EXHIBIT 3
FOURTH AMENDMENT
TO
RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
GETTY INVESTMENTS L.L.C.
THIS FOURTH AMENDMENT TO RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Amendment") is made as of October 5, 2003 among the following parties:
(1) THE TRUSTEE OF THE CHEYNE WALK TRUST, whose registered office is located at
0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000 (the "CWT Trustee");
(2) THE TRUSTEES OF THE XXXXXX X. GETTY FAMILY TRUST, whose registered office
is located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000 (the "GPGFT
Trustees");
(3) THE TRUSTEES OF THE XXXXXX FAMILY TRUST A, whose registered office is
located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000 (the "RFTA
Trustees");
(4) THE TRUSTEES OF THE XXXXXX FAMILY TRUST B, whose registered office is
located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000 (the "RFTB
Trustees"); and
(5) GETTY INVESTMENTS L.L.C., a Delaware limited liability company, whose
registered office is located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx
00000 (the "Company").
WHEREAS,
(A) The parties have entered into a Restated Limited Liability Company
Agreement, dated as of February 9, 1998, as amended by an Agreement and
Waiver, dated as of October 26, 1999, a Second Amendment to Restated
Limited Liability Company Agreement, dated as of November 1, 2001, and a
Third Amendment to Restated Limited Liability Company Agreement, dated as
of July 1, 2003 (collectively, the "Operating Agreement"), pursuant to
which the affairs of the Company are governed.
(B) The Operating Agreement provides that the term of the Company will expire
on October 6, 2003, unless renewed.
(C) The Members, representing all of the Interests, wish to extend the term of
the Company and make certain additional modifications to the Operating
Agreement as set forth below.
IT IS AGREED as follows:
1. Definitions. All expressions defined in the Operating Agreement shall bear
the same meanings in this Agreement. All references to the term "Articles"
in this Amendment shall mean and refer to the Articles in the Operating
Agreement.
2. Amendment to the Operating Agreement. The Operating Agreement is hereby
amended as follows:
a. Definition of Board of Directors. The text in Article 1.7 is hereby
deleted in its entirety and replaced with the following:
"Board of Directors or Board - The Directors of the Company or
any Committee thereof, in each case duly appointed pursuant to
Article 4.2. Each Director shall be a "Manager" of the Company
within the meaning of the Act."
b. Definition of "Capital Account". In the second sentence of Article
1.8, the words "As of the end each of each fiscal year" are hereby
deleted and replaced with the words "The Capital Account of each
Member shall be maintained as follows".
c. Definition of GI Profit/(Loss). The text in Article 1.24 is hereby
deleted in its entirety and replaced with the following:
"GI Profit/(Loss) -The Company's unconsolidated net profit or net
loss for the relevant fiscal year (or shorter fiscal period) of
the Company, which shall include the change in value of each
portfolio investment of the Company. The value of each portfolio
investment of the Company shall be adjusted to equal its fair
market value (and in the case of the Company's holding of Getty
Images common stock shall be "marked to market" based on the
price of Getty Images common stock listed and traded on the New
York Stock Exchange), as reported by the Officer from published
sources (such as the Wall Street Journal) as of the following
times: (a) the end of the Company's fiscal year; (b) the
acquisition of an additional interest by any new or existing
Member in exchange for more than a de minimus Capital
Contribution; (c) the distribution by the Company to a Member of
more than a de minimus amount of Property as consideration for an
Interest; (d) the liquidation of the Company within the meaning
of Regulations Section 1.704-1(b)(2)(ii)(g); and (e) any other
time determined by the Officer in his good faith discretion."
d. Extension of Company Term. In Article 2.3 the date "6 October 2003" is
hereby deleted and replaced with the date "5 October 2006". References
in the Operating Agreement to the fixed term or duration shall mean
the period ending on 5 October 2006.
e. Board of Directors. The text in Article 4.2 is hereby deleted in its
entirety and replaced with the following:
"Board of Directors and Chairman - Subject to reduction as
provided in this Article 4.2, the authorized number of Directors
on the Board shall be seven (7). Six (6) of the Directors shall
be appointed by the Members of the Company, with each Member (the
RFTA Trustees and RFTB Trustees acting jointly and being deemed a
single Member solely for purposes of this Article 4.2) being
entitled to appoint two (2) Directors, so long as such Member
2
maintains a Sharing Ratio of at least ten percent (10%) of the
total of all Members (the ownership interests of the RFTA
Trustees and RFTB Trustees being combined for this purpose). The
intent of this provision is to permit each of the three branches
of the Getty Family owning Interests in the Company (i.e., the
Xxxx Xx. family, the Xxxxxx family and the J. Xxxxxx family) to
appoint its own family members to serve in two (2) directorship
positions in the Company, so long as such family branch maintains
a Sharing Ratio of at least ten percent (10%) of the total of all
Members.
"The initial appointments by the Members are as follows:
CWT Trustee Xxxx Xxxxx and Xxxx Getty
GPGFT Trustees Xxxxxxx Getty and Xxxxx Xxxxx
RFTA Trustees and RFTB Trustees Xxxx Xxxxxx and Pierre du Preez
"The seventh Director is hereby appointed by the Members to be
Xxxxxxxx Xxxxx so long as he remains chief executive officer of
Getty Images. In the event Xxxxxxxx Xxxxx ceases to be the chief
executive officer of Getty Images the seventh directorship
position shall be eliminated unless and until a Majority of
Members votes to appoint a successor director to fill such
position. Xxxx Xxxxx shall be the chairman of the Board so long
as he serves as a Director, and in the event he no longer serves
as a Director the chairman shall be selected from among the
acting Directors by the Member then holding the largest Sharing
Ratio among all the Members.
"Each Member with a right to appoint a Director shall have the
power to remove the Director appointed by it, to appoint a
substitute Director to attend any meeting of the Board and to
appoint a replacement Director in the event such Director
resigns, is removed, or otherwise ceases to be a Director. Such
appointment or removal shall be made by notice in writing to the
Company at its office designated pursuant to Article 2.5 to take
effect from the time specified in such notice. If a Member having
the right to appoint Directors withdraws from the Company or if
its Sharing Ratio falls below ten percent (10%) of the total of
all Members (the ownership interests of the RFTA Trustees and the
RFTB Trustees being combined for this purpose), the right to
appoint Directors by such Member shall be eliminated and the
authorized number of Directors on the Board shall be reduced
accordingly.
"The Board shall have the right to appoint committees so long as
the committee is comprised of at least one Director. In no event
shall a majority of Directors, or a majority of individuals
serving on a committee appointed by the Board, be residents of
the United Kingdom.
"Directors shall not be entitled to any compensation for their
services as such, and subject to Article 6 each Member shall bear
the out-of-pocket costs incurred by its own representative
Directors, including costs to attend meetings of the Board."
3
f. Approval of Commitments. The text in Article 4.3, clause (b), is
hereby deleted in its entirety and replaced with the following:
"The Company shall not call down any Commitments for Acquisition
Costs other than in connection with an investment in Getty Images
Stock and shall not dispose of any Getty Images Stock other than
as approved in Article 4.12 below."
g. Annual Meetings of Members. The text in Article 4.7 is hereby deleted
in its entirety and replaced with the words "[Intentionally deleted]".
h. Special Meetings of Members. The text in Article 4.8 is hereby deleted
in its entirety and replaced with the following:
"Special Meetings of the Members; Action by Written Consent - (a)
A special meeting of the Members may be called by any Member.
Such meeting shall be held upon not less than ten (10) days'
notice in writing, which may be given by telecopy or electronic
transmission, at such time and place as the Member convening the
meeting shall determine provided the place is outside the United
Kingdom. Members may participate in any special meeting by means
of conference telephone or other communications equipment so long
as all persons participating in the meeting can hear each other,
and participation in a meeting by such means shall constitute
presence in person at the meeting. Meetings at which conference
telephone or other communications equipment are utilized shall
not be considered to occur within the United Kingdom if a
majority of participants entitled to vote at such meeting are
neither residents of the United Kingdom nor individuals
participating by conference telephone or other communications
equipment from within the United Kingdom.
"(b) On any matter that is to be voted on by the Members, the
Members may take such action without a meeting, without prior
notice and without a vote if a consent or consents in writing,
setting forth the action to be taken, shall be signed by the
Members having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting
at which all the Members entitled to vote thereon were present
and voted.
"(c) Each Member shall be responsible for its own costs in
attending any meeting of the Members."
i. Quorum for Meetings of Members. The text in Article 4.9 is hereby
deleted in its entirety and replaced with the following:
"Quorum for Meetings of Members - A quorum of any special meeting
of Members shall consist of a Majority of Members (or their
proxies). Subject to Articles 2.3, 3.1 and 12.1, decisions of the
Members shall be taken by a vote of (or in lieu of a meeting a
written resolution signed by) a Majority of Members."
4
j. Investment Decisions. A new Article 4.13 is hereby added to the
Operating Agreement to read as follows:
"4.13 Investment Decisions - The principal asset of the Company
is its holding of Getty Images Stock. Notwithstanding anything to
the contrary contained in this Agreement, any decisions regarding
the purchase, sale, disposition, pledge or encumbrance of Getty
Images Stock or any other material asset by the Company shall be
approved in advance by a vote of a Majority of Members (although,
for the avoidance of doubt, in the case of a purchase of shares,
no Member not voting in favor of such purchase shall be obligated
to make a Capital Contribution to fund such acquisition). In
connection with any purchase, sale, disposition or encumbrance of
Getty Images Stock, the Board of Directors shall select an
independent investment adviser and shall cause the Company to
retain such person to provide the Company and the Members with
market and industry advice and evaluation of Getty Images and the
proposed transaction. The objective in retaining the third party
adviser is to allow the Members to make informed decisions
consistent with their fiduciary responsibilities as trustees. In
the case of the sale or disposition of Getty Images Stock, the
adviser will also consider the effect that such transaction will
have on reducing the size of the block position of the remaining
Getty Images Stock then held by the Company. As used in this
Article 4.13, "Getty Images Stock" shall include the common stock
of Getty Images, along with any other securities of Getty Images
or any other company issued in distribution, reclassification,
readjustment, conversion or exchange of the common stock of Getty
Images."
k. Authority of the Directors. The text in Article 5.2, clause (a), is
hereby deleted in its entirety and replaced with the following:
"(a) Except as otherwise provided in this Agreement:
(i) The Board of Directors shall have the sole authority to
manage the Company and is authorized to make any contracts, enter
into any transactions, and make and obtain any commitments on
behalf of the Company to conduct or further the Company's
business (including, without limitation, designating the
Company's representative to the Getty Images board of directors,
approving the annual running costs budget for the Company
(including costs of any independent investment adviser or
consultant), selecting the Company's auditors, and approving the
Company's financial statements);
(ii) Each Director has one vote in Board decisions; and
(iii) Action by the Board requires either (A) a resolution
approved by the affirmative vote of a Majority of the Directors
at a meeting, (1) properly called pursuant to Articles 5.7 or
5.8, and (2) with a quorum present pursuant to Article 5.9, or
(B) a written consent, signed by at least that
5
number of Directors necessary to adopt a resolution at a meeting
properly called and attended by all the Directors."
l. Regular Meetings of the Board of Directors. The text in Article 5.7 is
hereby deleted in its entirety and replaced with the following:
"Regular Meetings of the Board - The Board shall have two (2)
regularly-scheduled meetings each fiscal year of the Company's
term, at such time and place (a) as may have been scheduled by
the Board in a preceding meeting, or (b) as the Chairman may
designate in a written notice to the Directors, which may be
given by telecopy or electronic transmission, delivered at least
twenty (20) days in advance of the scheduled date of such
meeting. Locations of regular meetings shall normally be Seattle,
San Francisco or New York (or as otherwise agreed to by the
Board). It is intended that management from Getty Images will
provide a presentation to the Board regarding the financial and
operational aspects of Getty Images at least annually. Members of
the Board may participate in any regular meeting by means of
conference telephone or other communications equipment so long as
all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute
presence in person at the meeting. Meetings at which conference
telephone or other communications equipment are utilized shall
not be considered to occur within the United Kingdom if a
majority of participants entitled to vote at such meeting are
neither residents of the United Kingdom nor individuals
participating by conference telephone or other communications
equipment from within the United Kingdom."
m. Special Meetings of the Board of Directors. The text in Article 5.8 is
hereby deleted in its entirety and replaced with the following:
"Special Meetings of the Board - A special meeting of the Board
may be called by any Director. Such meetings shall be held upon
not less than ten (10) days' notice in writing, which may be
given by telecopy or electronic transmission, at such time and
place as the Director convening the meeting shall determine
provided the place is outside the United Kingdom. Members of the
Board may participate in any special meeting by means of
conference telephone or other communications equipment so long as
all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute
presence in person at the meeting. Meetings at which conference
telephone or other communications equipment are utilized shall
not be considered to occur within the United Kingdom if a
majority of participants entitled to vote at such meeting are
neither residents of the United Kingdom nor individuals
participating by conference telephone or other communications
equipment from within the United Kingdom."
n. Quorum for Meetings of the Board of Directors. The text in Article 5.9
is hereby deleted in its entirety and replaced with the following:
6
"Quorum for Meetings of the Board - A quorum of any regular or
special meeting of the Board shall consist of a Majority of
authorized Directors present in person or by proxy, including
presence by means of conference telephone or other communications
equipment. Decisions of the Board may also be taken by written
resolution signed by the requisite number of Directors."
o. Capital Contributions. The text in Article 8.2, clause (b)(ii), is
hereby deleted in its entirety and replaced with the following:
"(ii) calls may be made in the Sharing Ratios contained in
Schedule A on ten (10) days' written notice, which may be given
by telecopy or electronic transmission, to fund Exceptional Costs
or Acquisition Costs (provided, however, that a Member not voting
in favor of any acquisition of additional Getty Images Stock
shall not be obligated to make a Contribution for Acquisition
Costs in connection therewith and failure by such Member to make
a Contribution shall not be deemed a default under Article 8.3).
Calls for Acquisition Costs may only be made following approval
by a Majority of Members pursuant to Article 4.13 and shall be
made in accordance with that approval. Calls for Exceptional
Costs may only be made following approval by a Majority of the
Board, either of the costs in question or generally either of the
matter for which the costs were incurred or of costs of that
nature being incurred; and"
Furthermore, the text in Article 8.2, clause (c), is hereby deleted in
its entirety.
p. Distributions. The text in the last sentence of Article 9.1, clause
(c), is hereby deleted in its entirety and replaced with the
following:
"In the event of any such Distribution any such Member shall
still remain obligated to make the Commitment pursuant to
Articles 5.13 and 8.2, unless a Majority of Members (other than
the Member wishing to be relieved of its Commitment) otherwise
agree."
q. Allocations . The first sentence of Article 9.2 is hereby deleted and
replaced in its entirety with the following:
"Allocations - For each fiscal year (or shorter fiscal period as
determined by the Officer) the Capital Account of each Member for
such period shall be adjusted by crediting GI Profit or debiting
GI Loss, as the case may be, to the Capital Accounts of all the
Members in proportion to their respective Sharing Ratios. For
income tax purposes, items of income, deduction, gain, loss or
credit shall be allocated among the Members in such manner as to
reflect equitably amounts credited or debited to each Member's
Capital Account for the current and prior fiscal years (or
relevant portions thereof). Allocations for income tax purposes
under this Article 9.2 shall be made pursuant to the principles
of Sections 704(b) and 704(c) of the Code and the Regulations
thereunder."
7
r. Dissolution. The text in Article 10.1, clause (b), is hereby deleted
in its entirety and replaced with the following:
"by the written agreement of a Majority of Members at any time;"
s. Majority Consent to Permit a Member to Withdraw. The text in Article
11.5 is hereby deleted in its entirety and replaced with the
following:
"Withdrawal of Members - Without the consent of a Majority of
Members (other than the Member wishing to take the following
action), no Member shall have the right to:
(a) withdraw or resign from the Company;
(b) require the Company to redeem all or part of its Interest;
or
(c) reduce its Commitment to the Company."
3. Prospective Transfer and Substitution by GPGFT Trustees. The GPGFT Trustees
intend to assign all or a portion of their Interest (the "GPGFT Interest")
within the next twelve (12) months to either (a) a special purpose limited
liability company or other vehicle, the majority of ownership interests of
which will be held directly or indirectly by the GPGFT Trustees, or (b) a
successor trust in which Xxxxxx X. Getty or his lawful issue shall be the
income beneficiary and shall hold 100% of the income beneficial interest
and control a majority of the voting interest. The Members shall cooperate
in good faith to make such amendments to the Operating Agreement as may be
necessary to facilitate such assignment, provided that no Member shall be
required to consent to any amendment that would prejudice its economic or
legal interests in the Company.
4. Full Force and Effect. Except as modified by this Amendment, the terms and
conditions of the Operating Agreement shall remain in full force and
effect. This Amendment is intended to constitute an amendment by all
Members in accordance with Article 12.1 of the Operating Agreement (and all
Members hereby agree to waive the restrictions in Article 12.1(d) to the
extent necessary to effectuate this Amendment), and upon full execution
shall be kept with the constitutional documents of the Company.
5. Representative Capacity. It is acknowledged and agreed that: (a) the CWT
Trustee, GPGFT Trustees, RFTA Trustees and RFTB Trustees are entering into
this Amendment in their respective capacities as trustees only and not in
their individual capacities; (b) such trustees shall have no personal
liability under or arising out of this Amendment or the transactions
contemplated hereby; and (c) all payments to be made by the CWT Trustee,
GPGFT Trustees, RFTA Trustees or RFTB Trustees as contemplated by this
Amendment or the Operating Agreement shall be made from the assets of their
respective trusts and not from the personal assets of any of such trustees
individually.
6. Successors and Assigns. This Amendment shall be binding upon the parties
hereto and their respective successors and permitted assigns.
8
7. Governing Law. This Amendment shall be governed and construed and
interpreted in accordance with the laws of the State of Delaware, without
regard to choice of law provisions.
8. Counterparts. This Amendment may be executed in any number of counterparts
each of which when executed and delivered is an original, but all the
counterparts together constitute the same document.
[Signatures contained on the following page]
9
IN WITNESS WHEREOF, this Amendment has been executed by a duly authorized
representative of each of the parties hereto as of the day and year first above
written.
The Trustee of the Cheyne Walk Trust
By:
------------------------------------
Xxx X. Xxxxx
Chief Operating Officer
The Trustees of the Xxxxxx X. Getty
Family Trust
By:
------------------------------------
Xxxxxx Xxxxx Xxxxxxxxx
Trust Administrator
The Trustees of the Xxxxxx Family Trust A
By:
------------------------------------
Xxxxxx Xxxxx Xxxxxxxxx
Trust Administrator
The Trustees of the Xxxxxx Family Trust B
By:
------------------------------------
Xxx X. Xxxxx
Chief Operating Officer
Getty Investments L.L.C.,
a Delaware limited liability company
By:
------------------------------------
Xxx X. Xxxxx
Officer
10
