As filed with the Securities and Exchange Commission on April 2, 1999
Registration No. 333-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
GETTY IMAGES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 98-0177556
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2101 Fourth Avenue, Suite 500
Seattle, Washington 98121
(206) 695-3400
(Address and telephone number of Registrant's principal executive offices)
The Allsport Photographic plc Unapproved Share Option Scheme
(Full title of the plan)
-------------------------
Heather B. Redman, Esq.
GETTY IMAGES, INC.
2101 Fourth Avenue, Suite 500
Seattle, Washington 98121
(206) 695-3400
(Name, address and telephone number of agent for service)
-------------------------
Copy to:
William Hinman, Esq.
Shearman & Sterling
555 California Street, Suite 2000
San Francisco, California 94104
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered Registered Security Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 446,117 $ 22.6875(1) $10,121,279.44(1) $2,813.72
$0.01 per share
====================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee. Such estimate is calculated pursuant to
Rules 457(c) and 457(h) under the Securities Act of 1933 based on the average bid and asked price of $22.6875
on the NASDAQ National Market on March 30, 1999, which high and low prices were $ 23.375 and $ 22.00, respectively.
</FN>
</TABLE>
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- --------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (hereinafter, the
"Securities Act"), and the "Note" to Part I of Form S-8.
<PAGE>
2
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference in this Registration
Statement:
(a) Annual Report of Getty Images, Inc. (the
"Registrant") on Form 10-K for the year ended
December 31, 1998.
(b) Current Report of the Registrant on Form 8-K dated
January 13, 1999.
(c) The Registrant's Registration Statement on Form S-4,
File No. 333-38777, filed with the Commission on
January 7, 1998, which contains a description of the
Registrant's shares of Common Stock, par value $0.01
per share (the "Shares"), registered under Section
12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), under the heading
"Description of Getty Images Capital Stock."
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and are a part thereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
<PAGE>
3
Item 6. Indemnification of Directors and Officers.
Except to the extent indicated below, there is no charter
provision, by-law, contract, arrangement or statute under which any controlling
person, director or officer of the Company is insured or indemnified in any
manner against any liability which he or she may incur in his or her capacity as
such.
The Delaware General Corporation Law (the "DGCL") provides
that a corporation may, and in certain circumstances must, indemnify its
directors, officers, employees and agents for expenses, judgments or settlements
actually and reasonably incurred by them in connection with suits and other
legal actions or proceedings if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. In any such suit or
action brought by or on behalf of the corporation, such indemnification is
limited to expenses incurred in defense or settlement of the suit or action. The
DGCL also permits a corporation to adopt procedures for advancing expenses to
directors, officers and others without the need for a case-by-case determination
of eligibility, so long as, in the case of officers and directors, they
undertake to repay the amounts advanced if it is ultimately determined that the
officer or director was not entitled to be indemnified. The Certificate of
Incorporation of the Company (the "Certificate of Incorporation") and the Bylaws
of the Company (the "Bylaws") contain provisions for indemnification of
directors and officers and for the advancements of expenses to any director or
officer to the fullest extent of the law.
The DGCL permits corporations to purchase and maintain
insurance for directors and officers against liability for expenses, judgments
or settlements, whether or not the corporation would have the power to indemnify
such persons therefor. The Bylaws permit the Company to purchase such insurance.
The Company has also agreed by contract to indemnify the
directors and certain officers of the Company for certain liabilities incurred
by such persons by reason of the fact that such person is a director or officer,
provided that such person was acting in good faith.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
4.1 Rules of The Allsport Photographic plc Unapproved Share Option
Scheme.
4.2 Trust Deed of the Allsport Photographic plc Employee Share
Trust.
<PAGE>
4
4.3.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference from the Registrant's
Registration Statement on Form S-4, File No. 333-38777).
4.3.2 Certificate of Amendment to the Certificate of Incorporation
of the Registrant (incorporated by reference from the Current
Report of the Registrant on Form 8-K dated November 10, 1998).
4.4 Form of Bylaws of the Registrant (incorporated by reference
from the Registrant's Registration Statement on Form S-4, File
No. 333-38777).
23.1 Consent of PricewaterhouseCoopers.
24 Powers of Attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made of securities registered hereby, a
post-effective amendment to this Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
(2) That, for purposes of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby further undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the
<PAGE>
5
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Seattle on this 1st day of April, 1999.
Getty Images, Inc.
By: /s/ Heather B. Redman
---------------------------------
Name: Heather B. Redman
Title: Senior Vice President,
General Counsel and Secretary
<PAGE>
7
POWERS OF ATTORNEY
Each of the undersigned whose signature appears below hereby
constitutes and appoints Mark H. Getty, Heather B. Redman and Jonathan D. Klein
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective amendments)
and supplements to this Registration Statement and any and all related
registration statements necessary to register additional securities, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the indicated capacities on April 1, 1999.
Signature Title
/s/ Mark H. Getty Executive Chairman and Director
- -----------------------------
Mark H. Getty
/s/ Mark Torrance Non-Executive Vice Chairman and
- ----------------------------- Director
Mark Torrance
/s/ Jonathan D. Klein Chief Executive Officer and
- ----------------------------- Director (Principal Executive Officer)
Jonathan D. Klein
/s/ Christopher J. Roling Treasurer (Principal Financial Office
- ----------------------------- and Principal Accounting Officer)
Christopher J. Roling
/s/ Andrew Garb Director
- -----------------------------
Andrew Garb
Director
- -----------------------------
Anthony Stone
/s/ James N. Bailey Director
- -----------------------------
James N. Bailey
/s/ Manny Fernandez Director
- -----------------------------
Manny Fernandez
/s/ Christopher Sporborg Director
- -----------------------------
Christopher Sporborg
<PAGE>
8
Exhibit Index
Exhibit No. Description of Document
4.1 Rules of The Allsport Photographic plc Unapproved Share Option
Scheme.
4.2 Trust Deed of the Allsport Photographic plc Employee Share
Trust.
4.3.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference from the Registrant's
Registration Statement on Form S-4, File No. 333- 38777).
4.3.2 Certificate of Amendment to the Certificate of Incorporation
of the Registrant (incorporated by reference from the Current
Report of the Registrant on Form 8-K dated November 10, 1998).
4.4 Form of Bylaws of the Registrant (incorporated by reference
from the Registrant's Registration Statement on Form S-4, File
No. 333-38777).
23.1 Consent of PricewaterhouseCoopers.
24 Powers of Attorney (included on signature page).
RULES OF THE ALLSPORT PHOTOGRAPHIC PLC UNAPPROVED SHARE OPTION
SCHEME
INDEX
Page
1. Definitions...........................................................1
2. Grant of Options......................................................5
3. Limitations on Grants.................................................6
4. Exercise of Options...................................................6
5. Take-overs, Reconstructions, Liquidations and Option Exchanges........8
6. Variation of Share Capital...........................................10
7. Master of Exercise of Options........................................11
8. Administration and Amendment.........................................12
9. Loss of Office or Employment.........................................12
Appendix I: Letter of Grant
Appendix II: Option Certificate and Notice of Exercise
<PAGE>
RULES OF THE ALLSPORT PHOTOGRAPHIC PLC UNAPPROVED SHARE OPTION
SCHEME
1. Definitions
1.1 In these Rules, the following words and expressions shall have, where
the context so admits, the following meanings:
"Act" - the Income and Corporation Taxes Act 1988;
"Acquiring Company" - a company which obtains Control of the
Company;
"Adoption Date" - the date on which the Scheme is adopted by
the Company;
"Company" - Allsport Photographic PLC registered in
England No. 01215846 or an Acquiring
Company;
"Control" - has the same meaning as in section 840 of the
Act;
"Date of Grant" - the date on which an Option is, was or is to be
granted to an Eligible Employee under the
Scheme, pursuant to Rule 2.1, or on which an
Option is or was treated as being granted
pursuant to rule 2.3 being the date on which
the Option Certificate is executed;
"Eligible Employee" - any director or employee of any Group
Company;
"Exercise Conditions" - any conditions imposed pursuant to Rule 2.2;
1
<PAGE>
"Exercise Price" - the price as determined by the Trustee at
which an Eligible Employee may acquire a
Share on the exercise of an Option;
"Group" - the Company and its Subsidiaries and the
phrase "Group Company" shall be construed
accordingly;
"Letter of Grant" - the letter in the form set out in Appendix I or
in such form as the Trustee may determine
from time to time;
"New Option" - an option over shares in the Acquiring
Company meeting the requirements of
subparagraphs 15(3)(b) to (d) of Schedule 9,
granted in consideration for the release of a
Subsisting Option within the "appropriate
period" (as defined by paragraph 15(2) of
Schedule 9);
"Notice of Exercise" - the notice of exercise in the form set out in
Appendix II or in such form as the Trustee
may determine from time to time;
"Option" - a right to acquire Shares granted or to be
granted pursuant to Rule 2.1 or 2.3;
"Option Certificate" - the option certificate in the form set out in
Appendix II or in such form as the Trustee
may determine from time to time;
"Option Holder" - a person who has been granted an Option or
(where the context admits) his legal personal
representative(s);
2
<PAGE>
"Recognised Exchange" - a recognised stock exchange within the
meaning of section 841 of the Act or a
recognised investment exchange within the
meaning of the Financial Services Act 1986;
"Replacement Option" - an Option which is designated as such on the
Date of Grant pursuant to Rule 2.5 and which
is exercisable immediately;
"Rules" - the rules of the Scheme as the same may be
amended from time to time;
"Schedule 9" - Schedule 9 to the Act;
"This Scheme" - this Allsport Photographic PLC Unapproved
Share Option Scheme constituted and
governed by the Rules;
"Share" - an ordinary share in the capital of the
Company within the meaning of section 832(1)
of the Act;
"Special Options" - Options which are designated as such on the
Date of Grant pursuant to Rule 2.5 and which
are subject to the special lapse provisions in
Rule 4.5;
"Specified Age" - age 60;
"Stock Exchange" - The London Stock Exchange Limited;
"Subsidiary" - a company which is under the Control of the
Company and which is a subsidiary of the
Company within the meaning of section 736 of
the Companies Act 1985;
3
<PAGE>
"Subsisting Option" - an Option which has been granted and which
has not lapsed, been surrendered, renounced
or exercised in full;
"Trust" - any employee share ownership trust which
may be established from time to time by any
Group Company which is an employees' share
scheme as defined in section 743 of the
Companies Act 1985;
"Trust Deed" - the deed of trust constituting the Trust;
"Trustee" - the original trustee or other trustee for the
time being of the Trust;
"Working Day" - any day other than a Saturday or Sunday
which is not a public bank holiday in England
or Wales.
1.2 In these Rules, except insofar as the context otherwise requires:
(i) words denoting the singular shall include the plural and vice
versa;
(ii) words importing a gender shall include every gender and
references to a person shall include bodies corporate and
unincorporated and vice versa;
(iii) reference to any enactment shall be construed as a reference
to that enactment as from time to time amended, modified,
extended or reenacted and shall include any orders,
regulations, instruments or other subordinate legislation made
under the relevant enactment;
(iv) words have the same meanings as in Schedule 9 unless the
context otherwise requires; and
4
<PAGE>
(v) headings and captions are provided for reference only and
shall not be considered as part of the Scheme.
2. Grant of Options
2.1 Subject to Rule 3, the Trustee may select any number of individuals who
shall at the Date of Grant be Eligible Employees and grant them Options
at any time or times after the Adoption Date.
2.2 In granting an Option pursuant to Rule 2.1, the Trustee may impose any
objective condition and/or limitation upon the exercise of such Option.
Any condition and/or limitation imposed shall be:
(i) set out in full in the Option Certificate or in a schedule
referred to in the Option Certificate;
(ii) such that rights to exercise such Option after the fulfilment
or attainment of any conditions and/or limitations so
specified shall not be dependent upon the further discretion
of any person; and
(iii) not capable of amendment or waiver unless events happen which
cause the Trustee to consider that those conditions and/or
limitations have ceased to be appropriate whereupon the
Trustee may at any time amend, relax or waive such conditions
and/or limitations so that any new conditions and/or
limitations imposed are, in its opinion, more appropriate and
are in the reasonable opinion of the Trustee no more difficult
to abide by or satisfy than when they were originally imposed
or last amended, as the case may be.
2.3 Where the circumstances noted in Rule 5.4 or 5.12 apply, New Options
may be granted within the terms of paragraph 15(1) Schedule 9 in
consideration for the release of Options previously granted under this
Scheme. Such New Options are deemed to be equivalent to the old Options
and to have been granted within the terms of this Scheme.
2.4 No Option may be transferred, assigned or charged and any purported
transfer, assignment or charge shall be void ab initio. Each Option
Certificate shall carry a statement to this effect.
5
<PAGE>
For the avoidance of doubt, this Rule 2.4 shall not prevent the Option
of a deceased Option Holder being exercised by his personal
representative(s) within the terms of these Rules.
2.5 Options shall be granted to Eligible Employees and shall be evidenced
by an Option Certificate executed as a deed specifying the Date of
Grant, the number of Shares subject to Option, the Exercise Price (if
any), any Exercise Conditions, the date on which the Option will become
exercisable and if the Option is a Special Option or a Replacement
Option. The Option Certificate shall be sent to the Option Holder
together with a Letter of Grant as soon as practicable after the Date
of Grant.
3. Limitations on Grants
Subject to Rule 8.4 and the Trust Deed, there shall be no limit on the
number of Shares over which the Trustee may grant Options.
4. Exercise of Options
4.1 Subject to each of the sub rules of this Rule 4 and Rule 7 below, any
Subsisting Option may be exercised by the Option Holder or, if
deceased, by his personal representatives in whole or in part at the
time of or at any time following the occurrence of the earliest of the
following events:
(i) the date specified by the Trustee in the Option Certificate
(which shall be on or after 1 April 1999 for all Options
other than Replacement Options);
(ii) the death of the Option Holder;
(iii) an opportunity to exercise the Option pursuant to Rule 5;
(iv) unless the Option is a Replacement Option, upon the
commencement of a period specified by the Trustee where the
Option Holder ceases to be a director or employee of the Group
for any reason, provided that such period shall not commence
until 1 April 1999;
6
<PAGE>
(v) unless the Option is a Replacement Option, a date specified by
the Trustee after the Date of Grant in respect of any Option,
provided that the Trustee cannot specify a date prior to
1 April 1999; or
(vi) for Replacement Options, the Date of Grant.
4.2 An Option may only be exercised where any Exercise Conditions have been
satisfied unless the circumstances in Rules 4.1(ii) to (v) inclusive or
Rule 4.3 apply, in which case the Exercise Conditions shall be deemed
to have been satisfied.
4.3 All Options, other than Replacement Options, shall cease to be
exercisable when an Option Holder ceases to be a director or employee
of the Group unless and until the Trustee exercises its discretion
pursuant to Rule 4.1(iv).
4.4 An Option shall lapse and become thereafter incapable of exercise on
the earliest of the following events:
(i) the seventh anniversary of the Date of Grant or such earlier
date specified by the Trustee at the Date of Grant;
(ii) the first anniversary of the Option Holder's death;
(iii) except where the Option is a Replacement Option, thirty days
following the date on which his office or employment with the
Group ceases unless the Trustee specifies a period of exercise
pursuant to Rule 4.1(iv), in which case the Option shall lapse
at the end of such specified period;
(iv) where an Option is exercisable pursuant to Rule 5.1, the
Option will lapse on the expiry of the period ending six
months from the time when the person making the offer has
obtained Control of the Company and any condition subject to
which the offer is made has been satisfied;
(v) where an Option is exercisable pursuant to Rule 5.3, 5.5, 5.6
or 5.7, at the end of the period of exercisability specified
in the appropriate Rule;
7
<PAGE>
(vi) the Option Holder being adjudicated a bankrupt; or
(vii) the surrender of the Option by the Option Holder.
4.5 Notwithstanding any other provision of the Scheme, Special Options
shall lapse six months following the Date of Grant unless in that
period there is a change of Control of the Company within the meaning
of Rule 5.9.
5. Take-overs, Reconstructions, Liquidations and Option Exchanges
5.1 If any person obtains Control of the Company more than 12 months after
the Adoption Date (or such shorter period as the Trustee may, in its
absolute discretion, specify) as a result of making:
(i) a general offer to acquire the whole of the issued share
capital of the Company (other than that which is already owned
by him) which is unconditional or which is made on a condition
such that if it is satisfied, the person making the offer will
have Control of the Company; or
(ii) a general offer to acquire all the shares (other than shares
which are already owned by him) in the Company which are of
the same class as Shares subject to a Subsisting Option
then the Trustee shall notify all Option Holders as soon as is
practicable of the offer in accordance with Rule 8.3. Any Subsisting
Option may, subject to Rule 5.6 be exercised from the date of the
receipt of that notification up to the earlier of the expiry of a
period ending six months from the time when the person making the offer
has obtained Control of the Company and any condition subject to which
the offer is made has been satisfied and the end of the period
specified in Rule 5.3, if applicable.
5.2 If under Section 425 of the Companies Act 1985 the Court sanctions a
compromise or arrangement more than 12 months after the Adoption Date
(or such shorter period as the Trustee may, in its absolute discretion,
specify), any Subsisting Option may, subject to Rule 5.6, be exercised
within six months of the Court sanctioning such compromise or
arrangement.
8
<PAGE>
5.3 If any person becomes bound or entitled to acquire Shares in the
Company under Sections 428 to 430 of the Companies Act 1985 more than
12 months after the Adoption Date (or such shorter period as the
Trustee may, in its absolute discretion, specify) any Subsisting Option
may be exercised at any time when that person remains so bound or
entitled.
5.4 If as a result of the events specified in Rules 5.1 or 5.5 an Acquiring
Company has obtained Control of the Company, or if an Acquiring
Company has become bound or entitled as mentioned in Rule 5.3, the
Option Holder may, if the Trustee so agrees, release any Subsisting
Option he holds in consideration for the grant of a New Option. A New
Option granted in consideration of the release of an Option shall be
evidenced by an Option Certificate which shall import the relevant
provisions of these Rules. A New Option shall, for all other purposes
of this Scheme, be treated as having been acquired as the same time as
the corresponding released Option.
5.5 If any person obtains Control of the Company other than as a result of
the events specified in Rule 5.1 more than 12 months after the
Adoption Date (or such shorter period as the Trustee may, in its
absolute discretion, specify) then the Trustee shall notify all Option
Holders as soon as practicable after the change of Control in
accordance with Rule 83. Any Subsisting Option may subject to Rule 5.6
be exercised from the date of the receipt of that notification up to
the expiry of a period ending six months from the time when the person
obtains Control of the Company.
5.6 If as a result of the events specified in Rules 5.1, 5.2 or 5.5 a
company has obtained Control of the Company, or if a company has become
bound or entitled as mentioned in Rule 5.3, the Trustee shall be
entitled at any time to specify that all Subsisting Options shall lapse
within a period of not less than 30 days by notice in writing to the
Option Holder to this effect in accordance with Rule 8.4.
5.7 If notice is duly given of a general meeting at which a resolution will
be proposed for the voluntary winding-up of the Company, an Option
shall be exercisable (but so that any exercise hereunder shall be
conditional upon such resolution being passed) at any time thereafter
until the resolution is duly passed or defeated or the general meeting
is concluded or adjourned, whichever shall first occur.
9
<PAGE>
5.8 The periods of exercisability under Rule 4.1(iii) and the date of lapse
under Rules 4.4(iv) and (v) are those of whichever of the
pre-conditions of Rules 5.1, 5.2, 5.3, 5.5, 5.6 or 5.7 are first
achieved. The subsequent achievement of any other pre-conditions will
not cause a period of exercisability to begin nor a date of lapse to
arise.
5.9 For the purpose of this Rule 5 other than Rule 5.4 a person shall be
deemed to have obtained Control of a Company if he and others acting in
concert with him have together obtained Control of it.
5.10 The exercise of an Option pursuant to the preceding provisions of this
Rule 5 shall be subject to the provisions of Rule 7.
5.11 A New Option shall not be exercisable by virtue of the event pursuant
to which it was granted.
5.12 If there is a change of Control of the Company or the Court sanctions a
compromise or arrangement pursuant to section 425 of the Companies Act
1985 or if any person becomes bound or entitled under sections 428 to
430 of the Companies Act 1985 within 12 months of the Adoption Date
and the Trustee has not exercised its discretion pursuant to Rules
5.1, 5.2, 5.3 or 5.5 the Trustee shall be entitled to grant a New
Option to the Option Holder in which case any Subsisting Option which
he holds shall be deemed to be released in consideration for the grant
of the New Option. A New Option issued in consideration of the release
of an Option shall be evidenced by an Option Certificate which shall
import the relevant provisions of these Rules. A New Option shall, for
all other purposes of this Scheme, be treated as having been acquired
at the same time as the corresponding released Option.
6. Variation of Share Capital
6.1 In the event of any variation of the share capital of the Company,
including, but without prejudice to the generality of the preceding
words, any capitalisation or rights issue or any consolidation,
sub-division or reduction of capital, the number of Shares subject to
any Option and the Exercise Price may be adjusted by the Trustee in
such manner as it considers to be, in its option, fair and reasonable.
Such variation shall be deemed to be effective from the record date at
which the respective variation applied to other shares of the same
class as
10
<PAGE>
the Shares. Any Options exercised within that period shall be treated
as exercised with the benefit of the variation.
6.2 The Trustee shall take such steps as it considers necessary to notify
Option Holders of any adjustment made under Rule 6.1 and may call in,
cancel, endorse, issue or reissue any Option Certificate consequent
upon such adjustment.
7. Master of Exercise of Options
7.1 An Option shall be exercised in whole or in part by the Option Holder
or, as the case may be, his personal representatives giving notice in
writing to the Trustee by the appropriate Notice of Exercise detailing
the number of Shares in respect of which he wishes to exercise the
Option accompanied by the appropriate payment (and where the Exercise
Price is nil the appropriate payment will be (pound)1 only) and the
relevant Option Certificate and shall be effective on the date of its
receipt by the Trustee.
7.2 Subject to Rule 7.6 where an Option is exercised in accordance with
Rule 7.1 the number of Shares to be acquired shall be transferred to
the Option Holder within 30 days of the date of exercise and the
Company shall arrange for the delivery of a definitive share
certificate in respect thereof. Shares acquired pursuant to the
exercise of an Option shall qualify for dividends from the date the
Option Holder is entered on the register of members of the Company.
7.3 When an Option is exercised in part, the balance shall remain
exercisable on the same terms as originally applied to the Option and a
new Option Certificate in respect of the balance shall be issued by the
Trustee as soon as possible after the partial exercise.
7.4 Where Shares are or become listed on the Daily Official List of the
Stock Exchange, the Company shall apply for Shares in respect of which
an Option has been exercised to be admitted to the Official List, if
they were not so admitted already.
7.5 Where Shares are:
(i) listed on the Stock Exchange; or
(ii) traded on the Alternative Investment Market; or
(iii) quoted on any Recognised Exchange,
11
<PAGE>
then no Option may be exercised in contravention of the terms of the
Model Code or such securities transactions rules of The Stock Exchange,
Alternative Investment Market or Recognised Exchange as may from time
to time be in force.
7.6 If an Option is exercised and the Option Holder is liable to tax,
duties or other amounts including Social Security Contributions on
such exercise and the Trustee or the Option Holder's employer or
former employer being a Group Company is liable to make a payment to
the appropriate authorities on account of that liability the Trustee
may sell sufficient of the Shares subject to Option so that the net
proceeds are so far as possible equal to but not less than the amount
payable by the employer or former employer and to the Option Holder
for any balance. Alternatively the Trustee may require the Option
Holder to make a payment to his employee or former employer equal to
the amount which the employer or former employer is liable to pay the
appropriate authorities.
8. Administration and Amendment
8.1 The Scheme shall be administered by the Trustee, whose decision on all
disputes shall be final.
8.2 The Trustee may from time to time amend these Rules provided that no
amendment may materially affect an Option Holder as regards an Option
granted prior to the amendment being made.
8.3 Any notice or other communication under or in connection with the
Scheme may be given by the Trustee either personally or by post, and to
the Trustee either personally or by post to the Secretary of the
Trustee; items sent by post shall be pre-paid and shall be deemed to
have been received 72 hours after posting.
8.4 The Trustee shall at all times keep available sufficient shares to
satisfy the exercise to the full extent of all Subsisting Options,
taking account of any other obligations of the Trust to transfer
shares, provided that if an Option ceases to be exercisable under these
Rules or where an agreement is reached to grant a New Option in
accordance with Rules 5.4 or 5.12, the Trustee shall be free to deal
with the Shares which were subject to an Option as they see fit,
subject to the Trust Deal.
9. Loss of Office or Employment
12
<PAGE>
The rights and obligations of any individual under the terms of his office or
employment with any Group Company shall not be affected by his participation in
the Scheme or any right which he may have to participate therein, and an
individual who participates therein shall waive any and all rights to
compensation or damages in consequence of the termination of his office or
employment for any reason whatsoever insofar as those rights arise or may arise
from his ceasing to have rights under or be entitled to exercise any Option
under the Scheme as a result of such termination.
13
<PAGE>
Appendix I
To be typed on headed note paper of Allsport Photographic Share Scheme
Trustees Limited
Dear [Participant]:
Allsport Photographic PLC ("the Company")
Unapproved Share Option Scheme ("the Scheme")
I am pleased to inform you that the Directors of Allsport Photographic Share
Scheme Trustees Limited in its capacity as the trustee of the Allsport
Photographic Employee Share Ownership Trust have granted you a
[Replacement/Special] Option under the rule of the Scheme on [ ] ("the Date of
Grant") to acquire [Number] ordinary shares of [ ] each in the capital of the
Company at an Exercise Price of (pound)1 only on each exercise of the Option
irrespective of the number of shares you acquire ("the Option"). Accordingly, I
enclose an Option Certificate which sets out the terms of the Option. Please
note that the Option [is exercisable immediately/becomes exercisable on 1 April
1999].
When you wish to exercise the Option, whether in whole or in part, you should
complete the notice of exercise on the back of your Option Certificate and send
it to me. If you are only exercising part of the Option, a new certificate will
be sent to you together with a fresh notice of exercise.
[Under current tax legislation you will not be subject to income tax on the
grant of the Option. For the tax year in which you exercise the Option you will
be subject to income tax on the difference between the market value of the
shares you acquire and the Exercise Price; and you should declare this in your
tax return. Your employing company may be required to account for this liability
under PAYE if the Company's share becomes listed on a recognised stock exchange
or if the Inland Revenue considers that "trading arrangements" for the shares
exist. If PAYE is due on exercise you will be informed of this and either the
trustee will sell sufficient shares to raise the money in which case you will
receive the "net" number of shares or you will be required to pay an amount
equal to the tax liability to your employing company as a condition of acquiring
the shares].
[This letter does not consider your tax position; you are strongly advised to
seek independent professional advice.]
Yours sincerely
Company Secretary
Allsport Photographic Share Scheme Trustees Limited
Note: This letter and the Option Certificate are important documents and
should be kept in a safe place.
1
<PAGE>
SPECIAL OPTION CERTIFICATE Appendix II
Certificate No. _______
Allsport Photographic PLC ("the Company")
This is to Certify that [Name] of
[Address]
is the holder of an option (the "Option") granted on [Date] to acquire [Number]
Ordinary Shares of [Nominal Value] each in the capital of the Company at an
Exercise Price of (pound)1 only on each occasion of exercise. The Option is
granted subject to and incorporating the Rules of the Allsport Photographic PLC
Unapproved Share Option Scheme ("the Scheme") and is exercisable in accordance
with the terms of the Scheme.
(1) Subject to the Rules of the Scheme, the Option may be exercised as set out
below:
- --------------------------------------------------------------------------------
| Number of Shares | First Exercise Date | Option Lapse |
|-----------------------|---------------------------|--------------------------|
| [Number] | 1 April 1999 | [Seventh Anniversary] |
- --------------------------------------------------------------------------------
The Option is personal to you and may not be assigned or transferred
The Option and any shares transferred pursuant to an exercise thereof are
subject to the Memorandum and Articles of Association of the Company IN WITNESS
WHEREOF, this document has been duly executed as a deed and has been duly
delivered on the day and year first above written
EXECUTED as a DEED by )
Allsport Photographic Share Scheme Trustees )
--------------------------
Limited acting by two directors or a ) Director
director and the secretary )
--------------------------
Director/Secretary
Date 199[]
Note: A notice of Exercise in respect of the Shares subject to the Option is on
the reverse of this certificate. It must be completed and submitted to the
Trustee together with this certificate if you wish to exercise your Option in
whole or in part
(1) You may be entitled to exercise your option earlier (and your Option may
expire earlier) in special circumstances specified in the rules of the
Scheme.
1
<PAGE>
PLEASE READ THE NOTES AT THE FOOT OF THIS FORM
CAREFULLY BEFORE COMPLETING IT
NOTICE OF EXERCISE
The Secretary of
Allsport Photographic Share Scheme Trustees Limited ("the Trustee")
(1) I hereby give notice to the Trustee that immediately upon receipt of
this notice, I am exercising my right granted in the attached Option
Certificate to acquire (2) Shares in the capital of the Allsport
Photographic PLC of an Exercise Price of (pound)1 only. I hereby request
you on transfer of the shares to arrange for my name to be placed on the
Register of Members and I agree to accept the said Shares subject to the
Memorandum and Articles of Association of the Company.
* I am/We are acquiring the Shares as beneficial owner/personal
representative(s) of the Option-holder and not as trustee or nominee for
any other person.
I enclose a remittance for (3) (pound)1 being the amount payable on the
transfer of the Shares in respect of which I am exercising the Option.
I hereby request you to despatch a Share Certificate for the Shares to be
registered in my name and, if applicable, an Option Certificate in respect
of the balance of Ordinary Shares subject to option, by post at my risk to
the address mentioned below.
_______________________________________
|Signature ________________________|
|Surname ________________________|
|Forename(s) ________________________|
|Address ________________________|
| ________________________|
| ________________________|
| ________________________|
|______________________________________|
NOTES
(1) Although the Option is personal to you, it may be exercised by your
personal representative(s) if you die while it is still capable of
exercise, provided your personal representative(s) do(es) so within twelve
months from the date of your death, or seven years from the date of grant
(if sooner). If there are more than one, each of the personal
representatives must sign this form.
(2) Please indicate the number of Ordinary Shares in respect of which you wish
to exercise your Option on this occasion, which must not exceed the number
of Ordinary Shares specified in the Option Certificate. [If no amount is
inserted, you will be deemed to have exercised your rights in respect of
the total number of Shares subject to Option.
(3) The remittance should be for an amount equal to (pound)1 only on each
occasion of exercise. * Delete as appropriate
2
<PAGE>
The Schedule
1. Power to invest
The Trustee shall have power:
1.1. to invest trust moneys forming part of the Trust Fund in the
acquisition (either by the Trustees alone or by them jointly with any
other person or persons or body of trustees) purchase or otherwise or
upon the security of such property of whatsoever nature and wheresoever
situate and whether or not involving liability or producing an income
or upon such personal credit (with or without security) as the Trustees
shall in their absolute discretion think fit;
1.2. to invest the whole or any part of the Trust Fund in Shares without
being required to diversify or consider the diversification of
investments.
2. To borrow
The Trustees shall have power at any time to borrow or raise money on
the security of the Trust Fund or any part thereof or on personal
security only for any purpose for which moneys may be applied hereunder
including the purpose of investment only and to mortgage; charge or
pledge any part of the Trust Fund as security for any moneys so raised
and on such terms as to the payment of interest (if any) and as to
repayment as the Trustees shall in their absolute discretion think fit
provided always that:
2.1. where the Trustees propose to borrow moneys they shall have regard to
the terms of any loan offered by the Company or any Subsidiary to
enable the Trustees to acquire Shares in the Company pursuant to
Section 153(4) of the Companies Act 1985 but shall not be bound to
accept any such loan; and
2.2. any such borrowing shall be on such terms as would be no less
favourable to the Trustees than between parties dealing at arm's
length.
3. To vote and employ nominees and custodians
In respect of any property comprised in the Trust Fund the Trustees
shall have power:
3.1. to deposit any such shares; securities or property in any voting trust
or with any depository designated under such a voting trust;
3.2. to give proxies or powers of attorney with or without power of
substitution for voting or acting on behalf of the Trustees as the
owners of any such property; and
1
<PAGE>
3.3. to hold any or all securities or other property in bearer form or in
the names of the Trustees or any one or more of them or in the name of
some other person or partnership or in the name or names of nominees
without disclosing the fiduciary relationship created hereby and to
deposit the said securities or any title; deeds or other documents
belonging or relating to the Trust Fund in any part of the world with
any bank; firm trust company or other company that undertakes the safe
custody of securities as part of its business without being
responsible for the default of such bank; firm trust company or other
company or for any consequent loss.
4. Powers relating to companies
The Trustees shall have power in relation to any company:
4.1. to apply any moneys comprised in the Trust Fund in paying any calls or
other payments whatsoever failing to be made in respect of any shares,
stock, securities or other investments whatsoever comprised or to
become comprised in the Trust Fund;
4.2. to exercise or to refrain from exercising as they may think fit every
power of voting conferred by or incidental to any such share, stock,
securities or investments as aforesaid;
4.3. to accept any offer of and take:
4.3.1. any bonus, shares, stock or securities whatsoever (whether
fully or partly paid) proposed to be issued or offered for
issue to the Trustees on any capitalization of profits or
reserves; and
4.3.2. any rights to the allotment or issue of shares, stock or
securities offered to the Trustees as existing holders of any
other investments;
with full power to subscribe for and pay up all shares stock and
securities issued pursuant thereto and to sell the rights to allotment
or issue of such shares stock and securities or renounce the same in
favor of any other person or persons;
4.4. to promote, to join in promoting and to approve concur or acquiesce in
or agree to and to carry or join in carrying into effect any scheme,
proposal or offer for or leading to or being a step in;
4.4.1. the reconstruction or reorganization of any company in whose
shares, stock or securities the Trust Fund or any part thereof
is for the time being invested; or
4.4.2. the amalgamation of any company with any other company or
corporation; or
2
<PAGE>
4.4.3. the alteration of the rights attached to any shares, stock or
securities comprised in the Trust Fund or attached to any
assets whatsoever having rights affecting any shares, stock or
securities so comprised; or
4.4.4. the exchange of any investments or property comprised in the
Trust Fund for any other investments or property; or
4.4.5. the formation or reorganization or financing of any company
for the purpose of acquiring any investments or property so
comprised;
4.5. to transfer or pay to any company or corporation the Trust Fund in
consideration of cash or shares, stock or securities of the company or
corporation or for such other consideration as they think fit;
4.6. to concur in the winding up or liquidation of any company in which they
are interested as holders of shares or other securities and to accept
in satisfaction of all or any of their rights in any such winding up or
liquidation a distribution in specie of the assets of any such company
and thereafter to hold or carry on business with such assets either
alone or in conjunction with any other person or persons whatsoever and
wheresoever.
5. To appropriate
The Trustees shall have power (exercisable either expressly or by
implication) to allot appropriate partition or apportion any property
whatsoever which (or the future proceeds of sale of which) is for the
time being subject to the trusts hereof in or towards the satisfaction
of any share or interest in the Trust Fund or in the income thereof in
such manner as the Trustees shall in their absolute discretion (without
the necessity of obtaining any consent) consider just according to the
prospective rights of the Beneficiaries concerned.
6. To transfer to the trustees of another settlement
The Trustees shall have power to transfer (without transgressing the
rules against perpetuities) the Trust Fund or any part thereof to the
trustees of a new trust or settlement constituted under the law of a
state or country wheresoever situate to be held freed and discharged
from the trusts hereof but so that the trusts and powers of such new
trust or settlement shall not differ from the trusts and powers
declared in this Deed previously applicable to the Trust Fund or part
thereof transferred as aforesaid.
7. To pay tax
The Trustees shall have power:
3
<PAGE>
7.1. to pay any duties or taxes or other fiscal impositions (together with
any related interest or penalties or other surcharges) in connection
with the trusts hereof for which the Trustees may become liable in any
part of the world notwithstanding that such liability as aforesaid may
not be enforceable through the courts of the place where the trusts
declared in this Deed are for the time being administered and to have
complete discretion as to the time and manner in which such duties,
taxes and fiscal impositions shall be paid and no person interested
under this Trust shall be entitled to make any claim whatsoever
against the Trustees by reason of their making such payment; and
7.2. to apply the Trust Fund or any part of it or the whole or any part of
the income of the Trust Fund in paying any stamp duty or stamp duty
reserve tax payable in respect of any transfer of or agreement to
transfer Shares to a Beneficiary.
8. To deduct tax
The Trustees shall have power:
8.1. to deduct or withhold from the sums of money paid or credited to the
Trustees by the Company or any Subsidiary or from or in respect of
amounts paid or property transferred by the Trustees to any of the
Beneficiaries any amounts for which the Trustees may as trustees be
accountable to any third party; and
8.2. to arrange for the Company or any Subsidiary (as the case may be) to
account to the Inland Revenue or other authority concerned for any
amounts deducted or withheld from the sums of money paid or credited to
the Trustees or any Subsidiary or from or in respect of any amounts
paid or property transferred by the Trustees to any of the
Beneficiaries in respect of income tax or any other deductions or
withholdings required by law.
9. To delegate
The Trustees shall have power:
9.1. to delegate in the exercise of their discretion and the performance of
their duties hereunder the administrative and management functions and
powers (including investment powers) to any accountant, actuary,
banker, broker, registrar, solicitor or other adviser and appoint any
such person as their agent to transact all or any business and to act
on the advice or opinion of any solicitor, broker, actuary, accountant
or other professional person so that the Trustees shall not be
responsible for anything done or omitted to be done or suffered to be
done in good faith in reliance on such advice or opinion and the
Trustees shall settle the terms and conditions for the remuneration of
such advisers and the reimbursement of their expenses as the Trustees
shall in their absolute discretion think fit and such remuneration and
expenses shall be paid by the Trustees from the Trust Fund; and
4
<PAGE>
9.2. to delegate any of their powers and duties hereunder or any business
including the exercise of any discretion to any person or company
provided that such delegation or arrangement may be revoked at any time
and the Trustees may then require any property forming part of the
Trust Fund to be held by another person or returned to the Trustees.
10. Payments to Beneficiaries
The Trustees shall have power:
10.1. to pay any payment to be made to any Beneficiary into such
Beneficiary's bank account and the Trustees shall be discharged form
obtaining a receipt or seeing to the application of such payment; and
10.2. to pay to the parents or parent or guardians or guardian of any
individual who is under a legal disability (or to such other person on
behalf of such individual as the Trustees think fit) for the intended
purpose any sum of money intended to be applied for the maintenance,
education or benefit of that individual or any income to which that
individual is beneficially entitled and any sum of capital to be
applied for the advancement or benefit of that individual without
being liable to see to or to inquire into the application of the same
and so that the receipt of such parents or parent or guardian or
guardians (or other person) shall be a complete discharge to the
Trustees.
5
<PAGE>
IN WITNESS WHEREOF this document has been executed and delivered as a deed the
day and year first before written.
SIGNED AS A DEED by )
ALLSPORT PHOTOGRAPHIC PLC )
acting by: )
Director
Director/Secretary
SIGNED AS A DEED by INTERCEDE )
1285 LIMITED (which has resolved to )
change its name to ALLSPORT )
PHOTOGRAPHIC SHARE )
SCHEME TRUSTEES LIMITED) )
acting by: )
Director
Director/Secretary
6
Dated 23rd December 1997
ALLSPORT PHOTOGRAPHIC PLC
- and -
INTERCEDE 1285 LIMITED (which has resolved to change its name to
ALLSPORT PHOTOGRAPHIC SHARE SCHEME
TRUSTEES LIMITED)
______________________________________________
TRUST DEED
of the
ALLSPORT PHOTOGRAPHIC
EMPLOYEE SHARE TRUST
______________________________________________
Cameron McKenna
Mitre House, 160 Aldersgate Street, London EC1A 4DD
Telephone: 0171 367 3000 Fax: 0171 367 2000
CDE Box 724
Doc Ref 50181496.01
Drafted: 19 December 1997
<PAGE>
TABLE OF CONTENTS
Clause Page
- ------ ----
1. Definitions...............................................................2
2. Sections 31 and 32 of the Trustee Act 1925 and Apportionment Rules........4
3. Trust for Sale............................................................5
4. Additions to the Trust Fund...............................................5
5. Dispositive Powers of Appointment Over the Trust Fund.....................6
6. Dispositive Powers Over Income............................................7
7. Trusts in Default of Appointment..........................................8
8. Administrative Powers.....................................................8
9. Trustees' Powers Generally................................................9
10. Protection of the Trustees...............................................10
11. Remuneration Etc. of the Trustees........................................11
12. Beneficiary Who is Trustee Director or Employee..........................12
13. Limitation on Rights of Beneficiaries....................................12
14. Retirement and Appointment of Trustees...................................13
15. Trustees Can Act by Majority.............................................14
16. Proper Law, Forum and Place of Administration............................14
17. Release of Trustees' Powers..............................................15
18. Power of Amendment.......................................................15
19. Restrictions.............................................................15
20. Irrevocability...........................................................16
21. Name of Settlement.......................................................16
22. Stamp Duty Certificate...................................................16
<PAGE>
THIS DEED of TRUST is made the 23rd day of December 1997
BETWEEN
(1) ALLSPORT PHOTOGRAPHIC PLC whose registered office is situated at 61
Chandos Place London WC2N 4HG (the "Company"); and
(2) INTERCEDE 1285 LIMITED (which has resolved to change its name to
ALLSPORT PHOTOGRAPHIC SHARE SCHEME TRUSTEES LIMITED) whose registered
office is situated at 61 Chandos Place aforesaid (the "Trustees" which
expression shall where the context so permits include the trustee or
trustees for the time being hereof).
WHEREAS:
(A) The Company is incorporated in England and Wales with limited liability
under the Companies Act 1985 under registration number 1215846.
(B) The Company has established or intends to establish certain employees'
share schemes (within the meaning of Section 743 of the Companies Act
1985) for encouraging or facilitating the holding of shares in the
capital of the Company (as hereinafter defined) by or for the benefit
of bona fide employees or former employees of the Company and the
Subsidiaries.
(C) The Company and the Subsidiaries wish to establish for the purposes of
the holding and distribution of Shares an employee share trust the
terms of which are such that Section 86 of the Inheritance Tax Act 1984
shall apply to the property comprised in the Trust Fund.
(D) The terms of the said employee share trust (which are contained in this
Deed) have been approved by resolution of the Company dated 23rd
December 1997 and by resolution of the Board of Directors dated 23rd
December 1997.
(E) The Company has paid or will pay by way of gift to the Trustees the sum
of (pound)100 and it is anticipated that further monies may hereafter
be provided to the Trustees by way of gift or otherwise by the Company
and the Subsidiaries to be held by the Trustees on the terms hereof.
(F) It is intended that this Settlement shall be irrevocable.
1
<PAGE>
NOW THIS DEED IRREVOCABLY WITNESSES as follows:
1. Definitions
1.1 In this Deed the following expressions shall where the context permits
have the following meanings respectively:
"Beneficiaries" the bona fide Employees and Former Employees
from time to time of Allsport Photographic
plc or any Subsidiary of Allsport
Photographic plc;
"Charity" any trust foundation company or other body
(corporate or unincorporate) for the time
being in existence and established for
purposes recognised as charitable by the
law of England and Wales;
"Company" the Company or any other company which
succeeds the Company as a result of a
takeover, reorganisation or resulting form
an amalgamation of the Company or
reconstruction of the Company and if there
be more than one such company the company to
which the greater portion of the undertaking
of the Company passes as a result of the
said takeover, reorganisation, amalgamation
or reconstruction and this definition shall
apply mutatis mutandis to any takeover,
reorganisation, amalgamation or
reconstruction of the Company for the time
being;
"Consolidated Profit" the consolidated profit before tax of the
Company and its Subsidiaries excluding any
extraordinary or exceptional items of
profit and loss and before charging or
providing for contributions to the Trust
Fund for corporation tax on profits;
"this Deed" this Deed of Settlement and the Schedule
hereto;
"Directors" the Board of Directors of the Company;
"Employee" any person employed by Allsport Photographic
Plc or any Subsidiary of Allsport
Photographic Plc and "Former Employee" shall
be construed accordingly;
"Employee Share Trust" the Allsport Photographic Employee Share
Trust constituted by this Deed;
2
<PAGE>
"Financial Year" the period in respect of which a profit
and loss account of the Company laid
before the Company's shareholders in general
meeting is made up whether that period is a
year or not;
"Group Company" the Company, any holding company of the
Company, any Subsidiary of the Company and
any subsidiary of the Company's holding
company;
"Shares" fully-paid ordinary shares of (pound)1 in
the capital of the Company or such other
shares as may be appropriate for the
purposes of the Share Schemes as may from
time to time represent the same as the
result of any takeover, reconstruction,
amalgamation or other event affecting the
Company and its shares;
"Share Schemes" the employees' share schemes (within the
meaning of Section 743 of the Companies
Act 1985) which have been or will be
established and operated by the Company
(as altered by the Company from time to
time);
"Subsidiary" any subsidiary which falls within the
definition in Section 736 of the Companies
Act 1985;
"Trust Corporation" has the meaning assigned to that expression
of Section 68 of the Trustee Act 1925;
"The Trust Fund" means subject to clause 19.2 the said sum of
(pound)100 and all property at any time
added thereto by way of further settlement
accumulation capital accretion or otherwise
by the Company, any Subsidiary or any other
person and all property from time to time
representing the same held by the Trustees
upon the trusts and subject to the powers
and provisions hereof;
"Trust Period" the period of 80 years beginning with the
date hereof (which period shall be the
perpetuity period applicable hereto) or
such shorter period commencing on the date
hereof and ending on such date as the
Trustees may by deed determine not being a
date earlier than the date of execution of
any such deed or later than a date
previously so determined.
3
<PAGE>
1.2 In this Deed:
1.2.1 references to any statutory provision shall include a
reference to such provision as the same may from time to time
be modified, amended, consolidated or reenacted;
1.2.2 references to any deed agreement document or instrument
(including this Deed) shall be construed as a reference to
such deed agreement document or instrument as from time to
time amended, supplemented or varied;
1.2.3 unless the context does not otherwise permit the singular
shall include the plural and vice versa and words denoting any
gender (including the neuter) shall include all genders; and
1.2.4 the headings are included for ease of reference only and shall
not affect the interpretation of the provisions in this Deed.
2. Sections 31 and 32 of the Trustee Act 1925 and Apportionment Rules
Sections 31 and 32 of the Trustee Act 1925 shall apply to this
Settlement (subject to the trusts powers and provisions herein
contained) with the following variations namely:
2.1 Section 31 shall have effect as if:
2.1.1 the words "the trustees may in their absolute discretion think
fit" were substituted in subsection (1)(i) thereof for the
words "may in all the circumstances be reasonable;" and
2.1.2 the proviso at the end of subsection (1) thereof were omitted.
2.2 Section 32 shall have effect as if:
2.2.1 the words "one half of" were omitted from proviso (a) to
subsection (1) thereof; and
2.2.2 the whole of proviso (c) were omitted from subsection (1)
thereof.
2.3 the statutory and equitable rules of apportionment shall not apply to
this Settlement and the Trustees may treat all dividends and other
payments in the nature of income received by them as income at the date
of receipt irrespective of the period for which the dividend or other
income is payable and (without prejudice to the generality of the
foregoing) accordingly:
4
<PAGE>
2.3.1 references herein to the income of the Trust Fund shall
(without any allocation or apportionment in favour of the
Company or any Subsidiary or any other person who has
transferred property to the Trustees) not extend to any income
now accrued or accruing but not yet actually payable in
respect of any property so transferred; and
2.3.2 where under the trusts for the time being affecting the same
there is a change in the person or persons beneficially or
prospectively beneficially entitled to the income of any
part of the Trust Fund (whether due to the birth or death of
any person or for any other reason whatsoever) the
provisions of the Apportionment Act 1870 shall not apply and
no apportionment shall be made of income accruing or accrued
or of outgoings being expended on the occasion of such
change in beneficial entitlement but rather the same shall
be treated as having accrued to or become a proper liability
on the day of actual receipt or expenditure (as the case may
be).
3. Trust for Sale
The Trustees shall during the Trust Period hold the Trust Fund upon trust as to
investments or property other than money in their absolute discretion to sell,
call in and convert the same into money with power in their absolute discretion
to postpone such sale, calling in and conversion and to permit the same to
remain as invested and upon trust as to money with the like discretion to invest
the same in their names or under their control in any of the investments
authorised hereby or by law with the like discretion from time to time to vary
or transpose any such investments for others so authorised.
4. Additions to the Trust Fund
4.1 The Trustees may as they shall in their absolute discretion think fit
at any time accept any money investments or other property (including
property of an onerous nature the acceptance of which the Trustees
consider to be beneficial) offered to them whether by the Company, any
Subsidiary or any person to be held by the Trustees as an addition to
the Trust Fund to be held by the Trustees on the trusts and subject to
the powers and provisions hereof.
4.2 The Trustees shall divide the Trust Fund into sub-funds so that all
assets or sums contributed by any one Group Company and all income (if
any) or other assets derived therefrom shall be allocated to a single
sub-fund comprising only assets representing the contributions made by
that same Group Company and the Beneficiaries of which for so long as
such company is in existence shall be confined to the employees and
former employees of such Group Company unless the Trustees and the
relevant Group Company otherwise agree.
5
<PAGE>
5. Dispositive Powers of Appointment Over the Trust Fund
5.1 The Trustees shall stand possessed of the Trust Fund and the income
thereof on such trusts and in such shares and proportions and with and
subject to such charges, powers and provisions for maintenance
education advancement or otherwise in favour or for the benefit of all
or any one or more exclusively of the others or other of the
Beneficiaries as the Trustees may during the Trust Period in their
absolute discretion by deed or deeds revocable by the Trustees or
irrevocable appoint before the end of the Trust Period (regard being
had to the law relating to remoteness) but so that any revocable
appointment not revoked before the end of the Trust Period shall
become irrevocable at the end of the Trust Period and (without
prejudice to the generality of the foregoing) in any such deed or
deeds the Trustees may create protective or discretionary trusts or
powers or trusts or powers for the accumulation of income operative or
exercisable at the discretion of any one or more persons or
corporations in any part of the world, Provided Always that no
appointment made under this sub-clause 5.1 shall invalidate any prior
payment or application of the Trust Fund or the income thereof made
under any other power or powers conferred by this Settlement or by law
or made pursuant to any previous appointment made under sub-clause,
Provided Always that any such loan shall be repayable no later than
the end of the Trust Period.
5.2 The Trustees shall have power or appoint or apply capital monies to
grant options upon such terms as the Trustees shall think fit over
Shares at the expense of the Trust Fund to any one or more of the
Beneficiaries whom it is thereby sought to benefit if the grant of such
options would in the opinion of the Trustees be advantageous to such
one or more Beneficiaries whether or not pursuant to the rules of any
share scheme established by the Company, including, without prejudice
to the generality of the foregoing the Allsport Photographic plc
Unapproved Share Option Scheme, Provided Always that no such option
shall be exercisable after the end of the Trust Period.
5.3 The Trustees shall have power to enter into any agreement or contract
with the Company or any Subsidiary on such terms and subject to such
conditions as the Trustees shall in their absolute discretion think fit
to enable the Beneficiaries or any of them to acquire and take up
Shares or options over Shares and (without prejudice to the generality
of the above) pursuant to or in furtherance of such agreement:
5.3.1 to purchase Shares to be acquired by the Beneficiaries whether
pursuant to the terms of any such option or options or
otherwise;
5.3.2 to borrow money from the Company, any Subsidiary or any other
person on such terms as the Trustees shall in their absolute
discretion think fit, Provided Always that in relation to any
borrowing from the Company or any Subsidiary such borrowing
shall be on such terms as would be no less favourable to the
Trustees than between parties dealing at arm's length;
6
<PAGE>
5.3.3 to transfer Shares pursuant to the exercise of options granted
to Beneficiaries by the Company.
5.4 The Trustees shall have power during the Trust Period to pay or
transfer to or apply for the benefit of any one or more of the
Beneficiaries the whole or such part or parts of the Trust Fund at such
time or times as in their absolute discretion they think fit.
5.5 The Trustees shall have power during the Trust Period:
5.5.1 to lend with or without security any part or parts of the
Trust Fund to any Beneficiary upon such conditions as to
interest (if any) and repayment thereof and for such period
and generally upon such terms as the Trustees in their
absolute discretion think fit;
5.5.2 to apply as they in their absolute discretion think fit and on
such terms as they deem to be appropriate the Trust Fund or
any part or parts thereof in securing the payment of money
owed by any Beneficiary or the performance of any
obligations of any Beneficiary and to give any guarantee or
to become surety for any Beneficiary and for these purposes
to mortgage or charge any investments or property for the
time being forming part of the Trust Fund or to deposit or
transfer any such investments or property with or to any
person, firm or company by way of security.
6. Dispositive Powers Over Income
6.1 In default of and until and subject to any and every appointment made
under sub-clauses 5.1 to 5.5 hereof the Trustees shall have power
during the Trust Period to allocate the income from the Trust Fund to
such one or more of the Beneficiaries for the time being in existence
as the Trustees shall in their absolute discretion determine.
6.2 The Trustees shall stand possessed of the income allocated to a
Beneficiary under the provisions of the preceding sub-clause 6.1 upon
trust
6.2.1 if such Beneficiary has attained the age of 18 years to pay or
apply the same to or for the benefit of such Beneficiary;
6.2.2 if such Beneficiary has for the time being not attained the
age of 18 years the Trustees may at their discretion pay or
apply for or towards the maintenance education or benefit of
such Beneficiary the whole or part of such income as the
Trustees may in their discretion think fit and shall until
that Beneficiary attains the age of 18 years accumulate all
the residue of that income in the way of compound interest by
investing the same and the resulting income thereof in any of
the investments hereby authorised and shall hold the
accumulations so made as a
7
<PAGE>
separate fund in trust absolutely for such Beneficiary if he
shall attain the age of 18 years and the Trustees shall have
power to exercise in relation to such separate fund the powers
contained in sections 31 and 32 of the Trustee Act of 1925 as
varied by sub-clauses 2.1 and 2.2 hereof Provided Always that:
6.2.2.1 if such Beneficiary shall die under the age of 18
years and before the end of the Trust Period such
separate fund and any accumulations of the income
thereof shall go and be held as an accretion to the
Trust Fund and as one fund therewith for all
purposes;
6.2.2.2 if such Beneficiary shall be living at the end of
the Trust Period but shall not on or before the end
of the Trust Period have attained the age of 18
years the separate fund and any accumulations of
the income thereof shall at the end of the Trust
Period vest in the Beneficiary absolutely.
7. Trusts in Default of Appointment
7.1 In default of and until and subject to any and every appointment made
under sub-clauses 5.1 to 5.5 hereof and the exercise by the Trustees of
the powers conferred by sub-clauses 6.1 and 6.2.2 hereof and paragraph
6 of the Schedule hereto the Trustees shall:
7.1.1 during the Trust Period accumulate the income of the Trust
Fund at compound interest by investing it and the resulting
income thereof in any of the investments authorised by this
Deed and shall hold such accumulation as an accretion to the
capital of the Trust Fund as one fund therewith for all
purposes;
7.1.2 at the end of the Trust Period hold the Trust Fund and the
income thereof on trust for such of the Beneficiaries as shall
then be living and if more than one in equal shares absolutely
and in default of such Beneficiaries on trust absolutely for
such one or more Charities as the Trustees shall in their
absolute discretion appoint.
8. Administrative Powers
8.1 The Trustees may administer this Settlement for the benefit of the
Beneficiaries in whatever manner they may determine and in that regard
may carry out any transaction whatever in connection with this
Settlement and shall have the widest possible powers of managing and
dealing with the Trust Fund in all respects as if the Trustees were the
absolute beneficial owners of the Trust Fund including, without
prejudice to the generality of the foregoing, the powers contained in
the Schedule hereto and the Trustees may exercise or omit to exercise
the powers herein contained form time to time at their discretion.
8
<PAGE>
8.2 The Trustees shall wherever possible apply monies received by way of
gift, loan or other contribution from the Company and any Subsidiary on
the terms set out herein for the Beneficiaries who are employees or
former employees of the Company or such Subsidiary and that wherever
possible they will keep separate accounts in relation to monies so
received.
9. Trustees' Powers Generally
9.1 Every discretion or power (including any power of appointment or power
of revocation) conferred on the Trustees by this Deed or by law shall
be an absolute and uncontrolled discretion or power and no Trustee
hereof shall be held liable for any loss or damage accruing as a result
of his concurring or refusing or failing to concur in any exercise of
any such discretion or power.
9.2 Every power authority or discretion conferred upon the Trustees or on
any other person but not expressly made exercisable only during a
period allowed by law shall (notwithstanding anything to the contrary
herein expressed or implied) be exercisable only before the end of the
Trust Period or during such further period (if any) (either definite or
indefinite) as in the case of the particular power or authority or
discretion the law may allow.
9.3 This Settlement shall not be construed so as to confer on the Trustees
any trust or power which might or could be exercised at any time or
times after the end of the Trust Period or which might or could be
exercised so as to cause or permit any interest in the Trust Fund to
vest after the Perpetuity Date.
9.4 In the exercise of their foregoing powers and discretions the Trustees
may consider any recommendations made to them by the Board but shall
have no power to direct the Trustees to comply with such
recommendations.
9.5 For the purpose of ascertaining whether or not any individual is a
Beneficiary the Trustees may rely on any information provided to them
by the Company.
9.6 Notwithstanding any other provision of this Trust no assets or income
of the Trust Fund shall be applied at any time for the benefit of any
Group Company other than to repay any loan and interest thereon made to
the Trustees by a Group Company.
9.7 If a person other than a Group Company makes a gift to the Trust or
transfers assets to the Trust otherwise than on bona fide commercial
terms with gratuitous intent then the Trustees may not provide any
benefit under the Trust to that person nor during that person's
lifetime to his or her spouse.
9
<PAGE>
10. Protection of the Trustees
10.1 No individual or corporate Trustee shall be liable for any loss or
damage which may occur to the Trust Fund or the income thereof arising
from any purchase of Shares or waiver of dividend attributable thereto
or from any proper investment waiver or purchase made by him in good
faith, or for the negligence or fraud of any agent employed by him or
by any other Trustee although his employment was not strictly necessary
or expedient, or by reason of any mistake or omission made in good
faith by any Trustee.
10.2 The Trustees shall not be bound or required to interfere with or play
any part in the management or conduct of the business of any
corporation any part of the share capital or debentures or loan stock
of which or of any subsidiary of which is for the time being comprised
in the Trust Fund but so long as there shall be no notice of any act of
dishonesty or misappropriation or misapplication of monies or other
property on the part of the directors or other persons having such
management or conduct the Trustees may leave the same (including the
payment or non-payment of dividends or any other distribution) wholly
to such directors or other persons and no Beneficiary shall be entitled
as such Beneficiary in any manner whatsoever to compel control or
forbid the exercise, or the exercise in any particular manner, or any
voting or other rights which may at any time be vested in the Trustees
with regard to such corporation.
10.3 The Company and where appropriate the Subsidiaries shall pay to or
reimburse the Trustees upon demand all charges and expenses reasonably
incurred by them in the course of the administration operation and
termination of this Trust and shall keep the Trustees fully indemnified
and saved harmless against all actions, claims, losses, demands,
proceedings, charges, expenses, costs, damages, taxes, duties and other
liabilities arising out of anything done or caused to be done by them
or suffered or incurred by them in the exercise or purported exercise
of any of the powers and trusts vested in them by this Deed or
otherwise howsoever arising out of or in connection with the
preparation, administration, operation or termination of this
Settlement but so that no Trustee shall be indemnified or exonerated in
respect of any fraud or wilful misconduct on his part and in addition
the Trustees shall have the benefit of all indemnities conferred upon
trustees generally by law and by the Trustee Act of 1925.
10.4 The Trustees shall be entitled in the absence of manifest error to rely
without further enquiry on information and advice necessary to enable
them to fulfill their duties and obligations hereunder and to exercise
their rights in connection with the implementation and operation of
this Settlement supplied to them by the Company or any of the
Subsidiaries for the purposes hereof including (but without prejudice
to the generality of the foregoing) information as to whether any
individual is or is not a Beneficiary and the Trustees shall also be
entitled to rely in the absence of manifest error on any direction,
notice, consent or document purporting to be given or executed by or
with the authority of the Company or any Subsidiary as having been so
given or executed.
10
<PAGE>
11. Remuneration Etc. of the Trustees
11.1 Every Trustee shall be entitled to remuneration upon such terms as may
be agreed by the person or persons who for the time being has or have
power to appoint a new trustee and in the absence of such agreement
every Trustee shall be entitled to remuneration in accordance with its
published terms and conditions for trust business in force from time to
time.
11.2 Any Trustee:
11.2.1 may transact on behalf of or with this Settlement or any
Beneficiary any business which he or it is authorised to
undertake upon the same terms as would for the time being be
made with an ordinary customer and without accounting for
any profit thereby made and in particular and without
prejudice to the generality of the foregoing such Trustee
may retain on current account or deposit account or advance
at interest all monies necessary or convenient to be
retained or advanced in connection with this Settlement and
may retain any commission or remuneration paid or allowed by
stockbrokers, insurance companies, banks or other
institutions without being liable to account for any profit
thereby made;
11.2.2 may transact business on behalf of this Settlement or any
Beneficiary with any corporation or partnership in which the
Trustees or any of them are office holders or shareholders
or partners or are otherwise financially interested, or with
any person or firm holding shares or being otherwise
financially interested in the Trustees or any of them
without being liable to account for any profit accruing to
the Trustees as a result of such business, and the Trustees
may hold office in any corporation, shares or securities
which comprise or form part of the Trust Fund, and shall not
be liable to account to the Settlement for emoluments
received by them as such office holders;
11.2.3 who is engaged in any profession, business or trade may be
employed by the Trustees and any Trustee so engaged and
employed may charge and be paid all reasonable professional
business or trade costs and charges for business transactions
and time expended and acts done by him (or any partner or
employee of his) in connection with this Settlement including
acts which a Trustee not being engaged in any profession,
business or trade could have done personally and whether or
not in the usual scope of his profession business or trade;
and
11.2.4 may exercise or concur in exercising all powers and
discretions given to him by this Deed or by law
notwithstanding that he has a direct or other personal
interest in the mode or result of any such exercise but any of
the Trustees may nevertheless abstain from acting except as a
merely formal party in any matter in which he may
11
<PAGE>
be so directly or personally interested and may allow his
co-trustees to act alone in relation thereto.
12. Beneficiary Who is Trustee Director or Employee
12.1 The Trustees may exercise any duty or power or discretion hereby
conferred on them in favour of any person notwithstanding that he is
one of the Trustees so long as either such person has not voted on any
resolution to the Trustees relating to such exercise or at least one of
the Trustees is neither a Beneficiary nor a corporate trustee whose
directors include a Beneficiary.
12.2 The Trustees may exercise any such duty or discretion in favour of any
person notwithstanding that he is a director of a corporate trustee
hereof.
13. Limitation on Rights of Beneficiaries
13.1 For the avoidance of doubt it is hereby declared that no Beneficiary
shall be entitled to:
13.1.1 any claim, right or entitlement whatever to any part of the
Trust Fund or the income thereof except in so far as herein
expressly provided or the same may arise by virtue of the
exercise of any power contained herein;
13.1.2 any claim, right or entitlement during the Trust Period to
call for the accounts (whether audited or otherwise) from the
Trustees in relation to the Trust Fund and the income thereof
or to obtain any information of any nature from the Trustees
in relation to the Trust Fund and the income thereof and in
relation to the trusts and powers hereof;
13.1.3 to compel the sale or other realisation of any property or
investments not producing income; and
13.1.4 to insist on the investment of any part of the Trust Fund in
property or investments which produce income.
13.2 The benefits which may from time to time be provided under this Trust
shall not form part of any contract of employment between the Company
or any Subsidiary and any of their respective employees or confer on
any employee any legal or equitable rights against the Company or any
Subsidiary either directly or indirectly nor give rise to any cause of
action in law against the Company or any Subsidiary and any employee
who leaves the employment of the Company or any Subsidiary shall not be
entitled to any compensation for or by reference to any loss of any
existing or prospective right or benefit under this Trust which he
might otherwise have enjoyed whether such compensation is claimed by
12
<PAGE>
damages for wrongful dismissal or other breach of contract or by way of
compensation for loss of office or otherwise.
13.3 Money paid to or any other benefit conferred on any Beneficiary out of
the capital or income of the Trust Fund shall not (save as may be
required by law in respect of taxation) form part of his wages or
remuneration or count as wages or remuneration for pension fund or
other purposes.
14. Retirement and Appointment of Trustees
14.1 The statutory power of appointing new or additional trustees as
hereinafter modified shall apply hereto and shall be exercisable by the
Trustees.
14.2 The statutory power of appointing new or additional trustees shall be
modified as follows:
14.2.1 where new or additional trustees are appointed for the whole
or any part or parts of the Trustee Fund the appointor or
appointors may at their absolute discretion appoint any
person or persons as trustee or trustees notwithstanding
that (i) such person or persons may be resident domiciled
carrying on business or (if a corporate body) incorporated
outside the United Kingdom (ii) as a result of such
appointment (and any retirement occurring in connection
therewith) all or a majority of the Trustees are persons
resident or domiciled outside the United Kingdom and (iii)
that no Beneficiary is resident outside the United Kingdom
and the receipt of such person or persons for the whole or
such part or parts of the Trust Fund as may be paid or
transferred to such person or persons pursuant to such
appointment shall be a good discharge to any other trustee
or trustees accordingly;
14.2.2 the statutory power of appointing new trustees shall not be
exercisable by reason only that a Trustee remains out of the
United Kingdom for more than twelve months; and
14.2.3 the statutory power of appointing additional trustees shall be
exercisable notwithstanding that the only Trustee for the time
being is a corporation that is not a Trust Corporation.
14.3 In addition to the said statutory power the Trustees shall have power
at any time by deed to appoint any person to be an additional trustee
hereof notwithstanding that the effect of such appointment would be to
increase the number of trustees hereof beyond four.
14.4 Any Trustee may retire at any time provided he gives 30 days written
notice to the person or persons who for the time being has or have the
power to appoint new trustees.
13
<PAGE>
15. Trustees Can Act by Majority
15.1 The Trustees may act by a majority in the execution of the trusts and
the administration of the Trust Fund (including the exercise of any
power hereby or by law conferred on the Trustees) Provided that:
15.1.1 the minority shall not be liable for any acts or default on
the part of the majority;
15.1.2 the majority shall keep written records of their proceedings
and shall without undue delay inform the minority of the
Trustees not joining in any execution or administration of the
manner in which the majority have effected the said execution
or administration; and
15.1.3 all acts necessary for giving effect to any decision of the
majority shall be performed by all of the Trustees.
16. Proper Law, Forum and Place of Administration
16.1 The proper law hereof shall be that of England and Wales and all rights
hereunder and the construction and effect of this Deed shall be
construed according to the laws of England and Wales.
16.2 The courts of England and Wales shall be the forum for the
administration hereof including for resolving any and all disputes
concerning the interpretation of this Deed.
16.3 Notwithstanding the provisions of sub-clauses 16.1 and 16.2 above, the
Trustees may at any time during the Trust Period declare by deed that
the trusts powers and provisions hereof shall from the date of such
declaration take effect (with such modifications as shall be specified
in such deed) in accordance with the law of such other territory as
shall be therein specified and as from the date of such declaration the
law of such other territory shall be the law applicable hereto and the
courts in such territory shall be the forum for the administration
hereof but subject to the powers conferred by this clause and until any
further declaration is made hereunder Provided that the foregoing power
shall not be exercisable in any manner which might directly or
indirectly cause this Settlement under the law applicable thereto to
become illegal, void or voidable or which may in any way alter the
beneficial interests hereunder.
16.4 Notwithstanding the provisions of sub-clauses 16.1 and 16.2 above the
Trustees shall have power to carry on the general administration of the
Trust in any jurisdiction in the world whether or not such jurisdiction
is for the time being the proper law of the Trust or the courts of such
jurisdiction are for the time being the forum for the administration of
the Trust and whether or not the Trustees or any of them are for the
time being resident or domiciled in or otherwise connected with such
jurisdiction.
14
<PAGE>
17. Release of Trustees' Powers
The Trustees may at any time or times during the Trust Period by deed or deeds
revocable during the Trust Period or irrevocable, release or restrict the future
exercise of any of the powers (including the power conferred by this clause 17)
authorities or discretions conferred by this Deed or by law as if (subject to
any contrary intention expressed in the instrument) the same were vested in the
Trustees otherwise than in a fiduciary capacity and so as to bind their
successors.
18. Power of Amendment
The Trustees may at any time or times during the Trust Period by deed or deeds
make any variation, addition or deletion of or to all or any of the trusts,
powers and provisions of this Deed which they consider to be for the benefit of
all or any one or more of the Beneficiaries Provided Always that no such
variation or deletion may be made to any of the limitations contained in clause
19.1 or clause 20 hereof.
19. Restrictions
19.1 Notwithstanding anything else contained or implied in this Deed no
power conferred by this Deed or by law on the Trustees or any other
person shall be exercised and no provision of this Deed shall operate
directly or indirectly so as:
19.1.1 to cause the Trust Fund to cease to be held on trusts of the
description specified in Section 86(1) of the Inheritance Tax
Act 1984; and
19.1.2 to cause or permit any part of the capital or income of the
Trust Fund to become in any way payable or applicable for the
benefit of the Company or any Subsidiary or any other person
or person who shall previously have added property to the
Trust Fund to be held on the terms of this Settlement or the
spouse for the time being of any such person otherwise than
(for the avoidance of doubt) by way of loan repayment or other
discharge of indebtedness and neither the Company nor any
Subsidiary nor any such person shall be:
19.1.2.1 a Beneficiary hereof, or
19.1.2.2 entitled to remuneration as a Trustee in any way;
19.1.3 to prevent any employees' share scheme of which this
Settlement forms a part from being an employees' share scheme
within the definition contained in Section 743 of the
Companies Act of 1985.
15
<PAGE>
20. Irrevocability
This Settlement shall be irrevocable.
21. Name of Settlement
This Settlement shall be knows as "the Allsport Photographic Employee Share
Trust".
22. Stamp Duty Certificate
It is hereby certified that this instrument falls within Category L in the
Schedule to the Stamp Duty (Exempt Instruments) Regulations 1987 (and is exempt
from duty under the head "Conveyance or Transfer of any kind not hereinbefore
described" in the Schedule to the Stamp Act 1891).
16
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-8 of our report, dated March 31, 1999 on our
audits of the consolidated financial statements and financial statements
schedules of Getty Images, Inc. and subsidiaries of Getty Communications plc and
subsidiaries (predecessor company) as of December 31, 1998 and 1997, and for
each of the three years ended December 31, 1998, which report is included in the
Annual Report on Form 10-K of Getty Images, Inc. for the year ended December 31,
1998.
/s/ PricewaterhouseCoopers
- ------------------------------
PricewaterhouseCoopers
Chartered Accountants
London, England
March 31, 1999
