UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

July 6, 2006

 

 

 

(Date of report)

 

 

 

 

June 30, 2006

 

 

 

(Date of earliest event reported)

 

 

 

 

Sotheby’s

 

 

 

(Exact name of registrant as specified in its charter)


 

 

 

 

 

 

 

 

 

 

Delaware

 

 

1-9750

 

 

38-2478409

 

 

 

 

 

 

 

(State or other

(Commission

(I.R.S. Employer

jurisdiction of

File Number)

Identification No.)

incorporation or

 

 

organization)

 

 


 

 

 

 

 

 

1334 York Avenue,

 

 

 

 

New York, NY

 

 

 

10021

 

 

 

 

 

 

(Address of principal executive offices)

 

(Zip Code)


 

 

 

 

(212) 606-7000

 

 

 

(Registrant’s telephone number, including area code)


 

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

 

 

 

o

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

 

 

o

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

 

 

o

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

 

 

o

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))


Item 3.03 Material Modification to Rights of Security Holders.

On June 30, 2006, Sotheby’s Holdings, Inc., a Michigan corporation (“Sotheby’s Michigan”), completed its reincorporation into the State of Delaware (the “Reincorporation”). The Reincorporation and related proposals were approved by the shareholders of Sotheby’s Michigan at the annual meeting of shareholders held on May 8, 2006. The Reincorporation was completed by means of a merger of Sotheby’s Michigan with and into Sotheby’s Delaware, Inc., a Delaware corporation (“Sotheby’s Delaware”) and wholly-owned subsidiary of Sotheby’s Michigan incorporated for the purpose of effecting the Reincorporation, with Sotheby’s Delaware being the surviving corporation. Sotheby’s Delaware was renamed “Sotheby’s” upon completion of the merger.

In the merger, each outstanding share of Sotheby’s Michigan Class A Limited Voting Common Stock (“Sotheby’s Michigan Stock”) was converted into one share of Common Stock of Sotheby’s Delaware (“Sotheby’s Delaware Stock”). As a result, holders of Sotheby’s Michigan Stock are now holders of Sotheby’s Delaware Stock, and their rights as holders thereof are governed by the General Corporation Law of the State of Delaware and the Certificate of Incorporation and By-Laws of Sotheby’s Delaware. For a description of the differences between the rights of holders of Sotheby’s Michigan Stock and Sotheby’s Delaware Stock, see “Comparison of Shareholder Rights Before and After the Reincorporation” in Sotheby’s Michigan’s Definitive Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission (the “Commission”) on April 11, 2006, which description is incorporated by reference herein in its entirety.

The Reincorporation did not result in any change in the business or principal facilities of Sotheby’s Michigan. Upon completion of the merger, the address of Sotheby’s principal executive offices is 1334 York Avenue, New York, NY 10021. Sotheby’s Michigan’s management and board of directors continue as the management and board of directors of Sotheby’s Delaware. Sotheby’s Delaware Stock will continue to trade on the New York Stock Exchange under the symbol “BID.” Shareholders are not required to exchange their existing stock certificates, which now represent an equivalent number of shares of Sotheby’s Delaware Stock.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

As noted under Item 3.03 above, on June 30, 2006, Sotheby’s Michigan completed the Reincorporation and was merged with and into Sotheby’s Delaware, with Sotheby’s Delaware being the surviving corporation. In the merger, Sotheby’s Delaware was renamed “Sotheby’s.” As a result of the Reincorporation, the Certificate of Incorporation and By-Laws of Sotheby’s Delaware will govern the surviving corporation. For a description of the terms of Sotheby’s Delaware’s certificate of incorporation and By-Laws, see “Comparison of Shareholder Rights Before and After the Reincorporation” in Sotheby’s Michigan’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 11, 2006, which description is incorporated by reference herein in its entirety. Copies of Sotheby’s Delaware’s Certificate of Incorporation and By-Laws, as amended upon completion of the merger, are attached hereto as Exhibits 3.1 and 3.2, respectively.

Item 8.01 Other Events

In connection with the completion of the Reincorporation and by operation of Rule 12g-3(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Sotheby’s Delaware Stock is deemed registered under Section 12(b) of the Exchange Act and Sotheby’s Delaware has succeeded to Sotheby’s Michigan’s attributes as the registrant with respect thereto.

On June 30, Sotheby’s issued the press release filed as Exhibit 99.1 to this Current Report on Form 8-K announcing the completion of the Reincorporation.

Item 9.01 Financial Statements and Exhibits

          (c) Exhibits

 

 

 

 

3.1

Certificate of Incorporation of Sotheby’s, as amended through June 30, 2006

 

 

 

 

3.2

By-Laws of Sotheby’s, adopted as of March 31, 2006

 

 

 

 

4.4

First Supplemental Indenture, dated as of June 30, 2006, between Sotheby’s and Wilmington Trust Company, as successor trustee (Supplemental to Indenture dated as of February 5, 1999 between Sotheby’s Holdings, Inc. and The Chase Manhattan Bank, as trustee, as filed in the Company’s current report on Form 8-K on February 10, 1999 with the Securities and Exchange Commission)

 

 

 

 

10.29

Guaranty of Lease made as of June 30, 2006 by Sotheby’s, as Guarantor, to 1334 York Avenue L.P., as Landlord

 

 

 

 

99.1

Sotheby’s press release announcing the completion of the Reincorporation, dated June 30, 2006


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

 

SOTHEBY’S

 

 

 

 

 

 

 

By:

/s/ Michael L. Gillis

 

 

 

 

 

 

 

Michael L. Gillis

 

 

Senior Vice President,

 

 

Controller and Chief

 

 

Accounting Officer

 

 

 

 

Date: 

July 6, 2006

 

 

 


EXHIBIT 3.1

 

 

(DELWARE LOGO)

PAGE 1

 

The First State

 

 

           I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “SOTHEBY’S DELAWARE, INC. ”, FILED IN THIS OFFICE ON THE THIRTIETH DAY OF MARCH, A.D. 2006, AT 1:30 O’CLOCK P.M.

           A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

 

 

 

 

 

 

 

(STAMP)

 

 

 

 

 

 

 

 

-S- HARRIET SMITH WINDSOR

 

 

Harriet Smith Windsor, Secretary of State

4134614   8100

 

AUTHENTICATION:

 

4634591

 

060302541

 

 

DATE:

 

03-30-06


 

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 01:55 PM 03/30/2006
FILED 01:30 PM 03/30/2006
SRV 060302541 - 4134614 FILE

CERTIFICATE OF INCORPORATION
OF
SOTHEBY’S DELAWARE, INC.

I, the undersigned, for the purposes of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware, do execute this Certificate of Incorporation and do hereby certify as follows:

 

 

 

 

FIRST.

The name of the corporation (which is hereinafter referred to as the “Corporation”) is Sotheby’s Delaware, Inc.

 

 

SECOND.

The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, New Castle County, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company.

 

 

THIRD.

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.

 

 

FOURTH.

(a)

The total number of shares of stock that the Corporation shall have authority to issue is 250,000,000, of which 200,000,000 shares, par value $0.01 per share, shall be designated as Common Stock (“Common Stock”), and 50,000,000 shares, par value $0.01 per share, shall be designated as Preferred Stock (“Preferred Stock”).

 

 

 

 

(b)

The Board of Directors is authorized, subject to limitations prescribed by law and the provisions of this Article Fourth, to provide from time to time for the issuance of the shares of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof.

 

 

 

 

 

The authority of the Board to fix the designation, powers, preferences and rights of the shares of each series and the qualifications, limitations or restrictions thereof shall include, but not be limited to, determination of the following:

 

 

 

 

 

(1)

the number of shares constituting that series and the distinctive designation of that series;

 

 

 

 

 

 

(2)

the dividend rate on the shares of that series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that series;

 

 

 

 

 

 

(3)

whether that series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights;

 

 

 

 

 

 

(4)

whether that series shall have conversion or exchange privileges, and, if so, the terms and conditions of such conversion or exchange, including provision for adjustment of the conversion or exchange rate in such events as the Board of Directors shall



 

 

 

 

 

 

 

 

 

determine;

 

 

 

 

 

 

 

 

(5)

whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or date upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;

 

 

 

 

 

 

 

 

(6)

whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund;

 

 

 

 

 

 

 

 

(7)

the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that series; and

 

 

 

 

 

 

 

 

(8)

any other relative rights, preferences and limitations of that series.

 

 

 

 

 

 

 

(c)

Each holder of Common Stock shall have one vote for each share thereof held.

 

 

 

 

 

FIFTH.

 

The name and mailing address of the incorporator is Eric S. Shube, Allen & Overy LLP, 1221 Avenue of the Americas, New York, NY, 10020.

 

 

 

 

 

SIXTH.

 

In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the By-Laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any By-Law whether adopted by them or otherwise.

 

 

 

 

 

SEVENTH.

 

Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

 

 

 

 

 

EIGHTH.

 

A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that such exemption from liability or limitation thereof is not permitted under the laws of the State of Delaware as currently in effect or as the same may hereafter be amended. Any amendment, modification or repeal of this Article Eighth shall be prospective only and shall not adversely affect any right or protection of a director of the Corporation that exists at the time of such amendment, modification or repeal.

 

 

 

 

 

NINTH.

 

The Corporation shall indemnify and hold harmless, including the advancement of expenses, to the fullest extent permitted by applicable law as it currently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans maintained or sponsored by the Corporation (a “Covered Person”) (including the heirs, executors, administrators and estate of such Covered Person), against all



 

 

 

 

 

liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. The Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article Ninth with respect to the Indemnification and advancement of expenses of directors and officers of the Corporation. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person that provide for indemnification greater than or different from that provided in this Article Ninth. No amendment or repeal of this Article Ninth shall adversely affect any right or protection existing hereunder or pursuant hereto immediately prior to such amendment or repeal. The Corporation shall have power to 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 this Article Ninth or under the applicable provisions of law.

 

 

 

TENTH.

 

No action required to be taken or that may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing without a meeting to the taking of any action is specifically denied.

 

 

 

ELEVENTH.

 

Subject to the rights of holders of shares of any class or series of Preferred Stock in respect of meetings of the holders of such shares, special meetings of stockholders for any purpose or purposes may be called at any time by the Chairman of the Board, if any, the President, the Board of Directors, or a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority, as expressly provided in a resolution of the Board of Directors, include the power to call such meetings, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of such special meeting.

IN WITNESS WHEREOF, I have signed this Certificate of Incorporation this 30th day of March, 2006.

 

 

 

-S- ERIC S. SHUBE

 

 

Eric S. Shube

 

Incorporator




 

 

(DELWARE LOGO)

PAGE 1

 

The First State

 

          I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:

          “SOTHEBY’S HOLDINGS, INC.”, A MICHIGAN CORPORATION,

          WITH AND INTO “SOTHEBY’S DELAWARE, INC.” UNDER THE NAME OF “SOTHEBY’S”, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE THIRTIETH DAY OF JUNE, A.D. 2006, AT 10:55 O’CLOCK A.M.

          A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

 

 

 

 

 

 

 

(STAMP)

 

 

 

 

 

 

 

 

-S- HARRIET SMITH WINDSOR

 

 

Harriet Smith Windsor, Secretary of State

4134614   8100M

 

AUTHENTICATION:

 

4870474

 

060630472

 

 

DATE:  

 

06-30-06


CERTIFICATE OF MERGER

OF

SOTHEBY’S HOLDINGS, INC.

WITH AND INTO

SOTHEBY’S DELAWARE, INC.

The undersigned corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY THAT:

FIRST : The name and state of incorporation of each of the constituent corporations in the merger (the Constituent Corporations ) are as follows:

 

 

 

 

 

Name

 

 

State of Incorporation

 

 

 

 

 

 

 

Sotheby’s Holdings, Inc.

 

Michigan

 

 

 

Sotheby’s Delaware, Inc.

 

Delaware

SECOND : An Agreement and Plan of Merger dated as of March 31, 2006 (the Merger Agreement ), among Sotheby’s Delaware, Inc., a Delaware corporation, and Sotheby’s Holdings, Inc., a Michigan corporation, has been approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with the requirements of Section 252 of the General Corporation Law of the State of Delaware.

THIRD : Sotheby’s Delaware, Inc. shall be the surviving corporation of the merger (the Surviving Corporation ).

FOURTH : At the effective time of the merger, the Certificate of Incorporation of Sotheby’s Delaware, Inc. as in effect immediately prior to the effective time of the merger shall be amended so that Article First reads in its entirety as follows: “The name of the Corporation is Sotheby’s.” As so amended, such Certificate of Incorporation shall be the Certificate of Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law.

FIFTH : This Certificate of Merger shall become effective upon its filing with the Secretary of State of the State of Delaware.

SIXTH : The executed Merger Agreement is on file at an office of the Surviving Corporation located at 1334 York Avenue, New York, NY 10021.

SEVENTH : A copy of the Merger Agreement will be furnished by the Surviving Corporation, upon request and without cost, to any stockholder of either Constituent Corporation.

EIGHTH : The authorized capital stock of Sotheby’s Holdings, Inc. is 125,000,000 shares of Class A Limited Voting Common Stock, 75,000,000 shares of Class B Common Stock and 50,000,000 shares of preferred stock.

1

IN WITNESS WHEREOF, this Certificate of Merger has been executed on this 30th day of June, 2006.

 

 

 

 

 

SOTHEBY’S DELAWARE, INC.

 

 

 

 /s/ William F. Ruprecht

 

 

By: William F. Ruprecht

 

Its: President and Chief Executive Officer

 

 

ATTEST:

 

 

 

 /s/ Donaldson C. Pillsbury

 

 

 

Name: Donaldson C. Pillsbury

 

2

Officer’s Certificate

Reference is made to the Agreement and Plan of Merger (the “Merger Agreement”) dated March 31, 2006 between Sotheby’s Holdings Inc., a Michigan corporation and Sotheby’s Delaware, Inc., a Delaware corporation (the “Corporation”), pursuant to which the Corporation will continue as the successor corporation and change its name to Sotheby’s (the “Merger”).

In order for the Corporation to change its name to Sotheby’s, the undersigned, William F. Ruprecht, President of the Corporation hereby certifies pursuant to Section 102(a)(1)(i) of the General Corporation Law of the State of Delaware that immediately after the effective time of the Merger, the Corporation’s total assets, as defined in subsection (i) of Section 503 of the DGCL, will be not less than $10,000,000.

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate on behalf of the Corporation this 30th day of June, 2006.

 

 

 

By:

 /s/ William F. Ruprecht

 

 

 

 

Name: William F. Ruprecht

 

 

Title: President

 


EXHIBIT 3.2

BY-LAWS OF SOTHEBY’S

(a Delaware corporation, the “Corporation”)

(adopted as of March 31, 2006)

ARTICLE I

Stockholders

          Section 1.1. Annual Meetings . An annual meeting of stockholders shall be held for the election of Directors, and, subject to Section 1.12 of these By-Laws, to conduct such other proper business as may be brought before the meeting, at such date, time and place, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors.

          Section 1.2. Special Meetings . Subject to the rights of holders of shares of any class or series of Preferred Stock in respect of meetings of the holders of such shares, special meetings of stockholders for any purpose or purposes may be called at any time by the Chairman of the Board, if any, the President and Chief Executive Officer, the Board of Directors, or by a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority, as expressly provided in a resolution of the Board of Directors, include the power to call such meetings, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of such special meeting.

          Section 1.3. Notice of Meetings . Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given in writing or by electronic transmission in accordance with applicable law to each stockholder of record entitled to vote at such meeting. Such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these By-Laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at the address of such stockholder as it appears on the records of the Corporation.

          Section 1.4. Adjournments . Any meeting of stockholders, annual or special, may be adjourned from time to time by the chairman of such meeting, whether or not there is a quorum present at such meeting, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned

meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

          Section 1.5. Quorum . Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, at each meeting of stockholders the presence in person or by proxy of the holders of shares of capital stock of the Corporation having a majority of the votes that could be cast by the holders of all outstanding shares of capital stock of the Corporation entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the chairman of such meeting may adjourn the meeting from time to time in the manner provided in Section 1.4 of these By-Laws until a quorum shall attend. Shares of capital stock of the Corporation belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for purposes of determining whether a quorum is present at any meeting of stockholders; provided , however , that the foregoing shall not limit the right of the Corporation to vote capital stock, including but not limited to its own capital stock, held by it (or any other corporation) in a fiduciary capacity. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.

          Section 1.6. Organization . Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the President and Chief Executive Officer, or in the absence of the President and Chief Executive Officer by any Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but the chairman of the meeting may appoint any person to act as secretary of the meeting. The chairman of the meeting shall announce at the meeting of stockholders the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote.

          Section 1.7. Voting; Proxies . Except as otherwise provided by the Certificate of Incorporation of the Corporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of capital stock of the Corporation held by such stockholder that has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by delivering a proxy in accordance with applicable law bearing a later date to the Secretary of the Corporation. Voting at meetings of stockholders need not be by written ballot and, unless otherwise required by law, need not be conducted by inspectors of election. At all meetings of stockholders for the election of Directors, a plurality of the votes cast shall be sufficient to elect Directors. All other matters considered at a meeting of stockholders shall, unless otherwise provided by law, the Certificate of Incorporation or these By-Laws, be decided by a majority of the votes that could be cast by the holders of all outstanding shares of capital stock of the Corporation entitled to vote thereon that are present in person or by proxy at such meeting (assuming that a quorum is present).

          Section 1.8. Fixing Date for Determination of Stockholders of Record . In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of capital stock of the Corporation or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date: (a) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; and (b) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (ii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided , however , that the Board of Directors may fix a new record date for the adjourned meeting.

          Section 1.9. List of Stockholders Entitled to Vote . The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order, and showing the address of each stockholder and the number and class of shares of capital stock of the Corporation registered in the name of each stockholder. Nothing in this Section 1.9 shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Upon the willful neglect or refusal of the Directors to produce such a list at any meeting for the election of Directors held at a place, or to open such a list to examination on a reasonably accessible electronic network during any meeting for the election of directors held solely by means of remote communication, they shall be ineligible for election to any office at such meeting. The stock ledger shall be the only evidence as to which stockholders are entitled to examine the list of stockholders or to vote in person or by proxy at any meeting of stockholders.

          Section 1.10. No Action By Consent of Stockholders . No action required to be taken or that may be taken at an annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to take action by consent in writing, without a meeting, is expressly denied.

          Section 1.11. Conduct of Meetings . The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as may be adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders of record, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

          Section 1.12. Advance Notice of Stockholder Business. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this Section 1.12 . For business to be properly brought before an annual meeting by a stockholder of record, the stockholder must have given timely notice thereof in writing to the Secretary. To be timely, a stockholder’s notice must be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than the close of business on the sixtieth (60 th ) day nor earlier than the close of business on the ninetieth (90 th ) day prior to the first anniversary of the preceding year’s annual meeting; provided , however , that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the ninetieth (90 th ) day prior to such annual meeting and not later than the close of business on the later of the sixtieth (60 th ) day prior to such annual meeting or the tenth (10 th ) day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above. A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business, and, if applicable, the beneficial owner on whose behalf the stockholder is acting, (iii) the class and number of shares of capital stock of the Corporation that are owned of record by the stockholder, and, if applicable, beneficially by the beneficial owner, and (iv) any material interest of the stockholder or, if applicable, the beneficial owner in such business. Notwithstanding anything in these By-Laws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section 1.12 . The chairman of the annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions

of this Section 1.12 , and if the chairman should so determine, the chairman shall so declare to the meeting, and any such business not properly brought before the meeting shall not be transacted.

          Section 1.13. Notice of Stockholder Nominees . Only persons who are nominated in accordance with the procedures set forth in this Section 1.13 shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors may be made at a meeting of stockholders by or at the direction of the Board of Directors or by any stockholder entitled to vote for the election of Directors at the meeting who complies with the notice procedures set forth in this Section 1.13 . Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary. To be timely, a stockholder’s notice shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than the close of business on the sixtieth (60 th ) day nor earlier than the close of business on the ninetieth (90 th ) day prior to the first anniversary of the preceding year’s annual meeting; provided , however , that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the ninetieth (90 th ) day prior to such annual meeting and not later than the close of business on the later of the sixtieth (60 th ) day prior to such annual meeting or the tenth (10 th ) day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above. Such stockholder’s notice to the Secretary shall set forth: (a) as to each person whom the stockholder proposes to nominate for election or reelection as a Director, (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment of such person, (iii) the class and number of shares of capital stock of the Corporation that are beneficially owned by such person, and (iv) any other information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including, without limitation, such persons’ written consent to being named in the proxy statement as a nominee and to serving as a Director if elected); and (b) as to the stockholder giving the notice (i) the name and address, as they appear on the Corporation’s books, of such stockholder and (ii) the class and number of shares of capital stock of the Corporation that are beneficially owned by such stockholder. At the request of the Board of Directors any person nominated by the Board of Directors for election as a Director shall furnish to the Secretary that information required to be set forth in a stockholder’s notice of nomination that pertains to the nominee. No person shall be eligible for election as a Director unless nominated in accordance with the procedures set forth in this Section 1.13 . The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by these By-Laws, and if the chairman should so determine, the chairman shall so declare to the meeting, and the defective nomination shall be disregarded.

          Section 1.14. Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which Directors are to be elected pursuant to the Corporation’s notice of meeting (a) by or at the direction of the Board of Directors or (b) provided that the Board of Directors has determined that Directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time of

giving of notice provided for in this Section 1.14 , who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 1.14 . In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more Directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by Section 1.13 of these By-Laws shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the ninetieth (90 th ) day prior to such special meeting and not later than the close of business on the later of the sixtieth (60 th ) day prior to such special meeting or the tenth (10 th ) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment of a special meeting commence a new time period for the giving of a stockholder’s notice as described above.

ARTICLE II

Board of Directors

          Section 2.1. Number; Qualifications . The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders. The Board of Directors may, if it so determines, choose a Chairman of the Board and a Vice Chairman of the Board from among its members. No decrease in the number of authorized directors shall shorten the term of any incumbent Director.

          Section 2.2. Election; Resignation; Vacancies; Removal . The Board of Directors shall initially consist of the persons named as Directors by the incorporator, and each Director so elected shall hold office until such Director’s successor is elected and qualified. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect Directors each of whom shall hold office until such Director’s successor is elected and qualified. Any Director may resign at any time upon written notice to the Corporation. Any newly created Directorship or any vacancy occurring in the Board of Directors for any cause may be filled solely by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum or by a single remaining Director, and each Director so elected shall hold office until such Director’s successor is elected and qualified. Subject to the rights of holders of shares of any class or series of Preferred Stock with respect to such class or series of Preferred Stock, any director, or the entire Board of Directors, may be removed from office at any time, either with or without cause, by the affirmative vote of the holders of a majority of the shares then entitled to vote at an election of Directors.

          Section 2.3. Regular Meetings . Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine, and, if so determined, notices thereof need not be given.

          Section 2.4. Special Meetings . Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chairman of the Board, the President and Chief Executive Officer, the Secretary, or any other Director. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the

meeting at least twenty-four hours before the special meeting, unless such notice is waived by each Director who is not present for such special meeting.

          Section 2.5. Telephonic Meetings Permitted . Directors, or any member of any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this By-Law shall constitute presence in person at such meeting.

          Section 2.6. Quorum; Vote Required for Action . At all meetings of the Board of Directors a majority of the whole Board of Directors (including any vacancies) shall constitute a quorum for the transaction of business. Except in cases in which the Certificate of Incorporation or these By-Laws otherwise provide, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

          Section 2.7. Organization . Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the President and Chief Executive Officer, or in their absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but the chairman of the meeting may appoint any person to act as secretary of the meeting.

          Section 2.8. Informal Action by Directors . Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all Directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or paper evidence of the electronic transmission are filed with the minutes of proceedings of the Board of Directors or such committee.

          Section 2.9. Compensation . By resolution of the Board of Directors an annual or other fee as well as a fixed sum and expenses may be allowed for service as a member of the Board of Directors, for attendance at each annual or special meeting of the Board of Directors and for attendance by a member of such committee at each meeting of any committee designated by the Board of Directors; provided , however , that nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.

ARTICLE III

Committees

          Section 3.1. Committees . The Board of Directors may by resolution designate one or more committees, each committee to consist of one or more of the Directors. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the

seal of the Corporation to be affixed to all papers that may require it.

          Section 3.2. Committee Rules . Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these By-Laws.

ARTICLE IV

Advisory Committee

          Section 4.1. Advisory Committee: Constitution and Powers . The President and Chief Executive Officer, in consultation with the Chairman of the Board, if any, may designate an advisory committee (to be known as the “Advisory Committee” or “Advisory Board”), the members of which need not be Directors but shall be prominent members of the art or business communities of the world. The Advisory Committee and its members shall advise the Corporation as to matters relating to conditions in the national and international art markets and shall recommend actions that the Corporation may take in respect thereto. The compensation, if any, of the members of the Advisory Committee shall be fixed from time to time by the President and Chief Executive Officer, in consultation with the Chairman of the Board, if any. The Advisory Committee, as such, shall have no rights, powers, duties, authority, or responsibilities in respect of the Corporation or its shareholders but shall be entitled to all of the indemnifications to which a member of the Board of Directors is entitled.

          Section 4.2. Meetings of Advisory Committee . Meetings of the Advisory Committee shall be held at such time(s) and place(s), as shall from time to time be determined by resolution of the Advisory Committee or by its chairman, who shall be elected by the Board of Directors or appointed by the President and Chief Executive Officer. In case the day so determined shall be a legal holiday, such meeting shall be held on the next succeeding day, not a legal holiday, at the same hour.

          Section 4.3. Vacancies in Advisory Committee . Any newly created memberships and vacancies occurring in the Advisory Committee may be filled by the President and Chief Executive Officer, in consultation with the Chairman of the Board, if any.

ARTICLE V

Officers

          Section 5.1. Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies . The Board of Directors shall elect a President and Chief Executive Officer and a Secretary. The Board of Directors may also choose a Chairman of the Board, one or more Vice Chairmen of the Board, one or more Vice Presidents (who may be further designated as Executive Vice Presidents or Senior Vice Presidents), one or more Assistant Secretaries, a Chief Financial Officer, a Treasurer and one or more Assistant Treasurers and such other officers as the Board of Directors may from time to time determine. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding

his election, and until such officer’s successor is elected and qualified or until his earlier resignation or removal. Any officer may resign at any time upon written notice to the Corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

          Section 5.2. Powers and Duties of Executive Officers . The officers of the Corporation shall have such powers and duties in the management of the Corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his duties.

ARTICLE VI

Stock

          Section 6.1. Stock Certificates . Every holder of stock shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, if any, or the President and Chief Executive Officer or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation certifying the number and class of shares of capital stock of the Corporation owned by such stockholder; provided that the Board of Directors may provide by resolution that some or all classes of its capital stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

          Section 6.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates . The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

          Section 6.3. Transfer Agents and Registrars . The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars.

ARTICLE VII

Indemnification

          Section 7.1. Right to Indemnification . The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it currently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a Director or officer of the Corporation or, while a Director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans maintained or sponsored by the Corporation (including the heirs, executors, administrators and estate of such person), against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person in connection with such action, suit or proceeding provided such person shall have acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The Corporation shall be required to indemnify a person in connection with a proceeding (or part thereof) initiated by such person only if the proceeding (or part thereof) was authorized by the Board of Directors. The Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification to any employee or agent of the Corporation to the fullest extent of the provisions of this Article VII with respect to the indemnification of Directors and officers of the Corporation. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person that provide for indemnification greater than or different from that provided in this Article VII.

          Section 7.2. Actions by or in the Right of the Corporation. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it currently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a Director or officer of the Corporation, or, while a Director or officer of the Corporation, is or was serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit provided such person shall have acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the Delaware Court of Chancery or such other court shall deem proper.

          Section 7.3. Prepayment of Expenses . The Corporation shall pay the expenses (including

attorneys’ fees) of any person entitled to indemnification pursuant to Section 7.1 of these By-Laws or the Certificate of Incorporation of the Corporation incurred in defending any proceeding in advance of its final disposition; provided , however , that the payment of expenses incurred by a Director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Director or officer to repay all amounts advanced if it should be ultimately determined that the Director or officer is not entitled to be indemnified under this Article VII or otherwise. The Corporation may, to the extent authorized from time to time by the Board, grant rights to advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article VII with respect to the advancement of expenses of Directors and officers of the Corporation.

          Section 7.4. Claims . If a claim for indemnification or payment of expenses under this Article VII is not paid in full within sixty (60) days after a written claim therefor has been received by the Corporation, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.

          Section 7.5. Non-Exclusivity of Rights . The rights conferred on any person by this Article VII shall not be exclusive of any other rights that such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these By-Laws, agreement, vote of stockholders or disinterested Directors or otherwise.

          Section 7.6. Other Indemnification . The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit enterprise.

          Section 7.7. Amendment or Repeal . Any repeal or modification of the foregoing provisions of this Article VII shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

          Section 7.8. Insurance . The Corporation shall have power to 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 this Article VII or under the applicable provisions of law.

ARTICLE VIII

Miscellaneous

          Section 8.1. Fiscal Year . The fiscal year of the Corporation shall be determined from time to time by resolution of the Board of Directors.

          Section 8.2. Seal . The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

          Section 8.3. Waiver of Notice of Meetings of Stockholders, Directors and Committees . Any written waiver of notice, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, Directors, or members of a committee of Directors need be specified in any written waiver of notice.

          Section 8.4. Interested Directors; Quorum . No contract or transaction between the Corporation and one or more of its Directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of the Corporation’s Directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (a) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; (b) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the stockholders. Interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee that authorizes the contract or transaction.

          Section 8.5. Form of Records . Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information storage device, provided that the records so kept can be converted into clearly legible form within a reasonable time.

          Section 8.6. Amendment of By-Laws . These By-Laws may be altered or repealed, and new By-Laws made, by the Board of Directors, but the stockholders may make additional By-Laws and may alter and repeal any By-Laws whether adopted by them or otherwise.

EXHIBIT 4.4

FIRST SUPPLEMENTAL INDENTURE

DATED AS OF
JUNE 30, 2006

BETWEEN
SOTHEBY’S

AND

WILMINGTON TRUST COMPANY, Successor Trustee

SUPPLEMENTAL TO INDENTURE DATED
AS OF FEBRUARY 5, 1999, BETWEEN SOTHEBY’S HOLDINGS, INC.
AND THE CHASE MANHATTAN BANK, AS TRUSTEE

(ALLEN & OVERY LOGO)

Allen & Overy LLP

CONTENTS

 

 

 

 

 

Clause

 

 

Page

 

1.

Article 1

 

 

1

 

1.1

 

Assumption of Obligations by Successor Corporation

1

2.

Article 2

 

 

1

 

2.1

 

Further Assurances

1

 

2.2

 

Other Terms of Indenture

1

 

2.3

 

Terms Defined

2

 

2.4

 

Governing Law

2

 

2.5

 

Multiple Counterparts

2

 

2.6

 

Responsibility of Trustee

2

 

2.7

 

Agency Appointments

2


FIRST SUPPLEMENTAL INDENTURE, dated as of June 30, 2006 between SOTHEBY’S, a Delaware corporation (the Successor Corporation ), and WILMINGTON TRUST COMPANY, as successor trustee (the Trustee ).

WHEREAS ,

 

 

(1)

Sotheby’s Holdings, Inc. ( Holdings ) and the Trustee are parties to that certain Indenture dated as of February 5, 1999 (the Indenture );

 

 

(2)

as of June 30, 2006, Holdings merged with and into Sotheby’s Delaware, Inc., which continued as the successor corporation and changed its name to Sotheby’s;

 

 

(3)

Section 5.01 of the Indenture requires the Successor Corporation to expressly assume all the obligations of Holdings on all of the Securities and under the Indenture in a supplemental indenture;

 

 

(4)

pursuant to and in compliance with Section 5.02 of the Indenture, the Successor Corporation shall succeed to and be substituted for Holdings under the Indenture as “the Company”, with the same effect as if it had been named therein;

 

 

(5)

Section 9.01 of the Indenture provides that, without the consent of any Holder, the Company and the Trustee may enter into indentures supplemental to the Indenture for the purpose of, among other things, compliance with Article 5 of the Indenture;

 

 

(6)

the entry into this First Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture; and

 

 

(7)

all things necessary to make this First Supplemental Indenture a valid indenture and agreement according to its terms have been done.

NOW, THEREFORE , for and in consideration of the premises, the Successor Corporation and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Securities as follows:

 

 

1.

ARTICLE 1

 

 

1.1

Assumption of Obligations by Successor Corporation.

 

 

 

Pursuant to Section 5.01 of the Indenture, the Successor Corporation does hereby: (i) expressly assume all of the obligations of Holdings on all of the Securities and under the Indenture; and (ii) agree to succeed to and be substituted for Holdings under the Indenture with the same effect as if it had been named therein.

 

 

2.

ARTICLE 2

 

 

2.1

Further Assurances.

 

 

 

The Successor Corporation will, upon request by the Trustee, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectively the purposes of this First Supplemental Indenture.

 

 

2.2

Other Terms of Indenture.

 

 

 

Except insofar as herein otherwise expressly provided, all the provisions, terms and conditions of the Indenture are in all respects ratified and confirmed and shall remain in full force and effect.

1

 

 

2.3

Terms Defined.

 

 

 

All terms defined elsewhere in the Indenture shall have the same meanings when used herein.

 

 

2.4

Governing Law.

 

 

 

THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS FIRST SUPPLEMENTAL INDENTURE.

 

 

2.5

Multiple Counterparts.

 

 

 

This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original for all purposes, but such counterparts shall together be deemed to constitute but one and the same instrument.

 

 

2.6

Responsibility of Trustee.

 

 

 

The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture.

 

 

2.7

Agency Appointments.

 

 

 

The Successor Corporation hereby confirms and agrees to all agency appointments made by Holdings under or with respect to the Indenture or the Securities and hereby expressly assumes the due and punctual performance and observance of all the covenants and conditions to have been performed or observed by Holdings contained in any agency agreement entered into by Holdings under or with respect to the Indenture or the Securities.

IN WITNESS WHEREOF, this First Supplemental Indenture has been duly executed by the Successor Corporation and the Trustee as of the day and year first written above.

2

 

 

 

 

 

 

SOTHEBY’S

 

 

 

By: 

  /s/  William S. Sheridan

 

 

 

 

 

 

Name: 

William S. Sheridan

 

 

 

Title:

Executive Vice President,

 

 

 

 

Chief Financial Officer and Treasurer

 

Attest:

 

 

 

 

By: 

  /s/  Donaldson C. Pillsbury

 

 

 

 

Name: 

Donaldson C. Pillsbury

 

 

Title:

Executive Vice President,

 

 

 

Worldwide General Counsel and Secretary

3

 

 

 

 

 

WILMINGTON TRUST COMPANY,

 

as Trustee

 

 

 

By: 

  /s/  Joseph B. Fell

 

 

 

 

 

 

Name:

 Joseph B. Fell

 

 

 

Title:

Assistant Vice President

 

Attest:

 

 

 

By: 

  /s/  Irene A. Lennon

 

 

 

 

Name:

Irene A. Lennon

 

 

Title:

Senior Financial Services Officer

 

4

EXHIBIT 10.29

GUARANTY OF LEASE

          GUARANTY (this “ Guaranty ”) made as of this 30th day of June 2006, by SOTHEBY’S, a Delaware corporation having an address at 1334 York Avenue, New York, NY 10021 (“ Guarantor ”) to 1334 York Avenue L.P., a Delaware limited partnership having an address at c/o RFR Holding LLC, 400 Park Avenue, New York, NY 10022 (“ Landlord ”).

WITNESSETH :

          WHEREAS Sotheby’s Holdings, Inc., a Michigan corporation (the “ Existing Guarantor ) previously requested that Landlord enter into a lease with Sotheby’s, Inc., as tenant (“ Tenant ”), dated as February 6, 2003 (such lease, together with any modifications, amendments, extensions and renewals being collectively called the “ Lease ”), with respect to that certain parcel of real property located in the City of New York, State of New York, as is more particularly described in Schedule A attached hereto and by this reference made a part hereof, together with the buildings and other improvements then or thereafter located thereon (capitalized terms not otherwise defined herein have the meanings specified in the Lease);

          WHEREAS, Landlord refused to enter into the Lease unless the Existing Guarantor guaranteed the performance by Tenant of all of the terms, covenants, conditions, obligations and agreements contained in the Lease on the part of Tenant to be performed thereunder (collectively, the “ Covenants ”), subject to and in accordance with the terms of that certain Guaranty of Lease made as of February 6, 2003, by the Existing Guarantor to Landlord (the “ Existing Guaranty ”);

          WHEREAS, the Existing Guarantor has entered into an Agreement and Plan of Merger between the Existing Guarantor and Guarantor, a wholly-owned subsidiary of the Existing Guarantor organized under the laws of the State of Delaware, pursuant to which the Existing Guarantor will merge with and into the Guarantor, and the Guarantor will be the surviving corporation; and

          WHEREAS, Section 10 of the Existing Guarantee provides that Existing Guarantor shall not merge or consolidate with any corporation unless contemporaneously with such merger the surviving corporation executes and delivers to Landlord a guaranty of the Lease together with reasonably satisfactory evidence of the due authorization, execution, delivery, validly and binding effect thereof.

          NOW, THEREFORE, Guarantor agrees with Landlord as follows:

          1. Guarantor unconditionally guaranties to Landlord the prompt payment when due of the rent, additional rent and other charges payable under the Lease and full and faithful performance and observance of any and all Covenants (including, without limitation, the indemnity contained in Section 11 of the Lease); and Guarantor unconditionally covenants to Landlord that if default or breach shall at any time be made by Tenant in the Covenants to pay rent and additional rent or any other charges payable under the Lease or in the performance of any of the other Covenants, and notice of any such default or breach shall have been given by Landlord to Tenant and Tenant shall not have cured such default or breach within the grace period, if any, provided for in the Lease, Guarantor shall well and truly perform the Covenants, and pay said rent, additional rent or other charges or arrears thereof that may remain due thereon to Landlord, and also all damages that may arise in consequence of the non-performance of the Covenants, or any of them, or as the result of the breach of any of the conditions of limitation set forth in Section 19 of the Lease, including, without limitation, all damages stipulated in Section 19(b) of the Lease; provided , however , that Guarantor shall not have any liability in connection with this Guaranty or the Lease for any consequential or indirect damages (except to the extent that Tenant incurs liability for such consequential or indirect damages pursuant to Section 21(b) of the Lease). Guarantor shall pay to Landlord on demand (or if Guarantor is not an Affiliate of Tenant, within ten (10) days after written notice to Guarantor) all expenses (including, without limitation, Landlord’s reasonable out-of-pocket attorneys’ fees and disbursements) of, or incidental to, or relating to the enforcement or protection of Landlord’s rights hereunder or under the Lease.

          2. The liability of Guarantor hereunder shall not be impaired, abated, deferred, diminished, modified, released, terminated or discharged, in whole or in part, or otherwise affected, by any event, condition, occurrence, circumstance, proceeding, action or failure to act, with or without notice to, or the knowledge or consent of, Guarantor, including, without limitation:

                    (a) any amendment, modification or extension of the Lease or any Covenant;

                    (b) any extension of time for performance, whether in whole or in part, of any Covenant given prior to or after default thereunder;

                    (c) any exchange, surrender or release, in whole or in part, of any security which may be held by Landlord at any time for or under the Lease;

                    (d) any other guaranty now or hereafter executed by Guarantor or anyone else;

                    (e) any waiver of or assertion or enforcement or failure or refusal to assert or enforce, in whole or in part, any covenant, claim, cause of action, right or remedy which Landlord may, at any time, have under the Lease or with respect to any Guarantee or any security which may be held by Landlord at any time for or under the Lease or with respect to Tenant;

                    (f) any act or thing or omission or delay to do any act or thing which may in any manner or to any extent vary the risk of Guarantor or which would otherwise operate as a discharge of Guarantor as a matter of law;

                    (g) the release of any other guarantor from liability for the performance or observance of any Covenant, whether by operation of law or otherwise;

                    (h) Landlord’s consent to any assignment or subletting or the assignment or successive assignments of the Lease by Tenant, or any subletting of the premises demised under the Lease by Tenant;

                    (i) the failure to give Guarantor any notice whatsoever;

                    (j) any right, power or privilege that Landlord may now or hereafter have against any person, entity or collateral;

                    (k) any assignment, conveyance, mortgage, merger or other transfer, voluntary or involuntary (whether by operation of law or otherwise), of all or any part of Tenant’s interest in the Lease, including, without limitation, any assumption of the Lease by Guarantor pursuant to Section 6 hereof or the occurrence of any such assignment, conveyance, mortgage, merger or other voluntary or involuntary transfer which results in Guarantor becoming the tenant under the Lease; or

                    (l) any assignment, conveyance, mortgage, merger or other transfer, voluntary or involuntary (whether by operation of law or otherwise) of all or part of the interest or rights of Landlord under the Lease.

                    If any agreement between Landlord and Tenant shall extend the time of performance or modify any of the Covenants, Guarantor shall continue to be liable upon this Guaranty according to the tenor of any such agreement. Notwithstanding the foregoing, to the extent that Guarantor is not an Affiliate of Tenant, Guarantor shall not be bound to the extent any amendment, modification, extension or waiver with respect to an unaffiliated Tenant increases Guarantor’s obligations hereunder; provided , that the exercise by any such unaffiliated Tenant of any Extension Option under the Lease shall not be deemed to be an amendment, modification, extension or waiver thereof.

          3. To charge Guarantor under this Guaranty no demand shall be required, Guarantor hereby expressly waiving any such demand; provided , however , that to the extent that Guarantor is not an Affiliate of Tenant (pursuant to any assignment of Tenant’s interest in the Lease made in accordance with the provisions set forth in Sections 17(d),(j),(k),(m), and (s) of the Lease, any charge to Guarantor under this Guaranty may be made by Landlord upon ten (10) days prior written notice. Landlord shall have the right to enforce this Guaranty without pursuing any right or remedy of Landlord against Tenant or any other party, or any security Landlord may hold, it being intended that if there occurs any breach or default by Tenant in the performance or observance of any Covenant and notice of any such default or breach shall have been given by Landlord to Tenant and Tenant shall have failed to cure such default or breach within the grace period, if any, provided for in the Lease, or upon the occurrence of any condition of limitation in the Lease, Guarantor shall be obligated to Landlord as provided in this

Guaranty. Landlord may commence any action or proceeding based upon this Guaranty directly against Guarantor without making Tenant or anyone else a party defendant in such action or proceeding. Any one or more successive and/or concurrent actions may be brought hereon against Guarantor either in the same action, if any, brought against Tenant and/or any other party or in separate actions, as often as Landlord, in its sole discretion, may deem advisable.

          4. This Guaranty shall be binding upon Guarantor and its successors and assigns, and shall inure to the benefit of and may be enforced by the successors and assigns of Landlord or by any party to whom Landlord’s interest in the Lease or any part thereof, including the rents, may be assigned whether by way of mortgage or otherwise. Wherever in this Guaranty reference is made to either Landlord or Tenant, the same shall be deemed to refer also to the then successor or assign of Landlord or Tenant.

          5. Guarantor hereby expressly waives and releases (a) notice of the acceptance of this Guaranty and notice of any change in Tenant’s financial condition; (b) the right to interpose any substantive or procedural defense of the law of guarantee, indemnification or suretyship, except the defense of prior payment or prior performance by Tenant (of the obligations which Guarantor is called upon to pay or perform under this Guaranty) or any other defense that is available and that Tenant is entitled to assert under the Lease); (c) all rights and remedies accorded by applicable law to guarantors or sureties, including without limitation, any extension of time conferred by any law now or hereafter in effect; (d) the right to trial by jury, in any action or proceeding of any kind arising on, under, out of, or by reason of or relating, in any way, to this Guaranty or the interpretation, breach or enforcement thereof; (e) the right to interpose any defense (except as allowed under (b) above), set off or counterclaim of any nature or description in any action or proceeding; and (f) any right or claim of right to cause a marshalling of Tenant’s assets or to cause Landlord to proceed against Tenant and/or any collateral held by Landlord at any time or in any particular order.

          6. Without limiting Guarantor’s obligations elsewhere under this Guaranty, if Tenant, or Tenant’s trustee, receiver or other officer with similar powers with respect to Tenant, rejects, disaffirms or otherwise terminates the Lease pursuant to any bankruptcy, insolvency, reorganization, moratorium or any other law affecting creditors’ rights generally, Guarantor shall automatically be deemed to have assumed, from and after the date such rejection, disaffirmance or other termination of the Lease is deemed effective, all obligations and liabilities of Tenant under the Lease to the same extent as if Guarantor had been originally named instead of Tenant as a party to the Lease and the Lease had never been so rejected, disaffirmed or otherwise terminated. Guarantor, upon such assumption, shall be obligated to perform and observe all of the Covenants whether theretofore accrued or thereafter accruing and Guarantor shall be subject to any rights or remedies of Landlord which may have theretofore accrued or which may thereafter accrue against Tenant on account of any default under the Lease, notwithstanding that such defaults existed prior to the date Guarantor was deemed to have automatically assumed the Lease or that such rights or remedies are unenforceable against Tenant by reason of such rejection, dissaffirmance or other termination. Guarantor shall confirm such assumption in writing at the request of Landlord upon or after such rejection, dissaffirmance or other termination, but the failure to do so shall not affect such assumption. Guarantor, upon the assumption of the Lease, shall have all of the rights of Tenant under the Lease (to the extent permitted by law). Neither Guarantor’s obligation to make payment in

accordance with this Guaranty nor any remedy for the enforcement thereof shall be impaired, modified, changed, stayed, released or limited in any manner by any impairment, modification, change, release, limitation or stay of the liability of Tenant or its estate in bankruptcy or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the Bankruptcy Code of the United States or other statute or from the decision of any court interpreting any of the same, and Guarantor shall be obligated under this Guaranty as if no such impairment, stay, modification, change, release or limitation had occurred.

          7.       (a) This Guaranty and all rights, obligations and liabilities arising hereunder shall be construed according to the laws of the State of New York. Guarantor hereby irrevocably submits, to the extent permitted by applicable law, to the non-exclusive jurisdiction of (i) the United States Courts for the Southern District of New York, or the courts of the State of New York, in any action or proceeding arising out of or relating to this Guaranty, and Guarantor hereby irrevocably agrees that all claims against it in respect of such action or proceeding against Guarantor may be heard and determined in such courts. Guarantor hereby appoints Sotheby’s, Inc. as its attorney-in-fact and agent in its name, place and stead to accept service of legal process in any such action or proceeding in any court described above, and consents that service of legal process in any such action or proceeding may be made upon it by service upon Sotheby’s, Inc. To the extent permitted by applicable law, Guarantor agrees that a final judgment obtained in any court described above in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

                    (b) Nothing in this Section 7 shall affect the right of Landlord to serve legal process in any other manner permitted by law. Guarantor hereby consents that service of process by registered or certified mail, return receipt requested, addressed to Guarantor at the address hereinabove set forth will be sufficient.

                    (c) To the extent that Guarantor has or hereafter may acquire any immunity from jurisdiction of any such court referred to in clause (a)(i) or (a)(ii) above or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, to the extent permitted by applicable law, Guarantor hereby irrevocably waives such immunity in respect of its obligations under this Guaranty.

                    (d) Guarantor hereby irrevocably waives, to the extent permitted by applicable law, any objection, including, without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens , that Guarantor may now or hereafter have to the bringing of any such action or proceeding in such respective courts referred to in clauses (a)(i) and (a)(ii) above.

          8. Guarantor hereby waives any and all rights of subrogation (if any) which it may have against Tenant as a result of actions taken or amounts paid in connection with or relating to this Guaranty or to the Lease until all of Guarantor’s obligations hereunder are satisfied or Guarantor is released pursuant to Section 16 below.

          9. Guarantor represents and warrants to Landlord that as of the date hereof:

                    (a) Guarantor has full power, authority and legal right to execute, deliver, perform and observe this Guaranty, including, without limitation, the payment of all moneys hereunder.

                    (b) The execution, delivery and performance by Guarantor of this Guaranty have been duly authorized by all necessary corporate action.

                    (c) This Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, and other laws affecting creditors’ rights generally, to moratorium laws from time to time in effect and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

          10. Guarantor shall not merge or consolidate with any corporation or sell all or substantially all of its assets unless either (a) Guarantor shall be the surviving corporation or (b) contemporaneously with such merger or consolidation or sale, the surviving or purchasing corporation executes and delivers to Landlord a guaranty of the Lease, substantially in the form and substance of this Guaranty, together with reasonably satisfactory evidence of the due authorization, execution, delivery, validity and binding effect thereof, but whether or not such execution and delivery shall take place the surviving or purchasing corporation shall be bound by this Guaranty as if it had so executed and delivered such guaranty.

          11. If Landlord shall be obligated by reason of any bankruptcy, insolvency or other legal proceeding to pay or repay to Tenant or to Guarantor or to any trustee, receiver or other representative of either of them, any amounts previously paid by Tenant or Guarantor pursuant to the Lease or this Guaranty, Guarantor shall reimburse Landlord for any such payment or repayment and this Guaranty shall extend to the extent of such payment or repayment made by Landlord, except to the extent, if any, that such payment or repayment is prohibited by law or that such payment or repayment constitutes merely a reimbursement of any overpayment. Landlord shall not be required to litigate or otherwise dispute its obligation or make such payment or repayment if in good faith and on written advice of counsel Landlord believes that such obligation exists.

          12. Landlord and Guarantor shall each, at any time and from time to time, within ten (10) business days following request by the other, execute, acknowledge and deliver to the other a statement certifying that this Guaranty is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating such modifications) and that to the best of the certifying party’s knowledge, Guarantor is not in default hereunder (or if there is such a default, describing such default in reasonable detail).

          13. All remedies afforded to Landlord by reason of this Guaranty or the Lease, or otherwise available at law or in equity, are separate and cumulative remedies and no one remedy, whether or not exercised by Landlord, shall be deemed to be in exclusion of any other remedy available to Landlord and shall not limit or prejudice any other legal or equitable remedy which Landlord may have.

          14. If any term, covenant, condition or provision of this Guaranty or the application thereof to any circumstance or to Guarantor shall be invalid or unenforceable to any extent, the remaining terms, covenants, conditions and provisions of this Guaranty or the application thereof to any circumstances or to Guarantor other than those as to which any term, covenant, condition or provision is held invalid or unenforceable, shall not be affected thereby and each remaining term, covenant, condition and provision of this Guaranty shall be valid and shall be enforceable to the fullest extent permitted by law.

          15. Any notice hereunder shall be in writing and personally delivered or sent by certified or registered mail, return receipt requested to Landlord or Guarantor at their respective addresses hereinabove set forth or such other address designated by Landlord or Guarantor by ten (10) days prior notice. Any notice hereunder to be delivered to Guarantor by Landlord shall also delivered to Tenant concurrently at the following address (or such other address designated by Tenant by ten (10) days prior notice):

 

 

 

Sotheby’s, Inc.

 

1334 York Avenue

 

New York, New York 10021

 

Attention: General Counsel

Any notice shall be deemed given as of the date of delivery as indicated by affidavit in case of personal delivery or by the return receipt in the case of mailing; and in the event of failure to deliver by reason of changed address of which no notice is given or refusal to accept delivery, as of the date of such failure as indicated by affidavit or return receipt as aforesaid.

          16. Notwithstanding anything in this Guaranty to the contrary, Guarantor shall be released from its obligations hereunder (a) upon the satisfaction of all of the conditions set forth in Sections17(n)(2) or 17(n)(3) of the Lease, as the case may be, and (b) only to the extent such obligations accrue on or after the date of such release.

          IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year first above written.

 

 

 

 

SOTHEBY’S, a Delaware corporation

 

 

 

 

By:

 /s/ William F. Ruprecht

 

 

 

 

Name: William F. Ruprecht

 

 

Title: President and Chief Executive Officer


EXHBIT 99.1

(SOTHEBY'S LOGO)  

News Release

 

 

DRAFT

Press Department:
Diana Phillips
Matthew Weigman
(212) 606-7176
Investor Relations:
Jennifer Park
(212) 894-1023

SOTHEBY’S HOLDINGS, INC. COMPLETES REINCORPORATION

--CORPORATION RENAMED SOTHEBY’S--

On June 30, 2006, Sotheby’s Holdings, Inc., a Michigan corporation, completed its reincorporation into the State of Delaware by merging into a wholly-owned Delaware subsidiary. The reincorporation and related proposals were approved by the shareholders of Sotheby’s Holdings at the annual meeting of shareholders held on May 8, 2006. The surviving corporation was renamed “Sotheby’s” upon completion of the merger.

The reincorporation did not result in any change in the business or principal facilities of Sotheby’s. The management and Board of Directors of Sotheby’s Holdings continue as the management and Board of Directors of Sotheby’s Delaware. In the merger, each outstanding share of Sotheby’s Holdings Class A Limited Voting Common Stock was converted into one share of Common Stock of the surviving Delaware corporation, and Sotheby’s stock will continue to trade on the New York Stock Exchange under the symbol “BID.”

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