CONFIRMING COPY
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PLANET HOLLYWOOD INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 59-3283783
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
7380 Sand Lake Road,
Suite 650, Orlando, Florida 32819
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(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(g) of
the Act:
None
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If this Form relates to the registration of a class of debt
securities and is effective upon filing pursuant to General
Instruction A.(c)(1), please check the following box. [ ]
If this Form relates to the registration of a class of debt
securities and is to become effective simultaneously with
the effectiveness of a concurrent registration statement
under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of
the Act:
Title of each class
to be so registered
- --------------------
Class A Common Stock, $.01 par value
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(Title of Class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities To Be
Registered
A description of the Class A Common Stock, $.01 par
value, of Planet Hollywood International, Inc. (the "Company") is
hereby incorporated by reference from pages 49-50 of the
Company's Registration Statement on Form S-1 (Reg. No. 333-1490).
Item 2. Exhibits
1. Pages 50-51 of the Registration Statement on Form
S-1 (Reg. No. 333-1490) of Planet Hollywood International, Inc.
2. Restated Certificate of Incorporation of Planet
Hollywood International, Inc.
3. First Amended and Restated By-laws of Planet
Hollywood International, Inc.
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
Registrant: PLANET HOLLYWOOD INTERNATIONAL, INC.
Date: April 18, 1996
By: /s/ Thomas Avallone
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Thomas Avallone
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
Page
1. Pages 50-51 of the Registration Statement on Form S-1
(Reg. No. 333-1490) of Planet Hollywood International, Inc. . 4
2. Restated Certificate of Incorporation of Planet
Hollywood International, Inc. . . . . . . . . . . . . . . . 7
3. First Amended and Restated By-laws of Planet
Hollywood International, Inc. . . . . . . . . . . . . . . . . 17
<PAGE>
EXHIBIT 1
<PAGE>
stores. The notes held by PHDFP (an entity wholly owned by
PHH) bear interest at 10% per annum, and the notes held by
Messrs. Barish and Earl bear interest at the prime rate
prevailing from time to time. The notes payable to PHDFP
are guaranteed by Messrs. Barish and Earl and are secured
by substantially all the assets of the Company and by the
shares of Class A Common Stock beneficially owned by
Messrs. Barish and Earl. All the notes will be prepaid with a
portion of the net proceeds of the Offerings and all liens
granted in connection therewith will be released. In
addition, during fiscal 1995, the principal stockholders
(Messrs. Barish and Earl and PHH) or their affiliates
advanced $21.6 million to the Company under various loan
and credit facilities at an effective interest rate of 20% per
annum. These advances were made to develop and construct
new units in 1995 and were prepaid with a portion of the
proceeds from the Senior Subordinated Notes. During fiscal
1993, 1994 and 1995, approximately $0.7 million, $4.3
million and $7.7 million, respectively, were paid to the
principal stockholders as interest and charged to interest
expense and approximately $0.5 million, $1.0 million and
$0.7 million, respectively, were paid to the principal
stockholders as interest and capitalized to leasehold
improvements.
In December 1992, the Company entered into a master
franchise and license arrangement with PH Asia (an entity that is
50% owned by each of the Company and HPL Group, a Singapore
public company of which Mr. Ong is the largest stockholder).
Pursuant to this arrangement, which was amended as of July 1,
1995, PH Asia has the rights to license and develop Planet
Hollywood units throughout most of Asia (excluding Japan) and
certain countries in the Middle East and to receive royalties in
respect of the operation of any such units. PH Asia's obligation
to pay the Company franchise fees or continuing royalties related
to these units was terminated in connection with the Company's
acquisition of a 50% interest in PH Asia. The Company acquired
its 50% interest in PH Asia in connection with the January 1995
Reorganization as a capital contribution from the parent company
of PHIL, in exchange for the issuance to PHIL of shares of voting
common stock. In December 1995, the Company reacquired from a
former franchisee its rights to open units in Kuala Lumpur,
Taipei and Bangkok as a sub-franchisee of PH Asia. Through its
equity ownership in PH Asia, the Company will recover 50% of the
royalties it will be required to pay to PH Asia in respect of
these units and the balance will be distributed to HPL Group.
During 1995, PHH a company affiliated with Mr. Ong paid
$2.0 million to the Company for the franchise rights to develop
one Planet Hollywood unit in the Philippines and the Company has
entered into a franchise agreement with PHH concerning the
operation of this unit.
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Prior to the date of this Prospectus, the Company
amended its Certificate of Incorporation to change its authorized
capital stock to 250,000,000 shares of Class A Common Stock,
25,000,000 shares of Class B Common Stock and 25,000,000 shares
of preferred stock, par value $.0l per share (the "Preferred
Stock"), to reclassify its two existing classes of common stock
into Class A Common Stock, to convert each outstanding share of
Class A Common Stock into 1.33 shares of its new Class A Common
Stock and to create a new class of non-voting Class B Common
Stock. The following summary description of the capital stock of
the Company is qualified in its entirety by reference to the
Restated Certificate and Bylaws, a copy of each of which is filed
as an exhibit to the Registration Statement on Form S- 1 of which
this Prospectus forms a part.
Common Stock
The Restated Certificate provides for two classes of
common stock, Class A Common Stock and Class B Common Stock
(collectively, the "Common Stock"), which are substantially
identical except with respect to voting rights. Each share of
Class A Common Stock entitles the holder of record to one vote
for each share held on all matters submitted to a vote of
stockholders, including the election of directors. Shares of
Class B Common Stock have no voting or approval rights. Upon
completion of the Offerings, the Minority Interest Exchanges and
the Costa Mesa Exchange, there will be outstanding 94,781,709
shares of Class A Common Stock (96,399,942 shares if the over-
allotment options are exercised in full) and 11,545,706 shares of
Class B Common Stock.
Holders of Class A Common Stock do not have cumulative
voting rights for the election of directors; therefore, holders
of a majority of the shares voting for the election of directors
can elect all the directors, in which event the holders of the
remaining shares will not be able to elect any directors.
Holders of the Common Stock are entitled to such
dividends as may be declared from time to time by the Board of
Directors from funds legally available therefor and are entitled
to share ratably in all assets of the Company remaining after the
payment of all liabilities upon the liquidation, dissolution or
winding-up of the Company. The Common Stock has no preemptive or
conversion rights or the benefit of any sinking fund and is not
subject to redemption or to liability for any further calls by
the Company. The outstanding shares of Common Stock are, and the
shares of Class A Common Stock being offered hereby will be, when
issued and delivered against payment therefor, fully paid and
nonassessable.
In connection with the All Star Exchange, the holders
of the Class B Common Stock will agree that the Class B Common
Stock will be neither convertible into Class A Common Stock nor
transferable prior to the third anniversary of the consummation
of the All Star Exchange. After such third anniversary, holders
of Class B Common Stock will be permitted to convert or sell up
to 50% of their shares of Class B Common Stock, and all
restrictions on convertibility and transferability of Class B
Common Stock will terminate on the fifth anniversary of the All
Star Exchange. Shares of Class B Common Stock will be
automatically converted into Class A Common Stock upon transfer.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the Class A Common
Stock is SunTrust Bank, Central Florida, National Association.
Preferred Stock
The Company may issue up to 25,000,000 shares of
Preferred Stock in one or more series. The Board of Directors has
the authority, without any vote or action by the stockholders, to
issue Preferred Stock and to fix the designations, preferences,
rights, qualifications, limitations and restrictions thereof,
including the voting rights, dividend rights, dividend rate,
conversion rights, terms of redemption (including sinking fund
provisions), redemption price or prices, liquidation preferences
and the number of shares constituting any series. There are no
shares of Preferred Stock outstanding, and there are no
agreements or understandings for the designation of any series of
Preferred Stock or the issuance of shares thereunder. See
"--Certain Anti-Takeover Matters -- Blank Check Preferred Stock."
Warrants
Following consummation of the Offerings, the Company
will have outstanding Warrants to purchase 1,768,164 shares of
Class A Common Stock at an exercise price of $.0l per share. The
Warrants will be exercisable at any time and, to the extent not
previously exercised, will terminate on September 21, 2000. The
number of shares of Class A Common Stock issuable upon exercise
of the Warrants is subject to adjustment upon the occurrence of
certain customary dilutive events. In connection with the
Offerings, the Company has agreed with the holders of the
Warrants to file and have declared effective a registration
statement to cover resales of the shares of Class A Common Stock
underlying the Warrants, provided that no such resale, subject to
limited exceptions, will occur prior to the 181st day following
the date of this Prospectus.
Limitation of Liability
The Restated Certificate provides that directors of the
Company will not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, relating to
prohibited dividends or distributions or the repurchase or
redemption of stock or (iv) for any transaction from which the
director derives an improper personal benefit. Such limitation of
liability does not affect the availability of equitable remedies
such as
<PAGE>
EXHIBIT 2
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
PLANET HOLLYWOOD INTERNATIONAL, INC.
Planet Hollywood International, Inc. filed its original
Certificate of Incorporation with the Delaware Secretary of State
on December 16, 1994 (the "Original Certificate"). This Restated
Certificate of Incorporation and the amendments to the Original
Certificate as contained herein have been duly adopted in
accordance with Sections 228, 242, and 245 of the General
Corporation Law of Delaware.
ARTICLE I
Name
The name of this corporation is PLANET HOLLYWOOD
INTERNATIONAL, INC. (the "Corporation").
ARTICLE II
Registered Office and Agent
The street address of the registered office of the
Corporation in the State of Delaware is 1013 Centre Road, in the
City of Wilmington, County of New Castle, Delaware 19805.
The name of the registered agent of the Corporation at
that address is Corporation Service Company.
ARTICLE III
Mailing Address
The mailing address of the Corporation is 7380 Sand
Lake Road, Suite 600, Orlando, Florida 32819.
ARTICLE IV
Duration
This Corporation shall exist perpetually.
ARTICLE V
Purpose
The purpose or purposes of the Corporation are:
(1) To conduct any lawful business, to exercise any
lawful purpose and power, and to engage in any lawful act or
activity for which corporations may be organized under the
General Corporation Law of Delaware; and
(2) In general, to possess and exercise all the powers
and privileges granted by the General Corporation Law of Delaware
or any other law of Delaware or by this Certificate of
Incorporation together with any power incidental thereto, so far
as such powers and privileges are necessary or convenient to the
conduct, promotion or attainment of the business or purposes of
the Corporation.
ARTICLE VI
Capital Stock
The maximum number of shares of capital stock which
this Corporation shall have authority to issue is Three Hundred
Million (300,000,000), consisting of Two Hundred Fifty Million
(250,000,000) shares of Class A Common Stock, $.0l par value,
Twenty Five Million (25,000,000) shares of Class B Common Stock,
$.0l par value, and Twenty Five Million (25,000,000) shares of
Preferred Stock, $.Ol par value. The Class B Common Stock being
established by this Restated Certificate of Incorporation is a
new class of Class B Common Stock. Each share of Class B Common
Stock established by the Original Certificate shall convert,
effective as of the date hereof, pursuant to the terms of Section
4(a) below. All references herein to the "Class B Common Stock"
shall refer to the new class being established hereby, unless
expressly indicated otherwise. The Class A Common Stock and the
Class B Common Stock are hereinafter referred to collectively as
the "Common Stock". The preferences, qualifications, limitations,
restrictions and the special or relative rights in respect of the
shares of each class are as follows:
SECTION 1. Preferred Stock. The Preferred Stock may be
issued from time to time in one or more series. All shares of
Preferred Stock shall be of equal rank and shall be identical,
except in respect of the matters that may be fixed and determined
by the Board of Directors as hereinafter provided, and each share
of each series shall be identical with all other shares of such
series, except as to the date from which dividends are
cumulative. The Board of Directors hereby is authorized to cause
such shares to be issued in one or more classes or series and
with respect to each such class or series to fix and determine
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 of Directors with respect to
each series shall include, but not be limited to, determination
of the following:
(1) the number of shares constituting a series, the
distinctive designation of a series and the stated value of a
series, if different from the par value;
(2) whether the shares of a series are entitled to any
fixed or determinable dividends, the dividend rate (if any) on
such shares, whether the dividends are cumulative and the
relative rights of priority of dividends on shares of that
series;
<PAGE>
(3) whether a series has voting rights in addition to
the voting rights provided by law and the terms and conditions of
such voting rights;
(4) whether a series will have or receive conversion or
exchange privileges and the terms and conditions of such
conversion or exchange privileges;
(5) whether the shares of a series are redeemable and
the terms and conditions of such redemption, including the manner
of selecting shares for redemption if less than all shares are to
be redeemed, the date or dates on or after which the shares in
the series will be redeemable and the amount payable in case of
redemption;
(6) whether a series will have a sinking fund for the
redemption or purchase of the shares in the series and the terms
and the amount of such sinking fund;
(7) the right of a series to the benefit of conditions
and restrictions on the creation of indebtedness of the
Corporation or any subsidiary, on the issuance of any additional
capital stock (including additional shares of such series or any
other series), on the payment of dividends or the making of other
distributions on any outstanding stock of the Corporation and the
purchase, redemption or other acquisition by the Corporation, or
any subsidiary, of any outstanding stock of the Corporation;
(8) the rights of a series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation and the relative rights of priority of payment of a
series; and
(9) any other relative, participating, optional or
other special rights, qualifications, limitations or restrictions
of such series.
Dividends on outstanding shares of Preferred Stock
shall be paid or set apart for payment before any dividends shall
be paid or declared or set apart for payment on the Common Stock
with respect to the same dividend period.
If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation the assets available
for distribution to holders of shares of Preferred Stock of all
series shall be insufficient to pay such holders the full
preferential amount to which they are entitled, then such assets
shall be distributed ratably among the shares of all series in
accordance with the respective preferential amounts (including
unpaid cumulative dividends, if any, payable with respect
thereto).
SECTION 2. Common Stock - General Provisions. The
Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. Each share of Common
Stock shall be equal to every other share of Common Stock, except
as otherwise provided herein or required by law.
<PAGE>
Shares of Common Stock authorized hereby shall not be
subject to preemptive rights. The holders of shares of Common
Stock now or hereafter outstanding shall have no preemptive right
to purchase or have offered to them for purchase any of such
authorized but unissued shares, or any shares of Preferred Stock,
Common Stock or other equity securities issued or to be issued by
the Company.
Subject to the preferential and other dividend rights
applicable to Preferred Stock, the holders of shares of Common
Stock shall be entitled to receive such dividends (payable in
cash, stock or otherwise) as may be declared on the Common Stock
by the Board of Directors at any time or from time to time out of
any funds legally available therefor.
In the event of any voluntary or involuntary
liquidation, distribution or winding up of the Corporation, after
distribution in full of the preferential or other amounts to be
distributed to the holders of shares of Preferred Stock, the
holders of shares of Common Stock shall be entitled to receive
all of the remaining assets of the Corporation available for
distribution to its stockholders, ratably in proportion to the
number of shares of Common Stock held by them.
SECTION 3. Common Stock - Other Provisions.
(a) Voting Rights. The shares of Common Stock shall
have the following voting rights:
(1) Each share of Class A Common Stock shall entitle
the holder thereof to one vote upon all matters upon which
stockholders have the right to vote.
(2) Each share of Class B Common Stock shall carry no
right to vote for the election of directors of the Corporation
and no right to vote on any matter presented to the stockholders
for their vote or approval except as required by applicable law.
Except as otherwise required by applicable law, the holders of
shares of Class A Common Stock shall vote together as one class
on all matters submitted to a vote of stockholders of the
Corporation (or, if any holders of shares of Preferred Stock are
entitled to vote together with the holders of Class A Common
Stock, as a single class with such holders of shares of Preferred
Stock).
(b) Dividends and Distributions. Except as otherwise
provided in this Restated Certificate of Incorporation, holders
of Common Stock shall be entitled to such dividends and other
distributions in cash, stock or property of the Corporation as
may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available
therefor; provided, however, that in no event may the rate of any
dividend payable on outstanding shares of any class of Common
Stock be greater than the dividend rate payable on outstanding
shares of the other class of Common Stock. All dividends and
distributions on the Class A Common Stock payable in stock of the
Corporation shall be made in shares of Class A Common Stock, and
all dividends and distributions on the Class B Common Stock
payable in stock of the Corporation shall be made at the same
dividend rate per share in shares of Class B Common Stock. In no
event will shares of any class of Common Stock be split, divided
or combined unless the outstanding shares of the other class of
Common Stock shall be proportionately split, divided or combined.
(c) Options, Riqhts or Warrants. The Corporation may
make offerings of options, rights or warrants to subscribe for
shares of either class of capital stock to all holders of one
class of Common Stock if an identical offering is made
simultaneously to all the holders of the other class. All such
offerings of options, rights or warrants shall offer the
respective holders of Class A Common Stock and Class B Common
Stock the right to subscribe at the same rate per share.
SECTION 4. Conversion of Class B Common Stock.
(a) Conversion of Existinq Shares of Class B Common
Stock to Shares of Class A Common Stock. The Original Certificate
established a class of non-voting common stock identified as the
Non-Voting Class B Common Stock, $.0l par value, of which
49,000,000 shares were authorized (the "Old Class B Shares") .
Effective with the filing of this Restated Certificate of
Incorporation, each of such Old Class B Shares shall convert,
without any action by the holder thereof, into one validly
issued, fully paid and nonassessable share of Class A Common
Stock, and the Corporation shall promptly cancel the certificates
evidencing such Old Class B Shares and issue and deliver to the
record holders thereof certificates representing that number of
shares of Class A Common Stock to which such record holders are
entitled by reason of this conversion, and the Corporation shall
cause such shares of Class A Common Stock to be registered in the
name of such record holders.
(b) Voluntary Conversion. Each share of Class B Common
Stock shall be convertible, at the option of its record holder,
into one validly issued, fully paid and nonassessable share of
Class A Common Stock at any time.
(c) Voluntary Conversion Procedure. At the time of a
voluntary conversion, the record holder of shares of Class B
Common Stock shall deliver to the principal office of the
Corporation or any transfer agent for shares of the Class A
Common Stock (i) the certificate or certificates representing the
shares of Class B Common Stock to be converted, duly endorsed in
blank or accompanied by proper instruments of transfer and (ii)
written notice to the Corporation stating that such record holder
elects to convert such share or shares and stating the name or
names (with addresses) and denominations in which the certificate
or certificates representing the shares of Class A Common Stock
issuable upon such conversion are to be issued and including
instructions for the delivery thereof. Conversion shall be deemed
to have been effected at the time when delivery is made to the
Corporation or its transfer agent of such written notice and the
certificate or certificates representing the shares of Class B
Common Stock to be converted, and as of such time each person
named in such written notice as the person to whom a certificate
representing shares of Class A Common Stock is to be issued shall
be deemed to be the holder of record of the number of shares of
Class A Common Stock to be evidenced by that certificate. Upon
such delivery, the Corporation or its transfer agent shall
promptly issue and deliver at such stated address to such record
holder of shares of Class A Common Stock a certificate or
certificates representing the number of shares of Class A Common
Stock to which such record holder is entitled by reason of such
conversion, and shall cause such shares of Class A Common Stock
to be registered in the name of such record holder.
(d) Reclassifications. In the event of a
reclassification or other similar transaction as a result of
which the shares of class A Common Stock are converted into
another security, then a holder of Class B Common Stock shall be
entitled to receive upon conversion the amount of such security
that such holder would have received if such conversion had
occurred immediately prior to the record date of such
reclassification or other similar transaction.
(e) Unconverted Shares; Notice Reguired. In the event
of the conversion of less than all the shares of Class B Common
Stock evidenced by a certificate surrendered to the Corporation
in accordance with the procedures of Section 4 (b) of this
Article VI, the Corporation shall execute and deliver to or upon
the written order of the holder of such unconverted shares,
without charge to such holder, a new certificate evidencing the
number of shares of Class B Common Stock not converted.
(f) Retired Shares. Shares of Class B Common Stock that
are converted into shares of Class A Common Stock as provided
herein shall be retired and canceled and shall have the status of
authorized but unissued shares of Class B Common Stock.
(g) Reservation. The Corporation shall at all times
reserve and keep available, out of its authorized and unissued
shares of Class A Common Stock, for the purposes of effecting
conversions, such number of duly authorized shares of Class A
Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding shares of Class B Common Stock;
provided, however, that nothing contained herein shall be
construed to preclude the Corporation from satisfying its
obligations in respect of the conversion of the outstanding
shares of Class B Common Stock by delivery of purchased shares of
Class A Common Stock which are held in treasury of the
Corporation. All the shares of Class A Common Stock so issuable
shall, when so issued, be duly and validly issued, fully paid and
nonassessable, and free from liens and charges with respect to
the issue. The Corporation shall take all actions as may be
necessary to ensure that all such shares of Class A Common Stock
may be so issued without violation of any applicable law or
regulation, or of any requirements of any national securities
exchange upon which the shares of Class A Common Stock are or may
be listed, or of any inter-dealer quotation system of a
registered national securities association upon which the shares
of Class A Common Stock are or may be listed.
(h) Taxes. The issuance of a certificate for shares of
Class A Common Stock upon conversion of shares of Class B Common
Stock shall be made without charge for any stamp or other similar
tax in respect of such issuance. However, if any such certificate
is to be issued in a name other than that of the holder of the
shares of Class B Common Stock converted, the person or persons
requesting the issuance thereof shall pay to the Corporation the
amount of any tax which may be payable in respect of any transfer
involved in such issuance or shall establish to the satisfaction
of the Corporation that such tax has been paid or is not required
to be paid.
ARTICLE VII
Board of Directors
SECTION 1. Number and Terms. The number of directors
which shall constitute the whole Board of Directors shall be
determined in the manner provided in the Bylaws of the
Corporation. The Board of Directors shall be divided into three
classes, designated Class I, Class II and Class III, which shall
be as nearly equal in number as possible. The initial directors
of Class I shall hold office for a term expiring at the next
succeeding annual meeting; the initial directors of Class II
shall be elected to hold office for a term expiring at the second
succeeding annual meeting and the initial directors of Class III
shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Beginning with the next succeeding
annual meeting, directors shall be chosen for a term of three
years to succeed those whose terms then expire and shall hold
office until the third following annual meeting of stockholders
and until election of their respective successors.
SECTION 2. Vacancies. Any vacancy on the Board of
Directors, whether arising through death, resignation or removal
of a director or through an increase in the number of directors
of any class, shall be filled by a majority vote of all remaining
directors. The term of office of any director elected to fill
such a vacancy shall expire at the expiration of the term of
office of directors of the class in which the vacancy occurred.
SECTION 3. Other Provisions. Notwithstanding any other
provision of this Article VII, and except as otherwise required
by law, whenever the holders of any one or more series of
Preferred Stock or other securities of the Corporation shall have
the right, voting separately as a class, to elect one or more
directors of the Corporation, the term of office, the filling of
vacancies and other features of such directorships shall be
governed by the terms of this Restated Certificate of
Incorporation applicable thereto, and unless the terms of this
Restated Certificate of Incorporation expressly provide
otherwise, such directorship shall be in addition to the number
of directors provided in the Bylaws and such directors shall not
be classified. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE VIII
Bylaws
The power to adopt, alter, amend or repeal the Bylaws
of the Corporation shall be vested in the Board of Directors. The
stockholders of the Corporation may adopt, amend or repeal the
Bylaws of the Corporation only by the affirmative vote of holders
of at least 66 2/3% of the combined voting power of the then
outstanding shares of stock of all classes and series of the
Corporation entitled to vote generally on matters requiring the
approval of stockholders (the "Voting Stock").
ARTICLE IX
Stockholder Meetings
Any action required or permitted to be taken by the
stockholders of the Corporation must be taken at a duly called
and noticed meeting of stockholders and may not be taken by
consent in writing, unless such action requiring or permitting
stockholder approval is approved by a majority of the directors
then in office. An action required or permitted to be taken by
the stockholders which has been approved by a majority of the
directors may be taken by consent in writing if the consent is
signed by the record holders of no less than the Voting Stock
that would otherwise be required for approval of such action.
ARTICLE X
Amendments
The provisions set forth in Articles VI, VII, VIII and
IX and in this Article X may not be repealed, rescinded, altered
or amended, and no other provision may be adopted which is
inconsistent therewith or impairs in any way the operation or
effect thereof, except by the affirmative vote of holders of not
less than 66 2/3% of the Voting Stock.
Consistent with the preceding sentence, the corporation
reserves the right to adopt, repeal, rescind, alter or amend in
any respect any provision contained in this Restated Certificate
of Incorporation as prescribed by applicable law.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Restated Certificate of Incorporation to be executed in its
corporate name this 11th day of April, 1996.
PLANET HOLLYWOOD INTERNATIONAL,
INC., a Delaware corporation
By:/s/ Scott E. Johnson
Name: Scott E. Johnson
Title: Vice President
<PAGE>
EXHIBIT 3
<PAGE>
As approved and adopted
by the Board of Directors
as of April _, 1996
FIRST AMENDED AND RESTATED BY-LAWS
OF
PLANET HOLLYWOOD INTERNATIONAL, INC.
ARTICLE I
Meetings of Shareholders
SECTION 1. Annual Meeting. The annual meeting of the
shareholders of this Corporation for the election of directors
and for the transaction of any proper business shall be held at
the time and place designated by the Board of Directors (the
"Board") of the Corporation. The annual meeting shall be held
within 4 months after the close of the Corporation's fiscal year.
SECTION 2. Special Meetings. Special meetings of the
shareholders shall be held when called by the Chief Executive
Officer or by a majority of the Board of Directors. Special
meetings may not be called by any other person. Written notice of
a special meeting pursuant to Section 4 herein shall be given to
all shareholders entitled to vote at such meeting not less than
10 nor more than 60 days before the date of the meeting. Each
such special meeting shall be held at such date and time as
requested by the person or persons calling the meeting within the
limits fixed by law. Business transacted at any special meeting
of shareholders shall be limited to the purposes stated in the
notice.
SECTION 3. Place. Meetings of shareholders may be held
in the State of Delaware or outside the State of Delaware.
SECTION 4. Notice. Written notice stating the place,
date and time of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called,
shall be delivered not less than 10 nor more than 60 days before
the meeting, either personally or by first class mail, by or at
the direction of the President, the Secretary, or the officer or
persons calling the meeting to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be
effective when deposited in the United States mail addressed to
the shareholder at his address as it appears on the Corporation's
current record of shareholders.
SECTION 5. Notice of Adjourned Meetings. When a meeting
is adjourned to another time or place, it shall not be necessary
to give any notice of the adjourned meeting if the time and place
to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted on the
original date of the meeting. If, however, the adjournment is for
more than 30 days, or if, after the adjournment, the Board of
Directors fixes a new record date for the adjourned meeting, a
notice of the adjourned meeting shall be given as provided in
Section 4 herein to each shareholder of record on the new record
date entitled to vote at such meeting.
SECTION 6. Notice of Shareholder Business and
Nominations. Except as may otherwise be provided herein, or in
the Restated Certificate of Incorporation in connection with
rights to elect directors under specified circumstances which may
be granted to the holders of any series of Preferred Stock,
nominations for the election of directors and the proposal of
business to be considered by the shareholders may be made by the
Board or any shareholder of record entitled to vote at the
meeting and who complies with the notice procedures set forth in
this by-law.
For nominations or other business to be properly
brought before an annual meeting by a shareholder, the
shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation and such other business must
otherwise be a proper matter for shareholder action. Except as
otherwise provided by applicable law, to be timely, a
shareholder's notice must be delivered to the Secretary of the
Corporation at the Corporation's principal executive offices not
later than the close of business on the 60th day, nor earlier
than the close of business on the 90th 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 30 days before or 60 days after such anniversary date,
notice by the shareholder must be so delivered not earlier than
the close of business on the later of the 60th day prior to such
meeting or the 10th day following the day on which public
announcement of the date of such meeting is made by the
Corporation. In no event shall public announcement of an
adjournment of an annual meeting commence a new time period for
giving of a shareholder's notice as described above.
Such shareholder's notice shall set forth (a) as to
each person whom the shareholder proposes to nominate for
election to the Board of Directors, all information relating to
such person required to be disclosed in solicitation of proxies
for election of directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934 (including such person's written
consent to being named in the proxy statements as a nominee and
to serving as a director if elected); (b) as to any other
business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such
business of such shareholder and the beneficial owner, if any, on
whose behalf the nomination or proposal is made; and (c) as to
the shareholder giving notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name
and address of such shareholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the
class and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and beneficial
owner. Notice of nominations which are proposed by the Board
shall be given by the Chairman, the President or the Secretary of
the Corporation on behalf of the Board.
The chairperson of the meeting may, if the facts
warrant, determine and declare to the meeting that a nomination
was not made in accordance with the foregoing procedure, and if
he or she should so determine, he or she shall so declare to the
meeting and the defective nomination shall be disregarded.
SECTION 7. Fixing Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled
to receive payment of any distribution, or in order to make a
determination of shareholders for any other purpose, the Board of
Directors may fix in advance a date as the record date for any
determination of shareholders, such date in any case to be not
more than 60 days and, in case of a meeting of shareholders, not
less than 10 days prior to the date on which the particular
action requiring such determination of shareholders is to be
taken.
If the stock transfer books are not closed and no
record date is fixed for the determination of shareholders
entitled to notice or to vote at an annual or special meeting of
shareholders, or shareholders entitled to receive payment of a
distribution, the date on which notice of the meeting is mailed
or the date on which the resolution of the Board of Directors
declaring such distribution is adopted, as the case may be, shall
be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote
at any meeting of shareholders has been made as provided in this
section, such determination shall apply to any adjournment
thereof, unless the Board of Directors fixes a new record date
for the adjourned meeting. A new record date must be fixed if the
meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting.
SECTION 8. Voting Record. The officers or agent having
charge of the stock transfer books for shares of the Corporation
shall make, at least 10 days before each meeting of shareholders,
a complete alphabetical list of the shareholders entitled to vote
at such meeting or any adjournment thereof, arranged by voting
group with the address of and the number and class and series, if
any, of shares held by each. The list, for a period of 10 days
prior to such meeting, shall be available for inspection at the
principal office of the Corporation, or at the office of the
transfer agent or registrar of the Corporation or at a place
identified in the meeting notice in the city where the meeting
will be held. Upon written demand to the Corporation, any
shareholder or his agent or attorney shall be entitled to inspect
the list at any time during usual business hours. The list shall
also be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any shareholder
or his agent or attorney at any time during the meeting.
<PAGE>
If the requirements of this section have not been
substantially complied with, the meeting, on demand of any
shareholder in person or by proxy, shall be adjourned until the
requirements are complied with. If no such demand is made,
failure to comply with the requirements of this section shall not
affect the validity of any action taken at such meeting.
SECTION 9. Shareholder Quorum and Voting. A majority of
all then outstanding shares of voting stock entitled to vote,
represented in person or by proxy, shall constitute a quorum at a
meeting of shareholders. When a specified item of business is
required to be voted on by a class or series of stock, a majority
of the shares of such class or series shall constitute a quorum
for the transaction of such item of business by that class or
series.
If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to
vote on the subject matter shall be the act of the shareholders
unless otherwise provided by law or by the Restated Certificate
of Incorporation.
After a quorum has been established at a shareholders'
meeting, the subsequent withdrawal of shareholders, so as to
reduce the number of shareholders entitled to vote at the meeting
below the number required for a quorum, shall not affect the
validity of any action taken at the meeting or any adjournment
thereof.
SECTION 10. Voting of Shares. Each outstanding share of
Class A Common Stock shall be entitled to one vote on each matter
submitted to a vote at a meeting of shareholders. Except as
required by applicable law, shares of Class B Common Stock shall
not be entitled to any votes for the election of directors or on
any matter presented to the shareholders.
Shares of stock of this Corporation owned directly or
indirectly by another corporation the majority of the voting
stock of which is owned, directly or indirectly, by this
Corporation are not entitled to vote, and shall not be counted in
determining the total number of outstanding shares at any given
time.
A shareholder or the shareholder's attorney in fact may
vote either in person or by proxy executed in writing by the
shareholder or his duly authorized attorney-in-fact.
At each election for directors every shareholder
entitled to vote at such election shall have the right to vote,
in person or by proxy, the number of votes represented by the
shares owned by him for as many persons as there are directors to
be elected at that time and for whose election he has a right to
vote.
Shares standing in the name of another corporation,
domestic or foreign, may be voted by the officer, agent, or proxy
designated by the by-laws of the corporate shareholder; or, in
the absence of any applicable by-law, by such person as the board
of directors of the corporate shareholder may designate. Proof of
such designation may be made by presentation of a certified copy
of the by-laws or other instrument of the corporate shareholder.
In the absence of any such designation, or in case of conflicting
designation by the corporate shareholder, the chairman of the
board, president, any vice president, secretary and treasurer of
the corporate shareholder shall be presumed to possess, in that
order, authority to vote such shares.
Shares held by an administrator, executor, guardian,
personal representative, or conservator may be voted by him,
either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be
voted by him, either in person or by proxy, but no trustee shall
be entitled to vote shares held by him without a transfer of such
shares into his name or the name of his nominee.
Shares held by or under the control of a receiver,
trustee in bankruptcy proceedings or an assignee for the benefit
of creditors, may be voted by such receiver, trustee or assignee,
without the transfer thereof into the name of such receiver,
trustee or assignee.
A shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been
transferred into the name of the pledgee, and thereafter the
pledgee or his nominee shall be entitled to vote the shares so
transferred.
On and after the date on which written notice of
redemption of redeemable shares has been mailed to the holders
thereof and a sum sufficient to redeem such shares has been
deposited with a bank, trust company or other financial
institution, with irrevocable instruction and authority to pay
the redemption price to the holders thereof upon surrender of
certificates therefor, such shares shall not be entitled to vote
on any matter and shall not be deemed to be outstanding shares.
SECTION 11. Written Consent of Shareholders. Any action
required or permitted to be taken by the shareholders of the
Corporation must be effected at a duly called annual or special
meeting of the shareholders, unless such action is approved by a
majority of the Board of Directors. In the event of such
approval, such action may be taken without a meeting, without
prior notice and without a vote if a consent in writing, setting
forth the action so taken, shall be signed by the holders of
outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take such action at
a meeting of shareholders at which all shares entitled to vote
thereon were present and voted, provided that all requirements of
law and the Restated Certificate of Incorporation have been
satisfied. To be effective, the executed written consent of the
shareholders must be delivered to the Corporation within 60 days
of the date the earliest written consent is received by the
Corporation. If any class of shares is entitled to vote thereon
as a class, such written consent shall be required of the holders
of a majority of the shares of each class of shares entitled to
vote thereon.
After obtaining such authorization by written consent,
notice shall promptly be given to those shareholders who have not
consented in writing or who are not entitled to vote on the
action. The notice shall fairly summarize the material features
of the authorized action and, if the action be a merger,
consolidation or sale or exchange of assets for which dissenters
rights are provided by law, the notice shall contain a clear
statement of the right of shareholders dissenting therefrom to be
paid the fair value of their shares upon compliance with further
provisions of the law regarding the rights of dissenting
shareholders.
SECTION 12. Waiver of Notice of meetings of
Shareholders. Notice of a meeting of the shareholders need not be
given to any shareholder who signs a Waiver of Notice either
before or after the meeting. Attendance of a shareholder at a
meeting shall constitute a waiver of notice of such meeting and
waiver of any and all objections to the place of the meeting, the
time of the meeting, the manner in which it has been called or
convened, or the matters considered at a meeting except when a
shareholder states, at the beginning of the meeting, any
objection to the transaction of business because the meeting is
not lawfully called or convened, or except when a shareholder
objects to considering a particular matter that is not within the
purposes described in the meeting notice.
Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the shareholders
need be specified in any written Waiver of Notice of such
meeting.
ARTICLE II
Directors
SECTION 1. Function. All corporate powers shall be
exercised by or under the authority of, and the business and
affairs of the Corporation shall be managed under the direction
of, the Board of Directors.
SECTION 2. Qualification. Directors must be natural
persons who are 18 years of age or older, but need not be
residents of this state or shareholders of this Corporation.
SECTION 3. Compensation. The Board of Directors shall
have authority to fix the compensation of directors.
SECTION 4. Duties of Directors. A director shall
perform his duties as a director, including his duties as a
member of any committee of the board upon which he may serve, in
good faith, in a manner he reasonably believes to be in the best
interests of the Corporation, and with such care as an ordinarily
prudent person in a like position would use under similar
circumstances.
<PAGE>
In performing his duties, a director shall be entitled
to rely on information, opinions, reports or statements,
including financial statements and other financial data, in each
case prepared or presented by:
(a) one or more officers or employees of the
Corporation whom the director reasonably believes to be reliable
and competent in the matters presented;
(b) counsel, public accountants or other persons as to
matters which the director reasonably believes to be within such
person's professional or expert competence; or
(c) a committee of the Board upon which he does not
serve, duly designated in accordance with a provision of the
Restated Certificate of Incorporation or the By-laws, as to
matters within its designated authority, which committee the
director reasonably believes to merit confidence.
A director shall not be considered to be acting in good
faith if he has knowledge concerning the matter in question that
would cause such reliance described above to be unwarranted.
In discharging his duties, a director may consider such
factors as the director deems relevant, including the long- term
prospects and interests of the Corporation and its shareholders,
and the social, economic, legal, or other effects of any action
on the employees, suppliers, customers of the Corporation or its
subsidiaries, the communities and society in which the
Corporation or its subsidiaries operate, and the economy of the
state and the nation.
A person who performs his duties in compliance with
this section shall have no liability by reason of being or having
been a director of the Corporation.
SECTION 5. Presumption of Assent. A director of the
Corporation who is present at a meeting of its Board of Directors
or a committee of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to
the action taken unless (a) he objects at the beginning of the
meeting (or promptly upon his arrival) to holding it or
transacting specified business at the meeting; or (b) he votes
against such action or abstains from voting in respect thereto.
SECTION 6. Number. Except as may otherwise be provided
pursuant to the Restated Certificate of Incorporation in
connection with rights to elect directors which may be granted to
the holders of any series of Preferred Stock, the number of
directors which shall constitute the whole Board shall be fixed
from time to time exclusively pursuant to a resolution adopted by
a majority of the Board of Directors. The directors, other than
those who may be elected by the holders of any shares of
Preferred Stock under specified circumstances, shall be divided,
with respect to the time for which they severally hold office,
into three classes, as nearly equal in number as is reasonably
possible, with the term of office of the first class to expire at
the 1997 annual meeting of shareholders, the term of office of
the second class, to expire at the 1998 annual meeting of
shareholders and the term of office of the third class to expire
at the 1999 annual meeting of shareholders, with each director to
hold office until his or her successor has been duly elected and
qualified. At each annual meeting of shareholders, commencing
with the 1997 annual meeting, (i) directors elected to succeed
those directors whose terms shall expire shall be elected for a
term of office to expire at the third succeeding annual meeting
of shareholders after their election, each director to hold
office until his or her successor shall have been duly elected
and qualified, and (ii) if authorized by a resolution of the
Board of Directors, directors may be elected to fill any vacancy
on the Board of Directors, regardless of how such vacancy shall
have been created.
SECTION 7. Election of Directors. Except as may
otherwise be provided pursuant to the Restated Certificate of
Incorporation in connection with the rights to elect directors
under specified circumstances which may be granted to the holders
of any series of Preferred Stock, and except as otherwise
provided pursuant to Section 8 of this Article II, directors
shall be elected by shareholders of the Corporation. Except as
otherwise provided by applicable law, at each election the
persons receiving the greatest number of votes, up to the number
of directors then to be elected, shall be the persons then
elected. Each director shall serve until his or her successor is
elected and qualified or until his or her death, resignation or
removal. The election of directors is subject to any provisions
relating thereto contained in the Restated Certificate of
Incorporation.
SECTION 8. Vacancies. Except as may otherwise be
provided pursuant the Restated Certificate of Incorporation in
connection with rights to elect additional directors under
specified circumstances which may be granted to the holders of
any series of Preferred Stock, newly created directorships
resulting from any increase in the number of directors, or any
vacancies on the Board of Directors resulting from death,
resignation, removal or other causes, shall be filled solely by
the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office until such director's successor shall
have been elected and qualified or until such director's death,
resignation or removal, whichever first occurs. No decrease in
the number of directors constituting the Board shall shorten the
term of any incumbent director.
SECTION 9. Resignation of Directors. Any director of
the Corporation may resign at any time by giving written notice
to the Chairman of the Board or to the Secretary of the
Corporation. The resignation of any director shall take effect at
the time specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be
necessary to make it effective.
<PAGE>
SECTION 10. Removal of Directors. Subject to the right
to elect directors under specified circumstances which may be
granted pursuant to the Restated Certificate of Incorporation to
the holders of any series of Preferred Stock and unless otherwise
provided by law, any director may be removed from office without
cause only by the affirmative vote of the holders of at least 66
2/3% of the voting power of the then outstanding shares of voting
stock, voting together as a single class.
SECTION 11. Quorum and Voting. A majority of the number
of directors fixed by these By-laws or by resolution of the Board
of Directors shall constitute a quorum for the transaction of
business. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the
Board of Directors.
SECTION 12. Director Conflicts of Interest. No contract
or other transaction between this Corporation and one or more of
its directors or any other corporation, firm, association or
entity in which one or more of the directors are directors or
officers or are financially interested, shall be either void or
voidable because of such relationship or interest or because such
director or directors are present at the meeting of the Board of
Directors or a committee thereof which authorizes, approves or
ratifies such contract or transaction or because his or their
votes are counted for such purpose, if:
(a) the fact of such relationship or interest is
disclosed or known to the Board of Directors or committee which
authorizes, approves or ratifies the contract or transaction by a
vote or consent sufficient for the purpose without counting the
votes or consents of such interested directors; or
(b) the fact of such relationship or interest is
disclosed or known to the shareholders entitled to vote and they
authorize, approve or ratify such contract or transaction by vote
or written consent; or
(c) the contract or transaction is fair and reasonable
as to the Corporation at the time it is authorized by the Board,
a committee or the shareholders.
Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors of a committee thereof which authorizes, approves or
ratifies such contract or transaction.
SECTION 13. Executive and Other Committees. The Board
of Directors, by resolution adopted by a majority of the full
Board of Directors, may designate from among its members an
executive committee and one or more other committees each of
which, to the extent provided in such resolution, shall have and
may exercise all the authority of the Board of Directors, except
that no committee shall have the authority to:
<PAGE>
(a) approve or recommend to shareholders actions or
proposals required by law to be approved by shareholders;
(b) designate candidates for the office of director,
for purposes of proxy solicitation or otherwise;
(c) fill vacancies on the Board of Directors or any
committee thereof;
(d) adopt, amend or repeal these By-laws or the
Restated Certificate of Incorporation;
(e) authorize or approve the reacquisition of shares
unless pursuant to a general formula or method specified by the
Board of Directors;
(f) adopt an agreement of merger or consolidation; or
(g) authorize or approve the issuance or sale of, or
any contract to issue or sell, shares or designate the terms of a
series of a class of shares, except that the Board of Directors,
having acted regarding general authorization for the issuance or
sale of shares, or any contract therefor, and, in the case of a
series, the designation thereof, may, pursuant to a general
formula or method specified by the Board of Directors, by
resolution or by adoption of a stock option or other plan,
authorize a committee to fix the terms of any contract for the
sale of the shares and to fix the terms upon which such shares
may be issued or sold, including the price, the rate or manner of
payment of dividends, provisions for redemption, sinking fund,
conversion, voting or preferential rights, and provisions for
other features of a class of shares, or a series of a class of
shares, with full power in such committee to adopt any final
resolution setting forth all the terms thereof and to authorize
the statement of the terms of a series for filing with the office
of the Secretary of State.
The Board of Directors, by resolution adopted in
accordance with this section, may designate one or more directors
as alternate members of any such committee, who may act in the
place and stead of any absent member or members at any meeting of
such committee.
SECTION 14. Changes in Committees; Resignations,
Removals and Vacancies. The Board of Directors shall have power
at any time to change or remove the members of, to fill vacancies
in, and to discharge any committee created pursuant to these
By-laws, either with or without cause. Any member of any such
committee may resign at any time by giving written notice to the
Board or the Chairman of the Board or the Secretary. Such
resignation shall take effect upon receipt of such notice or at
any later time specified therein; and, unless otherwise specified
therein, acceptance of such resignation shall not be necessary to
make it effective. Any vacancy in any committee, whether arising
from death, resignation, an increase in the number of committee
members or any other cause, shall be filled by the Board of
Directors in the manner prescribed in these By-laws for the
original appointment of the members of such committee.
SECTION 15. Place of Meetings. Regular and special
meetings by the Board of Directors may be held within or without
the State of Delaware.
SECTION 16. Time, Notice and Call of Meetings. Regular
meetings of the Board of Directors shall be held at times and
places specified by the Board of Directors without notice of the
date, time, place or purpose of the meeting. Written notice of
the date, time and place of special meetings of the Board of
Directors shall be given to each director at least 2 days before
the meeting. The notice need not describe the purpose of the
special meeting. In addition to any other regular meetings, a
regular meeting of the Board of Directors shall be held, without
other notice than this by-law, immediately after and at the same
place as the annual meeting of shareholders.
Notice of a meeting of the Board of Directors need not
be given to any director who signs a waiver of notice either
before or after the meeting. Attendance of a director at a
meeting shall constitute a waiver of notice of such meeting and
waiver of any and all objections to the place of the meeting, the
time of the meeting, or the manner in which it has been called or
convened, except when a director states, at the beginning of the
meeting, any objection to the transaction of 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 Board of
Directors need be specified in the notice or waiver of notice of
such meeting.
A majority of the directors present, whether or not a
quorum exists, may adjourn any meeting of the Board of Directors
to another time and place. Notice of any such adjourned meeting
shall be given to the directors who were not present at the time
of the adjournment and, unless the time and place of the
adjourned meeting are announced at the time of the adjournment,
to the other directors.
Meetings of the Board of Directors may be called by the
Chairman of the Board, by the President of the Corporation, or by
any two directors.
Members of the Board of Directors may participate in a
meeting of such board by means of a conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same
time. Participation by such means shall constitute presence in
person at a meeting.
SECTION 17. Action Without a Meeting. Any action
required to be taken at a meeting of the directors of the
Corporation, or any action which may be taken at a meeting of the
directors or a committee thereof, may be taken without a meeting
if a consent in writing, setting forth the action to be taken,
signed by all of the directors, or all the members of the
committee, as the case may be, is filed in the minutes of the
proceedings of the Board or of the committee. Such consent shall
have the same effect as a unanimous vote and may be described as
such in any document.
SECTION 18. Advisory Directors. The Board of Directors
shall have the authority to elect a board of outside directors
consisting of two members initially, which number can be
increased or decreased by a vote of the shareholders. The outside
directors shall not be shareholders or officers of the
Corporation, and shall not have voting powers, but rather are to
act in the capacity of consulting and advising the Board of
Directors at their invitation.
ARTICLE III
Officers
SECTION 1. Officers. The officers of this Corporation
shall consist of a President, Chairman of the Board, a Secretary
and a Treasurer, each of whom shall be elected by the Board of
Directors, and shall serve until their successors are chosen and
qualify. Such other officers and assistant officers and agents as
may be deemed necessary may be elected or appointed by the Board
of Directors from time to time.
Any two or more offices may be held by the same person.
The failure to elect a President, Chairman of the Board,
Secretary or Treasurer shall not affect the existence of this
Corporation.
SECTION 2. Duties. The officers of this Corporation
shall have the following duties:
The President shall be the chief executive officer of
the Corporation, shall have general and active management of the
business and affairs of the Corporation subject to the directions
of the Board of Directors, and shall preside at all meetings of
the shareholders and, unless a Chairman of the Board of Directors
has been elected and is present, shall preside at all meetings of
the Board of Directors.
The Chairman of the Board of Directors shall preside at
all meetings of the Board of Directors.
The Secretary shall have custody of, and maintain, all
the corporate records except the financial records, shall have
the authority to execute any and all documents in connection with
intellectual property matters, including, but not limited to,
Powers of Attorney, Appointment of Resident Agent forms and any
other documents which are required in connection with the
intellectual property matters of the Corporation, shall prepare
the minutes of all meetings of the shareholders and Board of
Directors, shall authenticate records of the Corporation; shall
send all notices of meetings out, and shall perform such other
duties as may be prescribed by the Board of Directors or the
President.
The Treasurer shall have custody of all corporate funds
and financial records, shall keep full and accurate accounts of
receipts and disbursements and render accounts thereof at the
annual meetings of shareholders and whenever else required by the
Board of Directors or the President, and shall perform such other
duties as may be prescribed by the Board of Directors or the
President.
SECTION 3. Removal of Officers. Any officer or agent
elected or appointed by the Board of Directors may be removed by
the Board at any time with or without cause.
Removal of any officer shall be without prejudice to
the contract rights, if any, of the person so removed; however,
election or appointment of an officer or agent shall not of
itself create contract rights.
SECTION 4. Resignation of Officers. An officer may
resign at any time by delivering notice to the Corporation. A
resignation is effective when the notice is delivered unless the
notice specifies a later effective date. If a resignation is made
effective at a later date and the Corporation accepts the future
effective date, the Board of Directors may fill the pending
vacancy before the effective date if the Board of Directors
provides that the successor does not take office until the
effective date.
ARTICLE IV
Stock Certificates
SECTION 1. Issuance. Every holder of shares in this
Corporation shall be entitled to have a certificate, representing
all shares to which he is entitled. The Board of Directors may
authorize shares to be issued for consideration consisting of any
tangible or intangible property or benefit to the Corporation,
including cash, promissory notes, services performed, promises to
perform services evidenced by a written contract, or other
securities of the Corporation.
Before the Corporation issues shares, the Board of
Directors must determine that the consideration received for
shares to be issued is adequate. The determination by the Board
of Directors is conclusive insofar as the adequacy of
consideration for the issuance of shares relates to whether the
shares are validly issued, fully paid and nonassessable. When it
cannot be determined that outstanding shares are fully paid and
nonassessable, there shall be a conclusive presumption that such
shares are fully paid and nonassessable if the Board of Directors
makes a good faith determination that there is no substantial
evidence that the full consideration for such shares has not been
paid.
When the Corporation receives the consideration for
which the Board of Directors authorized the issuance of shares,
the shares issued therefor are fully paid and nonassessable.
Consideration in the form of a promise to pay money or a promise
to perform services is received by the Corporation at the time of
the making of the promise, unless the agreement specifically
provides otherwise.
SECTION 2. Form. Certificates representing shares in
this Corporation shall be signed by the President or any vice
president and the Secretary or an assistant secretary and may be
sealed with the seal of this Corporation or a facsimile thereof.
The signatures of the President or any vice president and the
Secretary or an assistant secretary may be facsimiles if the
certificate is manually signed on behalf of a transfer agent or a
registrar, other than the Corporation itself or an employee of
the Corporation. In case any officer who signed or whose
facsimile signature has been placed upon such certificate shall
have ceased to be such officer before such certificate is issued,
it may be issued by the Corporation with the same effect as if he
were such officer at the date of its issuance.
If this Corporation is authorized to issue shares of
more than one class or more than one series of any class, every
certificate representing shares issued by this Corporation shall
set forth or fairly summarize upon the face or back of the
certificate, or shall state that the Corporation will furnish to
any shareholder upon request and without charge a full statement
of, the designations, preferences, limitations and relative
rights of the shares of each class or series authorized to be
issued, and the variations in the relative rights and preferences
between the shares of each series so far as the same have been
fixed and determined, and the authority of the Board of Directors
to fix and determine the relative rights and preferences of
subsequent series.
Every certificate representing shares which are
restricted as to the sale, disposition or other transfer of such
shares shall state that such shares are restricted as to transfer
and shall set forth or fairly summarize upon the certificate, or
shall state that the Corporation will furnish to any shareholder
upon request and without charge a full statement of, such
restrictions.
Each certificate representing shares shall state upon
the face thereof: the name of the Corporation; that the
Corporation is organized under the laws of the State of Delaware;
the name of the person or persons to whom issued; the number and
class of shares; and the designation of the series, if any, which
such certificate represents.
SECTION 3. Transfer of Stock. Transfer of shares of the
Corporation shall be made only on the stock transfer books of the
Corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the
Corporation, and on surrender for cancellation of the certificate
of such shares. The person in whose name shares stand on the
books of the Corporation shall be deemed by the Corporation to be
the owner thereof for all purposes.
SECTION 4. Lost, Stolen, or Destroyed Certificates. The
Corporation shall issue a new stock certificate in the place of
any certificate previously issued if the holder of record of the
certificate (a) makes proof in affidavit form that it has been
lost, destroyed or wrongfully taken; (b) requests the issue of a
new certificate before the Corporation has notice that the
certificate has been acquired by a purchaser for value in good
faith and without notice of any adverse claim; (c) gives bond in
such form as the Corporation may direct to indemnify the
Corporation, the transfer agent and registrar against any claim
that may be made on account of the alleged loss, destruction or
theft of a certificate; and (d) satisfies any other reasonable
requirements imposed by the Corporation.
ARTICLE V
Contracts, Loans, Checks and Deposits
SECTION 1. Contracts. The Board of Directors may
authorize any officer or officers, agent or agents, to enter into
any contract or execute and deliver any instrument in the name of
and on behalf of the Corporation, and such authority may be
general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on
behalf of the Corporation and no evidences of indebtedness shall
be issued in its name unless authorized by a resolution of the
Board of Directors. Such authority may be general or confined to
specific instances.
SECTION 3. Checks, Drafts, etc. All checks, drafts or
other orders for the payment of money, notes or other evidences
of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents, of the
Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 4. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may select.
ARTICLE VI
Books and Records
SECTION 1. Books and Records. The Corporation shall
keep as permanent records, in accordance with applicable law,
minutes of all meetings of its shareholders and Board of
Directors, a record of all actions taken by the shareholders or
Board of Directors without a meeting, a record of all actions
taken by a committee of the Board of Directors in place of the
Board of Directors on behalf of the Corporation, and such books
or records and accounts as may be necessary for the proper
conduct of the business of the Corporation.
SECTION 2. Inspection of Books and Records. The Board
of Directors and, unless otherwise specified by the Board, the
Chairman of the Board and the President shall, subject to
applicable law, have the sole power to determine from time to
time whether and to what extent and at what times and places and
under what conditions and regulations the accounts, books and
records of the Corporation, or any of them, shall be open to the
inspection of the shareholders; and, except as specifically
conferred by law, no shareholder shall have any right to inspect
any account, book, record or document of the Corporation, unless
and until authorized to do so by the Board or, unless otherwise
specified by the Board, by order of the Chairman of the Board or
by the President.
ARTICLE VII
Distributions, Share Dividends and Share Options
SECTION 1. Distributions. The Board of Directors of
this Corporation may, from time to time, authorize and the
Corporation may pay distributions to the shareholders. A
distribution is a direct or indirect transfer of money or other
property (except the Corporation's own shares) or incurrence of
indebtedness by the Corporation to or for the benefit of the
shareholders in respect of any of its shares. A distribution may
be in the form of a declaration or payment of a dividend; a
purchase, redemption, or other acquisition of shares; a
distribution of indebtedness; or otherwise.
No distribution may be made if, after giving it effect:
(a) the Corporation would not be able to pay its debts
as they become due in the usual course of business; or
(b) the Corporation's total assets would be less than
the sum of its total liabilities plus the amount that would be
needed, if the Corporation were to be dissolved at the time of
the distribution, to satisfy the preferential rights upon
dissolution of shareholders whose preferential rights are
superior to those receiving the distribution.
If the Board of Directors does not fix the record date for
determining shareholders entitled to a distribution (other than
one involving a purchase, redemption, or other acquisition of the
Corporation's shares), it is the date the Board of Directors
authorizes the distribution.
The Board of Directors may base a determination that a
distribution is not prohibited either on financial statements
prepared on the basis of accounting practices and principles that
are reasonable in the circumstances or on a fair valuation or
other method that is reasonable in the circumstances. In the case
of any distribution based upon such a valuation, each such
distribution shall be identified as a distribution based upon a
current valuation of assets, and the amount per share paid on the
basis of such valuation shall be disclosed to the shareholders
concurrent with their receipt of the distribution.
SECTION 2. Share Dividends. Unless the Restated
Certificate of Incorporation provides otherwise, shares may be
issued pro rata and without consideration to the Corporation's
shareholders or to the shareholders of one or more classes or
series. An issuance of shares under this section is a share
dividend.
Shares of one class or series may not be issued as a
share dividend in respect of shares of another class or series
unless:
(a) the Restated Certificate of Incorporation so
authorizes;
(b) a majority of the votes entitled to be cast by the
class or series to be issued approves the issue; or
(c) there are no outstanding shares of the class or
series to be issued.
If the Board of Directors does not fix the record date for
determining shareholders entitled to a share dividend, it is the
date the Board of Directors authorizes the share dividend.
SECTION 3. Share Options. Unless the Restated
Certificate of Incorporation provides otherwise, the Corporation
may issue rights, options or warrants for the purchase of its
shares. The Board of Directors shall determine the terms upon
which the rights, options or warrants are issued, their form and
content, and the consideration for which the shares are to be
issued.
The terms and conditions of stock rights and options
which are created and issued by the Corporation, or its
successor, and which entitle the holders thereof to purchase from
the Corporation shares of any class or classes, whether
authorized but unissued shares, treasury shares or shares to be
purchased or acquired by the Corporation, may include
restrictions or conditions that preclude or limit the exercise,
transfer, receipt or holding of such rights or options by any
person or persons, including any person or persons owning or
offering to acquire a specified number or percentage of the
outstanding common shares or other securities of the Corporation,
or any transferee or transferees of any such person or persons,
or that invalidate or void such rights or options held by any
such person or persons or any such transferee or transferees.
ARTICLE VIII
Corporate Seal
The Board of Directors shall provide a corporate seal
which shall have inscribed thereon the name of the Corporation
and such other words and figures and in such design as may be
prescribed by the Board of Directors, and may be facsimile,
engraved, printed or an impression, or other type seal.
ARTICLE IX
Fiscal Year
The fiscal year of the Corporation shall, by
resolution, be determined by the Board of Directors.
ARTICLE X
Indemnification of Directors,
Officers, Employees and Agents
SECTION 1. Action Against Party Because of Corporate
Position. The Corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed claim, 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 he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, partner, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees inclusive
of any appeal), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
claim, action, suit or proceeding if he acted in good faith and
in a manner he 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
his conduct unlawful. The termination of any claim, action, suit
or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which he 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 reasonable
cause to believe that his conduct was unlawful.
SECTION 2. Action by or in the Right of Corporation.
The Corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed claim, action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, partner, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees inclusive
of any appeal) actually and reasonably incurred by him in
connection with the defense or settlement of such claim, action
or suit if he acted in good faith and in a manner he 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 for negligence or
misconduct in the performance of his duty to the Corporation
unless and only to the extent that a court of competent
jurisdiction (the "Court") in which such claim, 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 which the Court shall deem proper.
SECTION 3. Reimbursement If Successful. To the extent
that a director, officer, employee or agent of the Corporation
has been successful on the merits or otherwise in defense of any
claim, action, suit or proceeding referred to in Sections 1 or 2
of this Article X, or in defense of any claims, issue or matter
therein, he shall be indemnified against expenses (including
attorneys fees inclusive of any appeal) actually and reasonably
incurred by him in connection therewith, notwithstanding that he
has not been successful (on the merits or otherwise) on any other
claim, issue or matter in any such claim, action, suit or
proceeding.
SECTION 4. Authorization. Any indemnification under
Sections 1 and 2 of this Article X (unless ordered by a court)
shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in Sections 1 and 2. Such determination shall
be made (a) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such
action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (c) by the shareholders.
SECTION 5. Advanced Reimbursement. Expenses incurred in
defending a civil or criminal action, suit or proceeding may be
paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized in
this Article.
SECTION 6. Indemnification Not Exclusive. The
indemnification provided by this Article shall be deemed
exclusive of any other rights to which those indemnified may be
entitled under any statute, rule of law, provision of the
Restated Certificate of Incorporation, by-law, agreement, vote of
shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another
capacity, while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. Where such other provision
provides broader rights of indemnification than these by-laws,
said other provision shall control.
SECTION 7. 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, partner, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the
provisions of this Article.
ARTICLE XI
Amendment
Except as otherwise provided herein, these By-laws may
be altered, amended or repealed or new by-laws may be adopted by
the shareholders or by the Board of Directors at any regular
meeting of the shareholders or of the Board of Directors or at
any special meeting of the shareholders or of the Board of
Directors if notice of such alteration, amendment, repeal or
adoption of new By-laws be contained in the notice of such
special meeting; provided, however, that in the case of
amendments by shareholders, notwithstanding any other provisions
of these By-laws or any other provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series
of the capital stock required by law, the Restated Certificate of
Incorporation or these By-laws, the affirmative vote of the
holders of at least 66 2/3% of all then outstanding shares of
voting stock of the Corporation, voting together as a single
class, shall be required to alter, amend or repeal any provision
of these By-laws.
ARTICLE XII
Emergency By-laws
SECTION 1. Emergency By-laws. The Board of Directors
may adopt by-laws to be effective only in an emergency. An
emergency exists for the purposes of this section if a quorum of
the Corporation's directors cannot readily be assembled because
of some catastrophic event. The emergency by-laws, which are
subject to amendment or repeal by the shareholders, may make all
provisions necessary for managing the Corporation during an
emergency, including:
(a) procedures for calling a meeting of the Board of
Directors;
(b) quorum requirements for the meeting; and
<PAGE>
(c) designation of additional or substitute directors.
SECTION 2. Line of Succession. The Board of Directors,
either before or during such emergency, may provide, and from
time to time modify, lines of succession in the event that during
such emergency any or all officers or agents of the Corporation
are for any reason rendered incapable of discharging their
duties.
SECTION 3. Governing By-laws. All provisions of these
By-laws consistent with the emergency by-laws remain effective
during the emergency. The emergency by-laws are not effective
after the emergency ends.
SECTION 4. Effect of Corporation Action. Corporate
action taken in good faith in accordance with the emergency
by-laws;
(a) binds the Corporation; and
(b) may not be used to impose liability on a corporate
director, officer, employee or agent.
