-----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, Rt0Rwf7wiC8SrebQ+/Nmpcr1w3w7VvHFc5Hf00U5hZPSHTabekThYIPOe3U0BZFi jQHiX+EBwCDywmHpOVILew== 0000950103-03-002037.txt : 20031015 0000950103-03-002037.hdr.sgml : 20031013 20031015133915 ACCESSION NUMBER: 0000950103-03-002037 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20031015 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GETTY IMAGES INC CENTRAL INDEX KEY: 0001047202 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 980177556 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-53603 FILM NUMBER: 03941406 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GETTY INVESTMENTS LLC CENTRAL INDEX KEY: 0001056213 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1325 AIRMOTIVE WAY STREET 2: STE 262 CITY: RENO STATE: NV ZIP: 89502-3240 BUSINESS PHONE: 7023480111 MAIL ADDRESS: STREET 1: 1325 AIRMOTIVE WAY STREET 2: STE 262 CITY: RENO STATE: NV ZIP: 89502-3240 SC 13D/A 1 oct1003_13da3.htm SC 13D/A

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

(Amendment No. 3)

GETTY IMAGES, INC.
(Name of Issuer)
 
Shares of Common Stock, par value $0.01 per share
(Title of Class of Securities)
 
374276 10 3
(CUSIP Number)
 
     Jan D. Moehl
Getty Investments L.L.C.
1325 Airmotive Way, Suite 262
Reno, Nevada 89502-3420
(775) 348-0111
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
 
Copy to:
 
     Mark J. Jenness, Esq.
Getty Investments L.L.C.
1325 Airmotive Way, Suite 262
Reno, Nevada 89502-3420
(775) 348-0111
 
October 5, 2003
(Date of Event which Requires Filing of this Statement)

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

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CUSIP No. 374276 10 3 13D  

1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)

Getty Investments L.L.C.
88-0369635
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o 
(b) x 
3 SEC USE ONLY
4 SOURCE OF FUNDS
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

9,620,043
8 SHARED VOTING POWER

0
9 SOLE DISPOSITIVE POWER

9,620,043
10 SHARED DISPOSITIVE POWER

0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

9,620,043
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
x 
 
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

17.1%
14 TYPE OF REPORTING PERSON

OO

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  Item 1. Security and Company

     The class of equity securities to which this Amendment No. 3 to Schedule 13D (this “Amendment”) relates is the common stock, par value $0.01 per share (“Shares”), of Getty Images, Inc., a Delaware corporation (“Issuer”). The principal executive offices of the Issuer are located at 601 N. 34th Street, Seattle, Washington 98103.

  Item 2. Identity and Background

  Item 2 is hereby amended in its entirety as follows:

     The principal offices of Getty Investments L.L.C. (“Getty Investments”) are located at 1325 Airmotive Way, Suite 262, Reno, Nevada, 89502-3240. Getty Investments was formed with the objective of investing in Getty Communications plc (“Getty Communications”). The Issuer was formed on February 9, 1998, when the business of Getty Communications and PhotoDisc, Inc. were combined under a scheme of arrangement and merger (the “Merger”).

     The members of Getty Investments are four Getty family trusts (the “Getty Trusts”). The Getty Trusts are the Cheyne Walk Trust, the Ronald Family Trust A, the Ronald Family Trust B and the Gordon P. Getty Family Trust. The Getty Trusts own, collectively, 100% of the membership interests of Getty Investments, with the Cheyne Walk Trust, the Ronald Family Trust A, the Ronald Family Trust B and the Gordon P. Getty Family Trust owning 47.4%, 21.0%, 17.6% and 14.0%, respectively.

     Prior to July 16, 2003, Transon Ltd. (“Transon”) was a fifth member of Getty Investments, holding a 10.71% membership interest. Transon is a nominee company for Sir Paul Getty, who died on April 17, 2003. On July 16, 2003, Getty Investments redeemed Transon’s membership interest in full at a redemption price of $30,510,883, representing Transon’s proportionate interest in the Shares owned by Getty Investments at the price of $29.60 per share (the price of the publicly traded Shares reported on the New York Stock Exchange at the close of business on April 17, 2003). The redemption of Transon’s membership interest in Getty Investments was endorsed by the Getty Trusts, which made additional capital commitments to fund the redemption price to Transon. This redemption did not affect Getty Investments’ ownership of the Shares.

     Getty Investments is governed by the Restated Limited Liability Company Agreement of Getty Investments L.L.C., among the Getty Trusts and 525 Investments Limited, the predecessor in interest to Transon, dated as of February 9, 1998, and amended on October 26, 1999, November 1, 2001, July 1, 2003 and October 5, 2003 (the “Getty Investments Company Agreement”). The Getty Investments Company Agreement provides that the board of directors of Getty Investments will consist of seven directors. Each member (with the Ronald Family Trust A and Ronald Family Trust B being combined for this purpose) can appoint and replace two directors for so long as the member maintains a 10% ownership interest in Getty Investments. The seventh director is Jonathan Klein for so long as he remains the chief executive officer of the Issuer. In the event Jonathan Klein ceases to be the chief executive officer of the Issuer, the seventh directorship position will be eliminated unless and until a majority in interest of the members votes to appoint a successor to fill such position. Mark Getty will serve as the chairman of the board of Getty Investments for so long as he serves as a director of Getty Investments.

     Unless otherwise provided in the Getty Investments Company Agreement, actions by the company are taken by the vote or consent of its board of directors, acting by a simple majority of the total number of directors (i.e., four directors). Notwithstanding the foregoing, any decisions regarding the purchase, sale, disposition, pledge or encumbrance of Shares or other material assets of Getty Investments requires the advance approval of a majority in interest of the members. The Getty Investments Company Agreement has been extended to October 5, 2006, unless earlier terminated upon the written agreement of a majority in interest of the members.

     The directors and executive officer of Getty Investments are set forth on Schedule I attached hereto. Schedule I sets forth the following information with respect to each such person:

     (i) name;

     (ii) business address;

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     (iii) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted; and

     (iv) citizenship.

     During the last five years, neither Getty Investments nor any person named in Schedule I attached hereto has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

  Item 5. Interest in Securities of Issuer

  Item 5 is hereby amended in its entirety as follows:

     Based on the most recent information available to Getty Investments, Getty Investments is deemed to beneficially own the number of Shares and the percentage of outstanding Shares listed in the responses to Items 11 and 13, respectively, on the cover page filed herewith, and such responses are incorporated by reference herein. Getty Investments does not share voting power or dispositive power with any other person or entity.

     The following individuals listed on Schedule I attached hereto are beneficial owners of Shares with respect to which Getty Investments disclaims beneficial ownership:

     Mark H. Getty is the beneficial owner of 15,000 Shares, as well as an additional 1,855,651 Shares by virtue of his right to acquire, within 60 days after the date of this Amendment, such Shares pursuant to the exercise of options outstanding under the Getty Images Stock Incentive Plan. He has sole power to vote (or direct the vote of) and sole power to dispose of (or direct the disposition of) all such Shares. He may also be deemed to be the beneficial owner of 622,602 Shares held by Abacus (C.I.) Limited as Trustee of The October 1993 Trust.

     Jonathan D. Klein is the beneficial owner of 15,900 Shares, as well as an additional 1,603,485 Shares by virtue of his right to acquire, within 60 days after the date of this Amendment, such Shares pursuant to the exercise of options outstanding under the Getty Images Stock Incentive Plan. He has sole power to vote (or direct the vote of) and sole power to dispose of (or direct the disposition of) all such Shares. He may also be deemed to be the beneficial owner of 362,602 Shares held by Abacus Trust Company Limited as Trustee of the JD Klein Family Settlement (the “Klein Family Trust”).

     Tara G. Getty is the beneficial owner of 1,650 Shares. He has the sole power to vote (or direct the vote of) and sole power to dispose of (or direct the disposition of) all such Shares.

     William P. Getty is the beneficial owner of 15,172 Shares. As the general partner of GPG/Billy Partners, L.P., which directly owns these Shares, he has the sole power to vote (or direct the vote of) and sole power to dispose of (or direct the disposition of) all such Shares. Mr. Getty owns 1% of GPG/Billy Partners, L.P., and his father owns the remaining 99%. In addition, Mr. Getty is entitled to a 20% management fee on the appreciation of all partnership property.

     G. Peter Getty, Jr. is the beneficial owner of 10,000 Shares. He has the sole power to vote (or direct the vote of) and sole power to dispose of (or direct the disposition of) all such Shares.

     Pierre du Preez is the beneficial owner of 1,100 Shares. He shares, with Cecilia du Preez, the power to vote (or direct the vote of) and the power to dispose of (or direct the disposition of) all such Shares.

     Alexander Waibel is the beneficial owner of no Shares.

     Jan D. Moehl is the beneficial owner of 23,500 Shares. He shares, with Kathleen W. Moehl, the power to vote (or direct the vote of) and the power to dispose of (or direct the disposition of) all of such Shares.

     Except as described herein, neither Getty Investments nor any party referred to above, has acquired or disposed of, or entered into any other transaction with respect to, any Shares during the past 60 days.

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  Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of Issuer

  Item 6 is hereby amended to include the following:

     Getty Investments entered into the following agreements and arrangements in connection with its beneficial ownership of Shares to which this Amendment relates. The summaries below do not purport to be complete and are subject, and qualified in their entirety by reference, to all the terms and provisions contained within the actual agreements.

     A. Amendments to the Restated Limited Liability Company Agreement of Getty Investments.

     The Getty Trusts and Transon entered into a Second Amendment to Restated Limited Liability Company Agreement, dated as of November 1, 2001 (the “Second Amendment”), to clarify certain provisions in the Getty Investments Company Agreement. The Second Amendment made clear that the death of an individual member, such as Sir Paul Getty (through his ownership in the nominee company Transon), would not cause an automatic dissolution of Getty Investments. The Second Amendment also established the right of Getty Investments, upon the consent of a majority in interest of the members other than Transon, to redeem the membership interest of Transon in the event of Sir Paul Getty’s death.

     The Getty Trusts, Transon and Getty Investments entered into a Third Amendment to Restated Limited Liability Company Agreement, dated as of July 1, 2003 (the “Third Amendment”), to make additional modifications to the Getty Investments Company Agreement following Sir Paul Getty’s death on April 17, 2003. Under the Third Amendment, Transon’s 10.71% membership interest in Getty Investments was redeemed in full by Getty Investments for a price of $30,510,883. This amount represented Transon’s capital account value as of April 17, 2003, based on Transon’s proportionate “look-though” interest in the Shares owned by Getty Investments. Consistent with Getty Investments’ accounting practice, these Shares were valued on a “marked-to-market” basis based on the price of the publicly traded Shares reported on the New York Stock Exchange at the close of business on April 17, 2003. The redemption price to Transon consisted of cash in the amount of $19,832,575 and an unsecured promissory note of Getty Investments in the amount of $10,678,308 (the “Transon Note”). The Transon Note bears interest at the reference rate quoted from time to time by Bank of America, N.A. and is due on the earlier of July 16, 2006 or a “Dissolution Event”, as such term is defined in the Getty Investments Company Agreement.

     The redemption of Transon’s interest in Getty Investments closed on July 16, 2003. The redemption price was funded by additional capital commitments made by the Getty Trusts in accordance with their respective percentage interests in Getty Investments. The Cheyne Walk Trust and the Ronald Family Trust B made an aggregate cash contribution of $19,832,575, and the Gordon P. Getty Family Trust and the Ronald Family Trust A made a commitment of $10,678,308 which will be payable to Getty Investments with interest over a period of time coinciding with Getty Investments’ obligation to make payments under the terms of the Transon Note. Payment of principal and interest on the Transon Note by Getty Investments is severally guaranteed by the Gordon P. Getty Family Trust and the Ronald Family Trust A.

     The Getty Trusts and Getty Investments entered into a Fourth Amendment to Restated Limited Liability Company Agreement, dated as of October 5, 2003 (the “Fourth Amendment”). The Fourth Amendment provides for a new three year term of Getty Investments, expiring on October 5, 2006, unless earlier terminated by the written agreement of a majority in interest of the members. In addition to making various technical amendments to the Getty Investments Company Agreement, the Fourth Amendment makes certain changes to improve the governance of Getty Investments. The board of directors of Getty Investments is increased from six to seven directors, with each of the members (the Ronald Family Trust A and the Ronald Family Trust B being combined for this purpose) being able to appoint and replace two directors for so long as the member maintains a 10% ownership interest in Getty Investments. The seventh director is Jonathan Klein for so long as he remains the chief executive officer of the Issuer. In the event Jonathan Klein ceases to be the chief executive officer of the Issuer, the seventh directorship position shall be eliminated unless and until a majority in interest of the members votes to appoint a successor to fill such position. Mark Getty shall serve as the chairman of the board of Getty Investments for so long as he serves as a director of Getty Investments.

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     Unless otherwise provided in the Getty Investments Company Agreement, actions of Getty Investments are taken by the vote or consent of its board of directors, acting by a simple majority of the total number of directors (i.e., four directors). Notwithstanding the foregoing, any decisions regarding the purchase, sale, disposition, pledge or encumbrance of Shares or other material assets of Getty Investments requires the advance approval of a majority in interest of the members. The board of directors is expected to meet twice a year. The Fourth Amendment also made certain changes to provide generally that action by the members of Getty Investments may be undertaken by the vote or consent of members holding a majority of membership interests rather than unanimously.

     The foregoing description of the Second Amendment to Getty Investments Company Agreement, the Third Amendment to Getty Investments Company Agreement, and the Fourth Amendment to Getty Investments Company Agreement are qualified in their entirety by reference to such amendments, copies of which are attached hereto as Exhibits 1, 2 and 3, respectively.

     B. Third Amendment to the Stockholders’ Agreement.

     In connection with the Merger, the Issuer, the Getty Group (as defined below) and the Torrance Group (as defined below) entered into a Stockholders’ Agreement, dated as of February 9, 1998, as amended, which, among other things provides for representation by the Getty Group and the Torrance Group on the Issuer’s board of directors and limits the rights of the parties to transfer their respective Shares except in certain defined instances. The “Getty Group” refers collectively to Getty Investments, Mark Getty, Jonathan Klein, The October 1993 Trust (a trust established by Mark Getty) and Crediton Limited (as the predecessor in interest to the Klein Family Trust). The “Torrance Group” refers collectively to PDI L.L.C., Mark Torrance and Wade Ballinger (the former wife of Mark Torrance) and certain of their family members.

     Under the Stockholders’ Agreement, the obligations and rights of either the Getty Group or the Torrance Group relating to the right to nominate one director to the board of directors of the Issuer and the rights of first refusal with respect to the proposed transfer of shares by either the Getty Group or the Torrance Group will terminate when the Getty Group or the Torrance Group, as the case may be, and such group’s permitted transferees, collectively beneficially own fewer than the greater of (i) 3,000,000 Shares, and (ii) such number of Shares as is equal to two percent of then the outstanding Shares.

     By May 1, 2003, the Torrance Group fell below the minimum ownership threshold set out in the Stockholders’ Agreement. The Issuer, the Getty Group and the Torrance Group entered into a Third Amendment to Stockholders Agreement, dated as of May 1, 2003, pursuant to which the Torrance Group was removed as a party to the Stockholders Agreement.

     The foregoing description of the Third Amendment to Stockholders Agreement is qualified in its entirety by reference to such amendment, a copy of which is attached hereto as Exhibit 4.

     C. Restated Shareholders’ Agreement.

     In connection with the Merger, the Issuer, Getty Investments, Mark Getty, Jonathan Klein, The October 1993 Trust and Crediton Limited (as the predecessor in interest to the Klein Family Trust) entered into a Restated Shareholders’ Agreement, dated February 9, 1998, as amended (the “Getty Parties Shareholders Agreement”). The Getty Parties Shareholders’ Agreement provided, among other things, that the Shares held by The October 1993 Trust and the Klein Family Trust would be voted as directed by the board of directors of Getty Investments, and that a right of first refusal would apply in connection with the sale of Shares by any party other than the Issuer, except for certain excluded permitted transfers.

     The Getty Parties Shareholders’ Agreement expired by its terms on July 7, 2003 and was not renewed. Accordingly, Getty Investments no longer has the right to direct the vote of the Shares held by any person or entity other than itself.

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  Item 7. Materials To Be Filed As Exhibits

Description Exhibit Number
   
Second Amendment to Restated Limited Liability Company Agreement, dated as of November 1, 2001, among the Trustees of the Cheyne Walk Trust, the Trustees of the Gordon P. Getty Family Trust, the Trustees of the Ronald Family Trust A, the Trustees of the Ronald Family Trust B, and Transon Limited. 1
   
Third Amendment to Restated Limited Liability Company Agreement, dated as of July 1, 2003, among the Trustee of the Cheyne Walk Trust, the Trustees of the Gordon P. Getty Family Trust, the Trustees of the Ronald Family Trust A, the Trustees of the Ronald Family Trust B, and Transon Limited. Trustees of the Ronald Family Trust B, Transon Limited, and Getty Investments L.L.C. 2
   
Fourth Amendment to Restated Limited Liability Company Agreement, dated as of October 5, 2003, among the Trustee of the Cheyne Walk Trust, the Trustees of the Gordon P. Getty Family Trust, the Trustees of the Ronald Family Trust A, the Trustees of the Ronald Family Trust B, and Getty Investments L.L.C. 3
   
Third Amendment to Stockholders Agreement, dated as of May 1, 2003, among Getty Images, Inc., Getty Investments L.L.C., Mark Getty, Jonathan Klein, Abacus (C.I.) Limited, as trustee of The October 1993 Trust, Abacus Trust Company Limited, as trustee for the JD Klein Family Settlement, Mark Torrance, Wade Ballinger and PDI L.L.C. 4

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SIGNATURE

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

October 14, 2003
Date
 
 
 
   /s/ Jan D. Moehl
Signature
 
 
 
Jan D. Moehl/Officer
(Name/Title)


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Schedule I is hereby amended and restated as follows:

SCHEDULE I

The name and present principal occupation of each of the executive officers and directors of Getty Investments, L.L.C. are set forth below. Unless otherwise noted, each of these persons is a United States citizen. Their respective business addresses are set forth below.

  POSITION WITH GETTY  
NAME INVESTMENTS PRINCIPAL OCCUPATION
     
Mark H. Getty Chairman of the Board, Executive Chairman of the Board of Getty
(Irish citizenship) Director Images, Inc.
    601 N. 34th Street
    Seattle, WA 98103
     
Jonathan D. Klein Director Chief Executive Officer of Getty Images, Inc.
(United Kingdom citizenship)   601 N. 34th Street
    Seattle, WA 98103
     
Tara G. Getty Director President
(Irish citizenship)   Zuka Holdings LLC
    1325 Airmotive Way, Suite 262
    Reno, NV 89502
     
William P. Getty Director President
    WG Investment, Inc.
    1325 Airmotive Way, Suite 225
    Reno, NV 89502
     
G. Peter Getty, Jr. Director President
    GPG Investment, Inc.
    1325 Airmotive Way, Suite 225
    Reno, NV 89502
     
Alexander Waibel Director Executive Director
(Austrian citizenship)   BMD Textiles (Pty) Ltd.
    108 De Waal Road
    Diep River
    7800 Cape
    Republic of South Africa
     
Pierre du Preez Director Vice President
(South African citizenship)   GFT LLC
    1325 Airmotive Way, Suite 262
    Reno, NV 89502
     
Jan D. Moehl Officer Chief Operating Officer
    Cheyne Walk Trust
    1325 Airmotive Way, Suite 262
    Reno, NV 89502

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EXHIBIT INDEX

Description Exhibit Number
   
Second Amendment to Restated Limited Liability Company Agreement, dated as of November 1, 2001, among the Trustees of the Cheyne Walk Trust, the Trustees of the Gordon P. Getty Family Trust, the Trustees of the Ronald Family Trust A, the Trustees of the Ronald Family Trust B, and Transon Limited. 1
   
Third Amendment to Restated Limited Liability Company Agreement, dated as of July 1, 2003, among the Trustee of the Cheyne Walk Trust, the Trustees of the Gordon P. Getty Family Trust, the Trustees of the Ronald Family Trust A, the Trustees of the Ronald Family Trust B, Transon Limited, and Getty Investments L.L.C. 2
   
Fourth Amendment to Restated Limited Liability Company Agreement, dated as of October 5, 2003, among the Trustee of the Cheyne Walk Trust, the Trustees of the Gordon P. Getty Family Trust, the Trustees of the Ronald Family Trust A, the Trustees of the Ronald Family Trust B, and Getty Investments L.L.C. 3
   
Third Amendment to Stockholders Agreement, dated as of May 1, 2003, among Getty Images, Inc., Getty Investments L.L.C., Mark Getty, Jonathan Klein, Abacus (C.I.) Limited, as trustee of The October 1993 Trust, Abacus Trust Company Limited, as trustee for the JD Klein Family Settlement, Mark Torrance, Wade Ballinger and PDI L.L.C. 4

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 EX-1 3 oct1003_ex01.txt EXHIBIT 1 SECOND AMENDMENT TO RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF GETTY INVESTMENTS L.L.C. THIS SECOND AMENDMENT TO RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this "Amendment") is made as of November 1, 2001 among the following parties: (1) THE TRUSTEES OF THE CHEYNE WALK TRUST, whose registered office is located at 1325 Airmotive Way, Suite 262, Reno, Nevada 89502 ("CWT Trustees"); (2) THE TRUSTEES OF THE GORDON P. GETTY FAMILY TRUST, whose registered office is located at 1325 Airmotive Way, Suite 264, Reno, Nevada 89502 ("GPGFT Trustees"); (3) THE TRUSTEES OF THE RONALD FAMILY TRUST A, whose registered office is located at 1325 Airmotive Way, Suite 264, Reno, Nevada 89502 ("RFTA Trustees"); (4) THE TRUSTEES OF THE RONALD FAMILY TRUST B, whose registered office is located at 1325 Airmotive Way, Suite 262, Reno, Nevada 89502 ("RFTB Trustees"); and (5) TRANSON LIMITED, whose registered office is located at c/o Macfarlanes, 10 Norwich Street, London EC4A 1BD, England ("Transon"). WHEREAS, (A) The parties have entered into a Restated Limited Liability Company Agreement, dated as of February 9, 1998, and amended by an Agreement and Waiver, dated as of October 26, 1999 (collectively, the "Operating Agreement"), pursuant to which the affairs of Getty Investments L.L.C., a Delaware limited liability company (the "Company"), are governed. (B) The Operating Agreement provides for the automatic termination in the event a Member who is an individual dies or retires. (C) Transon is a nominee of Sir Paul Getty and therefore the Interest of Transon Limited is held in a representative capacity, raising an issue whether the Company is subject to termination upon the death of Sir Paul Getty. (D) The Members desire to avoid a premature termination of the Company due to the death of Sir Paul Getty, and are willing to amend the Operating Agreement to prevent that occurrence. IT IS AGREED as follows: 1. Definitions. All expressions defined in the Operating Agreement shall bear the same meaning in this Agreement. Unless otherwise indicated, section references used in this Agreement shall correspond to those of the Operating Agreement. 2. Amendment to the Operating Agreement. The Operating Agreement is hereby amended as follows: a. Section 1.18 is hereby amended to delete the words "death, retirement" in their entirety. b. Section 11.1 is hereby amended so at the end of that paragraph the following is added: "Notwithstanding the foregoing, upon the death of Sir Paul Getty (the "Assignment Event") with the consent of a Majority of the Members (other than Transon), the Company may redeem the Interest of Transon by payment of Money, Property or promissory note, in each case in an amount equal to the Capital Account of Transon as of the date of the Assignment Event. If paid by promissory note, such note shall be payable not more than three years from the date of the Assignment Event and shall bear interest at the quoted reference rate of Bank of America, N.A." c. The parties hereto agree that upon an Assignment Event, if the Company does not elect to redeem the Interest of Transon pursuant to Section 2(b) above within 90 days after the occurrence of the Assignment Event, upon the transfer of the Interest held by Transon to any charitable trust, corporation, organization or other entity which qualifies for the U.S. Federal estate tax charitable deduction allowed to the estate of a non-resident not a citizen of the United States of America (the "Permitted Transferee") the following shall be waived and disapplied: (i) the consent requirement of the other Members to transfer such Interest pursuant to Section 11.1, so long as the other requirements under Section 11.2 are otherwise met; and (ii) the legal opinion requirement contained in Sections 11.2 and 11.3, so long as counsel for the Company is satisfied that the requirements of Section 11.3 are otherwise met. In such event, the Members shall recognize the Permitted Transferee as a Substitute Member pursuant to Section 11.4. 3. Full Force and Effect. Except as amended 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 Section 12.1 of the Operating Agreement, and upon full execution shall be kept with the constitutional documents of the Company. 4. Representative Capacity. It is acknowledged and agreed that: (a) the CWT Trustees, GPGFT Trustees, RFTA Trustees and RFTB Trustees are entering into this Amendment in their respective capacities as trustees only and not in their respective 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 Trustees, 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. 5. 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. 6. 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. IN WITNESS WHEREOF, this Amendment has been executed by a duly authorized representative of each of the parties hereto the day and year first above written. The Trustees of the Cheyne Walk Trust By: ---------------------------------------- Jan D. Moehl Chief Operating Officer The Trustees of the Gordon P. Getty Family Trust By: ---------------------------------------- Thomas Edwin Woodhouse Trust Administrator The Trustees of the Ronald Family Trust A By: ---------------------------------------- Thomas Edwin Woodhouse Trust Administrator The Trustees of the Ronald Family Trust B By: ---------------------------------------- Jan D. Moehl Chief Operating Officer Transon Limited By: ---------------------------------------- Malcolm J. Ridley Director EX-2 4 oct1003_ex02.txt EXHIBIT 2 THIRD AMENDMENT TO RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF GETTY INVESTMENTS L.L.C. THIS THIRD AMENDMENT TO RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this "Amendment") is made as of July 1, 2003 among the following parties: (1) THE TRUSTEE OF THE CHEYNE WALK TRUST, whose registered office is located at 1325 Airmotive Way, Suite 262, Reno, Nevada 89502, USA ("CWT Trustee"); (2) THE TRUSTEES OF THE GORDON P. GETTY FAMILY TRUST, whose registered office is located at 1325 Airmotive Way, Suite 264, Reno, Nevada 89502, USA ("GPGFT Trustees"); (3) THE TRUSTEES OF THE RONALD FAMILY TRUST A, whose registered office is located at 1325 Airmotive Way, Suite 264, Reno, Nevada 89502, USA ("RFTA Trustees"); (4) THE TRUSTEES OF THE RONALD FAMILY TRUST B, whose registered office is located at 1325 Airmotive Way, Suite 262, Reno, Nevada 89502, USA ("RFTB Trustees"); (5) TRANSON LIMITED, whose registered office is located at c/o Macfarlanes, 10 Norwich Street, London EC4A 1BD, England ("Transon"); and (6) GETTY INVESTMENTS L.L.C., a Delaware limited liability company, whose registered office is located at 1325 Airmotive Way, Suite 262, Reno, Nevada 89502 (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, and a Second Amendment to Restated Limited Liability Company Agreement, dated as of November 1, 2001 (collectively, the "Operating Agreement"), pursuant to which the affairs of the Company are governed. (B) The Operating Agreement provides that the Interest held in the name of Transon may be redeemed by the Company with the consent of a Majority of the Members (other than Transon) upon the death of Sir Paul Getty. (C) Sir Paul Getty died in London on April 17, 2003. (D) The Members, representing one hundred percent of the Interests, wish to cause the Company to redeem Transon's Interest and to make additional modifications to the Operating Agreement. IT IS AGREED as follows: 1. Definitions. All expressions defined in the Operating Agreement shall bear the same meanings in this Agreement. Unless otherwise indicated, article references used in this Agreement shall correspond to those of the Operating Agreement. 2. Amendment to the Operating Agreement. The Operating Agreement is hereby amended as follows: a. Redemption of Transon Interest. The Company shall redeem the Interest of Transon in its entirety for a redemption price of $30,510,883, representing Transon's entire Capital Account as of April 17, 2003 (the "Transon Redemption Price"). The closing of the redemption of the Interest of Transon and the payment of the Transon Redemption Price shall occur on July 16, 2003 (or such other date as may be agreed by all the parties) at the Company's office in Reno, Nevada (the "Closing"). The Transon Redemption Price shall consist of (i) cash of $19,832,574.55 payable in immediately available funds by wire transfer in accordance with the wire instructions provided by Transon, and (ii) an unsecured promissory note of the Company in the principal amount of $10,678,308.45 in the form of Exhibit A hereto (the "Transon Note"), delivered to Transon on the Closing. Transon represents and warrants to the Company as of the date hereof and as of the date of Closing that (x) it holds its Interest as a bare trustee for JPMorgan Chase Bank, a New York corporation, as the trustee of the Victoria Jane Lady Getty U.S. Trust and has full authority from JPMorgan Chase Bank as such trustee to enter into this Amendment and to consummate the transactions contemplated herein, (y) it has good and marketable title to the Interest, free and clear of all liens, pledges, encumbrances or other adverse claims of right, and (z) it shall remain responsible for all tax consequences relating to its ownership of the Interest through the date of redemption of the Interest (including any capital gains due in respect of the redemption, if applicable). Upon receipt by Transon of the Transon Redemption Price, Transon shall cease to be a Member and shall have no further right, title, interest or claim in and to the Interest or the Company, including without limitation any indirect interest in the Getty Images Stock held by the Company; provided, however, that subsequent to the Closing Transon shall have rights as a creditor of the Company with respect to the Transon Note. Effective on the Closing, the Interest of Transon shall be canceled and stricken from the Company's books, and Schedules A and B to the Operating Agreement shall be replaced with Schedules A and B hereto (and on the Closing the "Members" of the Company shall be as set forth therein). b. Additional Commitment to Fund Transon Redemption. A new Article 8.2(d) is hereby added to the Operating Agreement to read as follows: 2 "(d) The Members (excluding Transon) hereby increase their Commitments in an aggregate amount of $30,510,883 for the purpose of financing the redemption of the Interest of Transon (the "Redemption Commitment"). Each such Member's share of the Redemption Commitment (the "Redemption Commitment Share") is as follows: The CWT Trustee $14,476,027.50 The RFTA Trustees $ 6,406,985.07 The RFTB Trustees $ 5,356,547.05 The GPGFT Trustees $ 4,271,323.38 "Each such Member promises to make a Capital Contribution to the Company according to its Redemption Commitment Share. In the case of the CWT Trustee and the RFTB Trustees, their Redemption Commitment Shares shall be contributed to the Company in cash on or prior to the date of the Closing. In the case of the RFTA Trustees and the GPGFT Trustees (the "Deferring Members"), their Redemption Commitment Shares shall be contributed to the Company over a period of time coinciding with the Company's obligation to make payments under the terms of the Transon Note (although a Deferring Member may at any time elect to contribute all or a portion of its Redemption Commitment Share sooner, in which case the Company shall promptly prepay the Transon Note by a like amount). For the privilege of deferring payment of their Redemption Commitment Shares, the Deferring Members shall increase their respective Redemption Commitment Shares by an amount equal to the interest payable by the Company under the Transon Note, as and when due (it being understood that the Capital Commitments of the Deferring Members shall be increased and paid to the Company only as interest is due on the Transon Note). Each Deferring Member's Redemption Commitment Share is a continuing obligation of such Person and, except to the extent such Deferring Member makes a payment under its guaranty as set forth in Article 4.4 (in which case its Commitment shall be reduced by the amount of such payment), the Deferring Member's Redemption Commitment Share is not subject to reduction, offset or claim by such Deferring Member against the Company, and shall be payable without regard to the investment performance of the Getty Images Stock held by the Company." c. Guaranty of Transon Note. Article 4.4 of the Operating Agreement is hereby amended to add the following new paragraph after the end of the existing paragraph: "Notwithstanding the foregoing, by its signature below each of the Deferring Members, severally and not jointly, hereby guarantees the full payment and performance of principal on the Transon Note by the Company, up to the amount of such Deferring Member's Redemption Commitment Share. Such guaranty shall be enforceable by Transon upon an Event of Default (as such term is specified in the Transon Note) against the Deferring Member, and no other Member or a Person that is a Related Person shall bear the economic 3 risk of loss for the Deferring Member's obligation. The obligation of a Deferring Member under this guaranty shall be reduced on a dollar-for-dollar basis by Capital Contributions made by such Deferring Member of its Redemption Commitment Share as provided in Article 8.2(d) (and for avoidance of doubt, upon payment in full of a Deferring Member's Redemption Commitment Share to the Company such Deferring Member's guaranty shall be extinguished). This guaranty provided by each Deferring Member is intended to constitute a pro rata assumption of the Company's liability for repayment of principal on the Transon Note by the Deferring Member resulting in (i) an increase in the Deferring Member's basis in its Interest pursuant to Code Sections 752(a) and 722 and Treasury Regulation Section 1.752-1(d), and (ii) an increase in the Deferring Member's Capital Account pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(c), each in an amount equal to the Deferring Member's respective Redemption Commitment Share. Conversely, Capital Contributions in cash by the Deferring Member of its Redemption Commitment Share as and when paid to the Company shall reduce the Deferring Member's assumption of such Company liability resulting in a corresponding decrease in such Deferring Member's basis in its Interest and Capital Account (although for the avoidance of doubt the Deferring Member's basis in its Interest and Capital Account shall be in turn increased by the money actually contributed to the Company in accordance with Code Sections 722 and Treasury Regulation Section 1.704-1(b)(2)(iv)(b)). This guaranty is intended to keep the Capital Accounts of the Members in the same proportions as if the Deferring Members had paid their respective Redemption Commitment Shares in cash on the Closing, rather than on a deferred basis." d. Special Allocation of Interest on Transon Note. Article 9.2 of the Operating Agreement is hereby amended to add the following sentence at the end of the existing paragraph: "Notwithstanding the foregoing, interest expense of the Company under the terms of the Transon Note shall be specially allocated to the Deferring Members according to their respective outstanding Redemption Commitment Shares". e. Extension of Company Term. In Article 2.3 of the Operating Agreement, the date "7 July 2003" is hereby deleted and replaced with the date "6 October 2003". References in the Operating Agreement to the fixed term or duration shall mean the period ending on 6 October 2003. f. Board of Directors. Article 4.2 of the Operating Agreement is hereby deleted in its entirety and replaced with the following: "Board of Directors and Chairman - The Board shall consist of six Directors appointed by the Members, who shall designate one Director as Chairman. 4 The Members agree that the Board shall consist of one Person representing each of the Members, plus Mark Getty (who shall act as Chairman) and Jonathan Klein. 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 is to 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 any such notice. Upon any Member which has the right to appoint a Director withdrawing from the Company the right to appoint a Director by such withdrawing Member shall be eliminated and the size of the Board shall be reduced accordingly. The appointment of Mark Getty and Jonathan Klein shall remain in place so long as each is actively involved in the affairs of Getty Images. 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 Persons serving on a committee appointed by the Board, be residents of the United Kingdom." g. Conference Call Meetings Outside the United Kingdom. Articles 4.7, 4.8, 5.7 and 5.8 of the Operating Agreement are hereby amended to add the following sentence at the end of each provision: "Meetings conducted by telephone 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 Persons calling from within the United Kingdom." 3. 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. 4. 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 respective 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. 5. Successors and Assigns. This Amendment shall be binding upon the parties hereto and their respective successors and permitted assigns. As used herein "Transon" shall mean Transon 5 Limited and any permitted assignee of the Transon Note, including the trustee or trustees of the Victoria Jane Lady Getty U.S. Trust. 6. 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. 7. 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] 6 IN WITNESS WHEREOF, this Amendment has been executed by a duly authorized representative of each of the parties hereto the day and year first above written. The Trustee of the Cheyne Walk Trust By: ----------------------------------- Jan D. Moehl Chief Operating Officer The Trustees of the Gordon P. Getty Family Trust By: ----------------------------------- Thomas Edwin Woodhouse Trust Administrator The Trustees of the Ronald Family Trust A By: ----------------------------------- Thomas Edwin Woodhouse Trust Administrator The Trustees of the Ronald Family Trust B By: ----------------------------------- Jan D. Moehl Chief Operating Officer Transon Limited By: ----------------------------------- Name: Title: 7 Getty Investments L.L.C., a Delaware limited liability company By: ----------------------------------- Jan D. Moehl Officer Acknowledged and Confirmed: JPMorgan Chase Bank, as trustee of the Victoria Jane Lady Getty U.S. Trust By: ------------------------------------- Name: Title: 8 Schedule A Schedule of Capital Account Balances and Sharing Ratios (Pro forma as of July 16, 2003) Name of Member and Notice Address Capital Account* Sharing Ratio - --------------------------------- ---------------- ------------- Trustee of the Cheyne Walk Trust $135,162,393.42 47.4455% 1325 Airmotive Way, Suite 262 Reno, Nevada 89502 Attn: Jan D. Moehl Trustees of the Ronald Family Trust A $ 59,821,897.76 20.9990% 1325 Airmotive Way, Suite 264 Reno, Nevada 89502 Attn: Thomas E. Woodhouse Trustees of the Ronald Family Trust B $ 50,013,977.97 17.5562% 1325 Airmotive Way, Suite 262 Reno, Nevada 89502 Attn: Jan D. Moehl Trustees of the Gordon P. Getty Family Trust $ 39,881,265.17 13.9993% 1325 Airmotive Way, Suite 264 Reno, Nevada 89502 Attn: Thomas E. Woodhouse --------------- --------- Total $284,879,534.32 100.0000% * Capital Account balances shown are subject to further adjustment for accruals and stock price changes occurring after April 17, 2003. Schedule B Schedule of Capital Contributions (Pro forma as of July 16, 2003) GETTY INVESTMENTS LLC SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003 Running and Transon Ltd. All Members Date Acquisition Lock-Up Exceptional Redemption Total ** * Capital Commitments 7/16/2003 $ 119,037,253 $ 2,312,549 $ 1,800,000 $ 30,510,883 $ 153,660,685 ============== ============ ============ ============= ============== Capital Contributions: Contribution of Interest in GIH 7/8/1996 44,273,990 40,309 869 44,315,168 Anti-Dilution re Carlton, Lock-Up Fees, & Running Costs 12/18/1996 16,008,015 578,450 33,535 16,620,000 -------------- ------------ ------------ ------------- -------------- Total 1996 Contributions 60,282,005 618,759 34,404 - 60,935,168 -------------- ------------ ------------ ------------- -------------- Purchase of Stone/Thornley Shares 5/30/1997 11,667,713 5,087 11,672,800 Lock-Up Fees 7/7/1997 560,000 560,000 -------------- ------------ ------------ ------------- -------------- Total 1997 Contributions 11,667,713 560,000 5,087 - 12,232,800 -------------- ------------ ------------ ------------- -------------- Purchase of Getty Images Shares 2/6/1998 28,300,000 28,300,000 Lock-Up Fees 7/7/1998 614,000 60,000 674,000 -------------- ------------ ------------ ------------- -------------- Total 1998 Contributions 28,300,000 614,000 60,000 - 28,974,000 -------------- ------------ ------------ ------------- -------------- Lock-Up Fees 7/6/1999 213,000 75,000 288,000 Purchase of Getty Images Shares 10/26/1999 32,000,000 32,000,000 -------------- ------------ ------------ ------------- -------------- Total 1999 Contributions 32,000,000 213,000 75,000 - 32,288,000 -------------- ------------ ------------ ------------- -------------- Lock-Up Fees 7/8/2000 202,000 202,000 -------------- ------------ ------------ ------------- -------------- Total 2000 Contributions - 202,000 - - 202,000 -------------- ------------ ------------ ------------- -------------- Lock-Up Fees 7/8/2001 197,000 197,000 -------------- ------------ ------------ ------------- -------------- Total 2001 Contributions - 197,000 - - 197,000 -------------- ------------ ------------ ------------- -------------- Runing & Exceptional Costs 2/4/2002 450,000 450,000 Lock-Up Fees 7/8/2002 208,956 208,956 Running Cost 11/12/2002 105,000 105,000 -------------- ------------ ------------ ------------- -------------- Total 2002 Contributions - 208,956 555,000 - 763,956 -------------- ------------ ------------ ------------- -------------- Runing & Exceptional Costs - Transon Ltd. Redemption 07/16/03 (13,212,465) (301,166) - 30,510,883 16,997,252 -------------- ------------ ------------ ------------- -------------- Total 2003 Contributions (13,212,465) (301,166) - 30,510,883 16,997,252 -------------- ------------ ------------ ------------- -------------- Cumulative Capital Contributions 7/16/2003 $ 119,037,253 $ 2,312,549 $ 729,491 $ 30,510,883 $ 152,590,176 ============== ============ ============ ============= ============== Unfunded Capital Commitments 7/16/2003 $ - $ - $ 1,070,509 $ - $ 1,070,509 ============== ============ ============ ============= ==============
* Due to the death of Sir Paul Getty on 4/17/03, Transon Ltd.'s interest will be redeemed by the remaining members on 7/16/03. CWT and RFTB will contribute cash, while RFTA and GGFT will make commitments to fund the capital calls (and guaranties to pay the Company's promissory note to Transon Ltd.) needed to complete the redemption. ** Included $78,859 of expenses paid in by Transon Ltd./525 Investments Ltd. during its term as a Member. GETTY INVESTMENTS LLC SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003 Running and Transon Ltd. Trustees of the Cheyne Walk Trust Date Acquisition Lock-Up Exceptional Redemption Total Capital Commitments 7/16/2003 $ 58,912,394 $ 1,024,379 $ 810,856 14,476,028 $ 75,223,657 ============= ============ =========== ============ ============= Capital Contributions: Contribution of Interest in GIH 7/8/1996 16,602,746 15,115 327 16,618,188 Anti-Dilution re Carlton, Lock-Up Fees, & Running Costs 12/18/1996 6,003,005 216,920 12,575 6,232,500 ------------- ------------ ----------- ------------ ------------- Total 1996 Contributions 22,605,751 232,035 12,902 - 22,850,688 ------------- ------------ ----------- ------------ ------------- Purchase of Stone/Thornley Shares 5/30/1997 4,375,393 1,907 4,377,300 Lock-Up Fees 7/7/1997 210,000 210,000 ------------- ------------ ----------- ------------ ------------- Total 1997 Contributions 4,375,393 210,000 1,907 - 4,587,300 ------------- ------------ ----------- ------------ ------------- Purchase of Getty Images Shares 2/6/1998 13,331,250 13,331,250 Lock-Up Fees 7/7/1998 241,138 23,564 264,702 ------------- ------------ ----------- ------------ ------------- Total 1998 Contributions 13,331,250 241,138 23,564 - 13,595,952 ------------- ------------ ----------- ------------ ------------- Lock-Up Fees 7/6/1999 83,652 29,455 113,107 Purchase of Getty Images Shares 10/26/1999 18,600,000 18,600,000 ------------- ------------ ----------- ------------ ------------- Total 1999 Contributions 18,600,000 83,652 29,455 - 18,713,107 ------------- ------------ ----------- ------------ ------------- Lock-Up Fees 7/8/2000 85,575 85,575 ------------- ------------ ----------- ------------ ------------- Total 2000 Contributions - 85,575 - - 85,575 ------------- ------------ ----------- ------------ ------------- Lock-Up Fees 7/8/2001 83,457 83,457 ------------- ------------ ----------- ------------ ------------- Total 2001 Contributions - 83,457 - - 83,457 ------------- ------------ ----------- ------------ ------------- Running & Exceptional Costs 2/4/2002 190,638 190,638 Lock-Up Fees 7/8/2002 88,522 88,522 Running Cost 11/12/2002 44,482 44,482 ------------- ------------ ----------- ------------ ------------- Total 2002 Contributions - 88,522 235,120 - 323,642 ------------- ------------ ----------- ------------ ------------- Running & Exceptional Costs - Transon Ltd. Redemption 7/16/2003 14,476,028 14,476,028 ------------- ------------ ----------- ------------ ------------- Total 2003 Contributions - - - 14,476,028 14,476,028 ------------- ------------ ----------- ------------ ------------- Cumulative Capital Contributions 7/16/2003 $ 58,912,394 1,024,379 $ 302,948 4,476,028 $ 74,715,749 ============= ============ =========== ============ ============= Unfunded Capital Commitments 7/16/2003 $ - $ - $ 507,908 $ - $ 507,908 ============= ============ =========== ============ =============
* Capital call for Transon Ltd. redemption to be funded with cash. GETTY INVESTMENTS LLC SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003 Running and Transon Ltd. Trustees of the Ronald Family Trust A Date Acquisition Lock-Up Exceptional Redemption Total * Capital Commitments 7/16/2003 $ 24,796,822 $ 490,072 $ 361,576 $ 6,406,985 $ 32,055,455 ============= =========== =========== ============ ============= Capital Contributions: Contribution of Interest in GIH 7/8/1996 8,301,373 7,558 163 8,309,094 Anti-Dilution re Carlton, Lock-Up Fees, & Running Costs 12/18/1996 3,001,503 108,459 6,288 3,116,250 ------------- ----------- ----------- ------------ ------------- Total 1996 Contributions 11,302,876 116,017 6,451 - 11,425,344 ------------- ----------- ----------- ------------ ------------- Purchase of Stone/Thornley Shares 5/30/1997 2,187,696 954 2,188,650 Lock-Up Fees 7/7/1997 105,000 105,000 ------------- ----------- ----------- ------------ ------------- Total 1997 Contributions 2,187,696 105,000 954 - 2,293,650 ------------- ----------- ----------- ------------ ------------- Purchase of Getty Images Shares 2/6/1998 5,306,250 5,306,250 Lock-Up Fees 7/7/1998 115,125 11,250 126,375 ------------- ----------- ----------- ------------ ------------- Total 1998 Contributions 5,306,250 115,125 11,250 - 5,432,625 ------------- ----------- ----------- ------------ ------------- Lock-Up Fees 7/6/1999 39,938 14,062 54,000 Purchase of Getty Images Shares 10/26/1999 6,000,000 6,000,000 ------------- ----------- ----------- ------------ ------------- Total 1999 Contributions 6,000,000 39,938 14,062 - 6,054,000 ------------- ----------- ----------- ------------ ------------- Lock-Up Fees 7/8/2000 37,875 37,875 ------------- ----------- ----------- ------------ ------------- Total 2000 Contributions - 37,875 - - 37,875 ------------- ----------- ----------- ------------ ------------- Lock-Up Fees 7/8/2001 36,938 36,938 ------------- ----------- ----------- ------------ ------------- Total 2001 Contributions - 36,938 - - 36,938 ------------- ----------- ----------- ------------ ------------- Running & Exceptional Costs 2/4/2002 84,375 84,375 Lock-Up Fees 7/8/2002 39,179 39,179 Running Cost 11/12/2002 19,688 19,688 ------------- ----------- ----------- ------------ ------------- Total 2002 Contributions - 39,179 104,063 - 143,242 ------------- ----------- ----------- ------------ ------------- Running & Exceptional Costs 6,406,985 6,406,985 Transon Ltd. Redemption 7/16/2003 - ------------- ----------- ----------- ------------ ------------- Total 2003 Contributions - - - 6,406,985 6,406,985 ------------- ----------- ----------- ------------ ------------- Cumulative Capital Contributions 7/16/2003 $ 24,796,822 $ 490,072 $ 136,780 $ 6,406,985 $ 31,830,659 ============= =========== =========== ============ ============= Unfunded Capital Commitments 7/16/2003 $ - $ - $ 224,796 $ - $ 224,796 ============= =========== =========== ============ =============
* Capital call for Transon Ltd. redemption to be funded by a commitment and a guaranty to pay its share of the Company's promissory note to Transon Ltd. GETTY INVESTMENTS LLC SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003 Running and Transon Ltd. Trustees of the Ronald Family Trust B Date Acquisition Lock-Up Exceptional Redemption Total * Capital Commitments 7/16/2003 $ 18,796,822 $ 471,383 $ 307,659 $ 5,356,547 $ 24,932,411 ============= ========== ============ ============= ============= Capital Contributions: Contribution of Interest in GIH 7/8/1996 8,301,373 7,558 163 8,309,094 Anti-Dilution re Carlton, Lock-Up Fees, & Running Costs 12/18/1996 3,001,503 108,459 6,288 3,116,250 ------------- ---------- ------------ ------------- ------------- Total 1996 Contributions 11,302,876 116,017 6,451 - 11,425,344 ------------- ---------- ------------ ------------- ------------- Purchase of Stone/Thornley Shares 5/30/1997 2,187,696 954 2,188,650 Lock-Up Fees 7/7/1997 105,000 105,000 ------------- ---------- ------------ ------------- ------------- Total 1997 Contributions 2,187,696 105,000 954 - 2,293,650 ------------- ---------- ------------ ------------- ------------- Purchase of Getty Images Shares 2/6/1998 5,306,250 5,306,250 Lock-Up Fees 7/7/1998 115,125 11,250 126,375 ------------- ---------- ------------ ------------- ------------- Total 1998 Contributions 5,306,250 115,125 11,250 - 5,432,625 ------------- ---------- ------------ ------------- ------------- Lock-Up Fees 7/6/1999 39,938 14,062 54,000 Purchase of Getty Images Shares - ------------- ---------- ------------ ------------- ------------- Total 1999 Contributions - 39,938 14,062 - 54,000 ------------- ---------- ------------ ------------- ------------- Lock-Up Fees 7/8/2000 31,665 31,665 ------------- ---------- ------------ ------------- ------------- Total 2000 Contributions - 31,665 - - 31,665 ------------- ---------- ------------ ------------- ------------- Lock-Up Fees 7/8/2001 30,882 30,882 ------------- ---------- ------------ ------------- ------------- Total 2001 Contributions - 30,882 - - 30,882 ------------- ---------- ------------ ------------- ------------- Running & Exceptional Costs 2/4/2002 70,542 70,542 Lock-Up Fees 7/8/2002 32,756 32,756 Running Cost 11/12/2002 16,459 16,459 ------------- ---------- ------------ ------------- ------------- Total 2002 Contributions - 32,756 87,001 - 119,757 ------------- ---------- ------------ ------------- ------------- Running & Exceptional Costs - Transon Ltd. Redemption 7/16/2003 5,356,547 5,356,547 ------------- ---------- ------------ ------------- ------------- Total 2003 Contributions - - - 5,356,547 5,356,547 ------------- ---------- ------------ ------------- ------------- Cumulative Capital Contributions 7/16/2003 $ 18,796,822 $ 471,383 $ 119,718 $ 5,356,547 $ 24,744,470 ============= ========== ============ ============= ============= Unfunded Capital Commitments 7/16/2003 $ - $ - $ 187,941 $ - $ 187,941 ============= ========== ============ ============= =============
* Capital call for Transon Ltd. redemption to be funded with cash. GETTY INVESTMENTS LLC SCHEDULE B - MEMBERS CAPITAL CONTRIBUTIONS Pro Forma for the Period from Inception on June 25, 1996 to July 16, 2003 Running and Transon Ltd. Trustees of the Gordon P. Getty Family Trust Date Acquisition Lock-Up Exceptional Redemption Total * Capital Commitments 7/16/2003 $ 16,531,215 $ 326,715 $ 241,050 $ 4,271,323 21,370,303 ============= =========== ============ ============ ============ Capital Contributions: Contribution of Interest in GIH 7/8/1996 5,534,249 5,039 108 5,539,396 Anti-Dilution re Carlton, Lock-Up Fees, & Running Costs 12/18/1996 2,001,002 72,306 4,192 2,077,500 ------------- ----------- ------------ ------------ ------------ Total 1996 Contributions 7,535,251 77,345 4,300 - 7,616,896 ------------- ----------- ------------ ------------ ------------ Purchase of Stone/Thornley Shares 5/30/1997 1,458,464 636 1,459,100 Lock-Up Fees 7/7/1997 70,000 70,000 ------------- ----------- ------------ ------------ ------------ Total 1997 Contributions 1,458,464 70,000 636 - 1,529,100 ------------- ----------- ------------ ------------ ------------ Purchase of Getty Images Shares 2/6/1998 3,537,500 3,537,500 Lock-Up Fees 7/7/1998 76,750 7,500 84,250 ------------- ----------- ------------ ------------ ------------ Total 1998 Contributions 3,537,500 76,750 7,500 - 3,621,750 ------------- ----------- ------------ ------------ ------------ Lock-Up Fees 7/6/1999 26,625 9,375 36,000 Purchase of Getty Images Shares 10/26/1999 4,000,000 4,000,000 ------------- ----------- ------------ ------------ ------------ Total 1999 Contributions 4,000,000 26,625 9,375 - 4,036,000 ------------- ----------- ------------ ------------ ------------ Lock-Up Fees 7/8/2000 25,250 25,250 ------------- ----------- ------------ ------------ ------------ Total 2000 Contributions - 25,250 - - 25,250 ------------- ----------- ------------ ------------ ------------ Lock-Up Fees 7/8/2001 24,625 24,625 ------------- ----------- ------------ ------------ ------------ Total 2001 Contributions - 24,625 - - 24,625 ------------- ----------- ------------ ------------ ------------ Running & Exceptional Costs 2/4/2002 56,250 56,250 Lock-Up Fees 7/8/2002 26,120 26,120 Running Cost 11/12/2002 13,125 13,125 ------------- ----------- ------------ ------------ ------------ Total 2002 Contributions - 26,120 69,375 - 95,495 ------------- ----------- ------------ ------------ ------------ Running & Exceptional Costs - Transon Ltd. Redemption 7/16/2003 4,271,323 4,271,323 ------------- ----------- ------------ ------------ ------------ Total 2003 Contributions - - - 4,271,323 4,271,323 ------------- ----------- ------------ ------------ ------------ Cumulative Capital Contributions 7/16/2003 $ 16,531,215 $ 326,715 $ 91,186 $ 4,271,323 $ 21,220,439 ============= =========== ============ ============ ============ Unfunded Capital Commitments 7/16/2003 $ - $ - $ 149,864 $ - $ 149,864 ============= =========== ============ ============ ============
* Capital call for Transon Ltd. redemption to be funded by a commitment and a guaranty to pay its share of the Company's promissory note to Transon Ltd. EXHIBIT A UNSECURED PROMISSORY NOTE July 16, 2003 US$10,678,308.45 Reno, Nevada 1. Principal. For value received, the undersigned, Getty Investments L.L.C., a Delaware limited liability company (the "Borrower"), promises to pay to the order of the Transon Limited (the "Holder"), in lawful money of the United States of America, the principal sum of Ten Million Six Hundred Seventy-Eight Thousand Three Hundred Eight Dollars and 45/100ths ($10,678,308.45), together with accrued interest from the date of this Promissory Note (the "Note") on the unpaid principal, on the Maturity Date. 2. Interest. Principal of this Note shall bear interest at the reference rate quoted by Bank of America, N.A. from time to time (which reference rate is currently 4.00% per annum on the date hereof). Accrued interest shall be payable annually on each anniversary date of this Note. 3. Maturity Date. The unpaid principal balance of this Note, together with all unpaid interest accrued thereon, shall be due and payable on the Maturity Date. The "Maturity Date" shall be the earlier to occur of (a) July 16, 2006, and (b) the date of a "Dissolution Event" of Borrower as defined in the Restated Limited Liability Company Agreement of Borrower, dated as of February 9, 1998, as amended on October 26, 1999, November 1, 2001 and July 1, 2003. 4. Place of Payment. Payment of principal of and interest on this Note shall be made to Holder at c/o Macfarlanes, 10 Norwich Street, London EC4A 1BD, England (or at such other place as Holder shall designate in writing). 5. Prepayment. Borrower shall have the right to prepay this Note, in full or in part, at any time without penalty. 6. Event of Default. Any of the following events shall, at Holder's option, constitute an event of default (an "Event Default") under this Note: (a) a default in the payment when due of any amount under this Note, which default continues uncured following 15 days' notice of such default by Holder to Borrower; (b) the failure by Borrower to perform or comply with any agreements, covenants or obligations under this Note, which default continues uncured following 30 days' notice of such default by Holder to Borrower; (c) the filing by or against Borrower of a voluntary petition in bankruptcy or an assignment for the benefit of creditors; or (d) an insolvency of Borrower. 7. Acceleration. Upon the occurrence of a Event Default, Holder at its option may (A) declare all principal, interest and other sums due under this Note to be immediately due and payable without further demand, and/or (B) exercise any and all other legal rights and remedies available to Holder. The failure to exercise the foregoing options shall not constitute a waiver of the right to exercise the same at any subsequent time in respect of the same event or any other event. The A-1 acceptance by Holder of any payment under this Note that is less than payment in full of all amounts due and payable at the time of such payment shall not constitute a waiver of the right to exercise any of the foregoing options at that time or at any subsequent time or nullify any prior exercise of such option without the express written consent of Holder except as and to the extent otherwise provided by law. 8. Notices. Any notice to Borrower or Holder in connection with this Note shall be given (a) by Federal Express (or other reputable overnight delivery service), or (b) by facsimile transmission, addressed to such party at the address stated below, or to such other address as such party may designate by written notice to the other party. If to Borrower: Getty Investments L.L.C. 1325 Airmotive Way, Suite 262 Reno, Nevada 89502 Telecopy: 775-786-5414 Attn: Jan D. Moehl If to Holder: Transon Limited c/o JPMorgan Chase Bank, as trustee 345 Park Avenue, 8th Floor New York, New York 10154-1002 Telecopy: 212-464-1919 Attn: James Largey With a copy to: BG Owen Clutton Macfarlanes 10 Norwich Street London EC4A 1BD England Telecopy: 44-207-831-9607 9. Relationship of the Parties. The relationship between Borrower and Holder in connection with this Note is that of debtor and creditor. Nothing contained in this Note is intended or shall be deemed or construed to create a partnership, limited liability company membership or co-ownership relationship between Borrower and Holder. 10. Amendment. This Note may not be terminated or amended orally, but only by a termination or amendment in writing signed by Holder and Borrower. 11. Assignment. Borrower acknowledges and agrees that Transon Limited is holding this Note as a bare trustee for JPMorgan Chase Bank as the trustee of the Victoria Jane Lady Getty U.S. Trust and that Transon Limited may assign its interest in this Note directly to the trustee or trustees of the Victoria Jane Lady Getty U.S. Trust, in which case such assignee shall be the "Holder" herein. Subject to the foregoing, neither Borrower nor Holder shall assign any or all of their interests under this Note without the prior written consent of the other party, which consent may be withheld at such party's sole and absolute discretion. A-2 12. Severability. If any provision of this Note or its application to any party or circumstance shall be determined by any court of competent jurisdiction to be invalid, illegal or unenforceable to any extent, the remainder of this Note or the application of such provision to such person or circumstance, other than those as to which it is determined invalid, illegal or unenforceable, shall not be affected, and each other provision of this Note shall be valid and legal and shall be enforced to the fullest extent permitted by law. It is the intention of the parties that in lieu of each clause or provision of this Note that is invalid, illegal or unenforceable, there be added as a part of this Note a clause or provision as similar in terms to such invalid, illegal or unenforceable clause or provision as may be permissible and be valid, legal and enforceable. 13. Governing Law. This Note shall be construed and enforced in accordance with and governed by the laws of the State of Nevada. IN WITNESS WHEREOF, the undersigned has executed this Promissory Note as of the day and year first written above. Getty Investments L.L.C., a Delaware limited liability company By: --------------------------------- Jan D. Moehl Officer A-3 EX-3 5 oct1003_ex03.txt 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 1325 Airmotive Way, Suite 262, Reno, Nevada 89502 (the "CWT Trustee"); (2) THE TRUSTEES OF THE GORDON P. GETTY FAMILY TRUST, whose registered office is located at 1325 Airmotive Way, Suite 264, Reno, Nevada 89502 (the "GPGFT Trustees"); (3) THE TRUSTEES OF THE RONALD FAMILY TRUST A, whose registered office is located at 1325 Airmotive Way, Suite 264, Reno, Nevada 89502 (the "RFTA Trustees"); (4) THE TRUSTEES OF THE RONALD FAMILY TRUST B, whose registered office is located at 1325 Airmotive Way, Suite 262, Reno, Nevada 89502 (the "RFTB Trustees"); and (5) GETTY INVESTMENTS L.L.C., a Delaware limited liability company, whose registered office is located at 1325 Airmotive Way, Suite 262, Reno, Nevada 89502 (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 Paul Jr. family, the Gordon family and the J. Ronald 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 Mark Getty and Tara Getty GPGFT Trustees William Getty and Peter Getty RFTA Trustees and RFTB Trustees Alex Waibel and Pierre du Preez "The seventh Director is hereby appointed by the Members to be Jonathan Klein so long as he remains chief executive officer of Getty Images. In the event Jonathan Klein 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. Mark Getty 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 Gordon P. 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: ------------------------------------ Jan D. Moehl Chief Operating Officer The Trustees of the Gordon P. Getty Family Trust By: ------------------------------------ Thomas Edwin Woodhouse Trust Administrator The Trustees of the Ronald Family Trust A By: ------------------------------------ Thomas Edwin Woodhouse Trust Administrator The Trustees of the Ronald Family Trust B By: ------------------------------------ Jan D. Moehl Chief Operating Officer Getty Investments L.L.C., a Delaware limited liability company By: ------------------------------------ Jan D. Moehl Officer 10 EX-4 6 oct1003_ex04.txt EXHIBIT 4 THIRD AMENDMENT TO STOCKHOLDERS AGREEMENT THIS THIRD AMENDMENT TO STOCKHOLDERS AGREEMENT (the "Amendment") is made effective as of the 1st day of May, 2003, by and among Getty Images, Inc., a Delaware corporation; and (a) Getty Investments L.L.C., a Delaware limited liability company; Mark Getty; Jonathan Klein; Abacus (C.I.) Limited, as trustee of The October 1993 Trust; and Abacus Trust Company Limited, as trustee of the JD Klein Family Settlement (as successor by assignment from Crediton Limited) (collectively, the "Getty Group"); and (b) Mark Torrance; Wade Ballinger (formerly Wade Torrance), and PDI L.L.C. (collectively, the "Torrance Group"). RECITALS A. The parties herein entered into that certain Stockholders Agreement dated as of 9 February 1998, as amended and supplemented by a Deed of Adherence dated as of 28 February 1999 and a Deed of Amendment dated as of 28 February 1999 (the Stockholders Agreement as amended and supplemented is referred to as the "Stockholders Agreement"). B. Certain rights and provisions of the Stockholders Agreement terminate and are of no further force and effect with respect to either the Getty Group or the Torrance Group, as the case may be, when changes in beneficial ownership result in ownership of fewer than the greater of (i) 3,000,000 shares of Common Stock; and (ii) such number of shares of Common Stock as is less than 2% of the then outstanding shares of Common Stock (the "Minimum Threshold"). C. The parties herein wish to amend the Stockholders Agreement to address the decreases in the beneficial ownership of shares of Common Stock held by the Torrance Group. D. All terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Stockholders Agreement. NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained herein, the parties agree to amend the Stockholders Agreement as follows. 1. Removal of the Torrance Group as a Party to the Stockholders Agreement. The Torrance Group's beneficial ownership has fallen below the Minimum Threshold, and as such, the Torrance Group desires to be removed, and Getty Images and the Getty Group desire to have the Torrance Group removed, as a party. The Torrance Group hereby consents to be, and hereby is, removed as a party to the Stockholders Agreement and all references and other provisions of the Stockholders Agreement pertaining to the Torrance Group, and participation by the Torrance Group in the Stockholders Agreement, are hereby terminated as of the effective date of this Amendment. 2. Continuance of Stockholders Agreement. Getty Images and the Getty Group desire to continue the Stockholders Agreement without the Torrance Group as a party thereto and agree to continue to be bound by the terms and conditions thereof. 3. Full Force and Effect. All other provisions of the Stockholders Agreement not otherwise expressly modified herein shall remain in full force and effect. 4. Governing Law. The terms and conditions of this Amendment shall be governed by and construed in accordance with the laws of the State of Delaware. 5. Counterparts. This Amendment may be executed in two or more counterparts, each of which when taken together shall constitute a single agreement. [ signatures appear on the following pages ] 2 IN WITNESS WHEREOF, the parties have executed this Third Amendment to Stockholders Agreement effective as of the date first written above. GETTY IMAGES, INC. By: ------------------------------------ Name/Title: ---------------------------- GETTY INVESTMENTS L.L.C. By: ------------------------------------ Name/Title: Jan D. Moehl, Officer ---------------------------- ---------------------------------------- MARK H. GETTY, individually ---------------------------------------- JONATHAN D. KLEIN, individually ABACUS (C.I.) LIMITED, as Trustee of The October 1993 Trust By: ------------------------------------ Name/Title: ---------------------------- ABACUS TRUST COMPANY (ISLE OF MAN), as Trustee of the JD Klein Family Settlement By: ------------------------------------ Name/Title: ---------------------------- 3 ---------------------------------------- MARK TORRANCE, individually ---------------------------------------- WADE BALLINGER (formerly Wade Torrance), individually PDI L.L.C. By: ------------------------------------ Name/Title: ---------------------------- 4 -----END PRIVACY-ENHANCED MESSAGE-----