful money
U.S. $32,000,000 in the aggregate (the "Purchase Price"), by wire transfer in
immediately available funds. The Purchase Price shall be payable on the business
day preceding the Closing Date (as defined in the Stock Purchase Agreement,
dated as of September 20, 1999, among Getty Images, Eastman Kodak Company and
Kodak S.A.).
The obligations of Getty Investments to subscribe for, and the
obligations of Getty Images to issue to Getty Investments, the Shares pursuant
to this agreement shall be subject to:
(i) the execution and delivery by Getty Images and Getty
Investments of an amendment to the Registration Rights
Agreement, dated as of February 9, 1998, between Getty Images
and Getty Investments, pursuant to which the Shares shall be
entitled to the benefits of the Registration Rights Agreement;
(ii) the execution and delivery by Getty Images, Getty Investments
and the Investors named therein of an Indemnity Agreement in
the form to be agreed to by the parties in good faith, but
substantially in the form of the Indemnity Agreement delivered
by Getty Images to Getty Investments in connection with the
issuance by Getty Images of its 4.75% Convertible Subordinated
Notes due 2003; and
(iii) Getty Investments having received a legal opinion from Weil,
Gotshal & Manges LLP, counsel to Getty Images, in a form
agreed to by the parties but addressing the following matters
as to Getty Images: (a) due organization, valid existence and
good standing, (b) corporate power and authority to execute
this letter agreement and perform its obligations hereunder,
(c) due execution and delivery, (d) enforceability (subject to
customary
MP\1%@401.DOC
<PAGE>
2
exceptions), (e) due authorization and valid issuance of the
Shares, (f) that the execution and delivery of this agreement
and the issuance of the Shares will not conflict with any
constitutional or material agreement of Getty Images, (g) that
the execution and delivery of this agreement and the issuance
of the Shares will not conflict with or violate any law or
governmental order, (h) that the execution and delivery of
this agreement and the issuance of the Shares will not require
any consent, approval or filing, and (i) that it will not be
necessary to register the Shares under the Securities Act.
(iv) the expiration or early termination of any applicable waiting
period (and any extension thereof) under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended.
Getty Investments hereby represents and warrants to Getty Images
that:
(a) it understands and acknowledges that the issuance and
subscription of the Shares pursuant to this letter agreement
have not been, and will not be, registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and
that the Shares will be issued to it in a transaction that is
exempt from the registration requirements of the Securities
Act in reliance upon the representations and warranties of
Getty Investments in this agreement. It understands and
acknowledges that the Shares cannot be offered or resold
within the United States or to or for the account or benefit
of U.S. persons except pursuant to registration under the
Securities Act or an available exemption from registration and
it agrees that it shall not resell the Shares except in
compliance with applicable securities laws;
(b) it is purchasing the Shares for its own account for investment
and not with a view to, or for resale in connection with, the
distribution hereof, and it has no present intention of
distributing any of the Shares;
(c) it understands and acknowledges that all certificates
representing the Shares shall bear, in addition to any other
legends required under applicable securities laws, the
following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"). The shares have been acquired by the holder
not with a view to, or for resale in connection with, any
distribution thereof within the meaning of the Securities Act
and may not be sold, pledged or otherwise transferred except
in accordance with an exemption from the registration
requirements of the Securities Act."
(d) it is an accredited investor within the meaning of Regulation
D under the Securities Act and it has such knowledge and
experience in financial and business matters that it is
capable of evaluating the merits and risk of its investment in
the Shares pursuant to this agreement;
<PAGE>
3
(e) it has the financial ability to bear the economic risk of its
investment in the Shares pursuant to this agreement, it is
aware that it may be required to bear the economic risk of its
investment in the Shares for an indefinite period of time, and
it has no need for liquidity with respect to its investment
therein at this time; and
(f) the Shares were not offered or sold to Getty Investments by
any form of general solicitation or general advertising.
This letter agreement shall be governed by the laws of the State of
New York and shall only be amended by written consent of Getty Investments and
Getty Images.
Please confirm the above and accept this offer by signing in the
space provided below.
Very truly yours,
Getty Investments L.L.C.
By: /s/ Jan D. Moehl
---------------------------------
Jan D. Moehl
Officer
Accepted and confirmed
as of October 28, 1999
Getty Images, Inc.
By: /s/ Suzanne L. Page
------------------------------------
Name: Suzanne L. Page
Title: General Counsel
Exhibit 9
---------
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT, dated as of
November 22, 1999 (the "Amendment"), between Getty Images, Inc., a Delaware
corporation (the "Company"), and Getty Investments L.L.C., a Delaware limited
liability company ("Getty Investments").
RECITALS
WHEREAS, the Company and Getty Investments entered into a
Registration Rights Agreement, dated as of February 9, 1998 (the "Registration
Rights Agreement"), pursuant to which Getty Investments was granted certain
registration rights with respect to shares of Company Common Stock issued to
Getty Investments pursuant to the Scheme of Arrangement and the Subscription
Agreement;
WHEREAS, the Company and Getty Investments have entered into a letter
agreement, dated October 26, 1999 (the "1999 Subscription Agreement"), pursuant
to which Getty Investments has agreed to subscribe for, and the Company has
agreed to issue, 1,579,353 shares of Company Common Stock;
WHEREAS, it is a condition to the consummation of the 1999
Subscription Agreement that the Company and Getty Investments enter into this
Amendment;
WHEREAS, Getty Investments is the holder of all the Registerable
Shares, and therefore Getty Investments and the Company have the power to amend
the Registration Rights Agreement pursuant to Section 3.09 thereof; and
WHEREAS, terms used but not otherwise defined herein shall have the
respective meanings set forth in the Registration Rights Agreement.
NOW THEREFORE, in consideration of the mutual promises,
representations, warranties and conditions contained herein, the parties agree
as follows:
1. Amendment of Registration Rights Agreement. The defined term "Registerable
Securities" set forth in Section 1.01 of the Registration Rights Agreement
is hereby amended and replaced in full with the following:
"`Registrable Securities' shall mean (a) any Company Common Stock
issued pursuant to the Scheme of Arrangement, the Subscription
Agreement or that letter agreement dated October 26, 1999 by Getty
Investments to the Company relating to the subscription by Getty
Investments of 1,579,353 shares of Company Common Stock, or (b) any
securities which may be issued or distributed in respect thereof by
way of stock dividend or stock split or other distribution,
exchange, recapitalization or reclassification. For purposes of this
Agreement, any Registrable Securities shall cease to be Registrable
MP\1%9q01.DOC
<PAGE>
Securities when (i) a Registration Statement which respect to the
sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such Registration Statement, (ii) such Registrable
Securities are sold by a person in a transaction in which the rights
under the provisions of this Agreement are not assigned, or (iii)
such Registrable Securities shall have ceased to be outstanding."
2. Full Force and Effect. Except as modified hereby, the Registration Rights
Agreement shall remain in full force and effect. The term "Agreement" used
in the Registration Rights Agreement shall for all purposes therein refer
to the Registration Rights Agreement as amended by this Amendment.
3. Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
4. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed entirely within that State.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized officers as of the date hereof.
Getty Images, Inc.
By: /s/ Suzanne L. Page
---------------------------------------
Name: Suzanne L. Page
Title: General Counsel
Getty Investments L.L.C.
By: /s/ Jan D. Moehl
---------------------------------------
Jan D. Moehl
Officer
Exhibit 11
----------
GETTY INVESTMENTS INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is made as of November 22, 1999
BETWEEN:
(1) GETTY IMAGES, INC., a Delaware corporation whose registered office is
at 701 North 34th Street, Suite 400, Seattle, Washington 98103 ("Getty
Images"); and
(2) THOSE PERSONS whose names and addresses are set out in Exhibit A hereto
(the "Investors").
NOW THE PARTIES HEREBY AGREE as follows:
1. Definitions
a. In this Agreement:
"Action" means any actual or threatened legal action, claim,
proceeding or investigation.
"Affiliate" means, with respect to any specified Person, the
directors, officers, trustees, managers and partners of such
Person, and any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled
by, or is under common control with, such specified Person.
"control" (including the terms "controlled by" and "under
common control with"), with respect to the relationship
between or among two or more Persons, means the possession,
directly or indirectly or as trustee or executor, of the power
to direct or cause the direction of the affairs or management
of a Person, whether through the ownership of voting
securities, as trustee or executor, by contract or otherwise.
Control shall be conclusively presumed when any Person
directly or indirectly owns 50% or more of the voting
securities of another Person.
"Disclosure Documents" means any preliminary prospectus,
prospectus, registration statement, circular and any amendment
or supplement thereto, filed, distributed or used at any time
in connection with the Offering (and including any exhibits to
the foregoing documents).
"Investors" means those persons listed in Exhibit A hereto,
together with their respective Affiliates, agents and
representatives.
MP\1t2802.DOC
<PAGE>
"Offering" means the offering, issuance and sale of the common
stock, par value $0.01 per share, of Getty Images pursuant to
a Registration Statement on Form S-3, as amended (Registration
No. 333-88009), and a related Registration Statement on Form
S-3 to register additional shares of common stock pursuant to
Rule 462(b) of the Securities Act of 1933, as amended
(Registration No. 333-91097).
"Person" means an individual, corporation, general or limited
partnership, limited or unlimited liability company, trust,
association, unincorporated organization, government or any
authority, agency or body thereof, or other entity and any
legal personal representative, successor and lawful assignee
of any of them.
b. In this Agreement, a reference to:
(1) a "subsidiary" means any and all corporations,
partnerships, joint ventures, associations and other
entities controlled by Getty Images directly or
indirectly through one or more intermediaries;
(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;
(3) a clause or schedule, unless the context otherwise
requires, is a reference to a clause of or schedule
to this Agreement; and
(4) a document is a reference to that document as from
time to time supplemented or varied.
c. The headings in this Agreement do not affect its
interpretation.
2. Indemnity
a. Getty Images hereby undertakes that it will indemnify and hold
harmless each Investor against any losses, claims, damages or
liabilities to which such Investor may become subject, arising
directly or indirectly out of the Disclosure Documents and
Getty Images will reimburse each Investor for any legal or
other expenses reasonably incurred by such Investor in
connection with investigating or defending any Action in
respect thereof as such expenses are incurred, provided that,
Getty Images shall have no liability under this Clause to the
extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in any of the
Disclosure Documents in reliance upon and in conformity with,
2
<PAGE>
in the case of each Investor, information provided by such
Investor.
b. Promptly after receipt by any Investor of notice of the
commencement of any Action or any written notice of any threat
of any Action, it shall, if a claim in respect thereof is to
be made against Getty Images under this Clause, notify Getty
Images and the other Investors in writing of the commencement
thereof; but the omission so to notify Getty Images shall not
relieve Getty Images from any liability which it may have to
such Investor. If any such Action shall be brought against any
Investor and it shall notify Getty Images of the commencement
thereof, Getty Images shall, subject to its agreeing to
indemnify the Investors against all judgments and other
liabilities resulting from such Action (and so far as
permitted by any insurance policy of such Investors), be
entitled to participate therein and, to the extent that it
shall wish, to assume the defense thereof, with counsel
satisfactory to such Investor (which shall not, except with
the consent of such Investor, be counsel to Getty Images),
and, after notice from Getty Images to such Investor of its
election so as to assume the defense thereof, Getty Images
shall not be liable to such Investor under this Clause for any
legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such Investor, in connection
with the defense thereof other than reasonable costs of
investigation. Getty Images shall not, without the written
consent of the relevant Investor effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any Action in respect of which indemnification or
contribution may be sought hereunder (whether or not such
Investor is an actual or potential party to such Action)
unless such settlement, compromise or judgment (i) includes a
full and unconditional release of such Investor from all
liability arising out of such Action, and (ii) does not
include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any
Investor. In the event that Getty Images wishes to assume the
defense of any Action but is not permitted by the insurance
policy of the relevant Investor to do so, such Investor shall
use all reasonable endeavors to procure that its insurers and
their legal advisers shall consult and cooperate with Getty
Images in respect of such defense and (except insofar as such
Investor shall certify to Getty Images that the requirement to
obtain the written consent of Getty Images as referred to
below would invalidate the relevant insurance policy, in which
case such requirement shall not apply) shall not settle,
compromise or consent to the entry of any judgment with
respect to such Action without the written consent of Getty
Images, such consent not to be unreasonably withheld or
delayed.
c. If the indemnification provided for in this Clause 2 is
unavailable to or insufficient to hold harmless any Investor
under the foregoing provisions of this Clause in respect of
any losses, claims, damages or liabilities (or Actions in
respect thereof) referred to therein, then Getty Images shall
contribute to the amount paid or payable by the relevant
Investor as a result of such losses, claims, damages or
3
<PAGE>
liabilities (or Actions in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by
that Investor on the one hand and Getty Images on the other
from the Offering. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law or if the relevant Investor failed to give the notice
required under sub-Clause b. above, then Getty Images shall
contribute to such amount paid or payable by such Investor in
such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such Investor
on the one hand and Getty Images on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or Actions in respect
thereof), as well as any other relevant equitable
considerations. The relative benefits received by the
Investors in the aggregate on the one hand and Getty Images on
the other shall be deemed to be in the proportion 99 percent,
to Getty Images and 1 percent, to the Investors. The relative
fault shall be determined by reference to, among other things,
whether the claim relates to information supplied by Getty
Images or the Investors and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The relevant Investors
agree with Getty Images that it would not be just and
equitable if contributions pursuant to this sub-Clause c. were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this sub-Clause c. The
amount paid or payable by the relevant Investor as a result of
the losses, claims, damages or liabilities (or Actions in
respect thereof) referred to above in this sub-Clause c. shall
be deemed to include any legal or other expenses reasonably
incurred by it in connection with investigating or defending
any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation.
d. If any taxing authority brings into charge to taxation any sum
payable under the indemnity contained in this Clause 2, the
amount so payable shall be grossed up by such amount as will
ensure that after deduction of the tax so chargeable (after
giving credit for any tax relief available to the indemnified
party) there shall remain a sum equal to the amount that would
otherwise have been payable under this Clause.
e. The obligations of Getty Images under this Clause 2 shall be
in addition to any liability which Getty Images may otherwise
have.
3. Survival of Obligations
The indemnities, agreements, representations, warranties and other
statements of Getty Images contained in this Agreement or made by or
on behalf of it pursuant to this Agreement shall remain in full force
and effect, regardless of any investigation (or any statement as to
4
<PAGE>
the results thereof) made by or on behalf of Getty Investments, and
shall survive the completion of the Offering.
4. Assignment and Further Assistance
a. This Agreement shall be binding upon, and the benefit of this
Agreement shall inure solely to the Investors and Getty Images
and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any shares from any Investor
shall be deemed a successor or assign by reason merely of such
purchase.
b. Getty Images shall, if requested by any of the Investors,
procure that any of its subsidiaries nominated by any of the
Investors shall enter into an agreement with the Investors on
similar terms to this Agreement, save that any such subsidiary
shall be the party giving the indemnification thereunder in
place of Getty Images.
5. Time of the Essence
Time shall be of the essence of this Agreement.
6. Choice of Law
a. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
b. To the fullest extent permitted by law, 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
of and in accordance with the rules, then pertaining, 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. Nothing in this paragraph 6.b.
shall limit any right that any Person may otherwise have to
seek to obtain preliminary judgment upon the award rendered
may be entered in any court having jurisdiction thereof.
Nothing in this paragraph 6.b. shall limit any right that any
Person 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.
c. In the event of any dispute, claim, arbitration or litigation
with regard to this Agreement, the prevailing party shall be
entitled to receive from the non-prevailing party, and the
non-prevailing party shall promptly pay, all reasonable fees
and expenses of counsel for the prevailing party incurred in
connection with such dispute, claim, arbitration or
litigation.
5
<PAGE>
7. Severability
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
8. No Personal Liability of Trustees
The parties hereto agree that with respect to the Cheyne Walk Trust,
the Ronald Family Trust A, the Ronald Family Trust B and the Gordon
P. Getty Family Trust, the respective trustees thereof have executed
this Agreement solely in their representative capacities as trustees
and not individually, and that any liability arising from this
Agreement shall be satisfied solely from the assets of the trust of
which such person is trustee, and not from such person individually.
9. Counterparts
This Agreement may be executed by the parties hereto in counterparts,
each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
6
<PAGE>
IN WITNESS WHEREOF the parties have caused this Agreement to be signed by their
duly authorized representatives as of the day and year first mentioned above.
The Trustees of the Cheyne Walk Trust
By: /s/ Jan D. Moehl
-----------------------------------------------
Name: Jan D. Moehl
Title: C.O.O.
The Trustees of the Ronald Family Trust A
By: /s/ Thomas Edwin Woodhouse
-----------------------------------------------
Name: Thomas Edwin Woodhouse
Title: Trust Administrator
The Trustees of the Ronald Family Trust B
By: /s/ Jan D. Moehl
-----------------------------------------------
Name: Jan D. Moehl
Title: C.O.O.
Transon Limited
By: /s/ MJ Ridleyl
-----------------------------------------------
Name: MJ Ridley
Title: Director
The Trustees of the Gordon P. Getty Family Trust
By: /s/ Thomas Edwin Woodhouse
-----------------------------------------------
Name: Thomas Edwin Woodhouse
Title: Trust Administrator
7
<PAGE>
Getty Investments, L.L.C.
By: /s/ Jan D. Moehl
-----------------------------------------------
Name: Jan D. Moehl
Title: Officer
Getty Images, Inc.
By: /s/ Suzanne L. Page
-----------------------------------------------
Name: Suzanne L. Page
Title: General Counsel
8
<PAGE>
EXHIBIT A
---------
Name Notice Address
- ---- --------------
Trustees of the Cheyne Walk Trust Attn: Jan D. Moehl
1325 Airmotive Way, Suite 262
Reno, Nevada 89502
Trustees of the Ronald Family Trust A Attn: Thomas E. Woodhouse
1325 Airmotive Way, Suite 264
Reno, Nevada 89502
Trustees of the Ronald Family Trust B Attn: Jan D. Moehl
1325 Airmotive Way, Suite 262
Reno, Nevada 89502
Transon Limited c/o Macfarlanes
10 Norwich Street
London EC4A 1BD
England
Trustees of the Gordon P. Getty Attn: Thomas E. Woodhouse
Family Trust 1325 Airmotive Way, Suite 264
Reno, Nevada 89502
Getty Investments L.L.C. Attn: Jan D. Moehl
1325 Airmotive Way, Suite 262
Reno, Nevada 89502
9
