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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 18, 2000
REGISTRATION NO 333-____
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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 NO.)
701 N. 34TH STREET, SUITE 400
SEATTLE, WASHINGTON 98103
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
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GETTY IMAGES, INC. 1998 STOCK INCENTIVE PLAN, AS AMENDED
(FULL TITLE OF THE PLAN)
SUZANNE L. PAGE, ESQ.
GENERAL COUNSEL
GETTY IMAGES, INC.
701 N. 34TH STREET, SUITE 400
SEATTLE, WASHINGTON 98103
(206) 268-2000
(NAME AND ADDRESS, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH COPIES TO:
CRAIG W. ADAS, ESQ.
WEIL, GOTSHAL & MANGES LLP
2882 SAND HILL ROAD, SUITE 280
MENLO PARK, CALIFORNIA 94025
(650) 926-6200
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PER SECURITY PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share 3,000,000 $ 40.25(1) $ 120,750,000 (1) $ 31,878.00
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(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, as amended (the "Securities Act"), based on the
average of the high and low price of shares of our common stock on the
Nasdaq National Market on August 17, 2000, which high and low prices were
$41.00 and $39.50, respectively.
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INTRODUCTORY STATEMENT
We are filing this registration statement to register additional shares
of the same class of securities for which a registration statement was filed on
Form S-8 (No. 333-46325) on February 13, 1998 relating to our 1998 Stock
Incentive Plan, as amended. The additional shares being registered under this
registration statement reflect an increase in the authorized number of shares
under such plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" into this registration statement the information we have filed with
the SEC. This means that we can disclose important information by referring you
to those documents. The information incorporated by reference is considered to
be a part of this registration statement. Information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below:
- Our Annual Report on Form 10-K for the fiscal year ended December
31, 1999;
- All other reports we have filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since December 31, 1999;
and
- Our Registration Statement on Form S-8 (No. 333-46325), filed on
February 13, 1998 in connection with our 1998 Stock Incentive
Plan.
All reports and other documents which we subsequently file pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act will be deemed to be
incorporated by reference in this registration statement and to be part of this
registration statement from the respective date of filing of each of those
documents until the filing of a post-effective amendment to this registration
statement which indicates either that all securities offered by this
registration statement have been sold or which deregisters all of the securities
under this registration statement then remaining unsold.
Any statement contained in this registration statement or in a document
incorporated or deemed to be incorporated by reference in this registration
statement will be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained in this
registration statement or in any subsequently filed document which also is or is
deemed to be incorporated by reference in this registration statement modifies
or supersedes that statement. Any statement so modified or superseded will not
be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Our authorized capital stock consists of 75,000,000 shares of common
stock, par value $0.01 per share, and 5,000,000 shares of preferred stock, par
value $0.01 per share. As of August 2, 2000, there were 49,740,673 shares of our
common stock outstanding. One share of our preferred stock has been designated
as Series A special voting preferred stock and is outstanding and one share of
our preferred stock has been designated as Series B special voting preferred
stock and is outstanding. No other shares of preferred stock are currently
outstanding.
The following is a summary description of our capital stock. Our bylaws
and our amended and restated certificate of incorporation, as amended, provide
further information about our capital stock.
COMMON STOCK
Each holder of our common stock is entitled to one vote per share on
all matters to be voted upon by the stockholders. Subject to preferences that
may be applicable to any outstanding preferred stock, each holder of our common
stock is entitled to receive dividends, if any, as may be declared from time to
time by the board of directors
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out of funds legally available. In the event of our liquidation, dissolution or
winding up, each holder of our common stock is entitled to share ratably in all
assets remaining after payment of liabilities, subject to the rights of the
holders of any class of preferred stock then outstanding. The holders of our
common stock have no preemptive or conversion rights or other subscription
rights. There are no redemption or sinking fund provisions applicable to our
common stock. All outstanding shares of our common stock are fully paid and
non-assessable.
PREFERRED STOCK
Our board of directors has the authority to issue preferred stock in
one or more classes or series and to fix the rights, preferences, privileges and
related restrictions, including dividend rights, dividend rates, conversion
rights, voting rights, terms of redemption, redemption prices, liquidation
preferences and the number of shares constituting any class or series or the
designation of the class or series, without the approval of our stockholders.
The authority of our board of directors to issue preferred stock without
approval of our stockholders may have the effect of delaying, deferring or
preventing a change in control of our company and may adversely affect the
voting and other rights of the holders of our common stock. The issuance of
preferred stock with voting and conversion rights may adversely affect the
voting power of the holders of our common stock, including the loss of voting
control to others.
We have issued one share of our Series A special voting preferred stock
and one share of our Series B special voting preferred stock, which we
collectively refer to as "special voting stock." The holder of the special
voting stock is not entitled to receive dividends or to participate in the
proceeds of any liquidation, and the certificates of designation governing the
special voting stock provide no rights or preferences other than the voting
rights described below. The special voting stock is held by Montreal Trust
Company of Canada, as trustee, under two voting trust and exchange rights
agreements. Under these agreements, Montreal Trust is obligated to vote the
Series A special voting stock and the Series B special voting stock in
accordance with the instructions received from the holders of the exchangeable
non-voting shares of EyeWire Partners, Inc. and 3032097 Nova Scotia Limited,
respectively.
The holder of the special voting stock is entitled to vote with the
holders of common stock as a single class on all matters submitted to a vote of
our stockholders, except as otherwise provided by law. The voting rights of the
holder of the special voting stock are identical to those of the holders of
common stock in all respects, except that the holder of the special voting stock
is entitled to a number of votes equal to the number of shares of our common
stock issuable upon the exchange of (a) in the case of the Series A special
voting stock, the outstanding exchangeable non-voting shares of EyeWire
Partners, and (b) in the case of the Series B special voting stock, the
outstanding exchangeable non-voting shares of 3032097 Nova Scotia Limited, in
each case excluding exchangeable non-voting shares which are owned by us, any of
our subsidiaries and any person directly or indirectly controlled by or under
common control with us. All of the exchangeable non-voting shares of EyeWire
Partners are held by one of our controlled subsidiaries and, therefore, the
Series A special voting stock is not currently entitled to exercise voting
rights.
EXCHANGEABLE NON-VOTING SHARES IN 3032097 NOVA SCOTIA LIMITED
In connection with our acquisition of EyeWire, pursuant to a
Combination Agreement dated August 5, 1999, the former stockholders of EyeWire
received an aggregate of 1,561,010 exchangeable non-voting shares of 3032097
Nova Scotia Limited, a subsidiary we formed to complete the EyeWire acquisition.
Each exchangeable non-voting share is exchangeable for one share of our common
stock. We have an effective shelf registration statement in place with respect
to the resale of the common stock by such former EyeWire stockholders. The
former stockholders of EyeWire must exchange their exchangeable non-voting
shares into the shares of our common stock before they can sell shares under the
shelf registration statement. As of August 2, 2000, 1,093,634 exchangeable
non-voting shares have been exchanged for shares of our common stock.
REGISTRATION RIGHTS
The holders of approximately 22,390,000 shares of common stock, or
their permitted transferees, are entitled to certain rights with respect to the
registration of such shares under the Securities Act. Under the terms of the
agreements between us and the holders of these registrable securities, if we
propose to register any of our securities under the Securities Act, either for
our own account or for the account of other security holders exercising
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registration rights, these holders are entitled to notice of the registration
and are entitled to include their shares of common stock therein. Additionally,
certain of these holders have demand registration rights with respect to their
shares of common stock, and we are required to use our reasonable best efforts
to effect the registration if such holders exercise those rights. All of these
registration rights are subject to conditions and limitations, including the
right of the lead underwriters of an offering to limit the number of shares
included in the registration.
We are required to pay most of the costs incurred in connection with
any registration of these shares, excluding underwriting discounts and
commissions and any stamp or transfer tax or duty. The registration rights
described above could result in substantial future expenses and adversely affect
any future equity or debt offering.
ANTI-TAKEOVER EFFECTS OF PROVISIONS OF DELAWARE LAW, OUR CERTIFICATE OF
INCORPORATION AND OUR BYLAWS
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
We are a Delaware corporation subject to the provisions of Section 203
of the Delaware General Corporation Law. Section 203 generally provides that a
stockholder acquiring more than 15%, but less than 85%, of the outstanding
voting stock of a corporation subject to Section 203 may not engage in a
"business combination," as defined in Section 203, with the corporation for a
period of three years from the date on which that stockholder became an
"interested stockholder," as defined in Section 203, unless:
- prior to such date the board of directors of the corporation
approved either the business combination or the transaction in
which the stockholder became an interested stockholder; or
- the business combination is approved by the board of directors of
the corporation and authorized by the holders of at least 66 2/3%
of the outstanding voting stock of the corporation not owned by
the interested stockholder.
A "business combination" includes a merger, asset sale or other
transaction resulting in a financial benefit to a stockholder. In general, an
"interested stockholder" is a person who, together with its affiliates, owns, or
within three years prior to the determination of the interested stockholder
status, did own, 15% or more of the voting stock of the corporation. Section 203
could prohibit or delay a merger or other takeover or change of control
transaction with respect to our company and, accordingly, may discourage actions
that could result in a premium over the market price for the shares held by our
stockholders.
ISSUANCE OF PREFERRED STOCK
Our board of directors is authorized to issue 5,000,000 shares of
preferred stock and determine the powers, preferences and special rights of any
unissued series of preferred stock, including voting rights, dividend rights,
terms of redemption, conversion rights and the designation of any such series,
without the approval of our stockholders. As a result, our board of directors
could issue preferred stock quickly and easily, which could adversely affect the
rights of holders of our common stock. Our board of directors could issue the
preferred stock with terms calculated to delay or prevent a change in control or
make removal of management more difficult.
CLASSIFICATION OF OUR BOARD OF DIRECTORS
Our amended and restated certificate of incorporation provides that our
board of directors shall consist of up to ten directors and be divided into
three classes. The directors in each class will serve three-year terms, with one
class being elected each year by our stockholders. The term of the Class I
directors (two directors) will expire at the annual meeting of our stockholders
to be held in 2001; the term of the Class II directors (two directors) will
expire at the annual meeting of our stockholders to be held in 2002; and the
term of the Class III directors (two directors) will expire at the annual
meeting of our stockholders to be held in 2003. At each annual meeting of our
stockholders, the successors to directors whose terms will then expire will be
elected to serve for a three-year term. Because this system of electing and
removing directors generally makes it more difficult for stockholders to replace
a majority of the board of directors, it may discourage a third party from
making a tender offer or otherwise attempting to gain control of our company and
may maintain the incumbency of the board of directors.
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STOCKHOLDER ACTION; SPECIAL MEETINGS OF STOCKHOLDERS
Our bylaws provide that our stockholders may not take action by written
consent, and can only take action at a duly called annual or special meeting of
our stockholders. Our bylaws further provide that, unless otherwise prescribed
by statute or by our amended and restated certificate of incorporation, special
meetings of our stockholders may only be called by the Chairman of the Board,
the President or the Secretary of our company, at the written request of at
least two-thirds of the entire board of directors or the record holders of at
least a majority of the outstanding shares of our common stock. These provisions
could discourage potential acquisition proposals and could delay or prevent a
change in control. These provisions are intended to enhance the likelihood of
continuity and stability in the composition of our board of directors and in the
policies formulated by the board of directors and to discourage certain types of
transactions that may involve an actual or threatened change of control. These
provisions are designed to reduce our vulnerability to an unsolicited
acquisition proposal and to discourage certain tactics that may be used in proxy
contests. Such provisions could have the effect of discouraging others from
making tender offers for our shares.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
Our amended and restated certificate of incorporation provides that,
except to the extent prohibited by Delaware law, our directors shall not be
personally liable to us or our stockholders for monetary damages for any breach
of fiduciary duty as a director. Under Delaware law, the directors have a
fiduciary duty to us that is not eliminated by this provision of our amended and
restated certificate of incorporation and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available. In addition, each director will continue to be subject to
liability under Delaware law for breach of the director's duty of loyalty to us
for acts or omissions which are found by a court of competent jurisdiction to be
not in good faith or that involve intentional misconduct, or knowing violations
of law, for actions leading to improper personal benefit to the director, and
for payment of dividends or approval of stock repurchases or redemptions that
are prohibited by Delaware law. This provision also does not affect the
directors' responsibilities under any other law, such as the federal securities
law.
Section 145 of the Delaware General Corporation Law empowers a
corporation to indemnify its directors and officers and to purchase insurance
with respect to liability arising out of their capacity or status as directors
and officers, provided that this provision shall not eliminate or limit the
liability of a director:
- for any breach of the director's duty of loyalty to the
corporation or its stockholders;
- for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
- arising under Section 174 of the Delaware General Corporation Law;
or
- for any transaction from which the director derived an improper
personal benefit.
Delaware law provides further that the indemnification permitted by
that law shall not be deemed exclusive of any other rights to which the
directors and officers may be entitled under a corporation's bylaws, an
agreement, a vote of stockholders or otherwise. Our amended and restated
certificate of incorporation eliminates the personal liability of directors to
the fullest extent permitted by Section 102(b)(7) of the Delaware General
Corporation Law and provides that we may fully indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was an employee,
director or officer of our company or is or was serving at our request as an
employee, director or officer of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding.
We have entered into indemnification agreements to indemnify our
directors and certain officers, in addition to the indemnification provided in
our bylaws and amended and restated certificate of incorporation. We believe
that these provisions and agreements are necessary to attract and retain
qualified directors and officers. Our bylaws and amended and restated
certificate of incorporation also permit us to secure insurance on behalf of any
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officer, director, employee or other agent for any liability arising out of his
or her actions, regardless of whether Delaware law would permit indemnification.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is The Bank of
New York. Its address is 101 Barclay Street, New York, New York 10286 and its
telephone number is (212) 815-8188.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except to the extent indicated below, there is no charger provision,
bylaw, contract, arrangement or statute under which any controlling person,
director or officer of our 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 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 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. Our amended and restated
certificate of incorporation and our bylaws contain provisions for
indemnification of our 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. Our bylaws permit the company to purchase such insurance. We have
director and officer insurance in place for our directors and officers.
We have also agreed by contract to indemnify our directors and certain
of our officers 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.
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ITEM 8. EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1).
23.2 Consent of PricewaterhouseCoopers, Independent Accountants.
24.1 Powers of Attorney are contained on the signature pages.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it merits 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 Seattle, Washington, on August 18, 2000.
GETTY IMAGES, INC.
By: /s/ Steve Cristallo
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Name: Steve Cristallo
Title: Acting Chief Financial
Officer
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jonathan D. Klein and Steve Cristallo,
and each of them his attorney-in-fact, with the power of substitution, for him
in any and all capacities, to sign any amendment or post-effective amendment to
this Registration Statement and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact, or
his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following person in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ Mark H. Getty Executive Chairman and Director August 18, 2000
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Mark H. Getty
/s/ Jonathan D. Klein Chief Executive Officer and August 18, 2000
------------------------------- Director
Jonathan D. Klein
/s/ Steve Cristallo Vice President, Finance and August 18, 2000
------------------------------- Acting Chief Financial Officer
Steve Cristallo
/s/ Mark Torrance Director August 18, 2000
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Mark Torrance
/s/ Andrew Garb Director August 18, 2000
-------------------------------
Andrew Garb
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/s/ James N. Bailey Director August 18, 2000
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James N. Bailey
/s/ Christopher S. Sporborg Director August 18, 2000
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Christopher S. Sporborg
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INDEX TO EXHIBITS
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Exhibit
Number Description
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5.1 Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1).
23.2 Consent of PricewaterhouseCoopers, Independent Accountants.
24.1 Powers of Attorney are contained on the signature pages.
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