-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E6qidgsqgS/i1fW0d2pQJsTGyUtoqcI6aNha1EIp2ISdr047cQ5yy1CugjO2UhHF Oo6o/GdJx0w5qOTuMyGRyg== 0000909518-08-000798.txt : 20081103 0000909518-08-000798.hdr.sgml : 20081103 20081103141707 ACCESSION NUMBER: 0000909518-08-000798 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20081103 DATE AS OF CHANGE: 20081103 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: JUPITERMEDIA CORP CENTRAL INDEX KEY: 0001083712 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 061542480 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-56485 FILM NUMBER: 081157029 BUSINESS ADDRESS: STREET 1: 23 OLD KINGS HIGHWAY SOUTH CITY: DARIEN STATE: CT ZIP: 06820 BUSINESS PHONE: 2036622800 MAIL ADDRESS: STREET 1: 23 OLD KINGS HIGHWAY SOUTH CITY: DARIEN STATE: CT ZIP: 06820 FORMER COMPANY: FORMER CONFORMED NAME: INT MEDIA GROUP INC DATE OF NAME CHANGE: 20010529 FORMER COMPANY: FORMER CONFORMED NAME: INTERNET COM CORP DATE OF NAME CHANGE: 19990408 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GETTY IMAGES INC CENTRAL INDEX KEY: 0001047202 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MAILING, REPRODUCTION, COMMERCIAL ART & PHOTOGRAPHY [7330] IRS NUMBER: 980177556 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 601 NORTH 34TH STREET CITY: SEATTLE STATE: WA ZIP: 98103 BUSINESS PHONE: 2069256449 MAIL ADDRESS: STREET 1: 601 NORTH 34TH STREET CITY: SEATTLE STATE: WA ZIP: 98103 SC 13D 1 mm10-3108_sc13d.htm

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

_____________________________________________

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

(Amendment No. ___)*

 

JUPITERMEDIA CORPORATION

(Name of Issuer)

Common Stock

(Title of Class of Securities)

48207D101

(CUSIP Number)

 

Getty Images, Inc.

Attn: John Lapham

601 North 34th Street

Seattle, Washington 98103

(206) 925-5000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

Copy to:

 

Kyle Krpata
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, California 94065
(650) 802-3000

October 22, 2008

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g)), check the following box[ ].

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

(Continued on following pages)

(Page 1 of 7 Pages)

 

 

CUSIP No. 48207D101

13D

Page 2 of 7 Pages

 

 

 

1

NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

Getty Images, Inc.

98-0177556

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:

(a)          o
(b)          x

 

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS

OO

 

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):


o

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION:

Delaware

 

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH

7

SOLE VOTING POWER:

0

8

SHARED VOTING POWER:

12,907,077*

9

SOLE DISPOSITIVE POWER:

0

10

SHARED DISPOSITIVE POWER:

0

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:

12,907,077*

 

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:


o

 

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

35.9%**

 

14

TYPE OF REPORTING PERSON:

CO

 

*

Beneficial ownership of the common stock, par value $0.01 per share ("Common Stock"), of Jupitermedia Corporation, a Delaware corporation (the "Company"), referred to herein is being reported hereunder solely because the reporting person may be deemed to have beneficial ownership of such Common Stock as a result of the Support Agreements described in Items 3 and 4 hereof. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the reporting person that it is the beneficial owner of any Common Stock referred to herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or for any other purpose, and such beneficial ownership is expressly disclaimed. The reported beneficial ownership is comprised of 12,907,077 shares of Common Stock that are subject to the Support Agreements. Upon the exercise of any options to acquire shares of Common Stock by the parties to the Support Agreements, such shares of Common Stock acquired upon exercise thereof shall be included under the applicable Support Agreement and the reporting person may be deemed to have beneficial ownership of such Common Stock, if any.

**

The calculation of the percentage is based on 36,032,152 shares of Common Stock (less 65,000 shares of Common Stock held by the Company as treasury stock) issued and outstanding as of August 6, 2008, which number is reported in the Company's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 11, 2008.

 

SCHEDULE 13D

 

Item 1.

Security and Issuer.

 

This statement on Schedule 13D (this "Statement") relates to the Common Stock of the Company. The Company's principal executive offices are located at 23 Old Kings Highway South, Darien, Connecticut 06820.

 

Item 2.

Identity and Background.

 

(a) – (c) and (f)

 

This Statement is being filed by Getty Images, Inc., a Delaware corporation ("Getty Images"). The principal business of Getty Images is creating and distributing still imagery, footage and multimedia products, as well as providing other forms of digital content, including music. Getty Images' principal business and executive offices are located at 601 North 34th Street, Seattle, Washington 98103.

 

Schedule 1 attached to this Statement, which is incorporated herein by reference, contains the following information concerning each director and executive officer of Getty Images: (i) the name and residence or business address, (ii) the present principal occupation or employment and (iii) the name, principal business and address of any corporation or other organization in which such employment is conducted. To the knowledge of Getty Images, each of the persons named on Schedule 1 (the "Schedule 1 Persons") is a United States citizen other than Mr. Mark Getty, who is a citizen of Ireland, Mr. Jonathan Klein, who is a citizen of the United Kingdom, Mr. Nicholas Evans-Lombe, who is a citizen of the United Kingdom, Mr. Bruce Livingstone, who is a citizen of Canada, Mr. Adrian Murrell, who is a citizen of the United Kingdom, and Mr. Lee Martin, who is a citizen of the United Kingdom.

 

100% of the outstanding stock of Getty Images is owned by Abe Investment Holdings, Inc., a Delaware corporation ("Abe Investment Holdings"), the principal business of which is holding the stock of Getty Images. 100% of the outstanding stock of Abe Investment Holdings is owned by Abe Investment, L.P., a Delaware limited partnership ("Abe Investment"), the principal business of which is indirectly holding the stock of Getty Images. The sole general partner of Abe Investment is Abe GP LLC, a Delaware limited liability company, the principal business of which is acting as the general partner of Abe Investment. Hellman & Friedman Capital Partners VI, L.P., a Delaware limited partnership ("H&F Fund VI"), is the sole member of Abe GP LLC. H&F Fund VI, together with Hellman & Friedman Capital Partners VI (Parallel), L.P., a Delaware limited partnership ("H&F Parallel VI"), Hellman & Friedman Capital Executives VI, L.P., a Delaware limited partnership ("H&F Executives VI"), and Hellman & Friedman Capital Associates VI, L.P., a Delaware limited partnership ("H&F Associates VI" and, together with H&F Fund VI, H&F Parallel VI and H&F Executives VI, the "H&F Funds"), collectively own a majority of the limited partnership interests of Abe Investment. The general partner of each of the H&F Funds is Hellman & Friedman Investors VI, L.P., a Delaware limited partnership ("H&F Investors VI"), the principal business of which is serving as the general partner of the H&F Funds and related private equity funds. The sole general partner of H&F Investors VI is Hellman & Friedman LLC, a Delaware limited liability company ("H&F"). The H&F Funds are private equity funds sponsored by H&F, which is a private equity firm. The members of H&F are set forth on Schedule 2 attached to this Statement and incorporated herein by reference. Abe Investment Holdings, Abe Investment and Abe GP LLC are collectively referred to herein as the "Abe Entities" and the H&F Funds, together with H&F Investors VI and H&F, are collectively referred to herein as the "H&F Entities." Abe Investment's, Abe GP LLC's and the H&F Entities' principal business and executive offices are located at c/o Hellman & Friedman LLC, One Maritime Plaza, 12th Floor, San Francisco, California 94111. Abe Investment

 

Page 3 of 7

 

Holdings' principal business and executive offices are located at c/o Getty Images, 601 North 34th Street, Seattle, Washington 98103.

 

Schedule 2 attached to this Statement, which is incorporated herein by reference, contains the following information concerning each director, member and executive officer, as and if applicable, of each Abe Entity and H&F Entity: (i) the name and residence or business address, (ii) the present principal occupation or employment and (iii) the name, principal business and address of any corporation or other organization in which such employment is conducted. To the knowledge of Getty Images, each of the persons named on Schedule 2 (the "Schedule 2 Persons") is a United States citizen other than Mr. Mark Getty, who is a citizen of Ireland, Mr. Jonathan Klein, who is a citizen of the United Kingdom, and Mr. Nicholas Evans-Lombe, who is a citizen of the United Kingdom.

 

 

(d) and (e)

 

During the last five years, neither Getty Images, the Abe Entities, H&F Entities nor, to the knowledge of Getty Images, any of the Schedule 1 Persons or the Schedule 2 Persons (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3.

Source and Amount of Funds or Other Consideration.

 

In connection with the Purchase Agreement described in Item 4, as a condition to the willingness of Getty Images to enter into the Purchase Agreement, and as an inducement and in consideration therefor, Getty Images entered into Support Agreements (each, a "Support Agreement," and collectively, the "Support Agreements") with each of Alan M. Meckler, Christopher S. Cardell, William A. Shutzer, Ellen Meckler, Meckler Foundation Inc., Alan M. Meckler 2008 Grantor Retained Annuity Trust, The Naomi A. Meckler Trust, The Catherine S. Meckler Trust, The Caroline J. Meckler Trust, the John M. Meckler Trust, Herman Meckler Family Trust #1 and Herman Meckler Family Trust #2 (each, a "Stockholder," and collectively, the "Stockholders"). By reason of Getty Images' entering into the Support Agreements with the Stockholders, and by reason of the irrevocable proxy contained therein, Getty Images as well as the Abe Entities and the H&F Entities may be deemed to have acquired beneficial ownership of the shares of Common Stock that are the subject of the Support Agreements. The transactions contemplated by the Support Agreements do not require the expenditure of any funds. Getty Images anticipates that it will fund the transactions contemplated by the Purchase Agreement with cash on hand on the closing date. For a more detailed description of the Support Agreements, see Item 4 below, which description is incorporated herein by reference in response to this Item 3.   

 

Item 4.

Purpose of the Transaction.

 

 

Purchase Agreement

 

On October 22, 2008, Getty Images entered into a Stock Purchase Agreement (the "Purchase Agreement") with the Company, which provides that, subject to certain conditions set forth therein, Getty Images will acquire from the Company all of the outstanding shares of capital stock of Jupiterimages Corporation, an Arizona corporation and a wholly owned subsidiary of the Company ("Jupiterimages").

 

On the closing date of the transactions contemplated by the Purchase Agreement, the Company will sell to Getty Images, and Getty Images will purchase from the Company, all of the outstanding shares

 

Page 4 of 7

 

of capital stock of Jupiterimages and Jupiterimages will become a wholly owned subsidiary of Getty Images.

 

To the knowledge of Getty Images, following the consummation of the transactions contemplated by the Purchase Agreement, the Company intends that the Common Stock will continue to be listed on the NASDAQ Global Select Market.

 

 

Support Agreements

 

As noted in Item 3 above, in connection with the Purchase Agreement, as a condition to the willingness of Getty Images to enter into the Purchase Agreement, and as an inducement and in consideration therefor, Getty Images entered into the Support Agreements with the Stockholders. Pursuant to its respective Support Agreement, each Stockholder has agreed at any meeting of the stockholders of the Company, and at any adjournment thereof, and on every action or approval by written consent of the stockholders of the Company, to vote all shares of Common Stock beneficially owned by the Stockholder (or to cause them to be voted) or (as appropriate) execute written consents in respect thereof (i) in favor of the approval of the Purchase Agreement and the transactions contemplated thereby, (ii) against any action or agreement (including, without limitation, any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Purchase Agreement, (iii) against any third party acquisition proposal and (iv) against any agreement (including, without limitation, any amendment of any agreement), amendment of the Company's organizational documents or the organizational documents of Jupiterimages or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the transactions contemplated by the Purchase Agreement. The Support Agreements shall terminate automatically on the first to occur of (i) the termination of the Purchase Agreement in accordance with its terms and (ii) the closing of the transactions contemplated by the Purchase Agreement.

 

Pursuant to its respective Support Agreement, each Stockholder irrevocably appointed each executive officer of Getty Images as the Stockholder's attorney-in-fact and proxy, with full power of substitution, to vote, express consent or dissent or otherwise utilize such voting power in the manner contemplated by the Support Agreement with respect to such Stockholder's shares at every meeting of the stockholders of the Company, and in every written consent in lieu of any such meeting, to the extent described above.

 

Other than as described above, Getty Images has no plans or proposals which relate to, or may result in, any of the matters described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

 

The summaries of the Purchase Agreement and the Support Agreements contained in this Item 4 are qualified in their entirety by reference to the Purchase Agreement and the Support Agreements, each of which is incorporated herein by reference. A copy of the Purchase Agreement was filed with the Securities and Exchange Commission on October 23, 2008, as Exhibit 2.1, to the Company's Current Report on Form 8-K. A copy of the form of Support Agreement is filed herewith as Exhibit B.

 

Item 5.

Interest in Securities of the Issuer.

 

(a)         Pursuant to the Support Agreements, Getty Images as well as the Abe Entities and H&F Entities may be deemed to beneficially own 12,907,077 shares of Common Stock, which represents 35.9% of the beneficial ownership of the Company, which is calculated based on a total of 36,032,152 shares of Common Stock (less 65,000 shares of Common Stock held by the Company as treasury stock) issued and outstanding as of August 6, 2008, which number is reported in the Company's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 11, 2008. Neither

 

Page 5 of 7

 

the filing of this Statement nor any of its contents shall be deemed to constitute an admission by either Getty Images or the Abe Entities or the H&F Entities that they are, or any of them is, the beneficial owner of any Common Stock referred to herein for purposes of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 

(b)        Pursuant to the Support Agreements and the limited proxies granted therein, Getty Images as well as the Abe Entities and the H&F Entities may be deemed to have shared power to vote 12,907,077 shares of Common Stock held beneficially by the Stockholders.

 

(c)         None of Getty Images, the Abe Entities or the H&F Entities or, to the knowledge of Getty Images, any of the Schedule 1 Persons or the Schedule 2 Persons, has effected any transaction in the Common Stock during the past sixty (60) days.

 

(d)        The Stockholders are the record owners of the shares of Common Stock covered by the Support Agreements that Getty Images as well as the Abe Entities and the H&F Entities may be deemed to beneficially own. Each Stockholder has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock covered by his respective Support Agreement.

 

 

(e)

Not applicable.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

 

Except for the arrangements described in Items 3, 4 or 5 of this Statement, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between Getty Images, the Abe Entities or the H&F Entities or, to the knowledge of Getty Images, any of the Schedule 1 Persons or the Schedule 2 Persons and any other person, with respect to any securities of the Company, including, without limitation, transfer or voting of any of the securities, finders' fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

 

Page 6 of 7

 

Item 7.            Material to be Filed as Exhibits.

 

Exhibit A

Stock Purchase Agreement, dated as of October 22, 2008 by and between Jupitermedia Corporation and Getty Images, Inc. (incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K, as filed with the Securities and Exchange Commission on October 23, 2008)

 

Exhibit B

Form of Support Agreement

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page 7 of 7

 

SIGNATURES

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement on Schedule 13D is true, complete and correct.

 

Dated: November 3, 2008

 

GETTY IMAGES, INC.

 

By:

/s/ John Lapham

Name:

John Lapham

Title:

Senior Vice President and General Counsel

 

 

SCHEDULE 1

 

Set forth below is the name, business address, present principal occupation or employment and the name, principal business and address of any organization in which such employment is conducted of each director and executive officer of Getty Images. Unless otherwise indicated, the business address of each person listed below is 601 North 34th Street, Seattle, Washington 98103.

 

Directors

Name

Present Principal Occupation or Employment

Mark Getty

Chairman of the Board of Abe Investment and director of certain of its subsidiaries; Chairman of the Board of Getty Investments L.L.C. (1)

C. Andrew Ballard

Managing Director of H&F (2)

Benjamin A. Farkas

Principal of H&F (3)

Jonathan Klein

Director of Abe Investment and certain of its subsidiaries; Chief Executive Officer of Getty Images

Brian M. Powers

Chief Executive Officer of H&F (2)

 

Executive Officers
(Who Are Not Directors)

Name

Title and Present Principal Occupation or Employment

Jeffrey Beyle

Senior Vice President, Business Development and Sales, Asia Pacific and Emerging Markets of Getty Images

Lisa Calvert

Senior Vice President, Human Resources and Facilities of Getty Images

Jeffrey Dunn

Senior Vice President, Finance of Getty Images

Nicholas Evans-Lombe

Chief Operating Officer of Getty Images

James Gurke

Senior Vice President, Marketing of Getty Images

Steve Heck

Senior Vice President, Technology of Getty Images

John Lapham

Senior Vice President, General Counsel of Getty Images

Bruce Livingstone

Senior Vice President, Consumer Market of Getty Images

Lee Martin

Senior Vice President, Sales Europe of Getty Images

Adrian Murrell

Senior Vice President, Editorial Imagery of Getty Images

Thomas Oberdorf

Senior Vice President, Special Projects of Getty Images

Michael Teaster

Senior Vice President, Sales North America of Getty Images

 

(1)

Getty Investments L.L.C. is engaged in the ownership of common stock of Getty Images. The principal address of Getty Investments L.L.C. is 5390 Kietzke Lane, Suite 202, Reno, Nevada 89511.

(2)

The principal address of H&F and the business address of Messrs. Ballard and Powers is One Maritime Plaza, 12th Floor, San Francisco, California 94111.

(3)

The business address of Mr. Farkas is c/o Hellman & Friedman LLC, 390 Park Avenue, 21st Floor, New York, New York 10022.

 

SCHEDULE 2

 

Set forth below is the name, business address, present principal occupation or employment and the name, principal business and address of any organization in which such employment is conducted of each director, member and executive officer of each Abe Entity and H&F Entity not already provided in Item 2 of the Schedule 13D. The principal occupation or employment and business address for Messrs. Getty, Klein, Dunn, Evans-Lombe and John Lapham are set forth in Schedule 1 and incorporated herein by reference. Except as described above or as otherwise indicated below, the business address of each person listed below and of each of the H&F Entities, Abe Investment and the Abe GP LLC is c/o Hellman & Friedman LLC, One Maritime Plaza, 12th Floor, San Francisco, California 94111. The business address of Abe Investment Holdings is c/o Getty Images, 601 North 34th Street, Seattle, Washington 98103

 

ABE INVESTMENT HOLDINGS, INC.

 

Directors

Name

 

C. Andrew Ballard

 

Benjamin A. Farkas (1)

 

Mark Getty

 

Jonathan Klein

 

Brian M. Powers

 

 

Executive Officers

Name

Title

Jonathan Klein

Chief Executive Officer and President

Jeffrey Dunn

Treasurer

Nicholas Evans-Lombe

Chief Operating Officer

John Lapham

Vice President and Secretary

 

(1)

The principal occupation or employment of Mr. Farkas is Principal in the New York office of H&F. The business address of Mr. Farkas is c/o Hellman & Friedman LLC, 390 Park Avenue, 21st Floor, New York, New York 10022.

 

ABE INVESTMENT, L.P.

 

Directors

Name

 

Mark Getty

 

C. Andrew Ballard

 

Benjamin A. Farkas (1)

 

Jonathan Klein

 

 

 

Directors

Name

Brian M. Powers

 

 

Executive Officers

Name

Title

Jonathan Klein

Chief Executive Officer and President

Jeffrey Dunn

Treasurer

Nicholas Evans-Lombe

Chief Operating Officer

John Lapham

Vice President and Secretary

 

(1)

The business address of Mr. Farkas is c/o Hellman & Friedman LLC, 390 Park Avenue, 21st Floor, New York, New York 10022.

 

HELLMAN & FRIEDMAN LLC

 

Members

Name

Present Principal Occupation or Employment

F. Warren Hellman

Chairman of H&F

Brian M. Powers

Chief Executive Officer of H&F

Philip U. Hammarskjold

Managing Director of H&F

Patrick J. Healy (1)

Managing Director of H&F

Thomas F. Steyer (2)

Co-Managing Partner of Farallon Capital Management, L.L.C.

C. Andrew Ballard

Managing Director of H&F

Jeffrey A. Goldstein (3)

Managing Director of H&F

Robert B. Henske

Managing Director of H&F

Georgia Lee

Managing Director and Chief Financial Officer of H&F

Erik D. Ragatz

Managing Director of H&F

Allen R. Thorpe (3)

Managing Director of H&F

David R. Tunnell

Managing Director of H&F

Frank G. Zarb (3)

Managing Director of H&F

 

(1)

The business address of Mr. Healy is c/o Hellman & Friedman LLP, Millbank Tower, 30th Floor, 21-24 Millbank, London, SW1P 4QP, United Kingdom.

(2)

The business address of Mr. Steyer is c/o Farallon Capital Management, L.L.C., One Maritime Plaza, 21st Floor, San Francisco, California 94111.

(3)

The business address of Messrs. Goldstein, Thorpe and Zarb is c/o Hellman & Friedman LLC, 390 Park Avenue, 21st Floor, New York, New York 10022.

 

 

 

 EX-99 2 mm10-3108_sc13dexhb.htm

Exhibit B

SUPPORT AGREEMENT

THIS SUPPORT AGREEMENT (this “Agreement”), dated as of October 22, 2008, is entered into by and between Getty Images, Inc., a Delaware corporation (“Purchaser”), and ____________ (“Stockholder”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement (as defined below).

RECITALS

WHEREAS, pursuant to the Stock Purchase Agreement (the “Purchase Agreement”), dated as of the date hereof, by and between Purchaser and Jupitermedia Corporation (“Seller”), a Delaware corporation, Purchaser will purchase from Seller all of the issued and outstanding common stock (the “Transaction”) of Jupiterimages Corporation, an Arizona corporation and a wholly-owned subsidiary of Seller (the “Company”);

 

WHEREAS, as of the date hereof, Stockholder is the record and beneficial owner of ___________ shares of common stock (“Seller Stock”), par value $0.01 per share, of Seller (such shares of Seller Stock (excluding options to acquire shares of Seller Stock but including shares of Seller Stock acquired upon exercising thereof), together with any other shares of Seller Stock (excluding options to acquire shares of Seller Stock but including shares of Seller Stock acquired upon exercise thereof) acquired by Stockholder after the date hereof, being collectively referred to herein as the “Stockholder Shares”); and

 

WHEREAS, as a condition to its willingness to enter into the Purchase Agreement, Purchaser has required that Stockholder enter into this Agreement and, in order to induce Purchaser to enter into the Purchase Agreement, Stockholder is willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the premises, covenants and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to the Purchase Agreement, Stockholder and Purchaser hereby agree as follows:

1.   Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to Purchaser as follows:

(a)       Authority. Stockholder has all necessary power and authority to execute and deliver this Agreement and to perform his obligations hereunder. The execution, delivery and performance by Stockholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of Stockholder and no further action on the part of Stockholder is necessary to authorize the execution and delivery by Stockholder of this Agreement or the performance by Stockholder of his obligations hereunder. This Agreement has been duly executed and delivered by Stockholder and, assuming due and valid authorization, execution and delivery hereof by Purchaser, constitutes a valid and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms, except that such enforceability (i) may be

 

 

 

limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at Law or in equity.

(b)       Consents and Approvals; No Violations. No consents or approvals of, or filings, declarations or registrations with, any Governmental Agency are necessary for the performance by Stockholder of his obligations under this Agreement, other than such consents, approvals, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Stockholder of any of his obligations under this Agreement. Neither the execution and delivery of this Agreement by Stockholder nor the performance by Stockholder of his obligations hereunder will (i) violate any Law or Order applicable to such Stockholder, or (ii) require the consent or other action by any Person under, constitute default under or result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the properties or assets of, Stockholder under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, permit, lease, agreement or other instrument or obligation to which Stockholder is a party, or by which his assets may be bound or affected, except for such violations, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as would not, individually or in the aggregate, reasonably be expected to prevent or delay the performance by Stockholder of any of his obligations under this Agreement.

(c)       Ownership of Shares. Stockholder owns, beneficially and of record, all of the Stockholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Purchaser pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” Laws of the various states of the United States). Without limiting the foregoing, except for proxies and restrictions in favor of Purchaser pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” Laws of the various states of the United States, Stockholder has sole voting power and sole power of disposition with respect to all Stockholder Shares, with no restrictions on Stockholder’s rights of voting or disposition pertaining thereto and no Person other than Stockholder has any right to direct or approve the voting or disposition of any Stockholder Shares. As of the date hereof, except as set forth on Schedule 1.1(c), Stockholder does not own, beneficially or of record, or have the right to acquire, any securities of Seller other than the Stockholder Shares.

(d)       Brokers. Except with respect to Seller’s engagement of Merrill Lynch & Co, Inc. as its financial advisor in connection with the Transaction, Stockholder has not engaged, directly or indirectly, any broker, investment banker, financial advisor or other Person who is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Purchaser or any of their respective Subsidiaries in connection with the transactions contemplated by the Purchase Agreement.

(e)       Reliance by Purchaser. Stockholder understands and acknowledges that Purchaser is entering into the Purchase Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.

 

- 2 -

 

2.   Additional Covenants of the Stockholder. Subject to Section 4(a), Stockholder hereby covenants and agrees that:

(a)       Voting. From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the stockholders of Seller however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, Stockholder shall vote all Stockholder Shares (other than Stockholder Shares transferred to Permitted Transferees (as defined below) in accordance with Section 2(c)) or, as appropriate, execute written consents in respect thereof, (i) in favor of the approval of the Purchase Agreement and the transactions contemplated thereby, (ii) against any action or agreement (including, without limitation, any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of Seller in the Purchase Agreement, (iii) against any Acquisition Proposal and (iv) against any agreement (including, without limitation, any amendment of any agreement), amendment of the Charter Documents or the certificate or incorporation or bylaws of Seller or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the transactions contemplated by the Purchase Agreement. Any such vote shall be cast (or consent shall be given) by Stockholder in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent.

(b)       Proxy. In order to secure the performance of such Stockholder’s obligations under this Agreement, by entering into this Agreement, such Stockholder hereby irrevocably (subject to the terms of the immediately following sentence) grants a proxy appointing each executive officer of Purchaser as such Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in his name, to vote, express consent or dissent, or otherwise utilize such voting power solely in the manner contemplated by Section 2(a) as such attorney-in-fact and proxy, in his or her sole discretion, deems proper with respect to such Stockholder Shares. The proxy granted by such Stockholder pursuant to this Section 2(b) shall be revoked upon the earlier of (i) termination of this Agreement in accordance with its terms and the provisions of Section 212(e) of the DGCL or (ii) consummation of the transactions contemplated by the Purchase Agreement. Such Stockholder hereby revokes any and all previous proxies granted with respect to the Stockholder Shares for any matters covered by Section 2(a).

(c)       Restriction on Transfer; Proxies; Non-Interference. From the date hereof until any termination of this Agreement in accordance with its terms, except as provided hereunder or under the Purchase Agreement and except for the exercise of any options to purchase shares of Seller Stock (but not the sale of the underlying shares of Seller Stock), such Stockholder shall not, directly or indirectly, (i) sell, transfer (including by operation of Law), give, pledge, encumber, assign or otherwise dispose of (including, without limitation, any Constructive Disposition (as defined below)), or enter into any Contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Stockholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Stockholder Shares into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Stockholder Shares with respect to any matters covered by Section 2(a), (iii) take any action

 

- 3 -

 

that would make any representation or warranty of Stockholder set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying Stockholder from performing any of his obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 2(c). As used herein, the term “Constructive Disposition” means, with respect to any Stockholder Shares, a short sale with respect to such security, entering into or acquiring an offsetting derivative contract with respect to such security, entering into or acquiring a futures or forward contract to deliver such security or entering into any other hedging or other derivative transaction that has the effect of materially changing the economic benefits and risks of ownership. Any attempted transfer of the Stockholder Shares or any interest therein in violation of this Section 2(c) shall be null and void. In furtherance of this Agreement, Stockholder shall and hereby does authorize Seller’s and Purchaser’s counsel to notify Seller’s transfer agent that there is a stop transfer restriction with respect to all of the Stockholder Shares (and that this Agreement places limits on the voting and transfer of the Stockholder Shares); provided, however, that any such stop transfer restriction shall terminate upon the termination of this Agreement in accordance with its terms and, upon such event, Purchaser shall notify Seller’s transfer agent of such termination. Nothing in this Agreement shall prohibit a transfer of any shares of Seller Stock (i) by Stockholder to any member of Stockholder’s immediate family, or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate family, or (ii) upon the death of Stockholder; provided, however, that a transfer referred to in this sentence shall be permitted only if, as a precondition to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Purchaser, to be bound by all of the terms of this Agreement (each such transferee, a “Permitted Transferee”). Notwithstanding anything to the contrary in this Agreement, (A) Stockholder shall not be obligated to exercise any option to purchase shares of Seller Stock and (B) in the event Stockholder does exercise any option to purchase shares of Seller Stock, he may do so on a cashless exercise basis.

(d)       No Solicitation. Subject to Section 4(a), Stockholder acknowledges and agrees that it has reviewed and understands Section 5.6 of the Purchase Agreement and hereby agrees from the date hereof until the termination of this Agreement that it shall be bound by Section 5.6 of the Purchase Agreement to the same extent as if Stockholder were bound by Seller’s obligations thereunder.

(e)       Legends. If requested by Purchaser, Stockholder agrees to cause all certificates representing Stockholder Shares to bear a prominent legend stating that such Stockholder Shares are subject to the transfer, voting and other restrictions described in this Agreement.

3.   Termination. This Agreement shall terminate on the first to occur of (a) the termination of the Purchase Agreement in accordance with its terms and (b) the Closing. Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for fraud or any willful breach of this Agreement and (ii) the provisions of this Section 3, Section 4 and Section 1 of this Agreement, shall survive any termination of this Agreement.

 

- 4 -

 

 

4.

Miscellaneous.

(a)       Action in Stockholder Capacity Only. The parties acknowledge that this Agreement is entered into by Stockholder in his capacity as owner of the Stockholder Shares and that nothing in this Agreement shall in any way restrict or limit any director or officer of Seller (including, without limitation, Stockholder) from taking any action in his or her capacity as a director or officer of Seller that he or she, in good faith, reasonably believes is necessary for him or her to comply with his or her fiduciary duties as a director or officer of Seller, including, without limitation, participating in his or her capacity as a director of Seller in any discussions or negotiations of the Purchase Agreement or any other actions, discussions or negotiations permitted under Section 5.6 of the Purchase Agreement, and no such action taken (or omitted to be taken) by Stockholder in any such capacity shall be deemed to constitute a breach of or a default under any provision of this Agreement. Purchaser acknowledges that Stockholder cannot bind Seller in connection with any matter contemplated hereby, and is not so binding Seller hereunder, without the express written authorization of Seller’s Board of Directors.

(b)       Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)       Additional Shares. Until any termination of this Agreement in accordance with its terms, Stockholder shall promptly notify Purchaser of the number of shares of Seller Stock, if any, as to which Stockholder acquires record or beneficial ownership after the date hereof. Any shares of Seller Stock as to which Stockholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Stockholder Shares for purposes of this Agreement. Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of Seller affecting the Seller Stock, the number of shares of Seller Stock constituting Stockholder Shares shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Seller Stock or other voting securities of Seller issued to Stockholder in connection therewith.

(d)       Definition of “Beneficial Ownership.” For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)       Further Assurances. From time to time, at the request of Purchaser and without further consideration, Stockholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)       Amendments; Waiver. This Agreement may not be amended or supplemented, except by a written agreement executed by the parties hereto. Any party to this Agreement may (i) waive any inaccuracies in the representations and warranties of any other

 

- 5 -

 

party hereto or extend the time for the performance of any of the obligations or acts of any other party hereto or (ii) waive compliance by the other party with any of the agreements contained herein. Notwithstanding the foregoing, no failure or delay by Purchaser in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 

(g)

Governing Law; Jurisdiction; Waiver of Jury Trial.

(i)        Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware applicable to contracts made and performed in such state without reference to such state’s principles of conflicts of law.

(ii)       Any legal action or proceeding with respect to this Agreement shall be brought in the Chancery Court of the State of Delaware or any federal court sitting in the State of Delaware, and, by execution and delivery of this Agreement, the parties hereto hereby accept for themselves and in respect of their property the jurisdiction of the aforesaid courts in connection with any such action or proceeding. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, which any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each party hereby consents to process being served in any such action or proceeding by the mailing of a copy thereof to the address set forth in Section 4(j) hereof and agrees that such service upon receipt shall constitute good and sufficient service of process or notice thereof. Nothing in this Section 4(g) shall affect or eliminate any right to serve process in any other matter permitted by Law.

(iii)      EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(h)       Specific Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that money damages may not be an adequate remedy therefor. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions of this Agreement in the Chancery Court of the State of Delaware or any federal court sitting in the State of Delaware, without bond or other security being required, this being in addition to any other remedy to which they are entitled at Law or in equity.

(i)       Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

 

- 6 -

 

This Agreement is not intended to and shall not confer upon any Person other than the parties hereto any rights hereunder.

(j)       Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission), or (iii) one (1) Business Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other parties pursuant to this provision):

If to Purchaser:

 

 

 

 

 

With a copy to:

Getty Images, Inc.

601 N. 34th Street

Seattle, Washington 98103

Attention: John Lapham, Esq.

Facsimile: (206) 925-5623

 

 

Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, California 94065

Attention: Craig W. Adas

Kyle C. Krpata
Facsimile: (650) 802-3100

 

 

If to Stockholder:

 

 

 

 

With a copy to:

________________
________________
________________

Attention:

Facsimile:

 

Willkie Farr & Gallagher LLP
787 Seventh Avenue

New York, New York 10019
Attention: Jeffrey R. Poss, Esq.
Facsimile: (212) 728-9536

 

Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving written notice specifying such change to the other parties hereto.

 

(k)       Severability. If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that

 

- 7 -

 

any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(l)       Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any purported assignment not permitted under this Section 4(l) shall be null and void.

(m)       Descriptive Headings. Headings of Sections and subsections of this Agreement are for convenience of the parties only, and shall be given no substantive or interpretive effect whatsoever.

(n)       Drafting. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

(o)       Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

 

 

 

 

 

 

 

 

 

 

- 8 -

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

GETTY IMAGES, INC.

 

By:____________________________

Name:

Title:

 

[STOCKHOLDER]

 

By:____________________________

Name:

Title:

 

 

 

 

 

 -----END PRIVACY-ENHANCED MESSAGE-----