Certificate of Incorporation - Getty Images Inc.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GETTY IMAGES, INC.
------------------------------------------------------------
GETTY IMAGES, INC., a Delaware Corporation, hereby certifies as
follows:
1. The name of the Corporation is Getty Images, Inc. (the
"CORPORATION"). The date of filing of its original Certificate of Incorporation
with the Secretary of State of the State of Delaware was September 4, 1997 under
the name Getty Communications (USA), Inc. Such certificate was amended on
October 6, 1997 to change the name of the Corporation to Getty Images, Inc.
2. Pursuant to Section 242 and 245 of the General Corporation Law of
the State of Delaware (the "DGCL"), this Amended and Restated Certificate of
Incorporation restates and integrates and further amends the provisions of the
Certificate of Incorporation of this Corporation. Pursuant to and in accordance
with the provisions of Section 228 of the DGCL, the unanimous written consent of
the stockholder of the Corporation to this Amended and Restated Certificate of
Incorporation has been given in lieu of a vote of the stockholders at a meeting.
3. The text of the Certificate of Incorporation is hereby amended and
restated in its entirety to read as follows:
ARTICLE I
NAME
SECTION 1.01. NAME. The name of the corporation is Getty Images,
Inc. (the "CORPORATION").
<PAGE>
2
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
SECTION 2.01. OFFICE AND AGENT. The address of the registered office
of the Corporation in the state of Delaware is The Corporation Trust Company,
1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of the registered agent of the Corporation at such address is The Corporation
Trust Company.
ARTICLE III
CORPORATE PURPOSE
SECTION 3.01. PURPOSE. The purpose of the Corporation is to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware (the "DGCL").
ARTICLE IV
CAPITALIZATION
SECTION 4.01. AUTHORIZED CAPITAL. SHARES. The total number of
shares of all classes of capital stock that the Corporation shall have the
authority to issue is 55,000,000 shares, of which (i) 50,000,000 shares shall be
common stock, par value $0.01 per share ("COMMON STOCK"), and (ii) 5,000,000
shares shall be preferred stock, par value $0.01 per share ("PREFERRED STOCK").
SECTION 4.02. COMMON STOCK. (a) VOTING RIGHTS. Each holder of
Common Stock shall have one vote on each matter submitted to a vote at a meeting
of stockholders for each share of Common Stock held of record by such holder as
of the record date for such meeting.
(b) DIVIDENDS AND DISTRIBUTIONS. Subject to Section 170 of the DGCL
and to any rights of holders of any class or series of Preferred Stock, when, as
and if dividends or distributions are declared by the Board of Directors of the
Corporation (the "BOARD OF DIRECTORS") on outstanding shares of Common Stock,
whether payable in cash, in property or in securities of the Corporation, each
holder of outstanding shares of Common Stock shall be entitled to share ratably
in such dividends and distributions in proportion to the number of shares of
Common Stock held by such holder.
<PAGE>
3
(c) LIQUIDATION. Subject to any rights of holders of any class or
series of Preferred Stock, upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, after payment or provision of
the debts or liabilities of the Corporation, each holder of outstanding shares
of Common Stock shall be entitled to share ratably in the assets of the
Corporation to be distributed among the holders of shares of Common Stock in
proportion to the number of shares of Common Stock held by such holder.
(d) NO PREEMPTIVE RIGHTS. The holders of shares of Common Stock
shall have no preemptive or preferential rights of subscription to any shares of
any class of capital stock of the Corporation or any securities convertible into
or exchangeable for shares of any class of capital stock of the Corporation.
SECTION 4.03. PREFERRED STOCK. Shares of Preferred Stock of the
Corporation may be issued from time to time in one or more classes or series,
each of which class or series shall have such distinctive designation or title
as shall be fixed by the affirmative vote of a majority of the entire Board of
Directors prior to the issuance of any shares thereof. Each such class or
series of Preferred Stock shall have such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions, including the dividend rate, redemption price and liquidation
preference, and may be convertible into, or exchangeable for, at the option of
either the holder or the Corporation or upon the happening of a specified event,
shares of any other class or classes or any other series of the same or any
other class or classes of capital stock, or any debt securities, of the
Corporation at such price or prices or at such rate or rates of exchange and
with such adjustments as shall be stated and expressed in this Amended and
Restated Certificate of Incorporation or in any amendment hereto or in such
resolution or resolutions providing for the issuance of such class or series of
Preferred Stock as may be adopted from time to time by the affirmative vote of a
majority of the entire Board of Directors prior to the issuance of any shares
thereof pursuant to the authority hereby expressly vested in it, all in
accordance with the DGCL. The authority of the Board of Directors with respect
to each series shall also include, but not be limited to, the determination of
restrictions, if any, on the issue or reissue of any additional shares of
Preferred Stock.
ARTICLE V
MEETINGS OF SHAREHOLDERS
SECTION 5.01 SPECIAL MEETINGS. Special meetings of stockholders for
any purpose or purposes may be called by a Chairman of the Board of Directors,
the Chief Executive Officer of the Corporation, the Secretary of the Corporation
at the request in writing of at least two-thirds of the entire Board of
Directors or the recordholders of at least a majority of the outstanding shares
of Common Stock. The special meeting will be held at such place, date and time
as shall be designated in the notice or waiver of notice thereof. Such notice
<PAGE>
4
shall state the purpose or purposes of the proposed meeting and no business may
be transacted at any special meeting of stockholders other than such business as
may be designated in the notice calling such meeting. Unless otherwise
prescribed by statute, special meetings may not be called by any other persons
or persons.
SECTION 5.02 NO ACTION WITHOUT MEETING. No action required or
permitted to be taken at any meeting of the stockholders may be taken without a
meeting and the power of stockholders to consent in writing to the taking of any
action without a meeting is specifically denied.
ARTICLE VI
COMPROMISE OR ARRANGEMENT
SECTION 6.01. COMPROMISE OR ARRANGEMENT. Whenever a compromise or
arrangement is proposed between the Corporation and its creditors or any class
of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on
the application in a summary way of the Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers appointed
for the Corporation under the provisions of Section 291 of the DGCL or on the
application of trustees in dissolution or of any receiver or receivers appointed
for the Corporation under the provisions of Section 279 of the DGCL, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders, of the Corporation, as the case may be, to be summoned in
such a manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders, of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization, if sanctioned by the
court to which the said application has been made, shall be binding on all the
creditors or the members of the class of creditors, and/or on all the
stockholders or the members of the class of stockholders, of the Corporation, as
the case may be, and also on the Corporation.
<PAGE>
5
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. INDEMNIFICATION. (a) The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, to the full extent authorized or permitted by law.
(b) PROCEEDINGS INITIATED BY ANY PERSON. Notwithstanding anything to
the contrary contained in Subsection 7.01(a) of this Article VII, except for
proceedings to enforce rights to indemnification, the Corporation shall not be
obligated to indemnify any person in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized in advance, or unanimously consented to, by the Board of Directors.
(c) ADVANCEMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred by a director or an officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding to the fullest extent authorized or permitted by law.
(d) RIGHTS NOT EXCLUSIVE. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Article VII shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
law, bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
(e) INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of the DGCL.
<PAGE>
6
(f) DEFINITION OF "CORPORATION". For purposes of this Article VII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article VII with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation if its
separate existence had continued.
(g) CERTAIN OTHER DEFINITIONS. For purposes of this Article VII,
references to "other enterprises" shall include employee benefit plans and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves service by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries.
(h) CONTINUATION OF RIGHTS. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(i) REPEAL OR MODIFICATION. Any repeal or modification of this
Article VII by the stockholders of the Corporation shall not adversely affect
any rights to indemnification and to advancement of expenses that any person may
have at the time of such repeal or modification with respect to any acts or
omissions occurring prior to such repeal or modification.
ARTICLE VIII
DIRECTORS
SECTION 8.01. GENERAL POWERS. The property, business and affairs of
the Corporation shall be managed by, or under the direction of, the Board of
Directors, which may exercise all the powers of the Corporation and do all such
lawful acts and things that are not conferred upon or reserved to the
stockholders by law, by this Amended and Restated Certificate of Incorporation
or by the bylaws of the Corporation (the "BYLAWS").
SECTION 8.02. NUMBER, CLASSES AND TERM OF OFFICE. (a) The Board of
Directors of the Corporation shall consist of ten (10) directors, or any number
of directors as
<PAGE>
7
the Board of Directors may fix by the vote of a majority of the entire Board of
Directors. The directors shall be divided into three classes, designated Class
I (initially four directors), Class II (initially three directors) and Class
III (initially three directors). The term of the initial Class I directors
shall terminate on the date of the 1998 annual meeting of stockholders; the
term of the initial Class II directors shall terminate on the date of the
1999 annual meeting of stockholders; and the term of the initial Class III
directors shall terminate on the date of the 2000 annual meeting of
stockholders. At each annual meeting of stockholders, beginning with the
1998 annual meeting of stockholders, successors to the class of directors
whose term expires at that annual meeting shall be elected for a three-year
term by a plurality of the votes. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, but in no
case will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting
for the year in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. The term of a director
elected by stockholders to fill a newly created directorship or other vacancy
shall expire at the same time as the terms of the other directors of the
class for which the new directorship is created or in which the vacancy
occurred. Any vacancy on the Board of Directors that results from an
increase in the number of directors and any other vacancy occurring on the
Board of Directors, howsoever resulting, may be filled only by a majority of
the directors then in office, even if less than a quorum, or by a sole
remaining director. Any director so elected by the Board of Directors to
fill a vacancy shall hold office for a term that shall coincide with the term
of the class to which such director shall have been elected. Directors need
not be stockholders of the Company.
(b) Election of directors of the Corporation need not be by written
ballot, except and to the extent provided by the Bylaws.
SECTION 8.03. REMOVAL. Any or all of the directors may be removed
only for due cause by vote of the record holders of a majority of the holders of
stock entitled to vote thereon at a meeting of the stockholders; PROVIDED,
HOWEVER, that no such removal can be made at such meeting unless the notice
thereof specifies such removal and the reasons therefor as one of the matters
that shall be considered at such meeting.
SECTION 8.04. DIRECTOR LIABILITY. (a) A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived any improper personal benefit.
(b) If the DGCL is amended hereafter to authorize the further
elimination or
<PAGE>
8
limitation of the liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent authorized
by the DGCL, as so amended, without further action by either the Board of
Directors or the stockholders of the Corporation.
(c) Any repeal or modification of this Article VIII shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to or at
the time of such repeal or modification.
ARTICLE IX
AMENDMENT
SECTION 9.01. AMENDMENTS. Notwithstanding anything contained in this
Amended and Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of capital stock of the Corporation entitled to vote thereon shall be required
to amend, repeal, or adopt any provision inconsistent with, Article V,
Article VI, Article VII, VIII or this Article IX of this Amended and
Restated Certificate of Incorporation.
IN WITNESS WHEREOF, the undersigned hereby declares and certifies that
the facts herein stated are true and correct, and accordingly have hereunto set
my hand this __ day of January, 1998.
______________________________
Mark Getty
President
ATTEST:
________________________________
Nick Evans-Lombe
Secretary